Zach's Attack Outline

CON LAW OUTLINE MCGOLDRICK CON LAW: IR ON A W I. SUBSTANTIVE DUE PROCESS A. Economic Regulatory Legislation – Rational Basis Test 1. 2. 3. 4. 5. 6. Test: Does the regulation rationally relate to legitimate governmental ends. Corporations are persons [Santa Clara v. Southern Pacific]. If a statute purporting to have been enacted to protect public health, morals, or safety, has no substantial relation to those subjects, or is an obvious invasion of individual rights secured by fundamental law, it is court‟s duty to so adjudge and give effect to the Constitution. [Mugler v. Kansas] Constitutional standard to be applied in reviewing rate regulations : “the basis of all calculations as to the reasonableness of rates to be charged must be the fair value of the property being used by it for the convenience of the public.” [Smith v. Ames] Allgeyer v. Louisiana Lochner v. New York – strict scrutiny a. Statute limited hours a person could work per week held invalid exercise of police powers violating due process of employee. b. Test = Whether the regulation is a fair, reasonable and appropriate exercise of police power or is it unreasonable and arbitrary interference with the right of the individual to his personal liberty. i. Dissent : ii. Where the validity of a statute is questioned, the burden of proof is upon those who assert it to be unconstitutional. Post Lochner Developments a. Liberty of Contract and Labor Legislation b. Liberty of Contract & Business Regulations Relating to Prices & Other Economic Issues c. Regulations of Business Designed to Protect Public Health d. Nebia v. New York Overturning of Adkins v. Children’s Hospital upholding a minimum wage law for women & children. a. 1937 was key time for the ct. The ct acknowledged the importance of legislative deference. The ct then rejects the reasonable basis test. US v. Carolene Products = This case introduces the rational basis test (in place of the reasonable basis test from Weaver). With this test the ct just looks for any reasonable reason for the legislation‟s being passed. Rational is less than reasonable allowing for any basis rather than a reasonable basis. The Demise of Liberty of Contract Williamson v. Lee Optical of Oklahoma Ferguson v. Skrupa Does the Due Process Clause today impose any limitations on the Substance of Economic Regulatory legislation? State courts & Business Regulations 7. 8. 9. 10. 11. 12. 13. 14. B. Protection of Personal Liberties – Compelling State Interest Test 1. Test : Is the regulation narrowly tailored to serve a compelling governmental interest. If some better way of serving the interest is possible, the regulation fails this test (consideration of reasonable, adequate alternatives). a. Look first for compelling state interest b. Look at the relationship part of the test to see if the law is necessary to advance the compelling state interest. The Right to Privacy: This is not mentioned in the Constitution but some justices have found it recognized in the 9 th Amd (“the enumeration of certain rights shall not be construe to deny or disparage others retained by the people” – although courts don‟t apply this). The right has also been found implicit in the “liberty” concept in the Due Process clause of the 14 th Amd (cts usually find the right here). Since it is not mentioned explicitly in the Constitution the court has to find why it is fundamental requiring 2. PAGE 1 OF 9 CON LAW OUTLINE MCGOLDRICK 3. 4. strict scrutiny. This is done in the Griswold. This right is fundamental b/c without this peripheral right to the privacy, the specific rights enumerated in the Constitution would be meaningless. E.g. The first amd‟s right to free speech includes the right to privacy of thought which would mean nothing where the due process clause did not protect that privacy right. Do Minors have the right to Privacy : Casey v. Population Services : The court divided. A plurality of the ct (not binding) thought that minors did have the fundamental right to privacy. But it hasn‟t been decided precedentially yet b/c this was not a majority. Examples of Privacy Rights: a. Marriage : Zablocki v. Redhail : This involved the fundamental right to marry. The ct said significant and unreasonable restrictions on the right to marry will get a compelling interest level of review. But most regulations on marriage, which are not significant, will get rational basis review. Test: So first determine if this is a (1) significant and (2) unreasonable restriction on the right to marry. Depending on how this determination comes out, you will apply either compelling state interest or rational basis test. i. In terms of gay marriage, would requiring a man and woman for this right be considered unreasonable and significant? Argue it. b. Procreation: Skinner v. Oklahoma : this case said certain criminals would be sterilized after 3 serious felonies. Ct said that procreation was a fundamental right and struck down this law. c. Child Rearing & Education : Pierce v. Society of Sisters : Oregan law banned private schools. The ct said this violates the right of parents to make the private choice of how to educate their kids. i. Moore v. City of East Cleveland : Housing ordinance gave narrow definition to “family” permitted to live in same house (grandmother was prevented from living with her grandson). The government justified this as a means of preventing overcrowding, minimizing traffic and parking congestion, and avoiding an undue financial burden on the school system. This involved the fundamental right to child rearing and required a compelling state interest. Limiting the occupants of the house to related members served govt interests only marginally b/c a family allowed to live together under the statute could all be drivers, whereas a family denied under the statute could also ride the bus. Since, this definition of family does not necessarily limit or deter increased traffic, it fails the compelling state interest test. (1) Michael H v. Gerald D : tells how hard it is to determine what is and isn‟t a child rearing issue. This was not. Right of natural daughter to have some contact with her natural father does not fall under due process rights. (2) Troxel v. Granville : statute that allowed any person to petition to court for visitation rights to kids unconstitutionally violated the mother‟s right fundamental due process right to make decisions concerning the care, custody, and control of the daughters. This is not a per se rule, so that a narrower grant of visitation rights which gave more weight to the parental authority would be okay. ii. No clear line drawn her. This will require more discussion to see if its more like Moore or Troxel or more like Michael H. d. e. Contraception : Griswold v. Conneticut : The statute challenged in this case prohibited the use, or aid in the use, of birth control by married couples. The test is strict scrutiny here b/c the right to privacy is a fundamental right. One has the right to privacy in marital affairs. The ct invalidated the statute w/out considering government‟s justifications. Married persons have the right to use contraceptives. i. Eisenstadt v. Baird : this extended Griswold „s right to use contraception to single persons. ii. Privacy as Autonomy v. Privacy as Freedom from Intrusion and Disclosure : Griswold uses the “privacy” in the sense of protecting private matters from disclosure. Roe v. Wade gives “privacy” broader meaning protecting personal autonomy. Whalen v. Roe held that a statute stating that a state could computerize the names and addresses of people prescribed certain drugs (both legal and illegal) was upheld b/c it did not threaten the interest in nondisclosure of private info b/c the info was only available to governmental personnel. Abortion : Roe v. Wade : In this case, the court held that a statute which prohibited all abortions except those performed to save the mother‟s life, was overbroad. Ct held that the procedure‟s danger to the mother was no longer significant enough to justify the infringement on the mother‟s liberty (given advancement of technology). However, the right is not absolute b/c at some point in the pregnancy, the interest in protecting the health of the mother or the potential life, becomes compelling and justified a limit. Thus, the statute if limited to abortions after a certain pnt in the pregnancy will be justified by a compelling gov‟t interest and therefore upheld. Here, the statute was too broad and therefore unconstitutional. i. Before Fetal viability Undue Burden Test: Planned Parenthood v. Casey : Court may not impose an undue burden on the woman‟s right to choose an abortion prior to fetus becoming viable. At that point, the state interest in protecting the child‟s health overrides the mother‟s liberty. Pre-viability, the standard is, does PAGE 2 OF 9 CON LAW OUTLINE MCGOLDRICK 5. 6. the state‟s regulation unduly burden the woman‟s constitutionally protected liberty. Post viability, it is just a rational basis test. (1) NO Spousal Consent: Cannot require husband‟s consent for abortion b/c maintaining the pregnancy is a greater burden on the woman‟s liberty than on the man‟s. This violates undue burden test. (2) NO Spousal Notice : No right to consent so no right to notice (3) Parental Consent & Notice Required: Parental consent is still required for minors provided there is some kind of judicial bypass procedure w/ following two elements: (a) Judge must have authority to determine that minor is sufficient to make her own decision. (b) If the minor is not sufficiently mature to make her decision, Judge must have the authority to determine that abortion is in the best interest of the minor. (4) Informed consent : Required for doctors. Under compelling state interest test, some provisions were struck down. Under undue burdens test, the ct is more tolerant of informed consent provisions that attempt to influence the decision to have the abortion. (5) Miscellaneous : Other types of regulations on abortions are tested with the undue burden standard. ii. Funding for abortions gets Rational Basis Test: Harris v. McRae : Where a statute prohibiting the use of fed funds to reimburse abortions under Medicaid was challenged as unconstitutional, it was upheld on the following grounds. Due Process Analysis : The ct found that it did not place an obstacle in the woman‟s path to an abortion. The state has the right to pass regulations making childbirth a more attractive option than abortion. This was state encouragement rather than direct state interference. Equal Protection : the classification is women who want abortions v. women carrying their children to term (which directly impacts mainly indigent women). This does not violate EP b/c this regulation bears a rational relationship to the legitimate gov‟t end of protecting the potential life of the fetus. (1) Russ v. Sullivan : Reagan said Planned Parenthood getting fed funds couldn‟t give abortion information. Challenged as violation of right to privacy and free speech. Ct rejected this finding this was just a funding decision and so only gets a rational basis of review. The law was upheld. iii. Cannot Regulate Medical Procedures for abortions: Stenberg : The ct struck down the law prohibiting partial abortions as overbroad (it seemed to prohibit one of the safest methods), and the law was applied to previability abortions within the right of the mother under Casey and Roe. (1) Exceptions: (a) 2nd Doctor for Late Second term Abortions (Post-Viability) Regulation required 2nd doctor present to save life of the fetus if it was alive when aborted. Ct upheld this law provided that there was an emergency exception. (b) Additional Tests for Late Second Term Abortions . To make sure the doctors were not aborting viable fetus‟ iv. Record keeping Requirements : Doctors must keep records and as long as record info is not disclosed beyond workers who need to know, this does not unduly burden the right to privacy. No fundamental right to homosexual sodomy : Bowers v. Hardwick : Regulation prohibiting sodomy (without regard to homosexual or heterosexual). The court found there is no fundamental right to engage in homosexual sodomy. The ct here viewed the law only as it applied to homosexuals. So the ct applied the rational basis test. No fundamental right to die : Washington v. Glucksberg : This case involved the assertion of a fundamental right to physician assisted suicide. Ct did not accept Cruzan right of parents. This ct rejected Glucksberg’s theory as well. This ct applied rational basis. a. DP Right to refuse medical care: Cruzan v. Missouri : Cruzan in a coma. Wanted to take her off respirators and stopped food. Ct said guardian‟s and parents have right to pull the plug on adults only if they can show with clear and convincing evidence that the person in coma if possible would themselves choose to be taken off machines. b. EP Fundamental Right to Die: Quill : this affirmed the fundamental right to die under the Equal Protection clause. The ct here applied a rational basis test. The distinction btwn the acts of the doctors for the purpose of advancing death and the right of the physician to over prescribe pain killers knowing that it will advance death, is absent. PAGE 3 OF 9 CON LAW OUTLINE MCGOLDRICK II. PROCEDURAL DUE PROCESS: A. The Contract Clause – Compelling State Interest Test 1. CONTRACT CLAUSE EXAM ANALYSIS : STATE THE TEST (A REGULATION NARROWLY TAILORED TO SERVE A LEGITIMATE PUBLIC PURPOSE OUTWEIGHING A SUBSTANTIAL IMPAIRMENT OF INDIVIDUAL RIGHTS WILL BE UPHELD). (1) IDENTIFY A SUBSTANTIAL IMPAIRMENT (PRETTY MUCH ANY IMPAIRMENT FOUND, MOVE ON). IN DETERMINING LEVEL OF IMPAIRMENT LOOK AT WHETHER THE INDUSTRY IS HIGHLY REGULATED IN THE PAST, WHETHER IT CHANGES THE EXECTED RETURN OF INVESTMENTS. (2) MUST BE JUSTIFIED BY A SIGNIFICANT & LEGITIMATE PUBLIC PURPOSE. (THIS CAN BE PRETTY MUCH ANYTHING) (3) THE LAW REASONABLY ADVANCES THAT INTEREST. DEPENDING ON HOW SEVERE THE IMPAIRMENT IS, THE LEVEL OF SCRUTINY WILL VARY (I.E. MORE STRICT REVIEW WHERE THE GOVT IS REGULATING ITS OWN CONTRACT – NOT STRICT SCRUTINY BUT STRICTER THAN NORM) 2. Article I, § 10 (Contract Clause) : “No state shall . . . pass any . . . Law impairing the Obligation of Contracts.” a. A law that “impairs” is one that substantially invalidates, releases, or extinguishes the obligations of a contract, or that derogates substantial contractual rights. b. “Obligation” refers not only to terms of the contract, but also legal rules in force when the contract was made and which become part of the agreement. [US Trust Company v. New Jersey] c. “Contracts” include both public and private agreements. d. Applies on to state legislation, not decisions by state courts. Does not apply to national government. e. Applies to only retroactive impairment of pre-existing contracts. It does not limit the state from prospectively regulating contracts. 3. 4. Rationale for legitimate public purpose requirement : Guarantees that the State is exercising its police power rather than providing a benefit to special interests. Limitations on Private Contracts a. Modification reasonable and necessary for public purpose : A private contract can be modified by legislation that (1) serves an important and legitimate public interest and (2) is a reasonable and narrowly tailored means of promoting that interest. b. Factors considered : Ct considers the severity of the impairment, the reasonable reliance and expectations of the contracting parties, the strength and breadth of the social-economic problem involved, whether the law serves the general public welfare or benefits only special interests, whether the law operates in an area already regulated by the state, and whether the impact of the law is permanent or immediate. [Energy Reserves Group v. Kansas Pwr & Light]. B. In Energy Reserves the court said the significant fact was that the parties were acting in a heavily regulated industry. c. Limitations on Public Contracts i. Subsequent impairments: Subject to basically same as private contracts : important public interest and narrowly tailored means of promoting that interest. El Paso v. Simmons ii. Less deference to legislative judgment : Since a public contract involves self interest of the legislature, there is less deference to its judgment. So its judgment as to whether the regulation is (1) reasonable and (2) narrowly tailored to an important state purpose is given less deference. The Just Compensation (“No Taking”) Clause: Compelling State Interest Test 1. NO TAKING CLAUSE EXAM ANALYSIS : WEIGH THE GOV‟T INTEREST BEING SERVED BY THE REGULATION. USE FACTS TO DISCUSS THE IMPORTANCE TO THE PUBLIC OF THE RESTRICTION BEING IMPOSED. THEN USE FACTS TO ANALYZE THE DEGREE OF THE RESTRICTION ON THE PRIVATE OWNER. DOES IT HURT THE OWNER FINANCIALLY OR IN ANY OTHER WAY? IF IT DECREASES VALUE OF THE PROPERTY, THEN BY HOW MUCH? USE EXAMPLES OF WHAT WE HAVE SEEN TO CONSTITUTE A TAKING TO DISCUSS WHY THIS WILL BE A TAKING LIKE THOSE EXAMPLES. SO ANALYSIS SHOULD GO THROUGH FACTS COMPARED TO PRECEDENT TO FIND ONE WAY OR ANOTHER. IF IT IS NOT FOUND TO BE A TAKING, IT IS JUST A REGULATION THAT REQUIRES DUE PROCESS (RATIONAL BASIS) ANALYSIS. ON THE OTHER HAND, IF THE GOV‟T INTEREST IS NOT SUFFICIENT, THIS WILL CONSTITUTE A TAKING REQUIRING COMPENSATION. 2. 2 BEST CASE SCENARIOS : (1) GOV‟T TAKING YOUR PROPERTY FOR A FREEWAY OR GOV‟T PHYSICAL OCCUPATION. (2) GOV‟T TAKING ALL ECONOMICALLY VIABLE USE (LUCAS CASE). IF YOU DON‟T HAVE A BEST CASE SCENARIO, THE CT MAY STILL FIND COMPENSABLE TAKINGS BY APPLYING THE FOLLOWING BALANCING TEST. THIS IS PENN CENTRAL BALANCING. THE 3 FACTORS TO BE BALANCED HERE ARE (1) THE ECONOMIC IMPACT OF THE LAW (2) THE HARM TO INVESTMENT BASED EXPECTATIONS (3) THE NATURE OF THE TAKING [RETROACTIVE IMPAIRMENT MAY SWING THE BALANCE]. 3. Amendment V : “private property [not] be taken for public use, without just compensation.” a. Purpose : to bar the government from forcing some people alone to bear public burdens which should be borne by the public as a whole. b. “property” – can be any type of property real or personal. i. PAGE 4 OF 9 CON LAW OUTLINE MCGOLDRICK 4. What government action constitutes a “taking”? THIS ISSUE IS VERY ARGUABLE. a. Rule : While property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking. b. This is a matter of degree but we don‟t have a bright line for when the state has gone too far. c. Physical invasion of property requires compensation NO MATTER HOW MINUTE THE INVASION, NO MATTER HOW WEIGHTY THE PUBLIC PURPOSE(?) d. Permanent easement that was a pre-existing limitation on the landowner‟s title will be upheld. e. Regulation denying all economic and beneficial use of land requires compensation. (problem here is what constitutes “all” – is 90% sufficient? Courts have not yet determined this so ARGUE EITHER WAY) f. Harmful or noxious use is not dispositive in validating a taking. Still have to apply the rule (balancing test) but prevention of harmful use can be used as the government interest which would then have to be balanced against the personal use/interest of the property owner. g. If background principles already suggest that the State has the power to regulate the land or its use, any new regulation does not require compensation per se. I.e. where nuclear plant must move b/c it sits atop an earthquake fault, this is not a taking b/c it does not prohibit a use that was previously permissible. h. One interest that you want to preserve is that of the state and fed gov‟t to be able to make regulations that may incidentally or marginally impede on property rights for efficient governing purposes. i. Rationale : Gov‟t couldn‟t function if to some extent property values could not be affected by regulation without some compensation for every little change. But this rationale doesn‟t work where there is extinguishments of ALL value. j. Examples of No Taking : i. To abate a nuisance, even where the property is left with no economically viable use, even the best case scenarios will not constitute a taking. ii. Miller : No taking to force prop owner to cut down his redwood trees b/c they were hurting growth of apple orchards needed for local economy. He claimed value of his house went down. iii. Goldblatt : No taking here. rock quarry is nice looking but kids and animals are being drowned in the water beneath the rock quarry. 30 years after the rock quarry has been in existence the court says close it down. This was not considered a taking. iv. Euclid : No taking here. (Zoning) Property is zoned for business when purchased and later rezoned for residential. That affects its value. A this retroactive zoning change does not constitute a taking. The rationale is it‟s the zoning as business that gave it its value to begin with and sometimes it helps you and sometimes it hurts you. Physical invasion. v. Tahoe case : No taking. Temporary moratorium was not considered a taking. vi. Penn Central : No taking. It was bought as a rr station so restricting the use above the area did not constitute a taking. vii. Minimum wage laws and other general regulatory laws do not constitute a taking. k. Examples of Takings : i. Loretto : Taking here. The req. was that condo owners make available their condos for the installation of cable. So a cable had to be run up the side of the building and the rooftop had to make available 3 cubic feet of space. ii. Kaiser Aetna : Taking here. Imposition of navigational servitude on marina created and rendered navigable at private expense. Forcing the marina to be made available to the public required compensation. This was a physical occupation. iii. Webb’s Fabulous Pharmacy : Taking here. Bonds filed for appeal were to be placed in interest bearing accounts. The gov‟t wanted the interest in the accounts. Requiring the posting of the bonds is not a taking. But the interest should not go to the gov‟t. So taking of interest requires compensation. iv. Ruckelshaus : Taking of trade secrets here required compensation. (pg 550) v. Lucas v. South Carolina Coastal Council : (This is one of the best case scenarios). Here the gov‟t passed an act that made property bought by a developer, valueless. The interest claimed by gov‟t was the beach area (area of development) is a valuable public resource and development would erode this public resource. Also, the landowner had no reason to think that his development would somehow be proscribed at a later date (no past legal history of such development being a problem). The ct weighed the gov‟t interest against the fact that the land had zero value b/c of the regulation and found that this constituted a taking. One argument that the property was not left valueless is that the owner could still exclude others from the property and use it for recreational use (napping, tanning etc). So it doesn‟t have to be completely without any value but just that it has lost its significant value. (1) Dissent in Lucas disagreed stating that the determination does not turn on whether there is value left in the property, but instead on whether the gov‟t interest was sufficient to prohibit the PAGE 5 OF 9 CON LAW OUTLINE MCGOLDRICK l. m. activity. Also emphasizes the difference btwn a regulation that targets 1 or 2 parcels of land and a regulation that enforces a state-wide policy vi. Eastern Enterprises : Taking. the law was a general regulatory law holding mining companies responsible for medical bills of former miners. 4 members of the court said imposition of medical liability on a company not in the industry for 50 years, constitutes a taking. 1 Justice said this is a due process issue. This would have passed the dp rational basis standard to so either way the regulation was unconstitutional. Burden of proof : The party challenging the regulation. Mandated Access to Property (1) EXAM ANALYSIS : WEIGH THE GOVERNMENTAL INTEREST BEING PROMOTED HERE. USE FACTS TO DETERMINE WHETHER A VALID INTEREST IS SUFFICIENTLY SUPPORTED HERE. THEN LOOK AT THE REQUIRED DEDICATION OF PROPERTY. IS THE ENTITY DOING THE POTENTIAL TAKING ASKING A LOT OF THE PROPERTY OWNER? WEIGH THE TWO SIDES AND CONCLUDE BY DETERMINING WHETHER THE INTEREST OUTWEIGHS THE DEDICATION. IF IT DOES, THIS WILL NOT CONSTITUTE A TAKING. ii. “Taking” by regulation can occur when required to make property physically available for public use. iii. Crosby : Taking. War planes flying over chicken farms upset the chickens and the egg shells were said to be thinner and more likely to break and graded lower. Gov‟t said this is part of the war effort (WWII). The ct said the physical invasion was the noise and required compensation. iv. Premier Shopping Center : No taking. Private shopping centers were state actors so that they had to allow free speech. Shopping centers then claimed that requiring use of property constituted a taking. v. Yee : No taking. Private owner of mobile home park. Under state law difficult to kick someone out of mobile home park. City law imposed rent control. So owner of park claimed this was physical invasion b/c can‟t kick „em out and control how much I can charge. The ct said this is not a taking should have argued Penn central balancing. vi. “Exactions” : Conditions imposed on the change of use (1) Dolan v. City of Tigard : In this case, the city wanted to make businesses in a certain district, give a small amount of their land for a bike path to encourage bikes instead of cars in addition to keeping 15% open space to aid in decrease flooding. Ct weighed gov‟t interest in decreasing flooding & traffic, against requiring developer to not develop in area of sewer and give 10% land to bike path. Ct said (1) that the exaction must rationally relate to the govt purpose. (2) Ct adopted the “rough proportionality” standard. This requires city to show that required dedication is related in nature and extent to the harm of the proposed development. Applying this standard the ct said the floodway system‟s requiring the owner to give a fee simple in the property is a taking (requiring use by state would have been okay). As for bike trail, the city has to quantitatively show that amount of increased traffic will reduce proportionally w/ increase use of a bike path. This was held as a taking. (a) Nollan : Here the ct tried to condition permit to build a bigger house on beachfront property, on allotting some land for an easement. Gov‟t claimed interest was of diminishing blockage of view of the ocean caused by larger house. Ct said enhancing the ability to walk along the beach (by an easement) does not serve the same purpose as visual access to the ocean from the roadway so this was a taking. Exaction here did not rationally related to the purpose so this was a compensable taking. The exaction here did not rationally relate to the purpose. PAGE 6 OF 9 CON LAW OUTLINE MCGOLDRICK III. THE EQUAL PROTECTION CLAUSE A. B. C. D. EQUAL PROTECTION EXAM ANALYSIS : 1. What type of discrimination is involved? 2. If the type calls for heightened scrutiny, has the  established a prima facie case that the  has been unable to rebut? a. Show disparate impact i. Show that law‟s practical effect is to burden one group of persons more heavily than it does others. b. Impact is intentional in the sense that it results from a discriminatory purpose i. For purpose it is enough if the discriminatory purpose was a motivating factor in the decision. 3. Has the defender of the law justified the discrimination under the applicable standard of review? Equal protection cases can be brought as a class of one individual. “De Jure” v. “De Facto” 1. De jure is discriminatory intent, whereas de facto is discriminatory effect. Social & Econ Regulatory Legislation - Rational Basis Test 1. Test: The classification is valid if it is rationally relates to a proper (or constitutionally permissible) state interest. EASILY SATISFIED. Burden : On the challenger of the statute to show that the classification is arbitrary. Challenger has to show that there is absolutely no reasonable justification, the state does not have to articulate its justifications. 14th Amd : “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” a. Most cts will find the 5th Amd binds federal courts in the same manner. Scope of Equal Protection a. The Original Understanding b. Gulf, Colorodo & Santa Fe RR v. Ellis Classifications need only bear any rational relation to the law for them to be constitutional. a. E.g. Statute allowing people to only advertise on cars for their own companies rather than other companies rationally related to interest in decreasing distractions and car accidents. This case also involves a regulation of commercial speech. The Carolene case says that speech cases may get higher standard requiring compelling gov‟t interest. At the time of this case however, commercial speech was not protected by the 1 st. Today this would be a free speech case and you would not apply the rational basis test. [REA Express v. N.Y] Underinclusiveness and/or Overinclusivesness tolerated as long as there is rational relation to the law. a. E.g. If the law is either underinclusive (I.e. speeding tickets – we all speed but a limited proportion get tickets) or overinclusive (I.e. “zero tolerance rules” – kid w/ grandma‟s knife in his truck at school) it can still be constitutional as long as it rationally relates to a legitimate gov‟t interest. These types of laws are unfair and burdensome on people who are not doing any harm. Line btwn DP and EP : Under Due Process the laws must rationally relate to a legitimate gov‟t interest. This is easily resolved. Under Equal Protection it is more difficult but it is a better constitutional argument. a. EXAM ANALYSIS : LET THE FACTS DRIVE WHETHER YOU ANALYZE UNDER DUE PROCESS (LAWS FOR OVERALL WASTEFULLNESS) OR EQUAL PROTECTION (LAWS FOR CLASSIFICATION). b. Lee Optical Revisited: Under DP this was found to have a rational relation to some gov‟t interest. Under EP, if the purpose is to require regular eye exams, why can people buy reading glasses over the counter. That is the basis of the EP challenge. This isn‟t much of an EP issue b/c the real problem is that prohibition on technicians is wasteful. i. Hypo : Law that personal limo drivers every 2 years re-take drivers test. One challenges the law. Is this DP or EP? This would be EP classification here is limo drivers v. taxi drivers. Test is whether the classifications relate to any legitimate governmental end. The DP issue is that the law is wasteful for the limo driver who has to go and retake his test every 2 yrs even if he doesn‟t have an accident record etc. Scope & Legitimacy of Judicial Review of the Nationality of Legislation under Equal Protection a. Federal Communications v. Beach Communications i. EXAMPLE EXAM EP ANALYSIS: Law was that at the age of 50, you were out of the police b/c of issues re your fitness. This classifies based on age so its an equal protection issue. The classification must rationally relate to a governmental end. Here the governmental end is to have fit, and healthy cops protecting the public. Is this a legitimate gov‟t concern? Of course. Does this classification rationally relate to this end? Does age relate to physical fitness? Yes, so the law does in some sense relate to the interest. But there is a better way : have another physical exam, perhaps more stringent, after 50 to make sure you are fit enough to do the job. a. 2. 3. 4. 5. 6. 7. PAGE 7 OF 9 CON LAW OUTLINE MCGOLDRICK b. With the current law you may be letting go older cops who actually bring more to the force than younger cops.The law does pass the rational basis test b/c there is some rational basis. Since it does rationally relate it passes even if it doesn‟t make sense. (1) Heller v. Doe : Ct rejected an equal protection issue of how do you treat a law that classifies the mentally retarded in a less favorable way than the mentally ill. The ct said there is no heightened level of review here, it is rational basis. Does this classification relate to the gov‟t end which is the concern for the safety of the people who need to be institutionalized. But is there a difference btwn those who are a danger to themselves and others as a result of mental retardation than those as a result of mental illness. Mental retardation is easy to determine but mental illness is more difficult to determine. The court said this distinctive line rationally relates to the govt interest. This is an easy case. (2) Central State Uni v. American Univ. : Said university professors could not collectively bargain out their office hours. Concern was with professor‟s more interested in their publications etc than in helping students. Professor‟s argued that this classification was unfair b/c other workers and professions were allowed to collectively bargain their work hours. The court said no the regulation rationally relates to the govt concern. In Ascertaining Legislative Purpose for Rational Basis Review, just b/c a law seems to be counter-intuitive does not necessarily make it irrational. i. E.g. Congress here was concerned with the special pension plan for RR employees. In trying to address the problem of insolvency Congress is taking away some people‟s pension. This is rational even though it works against our expectations. [US RR v. Fritz] ii. Schweiker v. Wilson : Congress gave suppl. Security income to people institutionalized through no fault of their own. Congress said that you get this if you are indigent and you are in an institution that Congress qualifies for Medicaid (this is meant to exclude prisoners). But the law does not accomplish what it wants to b/c the Medicaid qualification excludes a lot of people in private mental hospitals by no fault of their own. EP challenge the court says the classification does rationally relate to legit gov‟t concerns. Concern was that qualification for Medicaid was necessary to qualify for federal aid. Even though the rational basis test is applied, it appears to be an abdication of judicial responsibility. E. Suspect Classifications : Compelling State Interest Test (Strict Scrutiny) 1. Test : A regulations discriminating against a suspect class will be held to violate the equal protection clause unless found to be necessary to promote a compelling state interest. USUALLY RESULTS IN FINDING VIOLATION “Necessary to promote a compelling state interest” : A classification is necessary when it is narrowly drawn so that no alternative, less burdensome means is available to accomplish the state interest. b. Requirement of Intentional Discrimination : The statute must be intentionally (“de jure”) discriminatory. Laws that do not intentionally discriminate will be judge by the traditional rational basis test and upheld if they rationally relate to a constitutionally permissible state interest. Ways to find Intentional Discrimination : a. On its Face i. Government action that explicitly- by its written or spoken terms – discriminates is the most obvious form of de jure discrimination. b. Unequal Administration i. Where the classification itself is racially neutral, but the authority consistently discriminates against a particular racial group, and could offer no “racially neutral” explanation, this is held to be de jure discrimination violative of EP. ii. Burden : The person challenging the discrimination must show that it‟s intentional or purposeful. Show a substantial disproportionate racial impact as a result of the law‟s administration. Burden then shifts to the state to show that the impact was caused by constitutionally permissible factors. c. Impermissible Motive i. Laws that are racially neutral by their terms may constitute de jure discrimination violative of EP if the challenger proves that the legislative “motive” was to discriminate against racial or ethnic minorities. a. 2. 3. PAGE 8 OF 9 CON LAW OUTLINE MCGOLDRICK d. e. 4. (1) This can be shown where one minority is inexplicably effected the most heavily. Coupling evidence of disparate impact with other circumstantial evidence could meet this burden. Showing the Actor whose conduct is in question has been guilty of the same type of intentional discrimination in another, but closely related, area (Keyes presumption). – This is mainly in the school segregation context. F. What is a “suspect” classification? a. Racial (or ethnic) classifications : Some governmental action merely “classifies” on the basis of race (or national origin). Ie. it does not simply impose burdens on racial or ethnic minorities; rather it draws lines on the basis of a racial criterion. i. Rule : These racial classifications are prohibited unless necessary to a compelling state interest. (1) E.g. the prohibition of racial intermarriage does not discriminate against members of one race; it appears to treat both races equally. [Loving v. Virginia] ii. Racial Segregation : Deliberate (“de jure”) racial segregation in schools violates equal protection [Brown v. Board of Ed] (1) Application : to public facilities of all types – beaches, bathhouses, municipal golf courses, public trans, stadiums & theatres, & pub office buildings. (2) Proof : Can infer discriminatory intent from actions which are foreseeably going to have a disparate impact. Can also infer from the way the challenged measure was adopted in that if it involved a departure from the substantive criteria that normally governs such matters, the irregularity may suggest the presence of a discriminatory intent. Quasi-Supect Classifications – Intermediate Scrutiny Test 1. 2. Test : Intentional discriminations against members of a “quasi-suspect” class violate equal protection unless they are substantially related to important government objectives. USUALLY RESULTS IN FINDING VIOLATION Laws that do not intentionally discriminate will be judge by the traditional rational basis test and upheld if they rationally relate to a constitutionally permissible state interest. PAGE 9 OF 9