`2Class notes: Constitutional Law Notes Class attendance is extremely important. You get 10 points.

You can only miss one class to get the 10 points. You cant miss more than 6 in general. Doesnt take points off when youre not prepared. For an exceptional class performance he can raise your grade. Watch first 6 hours of eyes on the prize. Watch it before you get to equal protection or in particular to race of equal protection. There will be a 15 or 20 point exam question on the video. Dont need to take notes just general idea. Multiple choice, 2 regular essays. And one small essay on the prize. Recall matter or instances discussed. He wont ask who was the burninghma police chief at the time of the freedom righters. He wont ask this. Read the cases. You get a point for each case. Know the facts of the case. Getting ready to start equal protection next week. Start with reading cherminosky on equal treaty then read the case law.

Article 1 sec. 8 cpmgress has exlsuive control over district of Colombia. Any alleged violation by the district of coloimbia will be judged under the 5th due process. The challenge of the states will be challeneged under the 14th provision.

There are two due process clauses. The fifth which applies to the federal government. And the 14th due process which applies to the states. Dont say on exam 14th and 5th. Bill of rights only apply to the states through the 14th amendment. You cannot encorporate 14th and 5th due process to apply to the states. The state does not cite to both the 14th and 5th amendment.

The taking clause is encoroprated into 14t/5thh amendment to apply to states. 14TH ENCOMPASSES THE FIFTH. Does equal protection apply to federal government? Yes. On exam you will have to connect constitutional provision 1. 2. Equal protection

You cannot use constitution on exam

PREEMPTIONS United States Constitution Article I, Sections 8 and 10; Article 6; and the 10th Amendment FEDERAL PREEMPTION OF STATE LAW

History and purposes of these sections

A primary concern of the framers in drafting the U.S. Constitution was to balance power between the states and the federal government. One method of striking this balance was to give the states a measure of control over the selection of federal officers and, as a result, the operation of the federal government. Thus, article I, section 2 gives the states an active role in determining electoral qualifications for purposes of electing members of the U.S. House of Representatives; article I, section 3, as originally ratified, gave each state equal representation in the U.S. Senate and required each senator to be selected by the state legislature; and article II, section 1 gives the states an active role in selecting presidential electors.

Another method of striking the balance between state and federal power was to provide certain powers to the federal government, specifically divest states of certain powers, and reserve certain powers to the states. article I, section 8 lays out the specific powers, called the enumerated powers, of the U.S. Congress. Article 6, called the Supremacy Clause, provides that the U.S. Constitution, the laws of the United States, and all treaties made under the authority of the United States, are the supreme law of the land. In addition, article I, section 10 prohibits the states from engaging in numerous activities, including coining money, passing ex post facto laws or laws impairing the obligation of contracts, and, with certain exceptions, engaging in war. Finally, the 10th Amendment further provides that the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. These provisions establish the boundaries of federal preemption of state laws. Under the Supremacy Clause, if a state law is preempted by the U.S. Constitution or a federal law or treaty, the state law cannot be enforced.

The Evaluation: In determining whether any of these types of preemption exist, the courts are guided by a presumption against preemption if the federal law in question regulates an area traditionally regulated by the states. Hillsborough County v. Automated Medical Laboratories, Inc., 471 U.S. 707, 716 (1985).

In determining whether a state law is a sufficient obstacle, the courts examine the federal statute as a whole and identify its purpose and intended effects and then determine the impact of the challenged law on congressional intent. Ask yourself does the states law trample upon the area that the federal government has claimed to be their own? Ex: Immigration (14th amendment) is a federal issue preempted by the federal government. How the courts interpret these sections

The courts have recognized three types of preemption: 1. 2. 3. Conflict preemption Conflict preemption Express preemption Implied preemption

Under the Supremacy Clause, any state law that conflicts with a federal law is preempted.Gibbons v. Ogden, 22 U.S. 1 (1824). A conflict exists if a party cannot comply with both state law and federal law (for example, if state law forbids something that federal law requires). Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43 (1963). In addition, even in the absence of a direct conflict between state and federal law, a conflict exists if the state law is an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.Crosby v. Natl Foreign Trade Council, 530 U.S. 363, 372-73 (2000). An interesting conflict preemption case from Wisconsin illustrates this analysis. In Wisconsin Public Intervenor v. Mortier, 501 U.S. 597 (1991), Mortier challenged an ordinance of the town of Casey (described by the U.S. Supreme Court as a small rural community located in Washburn County, Wisconsin, several miles northwest of Spooner, on the road to Superior) after the town

denied him a permit to spray pesticides on his lands.Among other things, Mortier asserted that the ordinance was an obstacle to full implementation of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), which was ostensibly enacted to promote pesticide regulation that is coordinated solely at the federal and state levels. Mortier presented legislative history stating that FIFRA established a coordinated federal-state administrative system and, as described by the court, raising the specter of gypsy moth hordes safely navigating through thousands of contradictory and ineffective municipal regulations. But the court was more interested in the language of FIFRA itself.In upholding the towns ordinance, the court found that FIFRA itself implied a regulatory partnership among federal, state, and local authorities.

Express preemption

Express preemption exists if a federal statute explicitly states that it preempts state law (and if Congress, in passing the statute, was exercising authority granted to it under the U.S. Constitution).Although express preemption can be unambiguous, often federal statutes expressing an intent to preempt are quite complicated and difficult to apply. In addition, like any statute, a federal statute expressing an intent to preempt is subject to interpretation by administrative agencies and the courts. For example:

The federal Employee Retirement Income Security Act of 1974 (ERISA) preempts all state laws insofar as they may now or hereafter relate to any employee benefit plan, except that state laws . . . which regulate insurance, banking, or securities are saved from preemption.29 U.S.C. 1144 (a) and (b) (2) (A).These statutes have spawned numerous ERISA preemption cases under which the courts determined which state laws relate to an employee benefit plan, which state laws regulate insurance, banking, or securities, and what activities qualify as insurance, banking, or securities. The Interstate Commerce Commission Termination Act preempts state laws concerning price, routes, or services of motor carriers, except that the safety regulatory authority of a state with respect to motor vehicles is saved from preemption. A case originating in Columbus, Wisconsin, is among the cases interpreting this provision.In City of Columbus v. Ours Garage and Wrecker Service, Inc., 536 U.S. 424 (2002), the U.S. Supreme Court held that safety regulatory authority of a state includes the regulatory authority of municipalities, so that municipalities are allowed to regulate tow truck safety.

Implied preemption

Even without a conflict between federal and state law or an express provision for preemption, the courts will infer an intention to preempt state law if the federal regulatory scheme is so pervasive as to occupy the field in that area of the law. For example, the courts have held that the National Labor Relations Act (NLRA) preempts state laws directed at conduct actually or arguably prohibited or protected by the NLRA or conduct Congress intended to leave unregulated.San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 244 (1959); Machinists v. Wisconsin Emp. Rel. Commission, 427 U.S. 132, 140-48 (1976).

Summarization of Preemptions First type of preemption is express: Do they have power when it comes to the regulation of immigration. Its in article one section 4. Congress has the right to make uniform rules of naturalization. Preemption implied: Field: congress intends to occupy the field. It doesnt leave much room for the states to regulate. The second is conflict preemption: The state and federal law cant co exist. Its impossible to abide by both. Federal law always trumps. The third is federal objective: congress has a specific objective which would be frustrating if we allow the states to do this. Strategies for reconciling legislation with these sections

Be consistent with federal law

A state law has a greater chance of avoiding a claim of conflict preemption if the state law complements the federal law. A legislative attorney should understand how federal law operates in the area a bill proposes to regulate. The requester may want to consider structuring the bill in a way that avoids frustrating the intended purpose of the federal law. If the legislature obviously is unaware of or disregards federal law, a court, in turn, may more easily disregard the actions of the legislature.

Tailor the state law to avoid express preemption

Avoid express preemption by taking advantage of exceptions provided in the federal statute. If the federal statute reserves certain subjects for state regulation, draft the bill to fit within those subjects. Also, even if the federal statutes do not specifically reserve subjects for state regulation, attempt to draft the bill so that it falls outside of the category of state laws that are expressly preempted. If the bill deals with an area of traditional state authority, the courts may be less inclined to find preemption.

PREEMPTION CASE Why isnt Arizona EXPRESS PREEMPTION. Why is it federal objective? When different provision are in volved as in the case of Arizona must you go through each provision or can you say generally its under this provision?

If were dealing with congresss enumerated power congress can expressly preempt the state. Pursuant to article 6 of the U.S. ARIZONA V. UNITED STATES

United States files suits against Arizona saying that immigration is preempted by federal law.

First type of preemption is express: do they have power when it comes to the regulation of immigration. Its in article one section 4. Congress has the right to make uniform rules of naturalization. Provision of Arizona 1. This provision makes it unlawful for an alien to work, non-documented alien

You have to complete an I-9. The federal govt. requires that employer fill out this information. Which form of preemption is this: federal objective. 3. if there is an offense that would cause you to be deported and if officer believes you have commited an act that can get you deported they can arrest you. What does U>S> court say? Its preempted under federal objective. 4. The state can check if you are illegal or not. This is the only one court upheld. Is this preempted or not?

Not preempted. This is only one uphold. Fed law allows room for the states to do this. Three out of 4 are preempted. Court dictates saying states cant take over that which is preempted by federal statutes.

Arizona v. united states Con law 2 Arizona v. United States, 567 U.S. ___ (2012), was a United States Supreme Court case involving Arizona's Support Our Law Enforcement and Safe Neighborhoods Act. At issue is whether the law usurps the federal government's authority to regulate immigration laws and enforcement. The Court ruled that sections 3, 5(C), and 6 of S. B. 1070 are preempted by federal law.

On April 23, 2010, Arizona Governor Jan Brewer signed into law SB 1070, or the "Support Our Law Enforcement and Safe Neighborhoods Act".[1] The act made it a state misdemeanor crime for an illegal immigrant to be in Arizona without carrying registration documents required by federal law, authorizes state and local law enforcement of federal immigration laws, and cracks down on those sheltering, hiring and transporting illegal immigrants.[2]

The bill's passage immediately sparked concerns over potential civil rights violations and have accused it of encouraging racial profiling.[3][4][5] Tens of thousands of people demonstrated against the law in over 70 U.S. cities on May 1, 2010 (International Workers' Day).[6][7][8] A rally in Los Angeles, attended by Cardinal Mahoney, attracted between 50,000 and 60,000 people, with protesters waving Mexican flags and chanting "S se puede".[6][7][9] The city had become the national epicenter of protests against the Arizona law.[9] Around 25,000 people were at a protest in Dallas and more than 5,000 were in Chicago and Milwaukee, while rallies in other cities generally attracted around a thousand people or so.[7][8] There and in some other locations, demonstrators expressed frustration with what they saw as the administration's lack of action on immigration reform, with signs holding messages such as "Hey Obama! Don't deport my mama."[8] On April 23, 2010, Arizona Governor Jan Brewer signed into law SB 1070, or the "Support Our Law Enforcement and Safe Neighborhoods Act".[1] The act made it a state misdemeanor crime for an illegal immigrant to be in Arizona without carrying registration documents required by federal law, authorizes state and local law enforcement of federal immigration laws, and cracks down on those sheltering, hiring and transporting illegal immigrants.[2]

The bill's passage immediately sparked concerns over potential civil rights violations and have accused it of encouraging racial profiling.[3][4][5] Tens of thousands of people demonstrated against the law in over 70 U.S. cities on May 1, 2010 (International Workers' Day).[6][7][8] A rally in Los Angeles, attended by Cardinal Mahoney, attracted between 50,000 and 60,000 people, with protesters waving Mexican flags and chanting "S se puede".[6][7][9] The city had become the national epicenter of protests against the Arizona law.[9] Around 25,000 people were at a protest in Dallas and more than 5,000 were in Chicago and Milwaukee, while rallies in other cities generally attracted around a thousand people or so.[7][8] There and in some other locations, demonstrators expressed frustration with what they saw as the administration's lack of action on immigration reform, with signs holding messages such as "Hey Obama! Don't deport my mama."[8] DUE PROCESS AND EQUAL PROTECTION ( what course is mainly about) 14th amendment section 1 has 4 provisions: 1. Citizenship: if a person is born or naturalized they are citizens of the state where they reside.

2. No state shall make any law abriding privileges and immunites. Only those which we have given to use by the united states. (PAND I CLAUSE) owes existence to federal government, its laws, constitution or national character. Citizens can only assert P&I clause.

What about the bill of rights? What do they owe their existence to? Barron v. Baltimore guarantees applied to federal govt. those rights were proposed in 1789 and adopted by the states and went into affect in 1791, tthey didnt come to the constitution. Its goes back before 1791. The constitution just protected rights against the federal government. Bill of rights is not privileges and immunities. Is a mixture of procedural guarantees but there are also substantive individual rights contained in the bill of rights. Ex: free speech Ex: bear arms 3. Due process clause: nor shall any state deprive any person of life, liberty or property without due process of law. Who can assert due process? Aliens and citizens Due process has two components:

1. Procedural: talking about the constitutional guarantee when they are deprived by property they must receive a fair process. Its done in a fair way. Ex: notice, hearing, right to counsel, right to not testify against yourself in a criminal case. This ensures that people get a fair process. 2. Substantive: Guarantees free speech. Free exercise to religion, assembly press. Youre going to have to say first and 14th have been violated. You have to say both. So you couple your bill of right with the 14th amendment.

Where does court find unnamed rights within the protection of the due process clause? The word liberty in the due process clause is the source of the unnamed fundamental rights of the due process clause. Look at freedom of contract cases.

Where is freedom of contract containing the constitution? Is in the contract clause. The contract clause(article I sec 10) comes from the due process liberty clause the right to enter into contracts.

Lochnear era case: opposed to any form of government regulation of the economy. The supreme court basically was hostile and opposed to any govt attempts to regulate the economy. It doesnt matter whether it was the state or federal government trying to do it. The govt belived in lesse faire. How did the court attempt to limit congress ability to regulate commerce? Under what particular interpretation? The commerce Clause. Manufacturing cannot be regulated because not commerce. Congress exceeded power under the commerce clause. Trying to regulate to protect workers to make sure person working in bakery business dont work more than 60 hours a week under worse then sweat shop conditions. What did the court Hold? The court says this violates freedom of contract under the liberty clause of the 14th amendment because everyone knows that the baker is an unequal bargaining position with the employer. Why do you have to use the 14th amendment when you discuss contracts? Because article I sec 10 only applies to existing contracts and not future contracts.

Important case is the Caroline Products case. U.S. v. caroline products Social regulation is going to be viewed under rationale basis. Th eimportance is footnote 4. The court says there might be certain situations where higher level of judicial review might be in order. This is where the strict security test is born. They describe situations where you might have to look at strict scrutiny.

Brown v. board Held that segregation under 14th amendment has no place under the constitution of equal protection . it violeated equal protection on race. Bowling v. sharp This is the next case they have to decide. The states cant have segregation but then we say equal protection doesnt apply to fed govt so the court read equal protection into the due clause of the fifth amendment. If chalenging fed gov on equal protection will have to use 5th not the 14th because 14th does not apply to federal government.

Patient protection an Affordability act (Obama care) Most important decisions that the Supreme court has rendered in the last decade. The reactgion politically is almost identical to the way people acted when they had social secuitry and medicare in 1965 when it was passed.

Individual manadate provison: those who are uninsured have to purchase insuran on market if they dont purchase it they will pay a pentalty, a tax for failing to pay it. They have to purchase just the minimal amount of coverage. Penalty based upon 60% of what that policy would cost. People who are exempt are those at the poverty level. If income gos over proverty level then you be exempted. Thos people will be eligible for Medicaid coverage. This require an expansion of Medicaid.

The original Medicaid act that was passed in 1965 had as its purpose covering people who were disabled, at poverty level with children. Program adminsitred throught the state. The states can choose to participate. And if they do participate they have to do it in lign with federal regulation. Now all 50 states are in the Medicaid system. Affordability now expands coverage to those who are exempt ( below poverty level)

You can be denied coverage because of your preexisting condition if you move from one job to next they can deny you. With the afforadability health care act you cannot be denied coverage if you have a preexisting condition. Guarantee issue if they have preexisting condition cant be turned down and the community rate part even if they will ensure you that oyou dont get charged a higher premium. Part of it is that they dont charge you more money. The government argues on Tuesday that the individual mandate was an exercise of congress power to regulate interstate commerce. Congress under article I can regulate commerce. That coupled with necessary and proper give them the right to regulate instrumentalities, channels, people and things and that which has a substantial effect. Activity that is regulated by interstate commerce in most cases it will be economic, howver they can also do it with non economic if they can show substantial effect. Justice Robert says were trying to regulate non activity here, thsu allowing congress to pursue this trhough commerce expands the meaning of commerce caluse?

What about coupling it with necessary and proper? Cannot be sustained under necessary and proper each of our prior cases upholding, enumerated powers already.Necessary and proper allow congress to choose the means in which they carry out their power. Government argues that This is economic activity has an effect on ecomonoy therefore congress can regulate. However, there forcing the occasion which then gives the right to exercise the power, cannot uphold it on commerce caluse, or commerce coupled with necessary and proper. Also Cannot be sustained under necessary and proper each of our prior cases upholding, enumerated powers already. See Mculloch. Necessary and proper allow congress to choose the means in which they carry out their power, but not in this case. The power to tax and spend is not limited to the enumerated powers. One reason for mandate is to produce revenue to help pay for the government having to pay for people who dont have insurance.

Whether or not this is a direct tax? Direct taxes are goverened by article 1 sec 2 which deals with house of rep. and article 1 sec. 9 deals with prohibitons on the government. Apportionment: is according to population. Representaitves and taxes shall be apportioned. Congress can apportion taxes according to the senses. What does Robert say about that? Two types if direct taxes: 1. Tax on head 2. Property (real estate or personal property). Therefore apportionment requirement does not apply, The issue is the expansion of Medicaid? Designed to cover those at the bottom point is to increase eligibility for Medicaid. Medicaid is an area which congress regulates but they regulate pursuant to their power to spend. Congress makes it voluntarty to states whether or not they participate. While do they make it voluntary? So that they dont encroach upon state power., but if you deicde to cash the check you take the condition. What is the condition to expand Medicaid? You have to expand or you will loose all Medicaid funding. Can congress regulate pursuant to tax and spending? Yes. But must do so in a real way that provides a real choice. The court said that congress did not provide a real way that this is coercion. Congress you cross the line between incentives and coercion.

2 dissenters: They dissent on Roberts opinion. Dissent on taxing and spending provision. Whats the level of review that we apply to review congress decision? Rational basis

Why does it make a difference whether its a penalty or a tax? Congress has the power to tax. If this is a tax, what can they tax; Anything. As long as not a direct tax on property or heads without apportioning it. If its a penalty it has to be pursuaint to some enumerated power, and the most enumerate power is commerce clause. There not saying congress couldnt have done this. If its a penalty then they cant enforce this mandate because they dont have any authority under the commerce calause so the only way to enforce the punishment is to make it a tax. South Dakota v. dole Use highway funds to lower the drinking age from 18 to 21. If they didnt do so they would lose 10 percent of funding.

Court looks at whether or not the individual mandate violates under commerce clause? Is it within provison of taxing provision? Does this provision violate the spending clause under article 1 sec. 8 by forcing the states to except the expansion. Under article 1 sec 8 clause 3 congress can regulate foreign commerce, among the states and within indian tribes. Congress can regulate the channels of interstate commerce, the highways the waterways, the instrumentalities of congress. It can regulate people and things flowing in interstate commerce. It also can regulate to the exten that something has a substantial effect on interstate commerce. Congress does not have the power alone to regulate interstate commerce, regulate agrciulutre, labor these are not commerce. But the question is do matters of labor have a substantial effect on commerce does manufacturing of goods have a susbstanital effect. This becomes the question. Through 1 8 3 couples with proper and necessary congress can regulate through a substantial effect. If its economic activity then its clear that it can be regulated. If not economic your going to have to show the extent to which the non economic has a substantial effect on the economic. The court first looks at the issue whether or not the affordable act comes with congress power to regulate. Roberts says no. Why not? He said it was trying to create commerce. Something already has to be in existence. The court has never approved congress ability to regulate where no activity is involved. Where taking someone who is chosen not to buy (this is doing nothing). Doing nothing is not activity. Congress can regulate anything

that has activity with a substantial effect. No activity here he holds that this is outside of congress power.

If outside of congress power to regulate how about its ability to tax and spend under 1 8 1. It gives congress the power to tax and spend for the general welfare. 1 81 are separate powers. Is congress limited to taxing and spending within its enumerated powers? Can it only tax and spend within its enumerated powers? They can tax and spend outside of the enumerated powers coupled with necessary and proper clause. With its power to spend it regulates outside of its enumerated powers through the power of the purse strings. Meaning if you take the money, you take the strings. Justice robersts says this is a tax. But congress called its a penalty. What is this a tax on? Its a tax on those who dont purchase health insurance. Under its power to tax the individual mandate is upheld as a tax, but not under commerce. Under tax and spending congress regulats outside of its enumerated power as long as the participation in the states is voluntary. The state has a choice of whether or not to participate in Medicaid. But if they choose to participate they have to follow the federal rules. The question is in terms of expansion of Medicaid what was the condition placed upon the states if they fail to or what happens if they fail to participate? They will loose all their Medicaid funding if they dont participate in their expansion. What did Roberts say? Thats coercion. If penalty was less severe where there really was a choice then it wouldnt be coercion. Thus the individual mandate was upheld not on the provision of the commerce clause. The court held that congress used coercion in respect to the tax and spending and that was a violation of the 10th amendment. The states now have the option to opt out of the act. If the states opt act then the federal government will step up and provide that care. You can regulate the people but not the state funding program ON MEDICAID. Article 4 section 4: enumerated powers Sec 5 of 14th allows congress to enact legislation

Chapter 6 Economic Liberties A. Introduction Economic Liberties

Economic liberties refer to constitutional rights concerning the ability to enter into and enforce contracts; to pursue a trade or profession; and to acquire, possess and convey property. Contracts clause Article I sec. 10: provides that no state shall pass any law impairing the obligation of contracts. The Fifth Amendment taking clause states, nor shall private property be taken for publlioc use without just compensation. The fifth and fourteenth amendments, respectively, provide that neither the federal nor state government can take a persons property (or life or liberty) without due process of law. The court has also used the Due Process clause to protect other economic liberties such as freedom of contract, freedom to pursue a livelihood, and freedom to practice a trade or profession.

Freedom of contract under the due process clause limited the government's ability both to impair existing contracts and to regulate the content of future contracts; the Contracts clause always has been confined to the former. B. Economic substantitive Due process Substantive due process gives substance to terms of liberty. The fifth and fourteenth amendments Provide that neither the federal nor the state government can deprive any person of life, liberty, or property without due process of law. Due process: 2 types Procedural due process: refers to the procedures that government must follow when it takes away a person's life, liberty or property. Substantive: asks whether the government has an adequate reason for taking away a persons, life, liberty or property. The focus is on the sufficiency of justification for the governments action, not on the procedures the government has followed. Asks whether the government has an adequate reason. Substantinve process has been used in two areas primarily: protecting economic liberties and safeguarding privacy. 2. The early history of economic substantive due process Supreme Court rejected the first attempt to use the due process clause to protect economic rights from government interference. Slaughter house 83 U.S. 36

the court expressly rejected a substantive due process claim. These cases involved a challenge to a Louisiana law that granted a private company 25 year monopoly in the livestock landing and slaughterhouse business. The law also require that the company allow any person to use the facilities to slaughter animals for a fixed fee. Several butchers brought a lawsuit challenging the constitutionality of the grant of a monopoly. In addition to argue that the law was involuntary servitude in violation of the 13th amendment, that it violated the privileges or immunities clause, and that it violated the equal protection clause of the 14th amendment, the plaintiffs contended that it denied their right to practice their trade and thus violated the due process clause. The Supreme Court rejected all these arguments. The court emphasizes this clause concerning the procedures that governments must follow and thus could not be used to challenge the law for interfering with the right of butchers to practice their trade. The court flatly rejected the idea that due process clause could be used to safeguard a right to practice the trade or profession from arbitrary government interference. The dissenting justices said that liberty and property of the due process clause should be protected meaning a right to practice a trade or profession and believe that arbitrary interference with these rights violated the 14th amendment. Although at that time the Supreme Court reject the idea today is protected by the majority view the Supreme Court. Beginning in the 1870s, government regulation significantly increased as industrialization change the nature the economy. Loan Association v. Topeka decided one year after the slaughterhouse cases, is regarded as one of the first instances of quartz using natural law principles to limit government regulatory power. Here the court invalidated a city law that imposed a tax to fund bonds to attract private businesses to topeaka. Without expressly referring to the Constitution because the case arose as a diversity suit, the court invalidated the law as purely in aid of private or personal objects beyond the legislative power, and an off authorize invasion of private right. Munn. V. Illinois , the Railroad Commision cases, and Mugler v. Kanses were important for articulating that due process was a limit on the government's regulatory power, even though in each of these cases the court ruled in favor of the government. Substantive Due Process of the Lochner era AllGEYER v. LOUSIANA The statute in question requires: if a cooperation is doing business in the state the business must have an office or an agent inside the state. Facts: The company sending a letter sending the insurance contract. Lousinana is alleging that it is doing business inside the state because person ny York is contracting with is a Louisianan resident and therefore its a violation.

What prevents lousisana from prohibiting new York from ? Its a violation of a contract. Louisiana is attempting to regulate something that took place outside of the state. The contract was made in NY. Can Louisiana interfere with the right to enter into a contract? No. the court talks about liberty of contract coming from the due process of the fourteenth amendment. No state shall deny any person life liberty without the due process of law. Look for freedom of contract in the constitution and you will not find it. The contract clause does not guarantee freedom of contract it only prevents states from enacting laws from messing with existing contracts not future contracts. 14th amendment What does 14th amendment mean? Pg. 607 court talks about liberty and due process clause. The liberty in the 14th amendment is more than just free from bodily injury but free to live and work where he will to earn a liviliheood nby any legal means. Holding: statute violates the united sates constitution because violates right to contract or enter into contract. CASE SUMMARY PROCEDURAL POSTURE: Defendant exporters appealed a judgment from the Supreme Court of Louisiana, which held that they had violated a state act that prevented persons from dealing with marine insurance companies that had not complied with state law in an action initiated by plaintiff State of Louisiana. OVERVIEW: The State filed a petition alleging that defendants violated a statute by mailing a certificate of marine insurance to an out of state insurance company advising them of the property to be insured. The State had enacted a statute, which forbade persons from dealing with marine insurance companies that had not complied with state law. The trial court entered a judgment in favor of defendants, but the state supreme court reversed. On appeal, the United States Supreme Court reversed, holding that a state's power to prohibit a contract within its boundaries cannot extend to prohibiting a citizen from making contracts outside of the jurisdiction of the state, which are also to be performed outside of such jurisdiction; nor can the state prohibit its citizens from doing such an act as writing a letter of notification, even though the property may be within the limits of the state. OUTCOME: The Court reversed, holding that a state may not prohibit its citizens from contracting outside the limits and jurisdiction of the state, which were also to be performed outside of such jurisdiction, and the case remanded to the Supreme Court of Louisiana for further proceedings not inconsistent with the opinion. Lochner v. New York State of NY passes a statute.

Legislature passes a statute which puts a maximum of how many you can work 10 hours a day 60 hours a week. Upon what basis is the state passing this law limiting the amount of time an employee can require and employee to work? Basing it on the public health. Protecting the safety of its citizens. They are arguing that they are protecting the health because the flour dust, the heath and high temp, lack of air conditioning. The court acknowledges that the court has police powers. The court uses various examples outlining valid uses of police power what are they? -Using an establishment for immoral purpose -Forbidding use of premise for unlawful purpose. Does the court acknowledge valid use of police powers? The right to contract is not absolute. There is not a single right protected by the constitution named or unnamed that is absolute. Nothing is absolute. Freedom of speech under the first amendment is not absolute regardless of what the ACLU says. You dont have the right to shut down the 408 by having a parade. Because the state has a right to regulate conduct, time place and manor for the health and safety of the rest of us. What about the police powers? Whether it affects the general health. What is a legitimate exercise of state power in regulating police power? wholesome bread is not dependent on how many hours a week a baker works. Ignores that states interest in protecting the health of the person who is working. Why does that not concern the court?Why not protect the baker? The bread is still coming out good, bakers are not a special class that need extra protection. This is freedom of contract there putting their health at risk but they are choosing to do this. DISSENTERS What is the basis of Holmes dissent? We knw exactly whats going on this is an indiciation towards court hostitltiy towards government. Its not up to the court to empose on the govt what to do or not. What does Harlem say? Liberty of contract is subject to regulation. Holding: Liberty of contract has been violated. Bakery case. Supreme court held cant tell bakers how many hours they can put in because it wasnt tied to their health. When can the state interfere? State can only interfere, when it comes to health, welfare and morals. However in Holden the state was allowed to set maximum number of hours for mine workers because of the exposure

to coal dust. This had to do with health. The defendant was convicted of a misdemeanor for violating the following law. MY FACTS OF THE CASE Hours of labor in Bakery and confectionery establishments. No employee shall be required or permitted to work in a biscuit, bread, or cake bakery or confectionery establishment more than 60 hours in any one week, or more than 10 hours in any one day, unless the purpose of making a shorter workday on the last day of the week; nor more hours in one week than will make an average of 10 hours per day for the number of days during such week in which such employee shall work. The statute necessarily interferes with the right of contract between the employer and employees, concerning the number of hours in which the latter may labor in the bakery of that employer.. The general right to make a contract in relation to his business is part of the liberty of the individual protected by the 14th amendment of the federal Constitution. No state can deprive any person of life, liberty, or property without due process of law. However the state does have police powers to regulate safety, health, morals and general welfare of the public. Both property and liberty are held on such reasonable conditions as may be imposed by the governing power of the state the exercise of those powers, and with such conditions the 14th amendment was not designed to interfere. This day, therefore, has the power to prevent the individual from making certain kinds of contracts, and in regard to them the federal Constitution offers no protection. If the contract the one which the state, in the legitimate exercises of its police power, have the right to prohibit, it is not prevented from the prohibiting it by the 14th amendment. Conduct in violation of a statute either of the federal or state government, worried contract to let one property for moral purposes, or to do any other unlawful acts, could obtain no protection from the federal Constitution, as coming under the liberty of persons or free contract. Issue: which right prevails the right of the individual to labor for such time as he may choose, or the right of the state to prevent the individual from laboring, turning into a contract to labor, beyond a certain time prescribed by the state. Appelate held: that was held to be a valid exercise of the police powers of the state. It was held the kind of employment, mining, smelting etc. and the character and employees in such kind of labor, were such as to make it reasonable and proper for the state to interfere to prevent the employees from being constrained by the rules laid down by the proprietors in regards to labor. This was most likely safety reasons. In order for the state to use its police powers in mice be a direct relation as a means to an ad and the end itself must be appropriate and legitimate.

Supreme court did not agree with the appellate court and reversed the decision under the 14th amendment. PROCEDURAL POSTURE: Plaintiff in error employer appealed a judgment from the Court of Appeals of New York. The state supreme court had found that the employer violated 1897 N.Y. Laws art. 8, ch. 415, 110, which prohibited employers from allowing employees to work more than 10 hours in one day. OVERVIEW: The state supreme court, which found that the employer allowed his employee, a baker, to work more than 60 hours in one week in violation of 1897 N.Y. Laws art. 8, ch. 415, 110, upheld the labor law as a constitutional exercise of the state's police power. The United States Supreme Court reversed. The general right to make a contract in relation to one's business, and the right to purchase or to sell labor, was part of the liberty protected by the Fourteenth Amendment. The statute was not necessary as a health law to safeguard the public health or the health of the individuals who labored as bakers. The trade of a baker was not an unhealthy one to such a degree that would authorize the legislature to interfere with the right to labor and the right of free contract on the part of the individual. Various regulations already governed the cleanliness of the quarters in which bakeries were to be conducted. Restricting the number of hours that a baker could work would not further the purpose of those regulations. It was not possible to discover the connection between the number of hours a baker could work and the quality of the bread that he produced. OUTCOME: The Court reversed the judgment and remanded to the county court. Laws Protecting Unionizing Many states and the federal government adopted laws to facilitate unionization by prohibiting employers from insisting, as a condition of employment, and employees agree not to join the union. The Supreme Court declared the law is unconstitutional as impermissibly infringing freedom of contract. Coppage v. Kansas What does the statute forbid? Forbids the employer from telling an employee that they cant join a union. What interest does the state have in passing this statute? What are they seeking to protect? What business do they have interfering with the relation with employer to employee? The Fifth Amendment protects a person liberty to join a union. A Union represents the employee. Court recognizes that this is a legitimate exercise of the police power of the state. There holding that this exercise of state power violated the Fifth Amendment. Specifically, the court talks about liberty of contract. The court calls this the equal right to enter into a contract.

FACTS: In a local court in one of the counties of Kansas, Coppage was found guilty and adjudged to pay a fine, with imprisonment as the alternative, upon an information charging him with a violation of an act of the legislature of that state, approved March 13, 1903. CASE SUMMARY PROCEDURAL POSTURE: On error to the Supreme Court of the State of Kansas, plaintiff in error challenged his conviction and sentence for violating Kan. Gen. Stat. 4674 and 4675, contending the state statutory prohibitions making it unlawful for an employer to abridge the right of his employee to affiliate with a labor union violated U.S. Const. amend. XIV by depriving him of liberty and property without due process of law. OVERVIEW: Plaintiff in error challenged his conviction and sentence after he was found guilty and fined, with imprisonment as the alternative, upon an information charging him with violating a state law that prohibited employers from attempting to abridge the privilege of their employees to affiliate themselves with labor unions. Plaintiff in error argued that the statute amounted to deprivation of liberty and property without due process of law. Defendant in error, the state government, argued the statute was not constitutionally invalid since it sought to guarantee and protect the privileges and immunities of citizens by prohibiting an attempt by coercion to deprive them of the financial interests incurred from membership in labor unions. The U.S. Supreme Court reversed the conviction on the grounds that an interference with an employer's liberty to contract for employment was so disturbing of equality of right that it must be deemed to be arbitrary, unless it was supportable as a reasonable exercise of the police power of the state. OUTCOME: The Court reversed the conviction because, while it conceded the full right of an employee to join a labor union, the Court held the constitutional guarantee of liberty of contract dictated that employees had no inherent right to join a labor union and still remain employed by an employer unwilling to employ such union member. An interference with this liberty, to tell someone not participate in a labor union is not the position of the state to monitor unless the staets position is supported as a reasonable exercise of the police power of the state. To ask a man to agree, in advance, to refrain from affiliation with the union while retaining a certain position of employment, is not to ask him to give up any part of his constitutional freedom. He is free to decline the employment on those terms, just of the lawyer may decline to offer appointments on it takes two to make a bargain. MULLER v. MREGON (EMPLOYMENT OF WOMAN AND NUMBER OF HOURS A WOMAN CAN WORK). Decided in 1908 recognized the States police power. Regulation of business and the number of hours that they can employ women.

Whats happening here? State is imposing a 10 hour maximum hour work week for women. What is the difference between this case and Lockner? Here we are looking at the delicate nature of women and the court is recognizing that there is not equal bargaining power. Here the court justifies police power by virtue of fact women need special protection. What is the rationale behind this statute? Because women should be at home rearing the children, womens place is in the home. Summarization of the case No women shall be employed in any mechanical establishment or factory or laundry in the state more than the reason for the reduction of the working day to 10 hours the physical organization of woman, her maternal functions, the rearing and education of the children, the maintenance of the home, are all so important and so far-reaching that the need for such reduction need hardly be discussed. The limitations which this statute placed upon her contractual powers, upon her right to agree with her employer as the time she shall labor, are not imposed solely for her benefit, but also largely for the benefit of all. MY FACTS OVERVIEW: Appellant, the owner of a laundry, was convicted of allowing a female employee to work longer than the maximum permitted hours for women. Appellant contended that restricting the employment hours of females violated U.S. Const. amend. XIV. The Oregon Supreme Court upheld the constitutionality of state restrictions on the working hours of females. The United States Supreme Court affirmed, taking judicial notice of the historical belief that women required protective legislation. OUTCOME: The United States Supreme Court affirmed, taking judicial notice of the historical belief that women required protective legislation. ADKINS V. CHILDRENS HOSPITAL (protecting the bargaining power of women and children). Sets minimum wage requirement for women and children. Does the court overrule Mullen? No. there distinguished. Here in Adkins sets minimum wages, Muller is maximum hours a woman can work. Whats the difference why is one constitutional and the other is not?What is state trying to protect? Woman and children in the bargaining power. Why is police power great in setting maximum hours v. paying them a minimum wage?

The fragility of women is what muller protected, here its not the same. What is the state trying to protect in terms of Muller? Protecting unequal bargaining power of women from requiring them to work more than 10 hours. What is the police trying to protect here? The unequal bargaing power, but the court says it has nothing to do with the type of work being done. You have to pay them a minimum wage while they are sitting or down on the floor scrubbing it. Also the court says women have come a long way. Women now have the right to vote. So the court does distinguish it from Muller because interest being protected, and women now have more rights, which isnt now as necessary to protect them. Outcome: The Court affirmed the lower court's decision, holding that the act providing fixed minimum wages for female employees was an unconstitutional interference with the freedom to contract as the amount had no relation to the type of work involved or employee capacity and unjustly prevented bargaining for contractual terms. MY FACTS CASE SUMMARY PROCEDURAL POSTURE: Appellant challenged a Court of Appeals for the District of Columbia decision which held that the Act of September 19, 1918, ch. 174, 40 Stat. 960, providing a fixed wage for female employees, was an unconstitutional exercise of state police power as it interfered with labor contracts involving private parties. OVERVIEW: Appellant sought review of a lower court's determination that the Act of September 19, 1918 (Act), ch. 174, 40 Stat. 960, which fixed minimum wages for female employees in private employment, was an unconstitutional interference with the freedom to contract. The decision of the lower court was affirmed on appeal. The United States Supreme Court held that the Act interfered with U.S. Const. amend. V guaranties, as the Act prevented private employers and employees from bargaining for the best contractual terms. The Court also held that the wage fixed by the Act had no relation to the capacity of female employees but, rather, was an invalid exercise of state police power by attempting to establish an arbitrary amount necessary to provide a living for women. Further, the Act required an employer to make an arbitrary payment to female employees without any causal connection to his business or the type of work the employee performed. OUTCOME: The Court affirmed the lower court's decision, holding that the act providing fixed minimum wages for female employees was an unconstitutional interference with the freedom to contract as the amount had no relation to the type of work involved or employee capacity and unjustly prevented bargaining for contractual terms.

The question presented is the constitutionality of the act of September 19, 1918 providing for the fixing of minimum wages for women and children in the District of Columbia unconstitutional. The feature of this statute, which perhaps more than any other, puts upon it the stamp of invalidity, is that it exacts from the employer in arbitrary payment for a purpose and upon a base is having no casual connection with his business, or the contract or the work the employee engages to do. It follows, from what has been said, that the act in question passes the limit prescribed by the Constitution. The court reaffirmed Adkins which also declared unconstitutional a state minimum wage law for women because it did not serve a valid state Public purpose. WEAVER v. PALMER BROS. CO. What does this case deal with? Dealing with the making of comfortables (comforter) What is at issue? Use of material called shoddy. There is first hand and second hand shoddy. Statute Forbidding the use of shoddy in the use of making comforters. What is shoddy? Clipping of pieces, garment factors, dirty rags, is then taken and shredded as filler. The statute prevents the use of shoddy. What police power can state have in preventing use of shoddy? Public health. Second hand shoddy carries bacteria. This can be any rag and discarded material. The court says its unreasonable and arbitrary to impose this because you can require it to be sterilized. Issue: Shoddy consist of clippings and pieces of new cloth obtained from cutting tables and garment factories secondhand shoddy is made of secondhand garments, rags and the like. Come for the Bulls made of secondhand shoddy sell at lower prices than those filled with other materials. Was no evidence any sickness or disease was never caused by the use of shoddy, and the record contains persuasive evidence, and by sensation discloses the opinions of scientists in fields related to public health that the transmission of disease producing bacteria is almost entirely by immediate contract with Palmer) can be two, infected persons and that such infection would not survive the production of shoddy, and the manufacturer and the shipping of comfortables.

Holding: the provision in question cannot be sustained as a measure to protect health in the fact that the act permits the use of numerous materials, prescribing sterilization if they are secondhand, also serves to show that the prohibition of the use of shoddy, new or old, even when sterilized, is unreasonable and arbitrary. CASE SUMMARY PROCEDURAL POSTURE: Defendant state official sought review of a judgment of the District Court of the United States for the Western District of Pennsylvania, which enjoined him from enforcing a law of the State of Pennsylvania against plaintiff Connecticut corporation. The law regulated the manufacture and sale of bedding insofar as it forbade the use of shoddy. OVERVIEW: The corporation manufactured "comfortables" in Connecticut and sold them there and in other states. An Act of the legislature of Pennsylvania regulated the manufacture, sterilization, and sale of bedding. In the Act, the word "comfortable" essentially meant any textile bedcover stuffed with soft material. The Act forbade the use of shoddy in such products. "Shoddy" meant any material that was spun into yarn, knit, or woven into fabric, and subsequently cut up, torn up, broken up, or ground up. On appeal, the United States Supreme Court affirmed the judgment of the district court, which enjoined the official from enforcing the Act against the corporation. The Court found that the absolute prohibition of the use of shoddy in the manufacture of comfortables was purely arbitrary and violated the due process clause of U.S. Const. amend. XIV. Sterilization eliminated the dangers, if any, from the use of shoddy; thus, the Act could not have been sustained as a measure to protect health. In addition, the Act could not have been sustained as a measure to prevent deception. OUTCOME: The Court affirmed the judgment of the district court, which enjoined the official from enforcing against the corporation a law of the State of Pennsylvania regulating the manufacture and sale of bedding.

Nebia v. New York Issue: Whats the minimum you can charge for a gallon of milk what interest does the State have regulating milk price, what business is it of the state to impose charges on individual business? Milk industry has always been regulated for the public interest. It is an essential item of diet. Therefore, the instability with regard to prices has what effect? Health hazard and potential loss of supply. Court recognizes New York is within its power. Law passed Rule:

When it comes to economic regulation the state can choose those if it is to protect the interest of the people in the state. If it is supported by constitution, the due process requirement is met. The govt cannot be neither arbitrary or discriminatory, and if the govt doesnt violate any right such as speech or other protection then it will be upheld.

Issue: whether the federal constitution prohibits a state from so fixing and selling price of milk. Does it deny due process of the fourteenth amendment?

CASE SUMMARY PROCEDURAL POSTURE: Defendant was convicted of selling milk at a price below that allowed by an order promulgated by a state board pursuant to statutory authority. The County Court of Monroe County, New York affirmed the judgment on remittitur from the appellate court. Defendant petitioned for writ of certiorari. OVERVIEW: The New York Legislature passed a Milk Control Law that established a Milk Control Board with the power to fix minimum and maximum retail prices charged by stores to consumers for milk. Defendant was a storekeeper who was found to have sold milk for less than the price fixed by the Board's order. Defendant asserted that the statute and order violated the equal protection clause and the due process clause of the Fourteenth Amendment. The Court held that the contention that discrimination deprived defendant of equal protection was not well founded because there was no showing that the order placed him at a disadvantage or affected him adversely. As the dairy industry was one subject to regulation in the public interest, there was no constitutional principle barring the state from correcting existing deficiencies by legislation fixing prices. In light of the fact that the board's order was not unreasonable or arbitrary and that constitutional due process protections did not prohibit the state from fixing the selling price of milk, defendant's conviction was appropriate. OUTCOME: The Court affirmed the conviction. PRESSURE FOR CHANGE Franklin Roosevelt was elected to a second term as President. He proposed a Court-Packing Plan, where the president could appoint one additional justice for every justice on the Court who was over age 70, up to a maximum of 15 jusitces. Roosevelt was particulary upset that the Court had invalidated several key pieces of New Deal legislation as part of its commitment to a lasissez-fair philosophy. Justice owen Roberts switched sides and cast the fifth vote to upholds the statute perhaps this was a reaction to the court packing plan. WEST COAST HOTEL CO V. PARRISH

Sets minimum wages for woman and children the same legislation proposed in District of Columbia in Adkins case. Court upholds the legislation and overrules the Atkins case. The regulation which is reasonable and relation which is subject to the community is due process. The legislature has a large field of discretion so that the peace and good order can be insured that there be freedom from oppression. The court is acknowledging that protecting health of women is a valid police power. The test is the rationale basis test: 1) legitimate state interest 2) interest is rationally related to that interest Under the rationale basis whoever is challenegeding the government action has the burden of proof. Its the person challenging or attacking it. Under rational basis there is a strong preseumtpion in favor of the constitutionality of the legislation.

The court upheld a state law that required a minimum wage for women employees and expressly overruled Adkins. FACTS PROCEDURAL POSTURE: Petitioner employer sought review of the decision of the Supreme Court of Washington, which held that the Minimum Wages for Women Act (Act), 1913 Wash. Laws 174, was constitutional. The employer contended that the Act violated the Due Process Clause of the Fourteenth Amendment. OVERVIEW Elsie was employed as a chambermaid and brought this suit to recover the differences between the wages paid her and the minimum wage fixed pursuant to the state law.A female employee filed an action for back wages under the Washington Minimum Wages for Women Act. The Supreme Court held that the Act did not violate the Due Process Clause of the Fourteenth Amendment because it was a valid exercise of the state's police power to protect the health and safety of women. The Court reasoned that the state had a valid interest in the wages paid to women because their support would fall on the state if women were not paid adequate wages. The Court specifically overruled a case relied on by the employer which held that minimum wages laws for women were an unconstitutional burden on the right to contract. The Court reasoned that the case could not stand because employers and employees did not stand on equal footing in the contract process, and the state's interest in the protection of women was valid. The Court held that equal protection was not violated because there was no doctrinal requirement that required the legislation to be couched in all-embracing terms. The Act was directed at a social position unique to women, so the Act did not constitute arbitrary discrimination.

The constitution does not speak of freedom of contract. It speaks of liberty and prohibits the deprivation of liberty without due process of law. Another reason for minimum wage: The exploitation of a class of workers who are in an unequal position with respect to bargaining power and are thus relatively defenseless against the denial of a living wage is not only detrimental to their health and well being, but casts a direct burden for their support upon the community. OUTCOME: The judgment of the state supreme court in favor of the employee was affirmed. UNITED STATES V. CAROLENE PRODUCTS CO. When there is an act of congress or legislature then you need to look at rationale test. There may be a narrower presumption of validity if dealing with a specific prohibition of the Constitution, such as those of the first ten Amendments, which are deemed equally specifc when held to be embraced within the fourteenth. SEE NOTE 4. Pg. 627. NOTE 4 There may be situations where the government may affect minority groups, unable to be protected through the political process in cases like that we may use a tougher reviewer when there is a challenge to govt regulation acts. Note 4 gives birth to strict scrutiny. Which appies to suspect classifications and to laws which affect the exercise of fundamental rights. Inquires where the legislative judgment is drawn in question, must be restricted to the issue whether any state of facts either known or which could reasonably be assumed affords support for it. IMPORTANT CASE FOOT NOTE 4 FOOTNOTE 4 Mix on condensed milk and oil. Under what power do they create the statute? Commerce clause power is being exercised here. Article I sec 8 clause 3. What would the milk be? Instrumentalities bc moving from state to state. They can regulate it as long as does not violate the constitution. Here its violating liberty of contract. Congress is attempting you from getting something that you think you are getting when you are really getting something else. Whose job is it to make this call? Up to congress or the legislature if its the state.

If there are any set of facts that are supported that would point to its rationality the legislation will be ok. CASE SUMMARY Issue: the filled milk act of congress which prohibits the shipment in interstate commerce of skimmed milk compounded with any fat or oil other thank milk fat, so as to resemble milk or cream, infringes the Fifth Amendment. The appellee was indicted in the District Court for Southern Illinois for Violatin of the act by the siphment in interstate commerce of certain packages of milnut a compound of condensed skimmed milk and coconut oil made in imitation or semblance of condensed milk or cream. Milnut is an adulterated artciel of food, injurious to the public health, and that it is not a prepared food product of the type excepted from the prohibition act. The power of the legislature to secure a minimum of particular nutrive elements in a widely used article of food and to protect the public from fraudulent substitutions, was not doubted; and the Court thought that there was ample scope for the legislative judgment that prohibition of the offending article was an appropriate means of preventing injury to the public. The filled milk act was adopted by Congress after committee hearings, in the course of which minent scientists and health experts testified. PROCEDURAL POSTURE: Appellant United States sought review under the Criminal Appeals Act, 18 U.S.C.S. 682, of an order from the United States District Court for the Southern District of Illinois, which sustained appellee corporation's demurrer to an indictment that charged a violation of the Filled Milk Act, 21 U.S.C.S. 61-63, as beyond the scope of the Commerce Clause, U.S. Const. art. I, 8, cl. 3, and a violation of Fifth Amendment due process. OVERVIEW: Appellant United States obtained an indictment against appellee corporation for a violation of the Filled Milk Act (Act), 21 U.S.C.S. 61-63, which prohibited the shipment of adulterated milk in interstate commerce. Holding that a rational basis for legislation was all that the Fifth Amendment's guarantee of due process required, the Court reversed. The Court first declared the Act a valid exercise of congressional power under the Commerce Clause. The Court then held that the Act did not infringe the Fifth Amendment, as nothing in the guarantee of due process prohibited a national or state legislature from enacting laws for the protection of their citizens. Further, the Court noted the presumption of constitutionality inherent in legislative acts. The Court held that its function, at least with respect to acts not implicating specific constitutional prohibitions, restricting political processes aimed at the repeal of undesirable legislation, or prejudicing "discrete and insular minorities," was to determine if a rational basis existed for the act, and if so, to uphold it. OUTCOME: The Court reversed the judgment for appellee corporation, because Congress had the power, under the Commerce Clause, to prohibit the shipment of adulterated milk in interstate commerce. The legislative exercise of such power did not violate respondent's right to

due process under the Fifth Amendment where Congress had a rational basis for enacting the legislation. ECONOMIC SUBSTANTIVE DUE PROCESS Economic regulation laws regulating business and employment will be upheld under the due process clause so long as they are rationally related to a legitamte government purpose. The governments purpose can be any goal not prohibited by the consitituion. In fact, it does not need to be proven that the asserted purpose was the legislatures actual objective. Any conceivable purpose is sufficient. The law only need seem to be a reasonable view of attaining the end; it did not need to be narrowly tailored to achieving the goal. PROCEDURAL SUBSTANTIVE FIRST EVIDENCE OF SUBSTANCE C OMPONENT: ECONOMIC SUBSTANTIVE DUE PROCESS CASES. COURT WAS DEMONSTRATING HOSTILITY TOWARDS GOVT REGULATION OF THE CONNOMY WITH ATTEMOS OF CONGRESS TO REGULATE THE ECONOMY. EXLUDING MANUFACRURING, PRODUCTION THEY WERE HOSTILE TOWARDS ATTEMPT BY STATE TO REGULATE THE ECONOMY. The federal govt is a govt of limited powers. The court struck down federal legislation. What operative part of the due process clause does the court use to find that certain acts of the state violate protective rights? The word liberty they infer substantive rights. They use the word liberty. 5th- only protects persons not the state. The state can never argue the 5th. You can use the 5th in state court. You argue due process against the state. You argue the 14th amendment. This would be like freedom of speech, etc. you would argue you have the right under the 1st, but you have this right because of the 14th. The 5th and 14th amendment protect the persons. Rationale basis Burden of proof is on the attacker. The attacker must show that there is no rational e or ligitmate governmental interest. You have to show its arbitrary and capricious. Government has to show 1. Rational legitimate govt interest 2. Rationale basis

Strict Scrutiny Test Places the burden of proof on the government. The interest must be compelling or overriding. That means were talking about an interest of the very highest order. You have to be able to show that the method in which they choose is the least restricitive means or there is no alternative to do it. Intermediate level: stays on the government the burden of proof. You have to show an important governmental interest. Show that the method chosen is substantially related to that state interest. Applies under equal protection with classification based upon gender, non- marital status of children, children born to non -marital units, Heightened scrutiny Both strict and intermediate together is heightened over rationale basis. WILLIAMSON CASE Facts: Unlawful to purchase prescription eyeglasses without prescription the only person who can do this without prescription is an optomologist, but an optician who only fits glasses cant due it without a perscirption. Optician cant prescribe. Claims violates due process. What part of due process does it violate? Wasnt rationally related to the health and welfare of people. Places the burden on those who do nothing but fit classes. It affects their liberty interest. It can be stupid or an unwise, but the question is does it violate the constitution the court said this is a policy determination that is best left with the legislature. It is under the system of government it is up to the legislature to decide on the wisdom and utility of the legislation. The state has power to legislate in business affairs so long as the laws do not run afoul of some constitutional provision. Unless there is some specific provision or runs afoul of or is preempted then the state are free to regulate.

CASE SUMMARY PROCEDURAL POSTURE: Appellant Oklahoma state officials sought review of a decision of the United States District Court for the Western District of Oklahoma, which held that portions of Okla. Stat. Ann. tit. 59, 941-947, 1953 Okla. Sess. Laws 13, 2-8, violated the Due Process and Equal Protection Clauses of the United States Constitution in an action filed by appellee optician to enjoin the state officials from enforcing the statute. OVERVIEW: The optician sought to have Okla. Stat. Ann. tit. 59, 941-947 (1951) declared unconstitutional because the effect of 941 was to forbid an optician from fitting or duplicating lenses without a prescription from an ophthalmologist or optometrist. In

practical effect, it meant that no optician could fit old glasses into new frames or supply a lens without a prescription. The trial court found that portions of the statute were unconstitutional. On appeal, the United States Supreme Court held that, although the law might have exacted a needless, wasteful requirement in many cases, it was for the legislature, not the courts, to balance the advantages and disadvantages of the new requirement. In reversing the judgment, the Court held that the law did not violate the Equal Protection Clause of the Fourteenth Amendment and that the law's prohibition on the use of advertising for the sale of eyeglasses and lenses was constitutional because the legislature could treat all who dealt with the human eye as members of a profession who should use no merchandising methods for obtaining customers. OUTCOME: The Court reversed the portion of the trial court's judgment holding that part of the Oklahoma statute was unconstitutional, and the Court affirmed the remainder of the judgment.

CASES THAT DEAL WITH MONEY AWARDS BMW OF NORTH AEMRICA, INC V. GORE The detailer tells the doctor whoe purchase BMW for 40,000 that the car has been painted to cover some damage to the car. It got touched up by the dealership. What is bmw policy any time a vehicle might have a flaw or damage? If cost of repaid exceed 3 percent they will sell it as used, they would use it at a loan car, if less than 3 percent then they sell it as new. Whats the big deal here? Does this constitute any damage to gore? It was only 1.5 percent damages. The cost would be 600 to repair it, but the dealer has already repaired it. So, why then is the Dr. bringing a lawsuit? What Would be the actual damages? The problem was that the damage also damaged the resell value and that amount was 10 percent or 4,000. Its not the cost to repair it, its the loss of value, he at least should have bought this car for 4,000 less. What happened in the court? He was given 4 million by trial court. It was reduced by Supreme Court to 2 million. He got 4,000 in actual damages. How did the Supreme Court come up with 4 million? There were 1,000 cases (like this) multiplied by the damages of 4,0000. Is how they came up with the figure? They used people outside state to assess the damage.

Whats the problem with this calculation? The court said you cant do that. Does this award violate the constitution? And if so what provision? RULE Pg. 632 Only when an award can fairly be categorized as grossly excessive in relation to these interests does it enter the zone of arbitrariness that violates Due Process Clause to the Fourteenth Amendment. For that reason, the federal excessiveness inquiry appropriately begins with an identification of the State interests that a punitive award is designed to serve. Procedural: The procedural aspect has to do with basis damages on no parties. That is a procedural aspect to the award of damages, because defendant has not had the opportunity to rebut the amount because there is no party. Whether you had a fair procedure. Substantive: Asks whether the law is constitutional or not. Punitive damages may properly be imposed to further a States legitimate interests in punishing unlawful conduct and deterring its reputation. 1. Punish 2. Deter Grossly excessive arbitrary award REVIEW that you must run through The three guide post to make determination that violates due process clause if something is gross 1. Degree reprehensibility: how evil the defendants or gross the actions of the defendant wore. 2. The ratio of the actual harm to the award. Harm v. punitive. Has BMW taken cars that have been totaled and then fixed them and put them out as new? 3. Other sanctions 1. Enormity how big is another word used to define reprehensibility. How bad was it what they did. 2. Ratio of the harm: 500 to 1. For every 1 dollar he received he gets 500. Alabama has a trade deceptive act and its 2,000 dollars. 2,000 dollars. Whats the comparison of a 2,000 penatly to 2 million penalty.

CASE SUMMARY PROCEDURAL POSTURE: Petitioner automobile distributor appealed a decision of the Supreme Court of Alabama, which affirmed a finding in favor of

respondent auto owner on petitioner's post-trial motion to set aside a punitive damages award in an action alleging suppression of a material fact. OVERVIEW: Respondent discovered that his new car had been repainted. He brought suit against petitioner distributor alleging that its failure to disclose the repair constituted suppression of a material fact. Evidence was introduced at trial that petitioner had a policy of nondisclosure where pre-delivery repairs amounted to less than 3 percent of the retail price of the car. The jury awarded actual damages of $ 4,000 and punitive damages of $ 4,000,000. Petitioner's motion to set aside the punitive damages award was denied by both the trial court and the appellate court. However, the appellate court reduced the award to $ 2,000,000 because it was inaccurately calculated. The United States Supreme Court granted certiorari. It reversed and remanded the case. It held that petitioner's conduct was not particularly reprehensible because it only caused minor economic harm and the 500 to 1 ratio of punitive damages to compensatory damages was not reasonable. OUTCOME: The denial of a motion to set aside the punitive damages award was reversed where the Court held that petitioner distributor's conduct was not particularly reprehensible because it only caused minor economic harm and a 500 to 1 ratio of punitive damages to compensatory damages was not reasonable.

STATE FARM (BAD FAITH AGAINST STATE FARM) pg. 635 Facts: The Campbells were driving on the wrong side of the road. There were 2 other vehicles involved in the accident. Mr. campbell was at fault. The insurance gets involved and both of the injured parties offer to settle for policy limits 50,000. 25,000 a piece. And state farm said no. if you want it take us to trial. Campbells are being sued by the other two parties the insurance is being defended. Now the campbells have a 185,000 judgement against them. State Farm told campbells they have to pay the difference. And the campbells now want to appeal this. And if you loose you minus well sell everything. The case is on appeal, the two plaintiffs say we will join you in a bad faith claim against state farm and drop the suit against you. After appeal takes place state farm pays 186,000. Because they lost on appeal. What happens on the clam for bad faith? The campbells put up a case against state farm for IIED. The court awarded 2.6 million in compensatory(actual damages) and 145 million in punitive damages, then the court reduces 2.6 to 1 and 145 to 25 million. Then its appealed to the

supreme court they uphold the reduction of actual damages to 1 million. Reinstates from 25 million to 145 million to be awarded to the campbells and the two plaintiffs. Does this violate the due process clause has both procedural and substantive aspects to it? The court reiterates the fact that if an award is grossly excessive to arbitrate the due process clause use the guide post to determine this: Pg. 637b 1. The degree of reprensability: was the tortious conduct show indifference or wreckless disregard. Affect the health or safety of others Was statefarm bad? They altered the company records, they took advice of an investigator, but disregarded it anyways. They knew that if they went to trial there was a good chance that their insured would have to pay. That is before state famr assured the campbells that there assets would be safe. Is this action better the same or worse then BMW? More reprehensibility here which means that it supports a heigher punitive award. 2. Ratio of harm(actual damages) to the recovery: Here its 145 to 1. What did the court say about the ratio? That there was no error in the ratio or punishment. They said that this was ok. There has to be some correlation between the two. What does the court say? Have we reduced it enough? Or does this still amount to grossly exceisve as to be arbitrary as to amount to a violation of due process. The court say here more likely than not has to be in single digits. Here we have three. Single digits will proibably be approved, but there will have to be a lot of reprehensibility. 3, what other civil penalties ? punitive sanction v. other penalties and sanctions. 10,000 fine for an act of fraud that groslly dwarfed by the 145 million award. Said that the penalty was arbitaray and therefore violated due process of the law. FACTS OF CASE LEXIS PROCEDURAL POSTURE: Respondent insureds sued petitioner insurer, alleging that the insurer's refusal to settle meritorious claims against the insureds constituted bad faith, fraud, and intentional infliction of

emotional distress. Upon the grant of a writ of certiorari, the insurer appealed the judgment of the Supreme Court of Utah which upheld the jury's award of $ 145 million as punitive damages upon an award of $ 1 million as compensatory damages.

OVERVIEW: The insureds contended that the substantial punitive damages award was justified in view of the insurer's national scheme to meet corporate fiscal goals by capping claim payments and engaging in fraudulent practices. The insurer argued that the ratio of punitive damages to compensatory damages clearly indicated that the punitive damages award was excessive and unrelated to the actual harm suffered by the insureds. The United States Supreme Court held that the punitive damages award was neither reasonable nor proportionate to the wrong committed, and it was thus an irrational, arbitrary, and unconstitutional deprivation of the property of the insurer. While the insurer's nationwide policies were clearly deficient, evidence of dissimilar and out-of-state misconduct of the insurer, and out-ofstate conduct which was lawful where it occurred, was an improper basis for punishing the insurer for the limited harm to the insureds. Further, neither the wealth of the insurer nor the fact that its nationwide misconduct went largely unpunished justified punitive damages which were grossly disproportionate to the compensatory damages awarded for the actual harm to the insureds.

OUTCOME: The judgment upholding the jury's award of punitive damages was reversed, and the case was remanded for further proceedings.

TOBBACCO PHILIP MORRIS 127 s.ct. 1057 False misrepresentation on the part of Philip morris. The case goes to trial do they find fault? Whats the verdict? They awarded 821,000 and 79.5 million in punitive damages. The court goes through the analysis, but points out several things. You cant use punitive damage to punish injury to non parties. ( you cant factor what punitive damages are based on everyone ex: out of state people that have been affected by this. It can only be the party defending the lawsuit.). you can only use this when it comes to reprehensibility. What did the court hold? The court says you cant use it to figure the amount of damages but you can use it to figure out the amount of reprehensibility. Cant use anyone outside of the jurisdiction. Cant use damages to nonparties. This is because of the notice issue other parties wont have opportunity to defend themselves against other parties not before the court. No opportunity to confront or offer evidence against the other parties.

The court here finds that this award results in an arbitrary award. The state gets part of the punitive award? Why? The cost of Medicaid coverage as a result of cigarettes. What is the holding of this case? While it was permissible to consider nonparty harm in determining reprehensibility, the punitive damages award to punish the manufacturer for injury inflicted on strangers to the litigation, without an opportunity to defend the charge, violated due process. Thus, procedures were required to inform the jury that, while harm to nonparties was relevant to reprehensibility, punitive damages could not be awarded to punish the manufacturer for such harm.

OUTCOME: The judgment upholding the punitive damages award was vacated, and the case was remanded for reconsideration of the award. FACTS OF THIS CASE LEXIS PROCEDURAL POSTURE: Respondent representative of a decedent's estate sued petitioner cigarette manufacturer, alleging that the deceit of the manufacturer in minimizing the dangers of smoking cigarettes contributed to the decedent's death from smoking. Upon the grant of a writ of certiorari, the manufacturer challenged the judgment of the Oregon Supreme Court which upheld a punitive damages award against the manufacturer.

OVERVIEW: The manufacturer contended that the jury was impermissibly permitted to calculate punitive damages based on harm to parties who were not parties to the litigation. The representative asserted that the jury was entitled to consider harm to nonparties in assessing the reprehensibility of the manufacturer's conduct for purposes of punitive damages. The U.S. Supreme Court held that, if the punitive damages award was based in part on the jury's desire to punish the manufacturer for harming nonparties, such an award amounted to a taking of property from the manufacturer without due process. While it was permissible to consider nonparty harm in determining reprehensibility, the punitive damages award to punish the manufacturer for injury inflicted on strangers to the litigation, without an opportunity to defend the charge, violated due process. Thus, procedures were required to inform the jury that, while harm to nonparties was relevant to reprehensibility, punitive damages could not be awarded to punish the manufacturer for such harm.

OUTCOME: The judgment upholding the punitive damages award was vacated, and the case was remanded for reconsideration of the award.

Economic Liberties: The Contract Clause The contract clause (no state shall pass any law impairing the obligation of contracts). Prohibits states from existing contracts does not protect freedom form enteringinto a contract. It applies to the states it does not apply as a limitation upon the federal government only on the state. Article 1 section 10 provides that no state shall pass any law impairing the obligation of contracts. Contract clauses not apply to the federal government, challenges to federal interference with contracts must be brought under the due process clause where they will receive the deferential rational basis review described above. The first half of the 19th century, the court aggressively you use the Contra Costa validates state and local laws that interfered with rights under existing contracts. During the Lochner era, from about 1897 to 1937, the contracts clause was made superfluous by the court protection of freedom of contract under the due process clause of the fifth and 14th amendments.

Homebuilding & Loan Association v. Blaisdell Contract clause was included in the constitution to protect creditors form loosing obligations that there debtors owed them. CLASS NOTES If you lose your job the bank can foreclose. This act is designed to postpone foreclosures realizing that this is an economic emergency. Where dealing with the great depression up to 30 percent or more are unemployed. Here the mortgage lenders are arguing this is a violation of the contract clause because it impairs and exisiting obligation.

Issue: Whether or not this mortiroum impairs this obligation that mortagee has the mortgagor.

What does the court say here? The emergency doesnt create the police power it creates the emergency to exercise the police power. There is an economic emergency going on. Does the state have the ability to grant this relief. What kind of relief is it to the mortgagees? Its a temporary relief. The obligation is not absolved its not changesd you still owe on your mortagege you only get a little more time to get caught up but it doesnt change my mortgage. Whats the heart of the criteria? This was for a proper purpose. The exercise of the police power has to be a legitimate one. It has to be appropriate and it cannot be unreasonable. This is the rationale basis 1. Legitimate 2. Appropriate 3. Unreasonable ( means chosen must not be unreasonable)

CASE SUMMARY PROCEDURAL POSTURE: Appellant sought review from a judgment of the Supreme Court of Minnesota, which affirmed an order extending the period of redemption from a foreclosure and sale of real property in an action brought under the provisions of the Minnesota Mortgage Moratorium Law, 1933 Minn. Laws 339.

OVERVIEW: Appellant challenged the validity of the Minnesota Mortgage Moratorium Law (Act), 1933 Minn. Laws 339, as being repugnant to the Contract Clause of U.S. Const. art. I, 10, and the Due Process and Equal Protection Clauses of U.S. Const. amend. XIV. The statute, which granted appellees an extension for the period of redemption for a foreclosure sale, was sustained by the Supreme Court of Minnesota. The Supreme Court affirmed, holding that the Act had been enacted pursuant to the state's police power with regard to an emergency economic crisis and that the legislation was addressed to a legitimate end. The conditions upon which the period of redemption was extended were not unreasonable, and the legislation was temporary in operation. Thus, the Act violated neither the Contracts Clause nor the provisions of U.S. Const. amend. XIV.

OUTCOME: The judgment of the state supreme court, which found that the Minnesota Mortgage Moratorium Law did not violate the Contracts Clause of the federal constitution, was affirmed because the law was enacted pursuant to the state's police power, was temporary in duration, and conditions imposed by the law were reasonable.

What is the statute here? The Minnesota mortgage moratorium law all is being contested as being repugnant to the contract clause and the due process and equal protection clauses of the 14 th amendment of the federal Constitution. The act provides that, during the emergency declared to exist, relief may be had through authorize shoot just so proceedings with respect to foreclosures of mortgages, and execution sales, real estate that sales may be postponed and periods of redemption may be extended. The act does not apply to mortgages subsequently made nor to those made previously which shall be extended for a period ending more than a year after the passage of the act. What is the court concerned with? Provision of part one, authorizing the District Court the county to extend the period of redemption from foreclosure sales for such additional time as the court may deem just and equitable, subject to the above described limitation. The extension is to be made upon the application to the core, on notice, for an order determining the reasonable value of the income of the property involved the sale, or, if it has no income, the reasonable rental value the property of, and directing the mortgage or to pay all or or a result part of such income or rental value, in or toward the payment of taxes, insurance, interest mortgage indebtedness at such times and in such manner as shall be determined by the court. Emergency does not create power. Emergency may furnish the occasion for the exercise of power. Constitutional question presented in the light of an emergency is whether the power possessed embraces the particular exercise of it in response to a particular conditions. Thus, the war power the federal government is not created by the emergency war, but it is a power given to beat that emergency.

Government interference with private contracts

Energy Reserves group, INC. Kansas Power and Light Co. (This case discusses the test you must go through when there is government interference with private contracts).

Class notes There was a contract for the sale of natural gas that fixed the price for the natural gas if govt regulation affect the price then under the contract that would be the price for the gas then after this kansas passes a statute that basically says that price of natural gas cannot be increased under contract because the price set by federal authority. You can escalate if federal escalates and then Kansas says you can t do that. Does this violate contract clause because this does have an effect on existing contracts? Rational basis review. There is a strong presumption in interest of state regulation. Who bears the burden? The person attacking regulation. They have to show its not a legitimate state interest and then have to show whether rationally related or reasonable. 1. Does it substantially impair the contract 2. Is there a significant legitimate purpose 3. Are the conditions reasonable for the public purpose

What interest does the state have in preventing a price increase? Wanted to create a balance between intrastate and interstate market. Prevent producers from going customers from the fact the prices could be going up. Does it violate the contract clause here? Doesnt violate the law because there is no contract that is involved here were dealing with workers compensation that is involved here. State and local laws even if they interfere with contractial rights can do so longas they meet rational basis test.

Is Adjusting the Contracting Parties Rights Reasonable and Appropriate in Light of the Public Purpose?

If the court determines that there is a "substantial impairment," and that the state has a significant and legitimate public purpose, then the last hurdle must be met: "the next inquiry is whether the adjustment of rights and responsibilities of contracting parties is based upon reasonable conditions and is of a character appropriate to the public purpose justifying the legislations adoption." Energy Reserves Group, Inc. v. Kansas Power & Light Co., 459 U.S. 400, 411-12, 103 S.Ct. 697, 704-05 (1983).

This prong prohibits states from enacting laws that alter the position of the parties so as to favor the party who has the states sympathy. There must be a significant and legitimate social purpose to support the legislative impairment of contracts. The law must be a reasonable means to promote the public purpose. What is this case about? Concerns a regulation by the state of Kansas is of the price of natural gas sold at well ahead in the intrastate market.

What is the law at issue here? Kansas adopted a law that provided that the price to be paid for natural gas under a contract could not be increased because the prices set by the federal authorities. Issue: glad the Kansas act has impaired substantially ERDs contractual rights. Stay authority to regulate natural gas prices well-established. The time of the execution of these contracts, Kansas and not regulate natural gas prices specifically, but his supervision of the industry was expensive and intrusive. Why does Kansas regulate natural gas? Kansas has exercises police power to protect consumers from the escalation of natural gas prices caused by deregulation the state recently could find that higher gas prices have caused and will cause hardships among those who use gassy but must exist on limited fixed incomes. State also has a legitimate interest in correcting the imbalance between the interstate and intrastate markets by permitting intrastate prices to rise only to the article 109 level. What is the three-part test when a state or local government interference with existing private contracts?

1. Is there a substantial impairment of a contract relationship 2. If so, does it serve a significant and legitimate public purpose 3. If so, is a reasonably related to achieving the goal? What the court say when applying the three factors test? Court said law did not interfere with existing contracts. Stay local laws are upheld, even if they interfere with contractual rights, salon of a meaty rational basis test. Virtually all laws of them found to meet this deferential scrutiny. The law has a legitimate purpose in that it does not violate the contracts clause. What is the question you must ask to see whether the state has violated the contract clause? Whether state law has, in fact, operated as a substantial impairment of a contractual relationship.the severity of the impairment is said to increase the level of scrutiny to which the legislation will be subjected. The contract is subject to state it restriction you cannot remove them from the power of the state by making a contract about them. What is a state regulation constitutes a substantial impairment on the contract? The state justification would have to have a significant and legitimate public purpose behind the regulation. The requirement of a legitimate public purpose guarantees that the state is exercising its police power, rather than providing a benefit to special interests.

Allied structural steel co. V. Spannaus ( this is where the state violated contract clause). Class notes Facts Steel company had a pension plan with its employees and it had a certain amount they had to put aside when they retired. How did the state change the contract? To whom does the statute apply? Employers that hire 100 or more individuals and at least one working in the state of Minnesota.

What does it do in attempting to protect the reiterment benefit throught the statute? If they work 10 years or more they had automatic pension. Its changed the vesting period. They decide to shut down where there benefits vested? 9 did not have vested under the company plan. The company was in its power to do this but under Minnesota statute the effect of this statute basically said the employer had to pay a penalty to the state of Minnesota for 185,000 for its violation of the vesting period on the statute.

The question is does this statute substantially impair the existing obligation ( the pension contract between employer and employee)? Yes. It does it changes the obligation retroactively . what difference from the Blaisdell case here? That its not temporary. Here, its a permanent measure. Is it substantial? Yes. 185,000 is a lot. Was it severe? Because company goes from owing nothing to having to pay 185,000 so the effect of the statute is severe, permanent and immediate.

PROCEDURAL POSTURE: Appellant employer filed an action for injunctive and declaratory relief and claimed that the Private Pension Benefits Protection Act (Act), Minn. Stat. 181B.01 et seq., unconstitutionally

impaired the employer's contractual obligations to its employees under its pension agreement. The United States District Court for the District of Minnesota upheld the constitutional validity of the Act as applied to the employer. The employer appealed.

OVERVIEW: Pursuant to the Act, the State assessed a pension funding charge against the employer because it closed one of its offices and several of the discharged employees did not have vested pension rights under the employer's pension plan. The Court reversed the judgment that upheld the validity of the Act. As applied to the employer, the Act violated the Contract Clause because it operated as a substantial impairment of a contractual relationship. The Court noted that the State's police power was limited when its exercise effected substantial modifications of private contracts. The Act did not possess the attributes of the state laws that in the past had survived challenge under the Contract Clause. It was not enacted to deal with a broad, generalized economic or social problem. It invaded an area never before subject to regulation by the State. It did not effect simply a temporary alteration of the contractual relationships of those within its coverage, but worked a severe, permanent, and immediate change in the relationships, irrevocably and retroactively. Its narrow aim was leveled only at employers who voluntarily agreed to establish pension plans for their employees.

OUTCOME: The Court reversed the district court's judgment that upheld the constitutional validity of the Act as applied to the employer.

Who delivered the opinion: Justice Stewart Appellant: Allied structural steel Company, a corporation with its principal place of business in Illinois, maintained an office in Minnesota with 30 employees. Issue: Whether the application of Minnesotas private pension benefits protection act of the appellant violates the contract clause of the United States Constitution. Facts: company offered pension plan payable in full at age 65, if a person at the following requirements one he had worked for 15 years for the company reached the age of 60, or he was at least 55 years old enough of his age and his years of service with the company was at least 75 or he was less 55 years old but the sum of his age and his years of service with the company was at least 80. In some, an employee who did not die, do not quit, and was not just charge you for meeting one of the requirements of the plan would receive a fixed pension at age 65 if the company remain a business and elected to continue the pension plan and essentially its existing form.

What statute is at issue? Minnesota not of the law here in question, the private pension benefits protection act. Under the act, a private employer of 100 employees or more at least one of whom was a Minnesota resident provided pension benefits under plan me the qualification for one of the Internal Revenue Code, with subject with pension funding charge if he either terminated the planner closing Minnesota office. The charge was assessed if the pension funds were not sufficient to cover for pensions for all employees who had worked at least 10 years. The act require the employer to satisfy the deficiency by purchasing deferred annuities, payable to the employees at their normal retirement age.

Why is the statue in issue? Because in the summer of 1974 the company began closing its Minnesota office. July 31, a discharge 11 of its 30 Minnesotas employees, and the following month the notify the Minnesota Commissioner of labor and industry, as required by the act, but it was terminating an office in the state. On August 18, the state notified the company that annuity pension funding charge of approximately 185,000 under the provisions of the Pvt. Pension benefits protection act. The company brought suit in federal district court asking for injunctive and equatorial relief.

What did the companies say about the statute? Claim of the act was unconstitutional. It claimed that the act unconstitutionally impaired its contractual obligations to its employees under its pension agreement.

What does the court say about this? They say that the act of nonviolent the Contra clause of the Constitution. What is the evaluation that the court does to determine whether contract clauses that violated? 1. Whether state law has, in fact, operated as a substantial impairment of a contractual relationship. Severe impairment of the contract will push the inquiry to a careful examination of the nature and purpose of the state legislation. Here the companys contract of employment with employees included as a fringe benefit or additional formal compensation, the pension plan. The plan satisfied the current federal income tax code and was subject to no other

legislative requirements. The company was free to amend or terminate the pension plan any time. The effect of Minnesotas private pension benefits protection act was contractual obligation with severe. The company was required in 1974 to have made contributions throughout the pre-1974 life of its plan as of employees pensions rights had vested after 10 years, instead of vesting in accord with the term of the plans. Whats the problem with this statute? This law was enacted to deal with a broad, generalized economic or social problem. Did not operate in an area already subject to state regulation at the time the companys contractual obligations were originally undertak en. Said this law work a severe permanent, and a media change in those relationships if revocable he and retroactively. Narrowing was level, not at every Minnesota employer, not even at every Minnesota employer left the state, but only at those who had in the past been sufficiently enlightened as voluntarily to agree to establish pension plans for their employees. Government Interference with Governement contracts Level of scrutiny is raised in the case below because were dealing with laws that affect government own obligation on its contract. United State Trust Co v. New Jersey Dealing with a agreement made between new York and NJ. What did they agree to? Passed statutes that said tolls cannot be used for railroads. Then what happened? They wanted to assure that the port authorities issued bond to make sure the holder of the bond get their money, but not seeing that toll monies are diverted for another cost. Its to insure the bonds they issued. What did ny and NJ do?

They go back and repeal laws prohibiting use of tolls for railroads now we have a suit challenging retroactive appeal saying it affects an obligation of contract. What contracts are affected by this? The court says first of all there is a k between ny and nj they agreed to remove the tolls so what the problem? The court days there also a contract between state and bond holder and with the passage of this the security of the bonds go down. The tolls arent gauaranteed to pay bond service, instead its going to pay toll services?

Does this amount to an impairement that it would violate the contracts clause? 1. What type of interest the court says there has to be (pg. 660) Reasonable and necessary to serve important govt purpose (this raises level from rational test which says legitimate purpose). 2. Where means chosen essential 3. Where there alternative means. Court is not clear on the type of scrutinty its not 100 percent clear as to what scrutiny is this. This case stands for a higher level of scrutiny will be used whenever state pass laws that affect their own obligations on contracts. Difference between other cases discussed? The states interest is affecting interest between private parties. Those bonds were issue by private people and the port authority (the state) it has the effect of changing the obligation with contracts with private individuals.

PROCEDURAL POSTURE: Appellant, trustee for port authority bonds, sought review of the Supreme Court of New Jersey, which affirmed a lower court's holding that the statutory repeal of a statutory covenant was a reasonable exercise of the state's police power and was not prohibited by the Contract Clause, U.S. Const. art. I, 10, cl. 1.

OVERVIEW: Appellant, trustee for port authority bonds, brought an action to contest the repeal of a statutory covenant limiting the ability of a port authority to subsidize rail passenger transportation from revenues and reserves. New York and New Jersey adopted laws prohibiting the use of toll revenues from the Port Authority of New Jersey and New York from being used to subsidize railroad passenger services. Laws were meant to assure those holding Port Authority bonds of the toll funds would remain available to pay that debt. Appellant claimed that repeal of the covenant impaired the obligation of the state's contract with the bondholders because it totally eliminated its security provision, which protected the port authority's reserve fund from depletion. The state superior court ruled that the statutory repeal was a reasonable exercise of the state's police power and found that it was not prohibited by the Contract Clause, U.S. Const. art. I, 10, cl. 1. The state supreme court affirmed. Appellant challenged the decision. The court reversed, holding that the Contract Clause was violated because the repeal had the effect of impairing a contractual obligation of the state. The court found that the state's financial obligation was not a reserved power that could not be contracted away. Also, the court also determined that the impairment was not reasonable or necessary to serve an important public purpose.

OUTCOME: The court reversed a state's supreme court's affirmance of a lower court's holding that the statutory repeal of a statutory covenant did not violate the Contract Clause of U.S. Constitution. The court held that the

repeal of the statutory covenant did violate the Contract Clause because it impaired a financial contractual obligation of the state and the impairment was not reasonable or necessary to serve an important public purpose.

The Takings clause 5th amendment of the constitution but it does not say which government is limited by this. This applies to the federal government. This clause was the first of the bill of rights to be incorporated into the process clause of the 14th amendment. A person cannot be deprived of life, liberty and process of law. The taking clause is incorporated into the 14 th amendment. If the state does the state (14th amendment and due process clause) If the government does the takin (5th amendment) Contract clause: This is for the public good but its not fair to bear the cost for the public good. Govt can take property but if its take its has to be for public use. And oyou need to get just compensation, 1. Do we have a taking Possessor Regulatory 2. Is it a taking of property 3. Is it for public use 4. When they take your property for public use they need to pay you just compensation which is the value to the owner and not the value of the government.

Does the government action amount to a taking? There are two types:

1. Possessory: 2. Regulatory:

3. Introduction: the federal government in the state have the power of eminent domain this is the authority to take private property when necessary for government activities. However the Constitution contains important than honest power the Fifth Amendment states nor shall private property be taken for public use without just compensation. This was the first provision of the Bill of Rights to be applied to the states. Analysis of the takings clause 1. Is there a taking? There are two types of taking: Possessory taking occurs on the government confiscate or physically occupies property. A regulatory taking is when the government regulation leaves no reasonable economically viable use of property. 2. Is it property? 3. If there is a taking of property, the next question becomes is the taken for public use? If the taking is not for public use, the government must give the property back. However, as also in discussed below, the court has very broadly defined public use so that all of any taking will meet the requirement. Cora said that a taking is for public use so long as it is rationally related to a conceivable public purse but in other words, a taking is for public use so long as it meets the rational basis test. 4. Is just compensation paid? Possessory Takings

 The spring court generally has finally taken when the government confiscates or physically occupies property. Lorreto v. Telemprompter Manhattan Catv Corp. State passes a statute which allows from private cable companies to install cable lines. The question here is does this access to private property and the imposition of the cable and lines on the property amount to a taking, if this amount to a taking then you need to get just compensation. Is there a public use or public purpose ? Yes. Because the tenants can receive important information relatively fast. Is this a taking? Yes, because this is a permament, physical occupation of the property its a taking. Although hasnt destroyed the use if govet has required the physical taking gthe govt has to pay for it. What type of taking is this? possessory

CASE SUMMARY PROCEDURAL POSTURE: Appellant landlady challenged a judgment of the Court of Appeals of New York, holding that a minor but permanent physical occupation of an owner's property authorized by N.Y. Exec. Law 828 (1) (Supp. 1981-1982) did not constitute a "taking" of property for which just compensation was required by the Fifth and Fourteenth Amendments.

OVERVIEW: Appellant purchased an apartment building in which the prior owner had allowed appellee cable company to install a cable on the building and to furnish cable television services to the tenants. Appellant filed a class

action alleging that the installation was a trespass and a taking without just compensation. Reversing the state court, the Court held that the physical occupation of an owner's property authorized by the government was a "taking" of property. N.Y. Exec. Law 828(1) (Supp. 1981-1982) provided that a landlord must permit a cable television company to install its cable facilities upon the landlord's property. The Court explained that to the extent the government permanently occupied physical property, it effectively destroyed the right of the owner to exclude or control that portion of her property. The Court noted that Constitutional history confirmed that this was a taking and recent cases did not question the rule. In addition, the purposes of the Takings Clause compelled retention. The Court concluded that the amount of compensation was a matter for the state court to determine on remand.

OUTCOME: The Court reversed the judgment and remanded the matter so that the state court could determine the appropriate amount of compensation due the landlady.

Issue: whether a minor bug permanent physical occupation of anothers property authorized by government constitute a taking of property for which just compensation is due under the fit and 14th amendments of the Constitution.

Facts: New York law provides that a landlord must permit a cable company to install its cable facilities upon his property. In this case, the cable insulation octopi portions of appellants roof the side of her building. New York Court of Appeals ruled that this appropriation is not amount to a taking because we conclude that such a physical occupation of property is a taking, we reverse.

Whether an otherwise valid regulation so frustrates property rights compensation must be paid. The same time, we have long considered a physical intrusion by government to be a property restriction of an unusually serious character for purposes of the takings clause. When the physical intrusion reaches extreme form of a permanent physical occupation, a taking has occurred.

Why is this a taking? Teleprompters cable insulation on appellants building constitute taking under the traditional task. The installation involved a direct physical attachment plates, box, wires, bolts completely occupying space immediately above and upon the roof along the buildings exterior wall.

Regulatory Takings The court said that it taking also could be found in government regulation of the use of property went too far. Pennsylvania coal Co. v. Mahon( case where homeowner tries to bring the colder act against minors because they dont want the minors to mine on their property however they had already established the contracts between the two of them gave the minors the rights to contract the surface the government held that the colder act was unconstitutional because it was taking her to did not apply). What are we dealing with here?whats the regulation? Forbids the mining of coal designed to prevents subsurface mining, is this a legitimate state police power interest? The States was trying protect homes from caving. The point is to protect the home owners. This is a legitimate state power interest. If a regulation goes to

far as to affect the property interest it doesnt mean they cant do it just means there going to have to pay for it. If it affects the value or use of property it cannot amount to taking and therefore there going to have to pay for it. The state would have to compensate the coal miners. CASE SUMMARY PROCEDURAL POSTURE: Defendant appealed from a decision of the Supreme Court of Pennsylvania, which found that although defendant had valid contractual and property rights, the Kohler Act, 1921 Pa. Laws 1198, was a valid exercise of police power and allowed an injunction to be issued to prevent defendant from mining under plaintiffs' surface land.

OVERVIEW: Defendant appealed appellate court's decision for plaintiffs in plaintiffs' suit to enjoin defendant from mining under plaintiffs' house and removing the supports and causing subsidence. A deed granted plaintiffs the surface rights to certain land but reserved to defendant the right to mine all coal under the house. Plaintiffs argued that the Kohler Act, 1921 Pa. Laws 1198, extinguished defendant's right to mine under plaintiffs' surface land. The Court reversed. The Court held that the Kohler Act was unconstitutional as a taking of defendant's rights under a valid contract. In order to protect themselves, plaintiffs should have contracted to acquire more than the surface rights. The Kohler Act could not have been used to terminate the valid contractual rights defendant received, nor could the Act could be used to take defendant's contract rights without adequate compensation.

OUTCOME: The Court reversed the lower court's decision, finding that the Kohler Act was not a legitimate exercise of police power, but rather was an unconstitutional taking of defendant's contractual and property rights because

it served to take away those valid rights without adequate and just compensation. What was going on here? This is a bill in equity brought by the defendant in error to prevent the Pennsylvania coal company from mining under their property in such a way as to remove the supports and cause a subsidence of the surface and other house. The plaintiffs say that whatever may have been the hold companys rights, they were taken away by an act of Pennsylvania commonly known as the Kohler act. What does the deed say? The deed convey the surface but in express terms reserves the right to remove all the coal under the same and the grantee takes the premises with the rice and waives all claims for damages that may arise from mining out the coal. What is the Kohler act? For bids the mining of coal in such a way as to cause a subsidence of among other things, any structure uses human habitation, with certain exceptions, including among them land with the surface is owned by the owner of the underlying coal and is just more than 150 feet from any improved property belonging to any other person. What is the court say? The private persons home that cannot be sustained as an exercise of the police power, so far as it affects the mining of coal under streets or cities in places where the right minds of school has been reserved. The rights of the public industry purchased were laid out by an eminent domain are those that it has paid for. The protection of private property and the Fifth Amendment presupposes that it is wanted for public use, but provide that it shall not be taken for such use without compensation. Regulation goes too far will be wrecked that this is taking.

They have a right to take the mineral by the deed the state has no business, and if the state decides to exercise a taking it has to pay for it. Here, the state is trying to protect safety, this is a valid police power.

Miller v. Schoene (a regulation is not a taking) Whats the distinction between Mahone and schoene? People are tyring to protect there apple and the other people want to protect their cedar. Facts: ordered plaintiffs ot cut down cedar trees because they had a fungus called cedar rust. Upon what basis does the state proceed to do this? There is a statute. This statute defines what cedar rust is. Cedar rust is a fungus that is on cedars. They do quite well with it. It can also affect apple trees and it has a detrimental affect on apple trees. In order to deal with it is to cut down the trees so that the disease doesnt spread.

Is this a valid police function to do this? Yes. The state has the power to regulate for interest of public. Difference in Mahane? In mahane the court says its a valid exercise to protect but it went so far as to destroy minieral interest, if regulation goes to far even if the state is allowed to they have to compensate.

Why do we not have to compensate the red cedar (used for ornamental purposes)? This is a major portion of the agriculture economy of the state that is at danger here. At what point does a regulation become a taking? If it has the effect of taking all the value then its a taking. Here there was still some value to the lumber after cedars were taking. If it doesnt go to far its not a taking. Thats why here they said it wasnt a taking so they didnt have to compensate the cedar owners. Just compensation: The loss of the owner how we factually cometo how much the item is worth. PROCEDURAL POSTURE: Plaintiff tree owners challenged the judgment of the Supreme Court of Appeals of Virginia, which affirmed a judgment affirming on appeal an order of defendant state entomologist requiring plaintiffs to cut down a large number of ornamental red cedar trees growing on their property to prevent the spread of cedar rust to nearby apple orchards.

OVERVIEW: Acting under the Cedar Rust Act of Virginia, Va. Code Ann. 885 to 893 (1924), defendant state entomologist ordered plaintiff tree owners to cut down a large number of ornamental red cedar trees growing on their property as a means of preventing the communication of a rust or plant disease with which they were infected to the apple orchards in the vicinity. Plaintiffs challenged the constitutionality of the statute under the due process clause of U.S. Const. amend. XIV. The United States Supreme Court affirmed the state supreme court's judgment affirming the order directing plaintiffs to cut down the trees. The Court held that when forced to make the choice, the state did not exceed its constitutional powers by deciding upon the destruction of the cedar trees in order to save the apple orchards, which in the judgment of the legislature was of greater value to the public.

OUTCOME: The Court affirmed the state supreme court's judgment affirming the order directing plaintiff tree owners to cut down their cedar trees to prevent the spread of cedar rust to nearby apple orchards because the state did not exceed its constitutional powers by deciding upon the destruction of the cedar trees in order to save the apple orchards, which in the judgment of the legislature was of greater value to the public. What is Cedar Rust? Is it infectious plant disease in the form of a fumble a organism which is destructive of the fruit and knowledge of the Apple, but without effect on the value of the Cedar. Is communicated by spores from one to the other over a radius of at least 2 miles. The only practical method of conjoined these in protecting Apple trees from its ravages of the instruction of all red cedar trees, subject to the infection, located within 2 miles of Apple orchids. The state had to make a choice. The state was under the necessity of making a choice between the preservation of a class of property and that of the other wherever both existed and dangerous proximity. When forced to such a choice of state does not exceed its constitutional powers by deciding upon the District one class of property or to save another which, in the judgment of the legislature, is of greater value to the public. When is there a taking for bid in by the Fifth Amendment?

QUESTION Is the formula for regulatory taking different from the formula of possessory takings?

Regulatory takings ( government regulation is a taking if it leaves no reasonable economically viable use the property, government regulation is not a taking simply because it decreases the value a persons property, so long as it leaves reasonably economical viable uses. 1) Economic impact of the regulation claimant 2) The extent to which the regulation has interfered with investment backed expectations and 3) The character of the governmental action

PENN CENTRAL TRANSPORTATION CO. NEW YORK CITY Grand central station entered into contract to build a building on top of grand central station. Whats the use of skyscraper? Office building with multiple tenants. It will be economically beneficial to the lessees. This also increases the revenue of Penn central. Whats the problem? Grand central station has to apply to build the building ( because its a historic building). There was a law on this. If your property is designated as a landmark it has to be approved by the commission. The lesse apply for the building. They are denied the right to put this skyskrapper above.

The question is, is this denial of the permit to add this amount to a taking? Does this regulation (permission) go to far as to amount to a taking of property? Court said not a taking. Did they use a test in making the determination ?

There is no set formula for making this determination but there are factors the court looked at. 1. Economic impact on the property subject to the regulation ( was penn affected by this regulation. No there has been no loss). 2. The extent to which the regulation effects investment backed expectations ( no. what about the lessees who leased with hopes of staying there for 50 years. The commission said you cant put anything about grand central station but you need to follow guidliness. ). Therefore court denies relief in terms of this being a taking. Maybe there is a height restriction but not a complete prevention of space.

Issue: Does the regulation go so far as to make the state pay?

CASE SUMMARY PROCEDURAL POSTURE: Plaintiffs appealed a judgment from the Court of Appeals of New York holding that defendants had not taken property without just compensation and did not arbitrarily deprive plaintiffs of their property without Fourteenth Amendment due process of law in a case involving the application of the city's Landmarks Preservation Law, N.Y. City Admin. Code, ch. 8-A, 205-1.0 et seq. (1976), to Grand Central Terminal.

OVERVIEW: The court affirmed the judgment holding that defendants had not taken plaintiffs' property without just compensation and did not arbitrarily deprive plaintiffs of their property without Fourteenth Amendment due process of law. The Court held that plaintiffs could not establish a "taking" simply by showing that they had been denied the ability to exploit a property

interest that they had believed was available for development. The court noted that landmark laws were not like discriminatory or "reverse spot" zoning. The Landmarks Law did not interfere in any way with the terminal's present uses and plaintiffs' primary expectation concerning the use of the parcel. The restrictions imposed were substantially related to the promotion of the general welfare and not only permitted reasonable beneficial use of the landmark site, but also afforded plaintiffs opportunities further to enhance not only the terminal site, but also other properties. LUCAS v. SOUTH CAROLINA Facts: The state of South Carolina prohibited petitioner Lucas from building a permanent structure on his property from 1988 to 19990. Police power is being used to protect shore lines. Does this amount to a taking that are compensable: 1. Physical invasion (physical occupation) doesnt matter ho small the occupation is if there is physical occupation by govt thats a taking and diminished value has to be paid by govt. 2. Where it denies all beneficial use of the land. (What is the value of two parcels of land as a result of this regulation)? If there is no economical use of land then it is a total deprivation and the state has to pay. Euclind v. Amber: Zoning ordinances will not amount to a regulation that goes to far to amount to a taking. The police power interest is strong when it comes to health, moral, safety. Zoning laws will affect the property of value. If its used for commercial purposes can be worth 50,000 as a general rule it will be difficult to argue that zoning laws amount to taking even though it may diminished economics effect on the property.

Conditions (what if one applies for a permanent to build says we will let you do this but only if you fulfill certain conditions. Are those conditions do they amount to a regulation that could go so far as to amount to a taking). Tear down a structure but you have to grant public access through your property to the beach. What was the condition? Further justification which was not related to the building that Nolan want to construct. What was the stated puporse for telling Nolan he could develop but needed to give access? The granting of the easement was conditioned upon the visual side of the beach. They were concerned with his house blocking the beach so we can see the beach from the road. This wasnt an appropriate easement. Court said easement not valid. DOLAN V. CITY OF TIGARD Developer wants to develop property but ther are two conditions 1. Flood and drainage set aside portion to handle drainage 2. Bike path aimed at protecting people riding bicycles. How do we determine whether such conditons are an effective regulation which go to far? About 10 percent of peroperyt is affected by these conditions. How do we make that determination? Is there a set test? How do we determine if its a legitimate state interest? Intended to help prevent flooding and promote safety by having bike trails. Generalized statements will suffice. There is a strong presumption of the government reasons.

There needs to be a reasonable relationship test? P. 684 Rough proportionality is the test? P.684 This is a test that only applies to conditions. The key operative word is individualized determination. What does rough proportionality mean? Giving flexibility to the government to place conditions. There must be some individualized determination as to the effects. Do these conditons go so far to be a regulation amounting to a taking? Are they reasonable or do they go to far requiring the state pay? Holding: The court remands the case to apply the test. So we dont know.

OUTCOME: The judgment holding that defendants did not take plaintiffs' property without just compensation and did not deprive plaintiffs of their property without Fourteenth Amendment due process of law was affirmed because the application of the law had not effected a taking and the restrictions imposed were substantially related to the promotion of the general welfare and permitted reasonable beneficial use.

PROCEDURAL POSTURE: Petitioner appealed decision by the Supreme Court of Oregon that held that respondent city's decision to grant a permit to petitioner, conditioned on petitioner dedicating her land to respondent, was

not a taking under U.S. Const. amend. V because the dedication was reasonably related to the expansion of petitioner's business.

OVERVIEW: Petitioner applied to respondent city for a permit to redevelop her business. Respondent granted the permit conditioned on petitioner dedicating some of her property to respondent in furtherance of its land use plan. Petitioner brought suit on the grounds that respondent's dedication requirements were not related to the proposed development, and therefore, constituted a taking without just compensation under the U.S. Const. amend. V. The Supreme Court of Oregon found that the conditions were reasonably related to the proposed development. On appeal, the Court held that there must be an essential nexus existing between the legitimate state interest and the permit condition by the respondent. The Court held that if a nexus existed, then exactions imposed by respondent must be roughly proportionate to the projected impact of the proposed development. Respondent's conditions were not reasonably related to the impact of the proposed development, and therefore, the judgment was overturned.

PALAZZOLO V. RHODE ISLAND What about a regulation that was already in effect when your purchased the property and you say this regulation goes to far and you allege a taking? Individualset up a development company they bought property they wanted to develop and he boughout the individuals who went into business with him for failure to pay taxes the property reverts back to him in th e meantime while he develops property the restrictions are put on the property at the time it is reverted back to him.

What does he have in mind to build?

He wants to build a residence. He is asserting that these regulation which will prohibit him from doing this amounts to a taking because it affects the economic value pf the property. But the supreme court says you can claim that because those regulations were in effect at the time you took the property. Can one argue that regulations go too far to amount of a taking even if they acquired property after regulations were put in effect? What did the supreme court say?(see 689) If you acquire after regulation you can challenge. There is no expiration date on the taking clause. What amounts to a taking? 1. Taking even if there is aminimum permanent occupation of land. 2. While a state might have an interest in placing regulation if it gores to far it can amount ot atkaking (mahane) 3. If all economic value is deprived Will require compensation (South caroline) These are factors you take into consideration. 1. Phyaial occupation 2. Regulation that deprives property of all beneifical use 3. If deprives of all ecomonic benefit 4. Somewhere short of depriving all economic value (penn station)

1. physical 2. regulatory taking (takes away all evonomic value if something less than economic value then we apply the penn central factors to determine if it amounts to a regulation). 3. Conditions: placed on property for the purpose of granting permits to build. The ocurt adopted an intermediate approach. What does the court use to determine whether or not the condition goes so far as to amount to a takng?

The rough proportionality test looks to see if there is some individualized determination. If there is some individualized determination the court will uphold it. Regulations that are in place when on e acquiers property No. you are not forclosed from bringing a claim if there is a regulation in place. Can a temporary taking amount to a taking? Yes.

If there is a conceivable public purpose then the government will be able to exercise government domain.

p. 688 and 689

OUTCOME: The court reversed the judgment because respondent city failed to establish that in issuing a permit to petitioner, its property dedication requirement was roughly proportionate to its land use plan and the impact of petitioner's proposed development.

PROCEDURAL POSTURE: Petitioner landowner sued respondents in state court, asserting that respondent resource management council's application of its wetlands regulations took his property without compensation in violation of the Takings Clause of the Fifth Amendment. The Rhode Island Supreme Court affirmed the denial of the landowner's takings claim. The landowner's

petition for writ of certiorari to the Supreme Court of Rhode Island was granted.

OVERVIEW: The landowner was a shareholder in a corporation that invested in the subject property. The resource management council promulgated regulations designating salt marshes such as those on the property as protected coastal wetlands. The landowner subsequently became the corporation's sole owner. When the corporate charter was revoked, title passed to the landowner. The council denied the landowner's application to fill the property. The landowner filed a takings action, which was rejected in state court. The Supreme Court affirmed in part and reversed in part. The state court erred in finding that the claims were unripe, because the landowner obtained a final decision from the council determining the permitted use for the land. The state court also erred in ruling that acquisition of title after the effective date of the regulations barred the claims. However, the state court did not err in finding that the landowner failed to establish a deprivation of all economic value, because it was undisputed that the upland portion of the parcel retained significant worth for construction of a residence. The case was remanded so the claims could be examined under the Penn Central analysis.

OUTCOME: Judgment was affirmed in part and reversed in part, and the case was remanded for further proceedings.

TAHOE (691) (GO OVER THIS) The council says wants to develop a comprehensive zoning and development plan for this area.so we will put a freeze so no one can build until we figure it out. It was 32 months. Total of 6 years where developer was prevented from developing piece of property.

Can a temporary denial of economic benefit amount to a regulation that goes to far as to amount to a regulation? Court said if its reasonable then its not a taking. There is no set formula we look at the facts. We can separate 32 month period from the conituum of property value . How does this compare to south Carolina case? Land has value when zoning law goes into effect. It is possible for regulation to amount to a taking. The court says that the duration is one of the most im

Can there be a taking of private property give it to another person for public use?

Is it for public use? P. 699 The fifth amendment authorizes the government only to take private property for public use. The Supreme Court often has declared that one persons property may not be taken for the benefit of another private person without a justifying public purpose, even though compensation be paid. The Supreme Court has expansively defined public use so that virtually any taken will meet the requirement. Hawaii Housing Authority v. Midkiff (hawaii act that wants homeowners to sell their land to lease. Citation. 467 U.S. 229, 104 S. Ct. 2321, 81 L. Ed. 2d 186, 1984 U.S. CLASS NOTES What is the taking that is occurring here?

LAND REFORM ACT What does act do? Created housing authority Whats the issue: Act took property from landlord and gave it to the tenants. Why? The fee title to the property belongs to small group of land owners and the govt. its hard to acquire property because its in the hands of a few. What is hawaii doing? taking from the rich and giving to the poor. Who owns property? Private owners. Fee title is being taken away and going to private owners. Its private ownership to private owners. Issue: The issue here is is this for public use taking one private property and giving it to another private person. How do they argue public use? Reduces social and economic evils How do we determine what is a public use? As long as the taking is rationally related to any conceivable public purpose; if we can conceive of a public purpose then it will be upheld.

Does the taking clause use public purpose?

No its uses public use. But the court here agreed with giving ownership to others. Brief Fact Summary. Remnants of the feudal system in Hawaii left a great deal of land concentrated in the hands of a few landowners. The Hawaii legislature adopted a plan to condemn various residential lands to break up the large estates. Then, Hawaii Housing Authority (Petitioner) sold the land back to the tenants or lessees who requested the condemnation and wanted to buy the land.

Synopsis of Rule of Law. Exercise of the eminent domain power for public use will be constitutional so long as it is rationally relates to a conceivable public purpose. The Government itself does not have to use the property. Only the purpose, not the mechanics will be relevant to the takings constitutionality.

Facts. The condemnation process reduced the tax burden on the landowners who would face significant federal taxes if the title was conveyed by a normal sale of real estate. Tenants or lessees would file applications for condemnation and if an appropriate number of lessees requested a condemnation the state would condemn the tract. After that, the Hawaii housing authorities would sell the condemned land to the tenants or lessees who had applied for fee simple ownership. Thus, the owners would receive compensation from the sale but with a lesser tax burden.

Issue. Whether the act was a constitutional taking for public use or did the act violate the United States Constitution (Constitution) because it was not for public use?

Issue in book: whether the public use clause of the amendment, made applicable to the states through the 14th amendment, prohibits the state from taking, without just compensation, title and real property from lessors and transferring it to lessees in order to reduce the concentration of ownership of fee simple in this state. Held. The Hawaii Act is constitutional because it was rationally related to a conceivable public purpose and was a compensated taking. The Supreme Court of the United States (Supreme Court) would give deference to the states determination of what was a public use. Hawaii had a comprehensive and rational approach to correcting a market failure, which resulted in an evil land oligopoly (concentrated property ownership) traceable to past monarchs. Where there is a rational, legitimate purpose the Supreme Court would not examine its overall effectiveness.

Discussion. Public use in this case is a benefit rather than actual literal use. It focuses on the ends rather than the means. The court was deferential to the states legislative determination. Mere fact that the land was transferred in the first instance to private citizen (the lessees) did not render it a private use. Court did not think that the entire community had to benefit from a particular legislative act.

Analysis: court looks at Berman v. Parker: the court held constitutional the District of Columbia retail development act of 1945. That provided both the comprehensive use of the eminent domain per power to redevelop slum areas for the possible sale or lease of the condemned lands to private interests.

Public use requirement is thus coterminous with the scope of a sovereigns police powers. There is, of course, a role for courts to play in revealing a

legislatures judgment of what constitutes a public use, even when the domain power is equated with the police power.

Where the exercise of the eminent domain power is rationally related to a conceivable public purpose, the court has never held a compensated taking to be prescribed by the Public use clause. On this basis, we have no trouble concluding that the Y axis constitutional. The land all the job believe has according to the way legislature, created official deterrents to the normal functioning of the states residential landmark and forced thousands of individual homeowners to lease, rather than by, the land beneath their homes. Regulating oligopoly and the evils associated with it is a classic exercise a state police powers. Holding: The Hawaii legislature enacted its Reform Act not to benefit a particular class of identifiable individuals but to attack certain perceived evils of construed property ownership in Hawaii a legitimate public purpose.

KELO V. CITY OF NEW LONDON ( New London wants to take over properties to create economic growth). Facts: The city of New London approved a development plan that in the words of the Supreme Court of Connecticut was projected to create nexus of jobs to increase tax and other revenues and to revitalize an economically distressed city including its downtown and water front areas.

The citys development agent has purchased property from willing sellers and proposes to use the power of eminent domain to acquire the remainder of the property from unwilling owners in the exchange for just compensation. Issue whether the citys proposed position of this property qualifies as a public use within the meaning of the takings clause of the Fifth Amendment to the Constitution. City attempts to take the propery and if they cant it will be condemned. Rule: they may transfer property from one private party to another a future use by the public of the purpose of the taking; the combination of land for a railroad with, carrier duties is a familiar example. Condemned property does not have to be put to use for general publics use. There is justification that Fort Trumbell , with sufficiently distressed to justify a program of economic rejuvenation is entitled to our deference. The city has carefully formulated an economic development plan that believes will provide appreciable benefits the community including, but by no means limited to new jobs and increased tax revenue. To effectuate this plan, the city has invoked a state statute that specifically authorizes the use of eminent domain to promote economic development. Holding: because the plan unquestionably serves a public purpose, the takings challenged here satisfy the public use requirement of the Fifth Amendment. Promoting economic development is a traditional and long accepted function of government. There is, moreover no principled way of distinguishing economic development from other public purposes that we have recognized. Because over a century of our case law interpreting the provision and dictates an affirmative answer to that question, we may not grant positioners are relieved that they seek. What do petitioners allege?

Using eminent domain for economic development impermissibly blurs the boundary between public and private taking. Again, our cases forecloses objections. Quite simply, the governments pursuit of a public purpose will often benefit individual private parties. The constitution says that states set the minimal level and there given the compensation. Basis of his concurring opinion: Says that a rational relationship should apply.

What is the problem with the majority opinion? Dissenters: Whats to prevent the city from the government so were going to use power of eminent domain and put a nice hotel out there. Thats what happens when you put public purpose and switch it with public use. Class notes As long as there a conceivable public purpose.

WHAT IS JUST COMPENSATION Loss to the owner not the gain that determines just compensation. Brown v. Legal Foundation of Washington (this law requires that trust money be put into an IOLTA account and any interest gained to be transferred to charitable entities providing legal services for the poor. This is not considered a taking because the owner does not lose anything they start with zero and end with zero). Synopsis of Rule of Law. A requirement that interest from an IOLTA account be given to the government to be used for legal services for the needy is not a taking.

Facts. The State of Washington, and most other states, uses interest on lawyers trust accounts (IOLTA) to pay for legal services for the needy. This program was established by the Washington State Supreme Court pursuant to its authority to regulate the practice of law. In the course of legal practice, attorneys are required to hold any client funds in an separate account, as it is unethical to pool funds. However, they may pool several clients funds together without comingling. Every state in the nation adopted an IOLTA program, requiring that attorneys put client funds in interest bearing accounts, or IOLTA accounts. In addition, every state provides that the interest from these accounts be used for charitable purposes. It should be noted that there is a requirement that any funds that would generate a net income should be deposited into a separate interest bearing account for that client. Petitioners are clients that assert that the taking of their interest amounts to a taking under the constitution, and they are entitled to compensation. Analysis: the lawyers deposited petitioners money in IOLTA accounts a state law that requires client funds that could not otherwise generate net earnings for the client to be deposited in that type of account is not a regulatory taking. A law that requires that the interest on those funds be transferred to a different owner for a legitimate public use, however, could be a per se taken requirement that payment of just compensation to the client. Because of compensation as measured by the owners pecuniary loss which is zero whatever the Washington laws obeyed theres been no violation of the just compensation clause of the Fifth Amendment in this case. Issue. Does the requirement that the interest from an IOLTA account be used for charitable purposes amount to a government taking requiring just compensation? Held. No. Since the owner of the property has lost nothing, there is nothing to compensate.

Notes: the Fifth Amendment does not prescribe the taking of property, a prescribed taking without just compensation. The just compensation requirement Fifth Amendment is measured by the property owners laws rather than the government gain. Ex: if petitioners net loss was zero, the compensation that is due is also zero.

Dissent. Scalia: The dissent argues that the only reason that there is on net loss is due to the fact that the court mandates that the client funds may be put in one account, and mandates that the interest be paid, thus the clients never lose anything. They find this to be an incorrect standard, and a dangerous one, preferring to look at the fair market value which the majority opinion ignores.

Discussion. The Constitution does not prohibit the taking of property, only the taking of property without just compensation. This just compensation is measured by the property owners loss rather than the governments gain. Since the petitioners, the clients, have lost nothing, the compensation due to them is also zero, regardless of the fact that the government earns roughly $200 million off of IOLTA accounts. In addition, since the rules require the lawyer to create a separate account for any client whose funds could generate net earnings for the client, if lawyers deposited the money in IOLTA when it could have generated income, they violated the rules. Therefore, anything deposited in an IOLTA account would not generate income for the owner, and thus nothing is lost.

Chapter 7 Equal protection A. Introduction

I.

Constitutional provisions concerning equal protection CLASS NOTES NOT UNTIL MID 20TH CENTURY REALLY CAME INTO LIGHT. 14th: Applies only to the states not the federal government. 5th ammedment due process clause implies equal protection rpinciples in it which applies to federal government. What is the purpose of equal protection?? To measure govt classifications. If the govt treats anyone differently the clause is there to make sure that the treatment passes constitutional muster. 1. What is classification based upon. Ask yourself is it based upon a suspect class? (based on race, national origin, alienage, (if a classification affects a fundamental rights(right to bear arms) it will be viewed under strict scrutiny.). If based on a class will be given heightened scrutiny test, proof will be on the government to show compelling interest. And it must be narrowed tailored, lease restrictive means. (there cannot be over inclusion or under inclusion here). 2. Not enough to show discriminatory impact alone you will need to show discriminatory purpose or intent to raise the lebel to highest scrutinty.

Where does court find other fundamental rights? Due process clause gives rise to fundamental rights. Argue both due process and equal protection and stanrd of review should be strict scrutiny.

Intermediate 1) Gender, non-marital status of children. Here, the court applies intermediate scrutinty. 2) Must be substantially related 3) Government interest has to be legitimate, attacker has to show its not rationally related; when reasonable minds do not differ it will be struck down. Rationale Basis General govt interest and must be rationally related. The fact that may be underinclusive or overinclusive will not be fatal.

Overinclusion and underinclusion: Ex: Koramatsu v. united states: During wwII because a great fear of japaense invasion of the west coast president Roosevelt authorized military to remove anyone of japense ancesotry and move them to holding camps till the end of the war. This military was overinclusive and under inclusive. Its over inclusive because grouped the enire race of people withouth going through and determining who represents a threat to the united states. Ex: underinclusive in wwii they didnt take germans and put them in camps.

The Constitution as originally drafted and ratified had no provisions assuring equal protection of the laws. After the Civil War, widespread discrimination against former slaves led to the passage of the 14th amendment, which provides in

part: no state shall Deny to any person within its jurisdiction the equal protection of the laws. Since Brown, the Supreme Court has relied on the equal protection clause as a key provision for combating invidious discrimination and for safeguarding fundamental rights. There remains no provision in the Constitution that says that the federal government cannot deny equal protection of the laws. However in Bolling b. Sharpe : The court held equal protection applies to the federal government through the due process clause of the fifth amendment. The court interpreted the Fifth Amendment as including an implicit requirement for equal protection. It is now well settled that the requirements of equal protection are the same whether the challenge is to the federal government under the Fifth Amendment or Tuesday and local actions under the 14th amendment. 3. A framework for equal protection analysis Article protection cases pose the same basic question. Is the governments classification justified by a sufficient purpose? What constitutes a sufficient justification depends entirely on the type of discrimination. For instance, the Supreme Court has declared that it is extremely suspicious of race discrimination, and therefore the government may use racial classifications only if it proves that they are necessary to achieve a compelling government purpose. This is known as strict scrutiny.

Rational basis: A 14-year-old who claim that the knowledge the drivers license violating terms will prevail only by proving that the law was not rationally related to a legitimate public purpose. This is known as rationale basis review . Questions you should ask in determining equal protection? 1. What is a classification? 2. What level of scrutiny should be applied? 3. Does the particular government action meet the level of scrutiny? Question 1: what is the classification? How is the government drawing a distinction among people? One is where the classification exists on the face of the Lord, that is, where the law and its very terms draws a distinction among people based on a particular characteristics. Some times laws are facially neutral, but there is a discriminatory impact of the law were discriminatory effect from this administration. For instance, a law that requires that all police officers be at least 510 tall and under 150 pounds on his face, only a high and we classification. The result is that the law has a discriminatory impact against women in hiring for the police force. Supreme Court has made it clear that discriminatory impact is insufficient to prove a racial original classification. If a law is facially neutral, demonstrating a race or gender classification requires proof that there is a discriminatory purpose behind the law. Two ways improving the existence of classification:

1. Showing that its exists on the face of the law 2. Demonstrating that a facially neutral law has a discriminatory impact and a discriminatory purpose. Question 2: what is the appropriate level of scrutiny? Discrimination based on race or national origin is subject to strict scrutiny. Discrimination against aliens is subject to strict scrutiny, although there are several exceptions where less than strict scrutiny is used. Under strict scrutiny, 1. a laws upheld if it is proven necessary to achieve a compelling government purpose. 2. The government must have a truly significant reason for discriminating, and it must show that it cannot achieve this objective through any less discriminatory alternative. 3. The government has the burden of proof under strict scrutiny in the law will be upheld only if the government persuades the court that it is necessary to achieve a compelling purpose. Intermediate scrutiny: 1. Use for discrimination based on gender and for discrimination against nonmarital children. 2. A law is upheld if it is substantially related to important government purpose. The means used need not be necessary, but must have a substantial relationship to the end being sought. 3. The government has the burden of proof. Rational basis

1. Minimum level of scrutiny that all laws challenged under equal protection must meet. 2. Under rational basis review a law will be upheld if it is rationally related to a legitimate government purpose. 3. The government objective need not be compelling or important, but just something that the government legitimately may do. 4. The means chosen only need be a rational way to accomplish the end. 5. The challenge of the burden of proof under rational basis review. Heightened Scrutiny: Cory has emphasized that race, national origin, gender, and the marital status of ones parents or nine scrutiny. Question 3: Does the government action meet the level of scrutiny? The court evaluates both the laws and standards means. Supreme Court often focuses on the degree to which a law is underinclusive and or overinclusive. A law is underinclusive if it does not apply to individuals who were similar to those to whom the law applies. Overinclusive: if it applies to those who need not be included in order for the government to achieve its purpose. In other words, the law unnecessarily apply Street group of people. Typically it harms a large number of people unnecessarily. A law can be both underinclusive and overinclusive. The decision to evacuate Japanese Americans during World War II was certainly both. If the goal is to isolate those who are a threat to the security, interning only Japanese Americans was

underinclusive in that it did not identify those of other races who pose a danger. If strict scrutiny is used, a relatively close fit is required, in fact, the government will have to show that the means are necessary the least restrictive alternative to achieve the goal. The protection of fundamental rights under equal protection The use of equal protection to safeguard those fundamental rights was, in part, based on the Supreme Courts desire to avoid substantial due process, which had all of the negative connotations of the Lochner era. The rational basis test 1. Introduction 2. The rational basis test is the minimal level of scrutiny that all government actions challenge under equal protection must meet. 3. Basic requirement is that a law needs rational basis review if it is rationally related to a legitimate government purpose. 4. The Challenger has the burden of proof when rational basis review is applied. There is a strong presumption in favor of laws or challenge under the rational basis test. 5. A law should be upheld if it is possible to conceive any legitimate purpose for the law, even if it was not governments actual purpose. 6. Unfair laws are allowed to stand because a conceivable legitimate purpose can be identified for virtually any law. Does the law have a legitimate purpose? What constitutes a legitimate purpose? Ask yourself

1. How should it be decided whether there is such a proper present 2. Must it be the actual purpose by the law or is it enough that such a purpose is conceivable? What constitutes a legitimate purpose? The government has a legitimate purpose if it advances a tradition of police purpose protecting safety, public health, or public morals. Virtually any goal that is not forbidden by the Constitution will be deemed sufficient to meet the rational basis test. Only rarely have the court found that a government purpose was not legitimate under the rational basis test. Romer v. Evans

Prohibits statutes or ordinances that give protection on the basis of sexual orientation. State argues that people who are gay are getting special treatment as a result of sexual orientation that others dont have. Not a legitimate purpose because the govt is barring them from seeking protection of the law. Amend 2 fails because 1. Imposes a broad disability on a single named group (LGB) 2. Only way to explain this is animous toward an identifiable group. No other basis rather than hatred to explain this rule.

Brief Fact Summary. Colorado voters adopted Amendment two to their State Constitution, precluding the government from adopting measures that would protect homosexuals from discrimination. The state trial court enjoined enforcement of the act.

Synopsis of Rule of Law. A bare desire to harm a politically unpopular group cannot constitute a legitimate governmental interest. Facts. Amendment two was added to Colorados state constitution by a statewide referendum. It prohibited the state or local government from adopting measures that would protect homosexuals as a class from discrimination. The Respondents, Evans and others (Respondents), argued that Amendment two did nothing more than deny homosexuals special rights. The stated purpose of the amendment was to prevent the deterioration of the sexual morality favored by most Coloradans. The state trial court permanently enjoined enforcement Amendment two. The Colorado Supreme Court affirmed on the trials courts decision. Issue. Did Amendment two violate the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution (Constitution)? Held.that amendment two classifies whole sexual is not to further a proper legislative end but to make them unequal to everyone else. Amendment two violates the equal protection clause. Yes. The judgment of the Supreme Court of Colorado is affirmed. Justice Anthony Kennedy stated that Amendment two relegates homosexuals to a solitary class and withdraws from them, but no others, legal protections arising from discrimination. Its reach includes the States public accommodation laws, as well as laws prohibiting discrimination in the housing, insurance and education markets. A law making it more difficult for one group of citizens to seek assistance from the government than another is a denial of the

Equal Protection of the laws in the most literal sense (i.e. the means do not fit whatever ends sufficiently to pass rational basis review). Moreover, the means of Amendment two are so broad in relation to its ends (to prevent the deterioration of sexual morality) that we cannot credit them. The Supreme Court of the United States (Supreme Court) is left with the conclusion that Amendment two constitutes a classification for its own sake. Class legislation is obnoxious to the Fourteenth Amendment. (i.e., the ends are illegitimate). Dissent. Justice Antonin Scalia (J. Scalia) states that the majority in this opinion is essentially saying that one who is accorded equal treatment under the laws, but cannot as readily achieve preferential treatment is one who is not accorded equal treatment and that this line of reasoning is silly. J. Scalia also adds that discrimination of the basis of sexual orientation is subject to rational basis review. He cites Bowers v. Hardwick (upholding the criminal law of a State prohibiting homosexual conduct) for this proposition and says that since Amendment 2 was designed to prevent the gradual decline of sexual morality favored by most Coloradans, Amendment 2 is an appropriate means to a legitimate ends and therefore constitutional. Discussion. At the time this case was decided (Bowers v. Hardwick), making homosexual conduct criminal, was still good law. As such, one would think that Bowers would be sufficient to establish the ends of Amendment two as rational. The Supreme Court has invalidated Amendment two under rational basis review, however. This case, thus, gives rise to the inference that the Supreme Court in fact applies a higher standard of review than rational basis for cases involving discrimination based on sexual orientation.

CLASS NOTES Rationale Basis? 1. Leg. Govt purpose (any conceivable basis) 2. Rationally related What was the justification for amendment two? 1. Freedom of association ( state argues freedom of association how is that anyway connected to amendment two ex: you have to rent to these people you have no freedom then to rent to who you want), 2. Does the state have the right to reach private discrimination? Yes. States can pass law that reach private individuals. States can grant rights to a greater degree as long as it doesnt give you less than what the constitution would. A state can give you greater constitutional protection as long as they dont run afoul of some other constitutional right. Amendment two makes them unequal to everyone else? How does this make them unequal to everyone else? This is a group that will not be protected in any organization. They are being singled out therefore court holds that amendment 2 violates the constitution. Dissenters: trying to protect against deviant sexual activity as long as we can come up with a conceivable purpose. What did he say about Bowers?

United States Railroad Retirement Board v. Fritz

CLASS NOTES Railroad system retirement act 1. Separate retirement 2. They draw out of social security too. Congress is attempting to solve this to protect the solvency of both programs. What did they do? Separated employees into 4 groups. What was it based on ? How many years they had been there and when the retired. They used a current connection. Drew somelines 1. Double scoop 2. Certain scoop 3. Employees who cant double dib What is the challenge to this act? That this is an unconstitutional classification. Has this been an unconstitutional classification?how do we determine this? Where does the legislature draw the line?

14th amendment doesnt apply to federal law only the 5th amendment does. Rational basis means that government has acted in a capricious or arbitrary manner. The person attacking has to show no let govt purpose and not rationally related. This translates into you have to show its arbitrary and capricious.

Railway express Agency (under-inclusive)

No vehicular advertisement but theres an exception, unless the business relates to the owner of the vehicle. This is an under-inclusive because it does not include all behavior that does this some cars could do it and others could not. But the city said some advertisement can be more distracting than other. The court says thats something the state legislature is required to make the decision of where to draw the line, not the court. Just because it doesnt take care of every problem doesnt mean it will be invalidated.

New York City Transit Authority v. Beazer (over-inclusion) Zero tolerance for people who are on methadone. If you test positive for methadone then you cant get a job. This line drawing violates equal protection clause, why?

This says over-inclusion becase covering people who didnt have a drug addiction they were taking methadone, they were recovering not on drugs.

U.S. Dept. of Agriculture Amendment to food stamp program. Eligbility for food stamps is determined on the basis of household use before it was just based on economic. Basis for this was to prevent the hippie sharing lifestyle. 1) Deal with agriculture surpluse 2) Help those at the poverty level buy food

Purpose to discriminate against hippies cant justify this ammednment. This is not a governmental interest. What about issue of fraud? Already provision in the law to deal with fraud. Reinquest dissent: This is a policy argument for congress not the court.

City of Cleburne, Texas p. 744 (MENTAL INCAPACITY CASE) Ordinace said that mentally challeneged need a special permit. And they were not able to get the permit because it was denied. Reasons 1. May cause fear 2. Flood plain safety issues in getting people out 3. Mean school kids Is mental incapacity a suspect class? No. 4. Number of occupants to much Go through each reason and determine it on a rational basis review. 1. Legt govt purpose 2. Rationally related Court said againsts states argument Giving into prejudice or bias is not a legitmate govt interest.

 If city so concerned about kids why arent they worrying about the kids that go to school there Flood plain They have approved nursing homes, they got their permit so why not the mentally challenged. Number of occupants Is that a huge number in terms of other projects that were approved. No.

Court held: Requiring a permanent license is irrational.

Classifications based on race and national origin Strict scrutiny is used for evaluating race and national origin classifications. Two ways of proving discrimination 1. Classification exist on the face of the law ( the law in its very terms draws a distinction among people based on race or national origin). 2. Facially neutral (A racial classification can be proven by demonstrating that the law has a discriminatory purpose and a discriminatory impact). Slavery 1. In Prigg v. Pennsylvania

The Supreme Court declared unconstitutional a state law that prevented the use of force or violence to remove any person from the state to return the individual to slavery. Equal Protection Slavery never appears in the constitution. Article I sec. 2 apportionment of representatives. Talks about how you come up with the representatives. Article I sec. 9 sec 1: prohibits congress from banning the slave trade until 1808. Constitutionally allowing the slave trade to exit 20 years after the constitution went into effect. Fugitive slave law provision: No person held to service or labor in one state escaping into another shall in consequence be discharged from such service or labor. Article 5: The issue of slavery was not resolved by these provisions. Dredd Scott v. Sanford CLASS NOTES Missouri could come into union of slave state but parallel of 36 30 could be free states. If south of 36b30 states can vote whether to come in as slave or free state. If it was north of the line than it would be a free state. Sues Sanford in federal district court claiming that he is now in a free state. Why are slaves or ancestors of former slaves not citizens under the united states constitution and why are they not protected? Taney looks at the original intent of the framers in the

constitution. Under U.S. Constitution slaves are not citizens. State citizenship cannot confer citizenship. The 14th amendment at this time was not in existence. The 14th amendment later overruled the 14th amendment. Illinois being a free state was part of the Missouri compromise. So the issue becomes is the Missouri comprise constitutional? Congress has run afoul of the constitution by interfering with the property right of salve owner and therefore congress declaration of freedom beyond 36 30 is unconstitutional. Taney is saying that if a salve runs to a free state they should be returned to you. 14th amendment protects people when states deny equal protection of law, due process, etc. How is this case decided? Why did he loose? He is not a citizen therefore he does not have standing to bring the case then court does not have jurisdiction.

When we talk about interpretation of constitution what do you look at? 1. The plain language.

Holding: Supreme Court declared the Missouri compromise unconstitutional and probably held that slaves were property, not citizens. Facts: Greg Scott was a slave owned in Missouri by John Emerson, the slave was taken into Illinois, a free state. After Emerson died, his estate was administered by John Sandford,

a resident of New York. Scott sued Sanford in federal court basing jurisdiction on diversity of citizenship, and claimed that his residence in Illinois made him a free person. Issues: Can a negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community informed and brought into existence by the Constitution of the United States, and as such become entitled to all rights, and privileges, and immunities, guaranteed by that instrument to the citizen? Court said that they think that blacks are not included, and were not intended to be included, under the word citizens in the Constitution and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. They only have the right and power of which the government chooses to grant them. Its not the duty of the court does it decide upon the justice or injustice the posture and policy of these laws. Do the courts to interpret that shipment they have framed, with the best lights we can obtain on the subject. Why did they strike down Missouri compromise? Because Congress was not authorized by the instrument to pass this law therefore was the duty of the court to declare avoidant inoperative. It was not warranted by the Constitution and therefore was declared void. What does the Constitution say about slavery? The right of property in a slave is distinctly and expressly stated in the Constitution. And the government in express

terms pledged to protect it and all future time. No word can be found in the Constitution which gives Congress a greater power over slave property, which entitles property of that kind to less protection and property as any other description. Did striking down the Missouri compromise helped to create the Civil War? Yes. It really became the focal point in the debate over slavery and, by striking down Missouri compromise, the decision helped to precipitate the Civil War. Strict scrutiny afforded termination based on race and national origin 1. Government must show an important reason for discrimination 2. Demonstrate that the goal cannot be achieved through a less discriminatory means Note: pressing public necessity may sometimes justify the existence of such restrictions, racial antagonism never can. Primary purpose of the 14th amendment Court has long recognized the primary purpose of the 14th amendment must protect African-Americans, in fact, the initial Supreme Court decision construing the equal protection clause suggested that it could be used only to protect blacks.

Carolene Products (NOTE 4)(heightened scrutiny for minority classes) Supreme Court indicated that prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of

those political processes ordinarily to be relied upon the to protect minorities and that may call for a corresponding more searching judicial inquiry. Proving the existence of a race or national origin classification (755) There are two alternative ways of demonstrating the existence of a race or national origin classification. 1. Face of the law: (the text of the law draws a distinction among people based on race or national origin.) 2. Facially neutral: a race or national origin classification might be proven by demonstrating. a. discriminatory administration or discriminatory impact however, b. The Supreme Court has held that this also requires proof of a discriminatory purpose. Race Specific classification that does that manage racial minorities (pg. 756) There are laws that expressly impose a burden or disadvantage on people because of their race or national origin. Ex: Strauder v. West Virginia Limited jury service to white male persons who are 20 one years of age and who were citizens of this state. The court explained that the 14th amendment was designed to assure to the colored race the enjoyment of all the civil rights that under the law are enjoyed by white persons, and to get to that rate the protection of the general government, and that enjoyment, never issued be denied by the states. There is only one situation in which the court expressly upheld under equal protection Racial classifications burdening minorities, the ruling affirming the constitutionality of the evacuation of Japanese Americans during World War II.

The government reported justification was national security, a fear that Japanese Americans on the West Coast might aid and invading Japanese army or commit acts of espionage and sabotage. No evidence of a specific threat was required to evacuate and in turn a person. Race alone was used to determine who would be uprooted and incarcerated and who would remain free. CLASS NOTES LEAST RESTRICTIVE MEANS AND NARROWLY TAILORED DOES THE COURT ANSWER THIS QUESTION. Is he really applying strict scrutiny? he is saying war is hell.there is a great deference when war is going on. If the constitution doesnt mean anything in times of war we dont need those protections because when things are good and safe its easy to follow the constitution. The idea is to put the constitution on hold while we deal with these people.

Korematsu v. United States ( will allow a suspect classification for public necessity reasons such as protection from espionage). The petitioner, an American citizen of Japanese descent, was convicted in a federal district court for remaining in San Leandro,California, a "Military Area," contrary to Civilian Exclusion Order No. 34 of the Commanding General of the Western Command, U.S. Army, which directed that after May 9, 1942, all persons of Japanese ancestry, should be excluded from that area. No question was raised as to petitioner's loyalty to the United States. The Circuit Court of Appeals affirmed, 1 and the importance of the constitutional question involved caused us to grant certiorari. Facial race and national origin classifications exist when a

law, in its very terms draws distinctions among people based on those characteristics. Japanese ancestry both alien and non-alien from the pacific coast but Korematsu stayed in California and violated the law. information charging violation of an Act of Congress, of March 21, 1942, 56 Stat. 173, which provides that: n any military area or military zone prescribed, under the authority of an Executive order of the President, by the Secretary of War, or by any military commander designated by the Secretary of War, contrary to the restrictions applicable to any such area or zone or contrary to the order of the Secretary of War or any such military commander, shall, if it appears that he knew or should have known of the existence and extent of the restrictions or order and that his act was in violation thereof, be guilty of a misdemeanor and upon conviction shall be liable to a fine of not more than 5,000. Curfew order which like the exclusion order here was promulgated pursuant to Executive Order 9066, subjected all persons of Japanese ancestry in prescribed West Coast military areas to remain in their residences from 8 p.m. to 6 a.m. As is the case with the exclusion order here, that prior curfew order was designed as a"protection against espionage and against sabotage." In Hirabayashi v. United States, 320 U.S.81, we sustained a conviction obtained for violation of the curfew order. The Hirabayashi conviction and this one thus rest on the same 1942 Congressional Act and the same basic executive and military orders, all of which orders were aimed at the twin dangers of espionage and sabotage.

Hirabayashi case: The 1942 Act was attacked in the Hirabayashi case as an unconstitutional delegation of power; it was contended that the curfew order and other orders on which it rested were beyond the war powers of the Congress, the military authorities and of the President, as Commander in Chief of the Army; and finally that to apply the curfew order against none but citizens of Japanese ancestry amounted to a constitutionally prohibited discrimination solely on account of race. To these questions, we gave the serious consideration which their importance justified. We upheld the curfew order as an exercise of the power of the government to take steps necessary to prevent espionage and sabotage in an area threatened by Japanese attack. Holding: But exclusion from a threatened area, no less than curfew, has a definite and close relationship to the prevention of espionage and sabotage. The military authorities, charged with the primary responsibility of defending our shores, concluded that curfew provided inadequate protection and ordered exclusion. They did so, as pointed out in our Hirabayashi opinion, in accordance with Congressional authority to the military to say who should, and who should not, remain in the threatened areas. Holding: the court found that the order was constitutional and upheld the law as it was made in direst emergency and peril o This is the only one situation in which the SC has expressly upheld racial classifications burdening minorities, affirming the constitutionality of the evacuation of Japanese Americans during WWII .

CLASS NOTES Issue of classification. What is Virginias argument as to why the state did not violate the 14th amendment? They claim the statute applies to both blacks and whites. Also they wanted to prevent the mongolization of mixed breed. How does the court take care of that argument? Court says they are being biased because the statute allows black to marry any other color, but white.

Loving v. Virginia (black and white couple marry, they must serve a year in jail and or exiled for 25 years from Virginia) Facts: a couple married in the District of Columbia and then traveled back to Virginia. Virginia had a law which stated that a black and white person could not marry. In support of the argument the state used Naim v. Naim which held that they should not be a corruption of blood therefore the race should not mix: They also relied on the 10th amendment that the state can decide who shall marry, State also said it was not discriminatory because the law applied equally to blacks and whites. Court said there was no legitimate purpose for this law to remove racial classification protected by the 14th amendment thats the court held that this law was unconstitutional. Palmore v. Sidoti (the court cannot use race to determine the best interest of the child)

IN CLASS NOTES The father in this case argued that the mother was setting a bad moral example by marring a black guy. He also claimed that it was not in the best interest of the child. Pg. 764 the court like the court said with the handciapp home case fear is not enough of a justification for the injunction. Thus, the fact that the wife likes black person is not enough to take custody from her. Facts: this case a mother divorced her father and took custody of the child. The mother later married a black man and the father filed a petition for change of custody. The father alleged the child was in danger that the man was black. Plessy v. Feguson (separate but not equal) IN CLASS NOTES NAACP STRATEGY: The approach they took was to point out that separate was not equal. This is the separate but not equal argument. Separate car for black, separate cart for white. What interest does the state have in passing a law like this? Exercise of police power. The state has the right to do this. We want to protect the safety of both races. Its a legitimate state interest.

This case paved the way for the Jim Crow laws separate but equal. Plessy was 1/8 black during the time that railways cause for the blacks and whites to write on different trains. Plessy wrote in the white colored train. What did the Court hold? Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation. If the civil and political rights of both races be equal one cannot be inferior to the other civilly or politically. If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane. The initial attack on separate but equal p. 768

Cumming v Richmond County Board of Education, 175 U.S. 528 (1899).- Court upheld the governments operation of a whites only high school when there was not one for blacks. - 1954- Supreme Court finds states denied equal protection by failing to provide educational opportunities for blacks that were available to whites. (Mostly education) - first time the Supreme Court ordered a white university to admit a black student. (University of Texas Law) Court refused to reconsider Plessy, instead deciding the schools were not equal. Unconstitutional for Missouri to refuse blacks admission, but instead pay for blacks to attend out of state schools. Missouri responded by creating a new school for blacks.

- SC held that once admitted to previously all-white school, could not force them to sit in segregated areas of classrooms, libraries and cafeterias. -only 1 of 41 laws schools, 1 of 30 medical school and none of the engineering schools in the south admitted blacks. segregation was unconstitutional. The addition of new Chief Justice Warren, who persuaded all of thejustices to join in a 9-0 unanimous decision, was key. Brown v. Board of Education (racial segregation in schools, several children apply for white goals but were denied, this case was brought as a class action). Issue : does segregation of children in public schools solely on the basis of race, even though the physical facilities and other technical factors may be equal, deprive the children of the minority group of equal educational opportunities? We conclude that in the field of public education the doctrine of separate but equal has no place. Separate educational facilities are inherently unequal. Therefore we load the plans and other similarly situated for whom the action had been brought are, by raising the segregation complained of deprive the text of the laws guaranteed by the 14th amendment. The difference between Board of Education v. Plessy The courts emphasis is on the harms of segregation in education , rather than providing overall constitutional judgment about the Permissibility of government mandated segregation.

The Supreme Court of the United States (Supreme Court) rejects the holding of Plessy. Itdiscusses the profound effect separation has on the hearts and minds of young children asthey try to understand and learn about society and their place in it. Education is considered necessary to succeed in life and be a good citizen. Therefore, it is in the nation's best interest to desegregate the races and educate equally. to provide schooling, it is a right. schools was unconstitutional and separate was not equal under the 14th amendment. o The SC looked at the effects of segregation on public education, rather than thetangible factors being equal, and used social policies, rather than law, to secure anunanimous ruling in favor of Brown. o Overturned Plessy v. Ferguson, expanded to other areas and not just education (56years of separate but equal, but finally over ) o The SC is now an arbiter of the law and also in charge of pushing the country forward towards universal good.

Pg. 801-833 Recap: laws that are discriminatory on its face either by statute or practice/policy, you ask: o Is there some discrimination? o What is the suspect class? o What is the level of scrutiny? when the law discriminates against race and national origin, strict scrutiny applies

o Has the government met its requirement? ask: o What is the class being discriminated against? o Can you prove a discriminatory purpose by state action? can use statistics to show specific intent If so, then has the government met the requirements of strict scrutiny? They must show that there is another explanation as to why this act had been enacted regardless of the race or national origin factor. o If not, then rational basis review

Remedies Introduction: the problem of remedies

If the court finds that there is an equal protection violation, it then must fashion a remedy. In some cases, the remedy is simply invalidating the discriminatory law. In some cases the court must go further and fashion an injunction. For example, it does segregation cases, the court generally will issue an order prohibiting the offending conduct.

Brown v. Board of Education (II) School authorities have the primary responsibility for assessing and solving these problems courts will have to consider whether the action of school

authorities constitutes good-faith implementation of the governing constitutional principles. Where will require the defendant make a prompt and reasonable start toward full compliance with their May 17, 1954 ruling. Once such a start has been made, the court may find that additional time is necessary to carry out the ruling in an effective manner.

State legislatures adopted resolutions of nullification and interposition that declared that the Supreme Courts decision were without a fact. Massive resistance Southern states openly and aggressively resisted compliance with Brown V Board of Education and the ordered and to school segregation. State legislatures adopted resolutions of nullification and interposition that clear that the Supreme Courts decision or without a fact. Courts acquitted of the constitutional rights of respondents are not to be sacrificed or yielded to the violence and disorder which have followed upon the actions of the governor and legislature. Arguments against states that did not want to comply The court invoked Marbury to declare the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this court and the country is a permanent and indispensable feature of our constitutional system. Those Brown is the supreme law of the land. Some areas attempted to closer public schools rather than desegregate.

In griffin v. County school Board:the Supreme Court declared it unconstitutional for school systems to close rather than desegregate.

The Supreme Court decision ending obstruction to disaggregation were accompanied by an important federal law: the Civil Rights Act of 1964. Title VI prohibited discrimination by schools receiving federal funds.

Judicial power to impose remedies in school disaggregation cases pg. 806 In Swann v. Charoltte- Mecklenburg Board of education The Supreme Court addressed the issue of the federal courts power to issue remedied in school disaggregation cases.

Swann pg. 806 (remedies to help desegregation process). Case that evaluates the duties of school board he is and the scope of power of federal courts under this Courts mandates to eliminate racially separate public schools establish and maintain by state action. These cases present house with the promise of finding and more precise terms then heretofore the scope of the duty of school authorities and district courts in implementing. The objective today remains to eliminate from the public schools all vestiges of state imposed segregation.segregation was the evil struck down by Brown one as contrary to the equal protection guarantees of the Constitution. That was the violation sought to be corrected by the remedial measures of Brown two.

What happens if schools dont implement desegregation? Judicial authority may be invoked. Judicial authority answers only when local authority defaults.

The central issue in this case is that of student assignment, and there are essentially four problem areas: 1. To what extent racial balance or racial quotas may be used as an implement in a remedial order to correct a previously segregated system 2. Whether every all Negro and all white school must be eliminated as an indispensable part of a remedial process of desegregation. 3. What the limits are, if any, on the rearrangement of school districts and attendance zones, as a remedial measure and 4. What the limits are, if any, on the use of transportation facilities to correct date enforced racial school segregation. One Race schools Schools all or predominantly of one race in a district of mixed population will require close scrutiny to determine that school assignments are not part of the state and force segregation. Transportation of students The importance of bus transportation as a normal and accepted tool of education policy is readily discernible. The decree provided that the bus is used to implement the plan would operate on direct routes. The trips for elementary school pupils average about 7 miles in the District Court found that they would take not over 35 min. at the most. In these circumstances, we find no basis for holding that the local school authorities may not be required to employ a bus transportation as one tool school desegregation. Desegregation plans cannot be limited to the walk in school.

 An objection to transportation of students may have validity when the time or distance of travel is so gray as either risk the health of the children or significantly impinge on the education process.

MILLIKEN v. BRADLEY

See p. outline Both courts proceeded on the assumption the Detroit schools cannot be truly disaggregated in their view of what constituted desegregation unless the racial composition of the student body of each school substantially reflected the racial composition of the population of the metropolitan area as a whole. The metropolitan area within defined as Detroit plus 53 of the outlying school districts. PROCEDURAL POSTURE: Respondents, a class of Detroit school children and resident parents, filed an action against petitioners, various state and local officials, which sought the implementation of a desegregation plan in Detroit schools. The United States Court of Appeals for the Sixth Circuit affirmed the decision ordering the implementation of a plan that involved suburban and metropolitan school districts. Petitioners appealed the decision.

OVERVIEW: At trial, the district court found that governmental actions at all levels had combined to establish and maintain a pattern of residential segregation throughout the city of Detroit. Accordingly, the trial court ordered the implementation of a cross-district school desegregation plan in order to truly integrate the school systems. The appellate court affirmed the order. The court stated that a federal remedial power could be exercised only on the basis of a constitutional violation and the nature of the violation would

determine the scope of the remedy. The court further found that before the boundaries of separate and autonomous school districts could be set aside by imposing a cross-district remedy, it must first be shown that there had been a constitutional violation within one district that produces a significant segregative effect in another district. Specifically, it must be shown that racially discriminatory acts of the state or local school districts, or of a single school district, have been a substantial cause of interdistrict segregation.

OUTCOME: The judgment of the lower court was reversed and the case was remanded for further proceedings, including the formulation of a decree directed at eliminating the segregation found to exist in the Detroit city schools.

Board of Education of Oklahoma City pg. 813( respondents black students sued petitioners, the Board of Education of Oklahoma City alleging that their desegregation plan Blacks and whites segregated). Petitioner, Board of Education of Oklahoma City sought dissolution of a decree entered by the district courts imposing a school desegregation plan. History; 1963, the District Court found that Oklahoma City had intentionally segregated both schools and housing in the past, and that Oklahoma City was operating a dual school system one that was intentionally segregated by race. In 1965, the District Court found that the school boards attempt to desegregate by using neighborhood zoning failed to remedy past segregation because residential segregation resulted in one race schools.

1972, finding that previous efforts have not been successful at eliminating state imposed segregation, the District Court ordered the board to adopt the

finger plan, under which kindergartners would be assigned to neighborhood schools unless their parents opted otherwise, children in grades one through four would attend formally all-white schools, and this black children would be bused to those schools, children in grade 5 would attend formally all-black schools, and Whites children would be bused to those schools. Dissolving a good segregation to creat the local authorities have operated in compliance with it for a reasonable period of time properly recognizes the necessary concern for the poor values of local control of public school system dictates of the federal courts regulatory control of such system not extend beyond the time required to remedy the effects of past intentional discrimination.

Holding; we think that the preferable course is to remand the case to that court so they may decide, in accordance with this opinion, whether the board made a sufficient showing of constitutional compliance as of 1985, when the SRP was adopted, to allow the injunction to be dissolved. The District Court should address itself to whether the board has complied good faith with the disaggregation decrease since it was entered, and whether the Vestiges used up as a termination had been eliminated to the extent practicable.

Parents involved in community schools v. Seattle school District number 1 Recap:

o What is a remedy? o What is an allowable remedy? o What standard of review does the court use to challenge the remedy?

There can be remedies - Swann - Milliken - Board of Education of Oklahoma

Parents involved in community schools v. Seattle school District number 1 ( race cannot be used as a tiebreaker is not permitted, that there can be no racial balancing). FACTS: Facts: Seattle has never operated segregated schools--legally separate schools for students of different races--nor has it ever been subject to court-ordered desegregation. It nonetheless employs the racial tiebreaker in an attempt to address the effects of racially identifiable housing patterns on school assignments. Most white students live in the northern part of Seattle, most students of other racial backgrounds in the southern part. Some schools are more popular than others. If too many students list the same school as their first choice, the district employs a series of "tiebreakers" to determine who will fill the open slots at the oversubscribed school. The first tiebreaker selects for admission students who have a sibling currently enrolled in the chosen school. The next tiebreaker depends upon the racial composition of the particular school and the race of the individual student. In the district's public schools approximately 41 percent of enrolled students are white; the remaining 59 percent, comprising all other racial groups, are classified by Seattle for assignment purposes as nonwhite. If an oversubscribed school is not within 10 percentage points of the district's overall white/nonwhite racial balance, it is what the district calls "integration positive," and the district employs a tiebreaker that Council for the plaintiffs in brown said [w}e have one fundamental contention which we will seek to develop in the course of this argument, and that contention is that no State has any authority under the

equal-protection clause of the 14th Amendment to use race as a factor in affording educational opportunities among its citizens. The effects of the school districts assignments are minimal and shows there is no need for them. Before Brown, school children were told that where they could and could not go to school based upon the color of their skin and the districts have not met the heavy burden of showing why this should be allowed again.

The Court held that the districts, which did not operate legally segregated schools, denied students equal protection by classifying students by race and relying upon the classification in school assignments. The districts failed to establish a compelling interest in racial diversity since their plans relied on racial classification in a nonindividualized, mechanical way as a decisive factor, and racial imbalance in the schools was not unconstitutional by itself. Further, the minimal effect the classifications actually had on assignments indicated that other means would be effective to achieve the districts' goals and that the use of racial classifications was unnecessary. Board of education of Oklahoma city (p outline) See notes from sep 19th EQUAL PROTECTION: RACE, DISCRIMINATIO, IMPACT P. 773-801 Class notes p.776 how does the court distinuguish the turner safely case. What standard of review is being used here? In Safely what was the issue involved? (inmiate marriages, what level is used in marriages)?(marriage is a fundamental right, when there is a fundamental right you apply heightened scrutiny. What level of review does it use?

You need to have a legitimate state interest And rationally related. The fundamental right may have to give way in a correctional situation. Ex: freedom of speech can that be given the same degree when one is incarcerated and one is not of course not. Why is it that race keeps its inherently suspect classification where as fundamental rights do not? There is a history of racial injustice in terms of the criminal justice system. California has used race as a proxy for gang membership thereis some correlation. Here the state argues that there is no such things as one race being benefited over another. Does this take this out from strict scriutinty no it does not. When the govt choose to classify people on the basis of race it must pass strict scrutiny. Does the court find that this separation of race is unconstitutional? They remand the case so that the court can apply strict scrutiny. Whats the basis of stevens dissenting opinion? He is agreeing with Oconnor, he is dissenting on what basis, it should not be remanded, because they havent meant the burden on a lenient standard, the record shows that there is a constitutional violation. Strict scrutiny because its based on racial classification. Race means race if govt uses race fro treaiting people different it will have to pass strict scrutiny review. Johnson v. California ( separation of inmates by color) CLASS NOTES

Facts: Garrison Johnson is an African-American inmate in the custody of the CDC. He has been incarcerated since 1987 and, during that time, has been housed at a number of California prison facilities. Fourth Amended Complaint 3, Record, Doc. No. 78. Upon his arrival at Folsom prison in 1987, and each time he was transferred to a new facility thereafter, Johnson was double-celled with another African-American inmate. Johnson filed a complaint pro se in the United States District Court for the Central District of California on February 24, 1995, alleging that the CDC's reception-center housing policy violated his right to equal protection under the Fourteenth Amendment by assigning him cellmates on the basis of his race. He alleged that, from 1987 to 1991, former CDC Director James Rowland instituted and enforced an unconstitutional policy of housing inmates according to race. Second Amended Complaint 2-4, Record, Doc. No. 21. Johnson made the same allegations against former Director James Gomez for the period from 1991 until the filing of his complaint. Ibid. The District Court dismissed his complaint for failure to state a claim. The Court of Appeals for the Ninth Circuit reversed and remanded, holding that Johnson had stated a claim for racial discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment. On remand, Johnson was appointed counsel and granted leave to amend his complaint. On July 5, 2000, he filed his Fourth Amended Complaint. Record, Doc. No. 81. Johnson claimed that the CDC's policy of racially segregating all inmates in reception-center cells violated his rights under the Equal Protection Clause. Johnson sought damages, alleging that former CDC Directors Rowland and Gomez, in their individual capacities, violated his constitutional rights by

formulating and implementing the CDC's housing policy. He also sought injunctive relief against former CDC Director Stephen Cambra. to a new facility. Thus, he has been subject to the CDC's policy both as a new inmate and as an inmate transferred from one facility to another. prevent violence.

Holding: the court found that the law needed to be looked at under the level of strict scrutiny and remanded the case back to the court of appeals. o The state argued that it was necessary to segregate to prevent violence caused by racial groups and that it does not burden one such class but effects both equally (like Loving). o The SC held that since it was both over-inclusive and under-inclusive, the policy was arbitrary and capricious and therefore the CDC would have a hard time passing the narrowly tailored to a compelling government interest test of strict scrutiny.

Facially Neutral laws with a discriminatory impact or with Discriminatory Administration. Facially neutral laws with a discriminatory impact or discriminatory administration: Some laws that are facially race neutral are

administered in a manner that discriminate against minorities or has a disproportionate impact against them. The SC has held that there must be proof of a discriminatory purpose in order for such laws to be treated as racial or national origin classifications.

Facially neutral discrimination ( not part of reading assignment) District of Columbia is under the control of congress. Is disproportionae impact relevant? Yes, when we have a racially neutral classification. Is disproportionate impact for making out a case for racial classification? No. its is not the soul touchstone, standing alone it does not subject it to the strictest of scrutiny. What is the level of review to be used here if it doesnt fall under scruinty. P. 791 (rationale basis). If neutral on its face disproportionate impact alone will not make out a prima facie case. Facially neutral statute: the challenger bears burden if proof to show that in fact this is a racial classification. Washington v. Davis ( petitioner argues that police test 21 was racially discriminatory under title VII). (court held here that test 21 was not facially discriminatory because the test was given to everyone who was related to the function of the position). Issue: Whether an employment test that results in a higher failure rate amongst black candidates deprive them of their Equal Protection rights? submit to a round of testing including physical tests and a written personnel test, Test 21. In order to enter the 17-week training course an

applicant had to achieve 40 out of 80 on Test 21. Petitioner took Test 21 in 1970 and failed it. He claims that this test is racially biased because the majority of black applicants who took it failed. No claim of intentional discrimination, just that the test 21 bore no relationship to job performance and has a highly discriminatory impact in screening out black candidates. summary judgment because the qualifying test was directly related to the requirements of the police training program, and a positive relationship between the test and training course performance was sufficient to validate the former. The appellate court reversed that ruling because the disproportionate impact resulting from the fact that a greater proportion of blacks failed the test than whites established a constitutional violation. The court reversed, holding that the appellate court erroneously applied legal standards applicable to Title VII cases. Analysis: Reading ability is manifestly relevant to the police function, there is no evidence that the requiredpassing grade was set at an arbitrarily high level, and there is sufficient disparity among high schools and high school graduates to justify the use of a separate uniform test. Second, the same test is used throughout the federal service. The applicants for employment in the District of Columbia Police Department represent such a small fraction of the total number of persons who have taken the test that their experience is of minimal probative value in assessing the neutrality of the test itself. Holding: the court found that the test was constitutional and valid as there must be proof of the discriminatory purpose as well as a discriminatory impact. o The discriminatory impact is insufficient, by itself, to show the existence of a racial classification.

o Discriminatory purpose is similar to the criminal specific intent and the intent can be used as evidence of a discriminatory purpose. o In order for the court to use strict scrutiny, the law must discriminate and the law must have been passed to specifically discriminate. - Every other court presented with this same issue has found in the opposite. The test needs to be proven that it is an indicator of future job performance.

MCCLESKY V. KEMP White white White Black Black Black Black white Statistic failed to show discriminatory purpose. How stark a pattern do we need to have to show this is a discriminatory purpose? You have to show that they decided to stick with death penalty in spite of you need to show they stuck with death penalty because it was affecting more black than whites. Even though you are aware that test is having an affect because of adverse affect/disproportionate affect that it was having. Basically the bottom line is the stastic show racially discriminatory purpose or intent. City of mobile p. 789 Dealing with city counsil.

How is voting done for those commissioners, what does an at large system mean, who do you vote for? You get to vote on all of them. We have four commissions and everyone gets to vote. How is this racial? -O has served on the city council. -Evidence that there was discrimination in public services. What level of review does this get? Rationale basis.

Discriminatory effect alone is not enough. We need to have discriminatory purpose. What if we have discriminatory purpose but no discriminatory effect. You cant have one without the other see Palmer. PALMER Class notes Didnt want to desegregate make blacks and whites go to the same pool. There was discriminatory purpose, but there was no discriminatory effect because no one can use the pool. The court upholds the action in shutting down the pool. This is similar in price Edward school, in this particular case, education is not a fundamental right. Douglas in dissenting opinion cites griffin. Says that should not close based on apartide, but what has happened here?

They are doing it to prevent integration. The stat can make choices but when it makes choices based on race it should be satisfied on the basis of strict scrutiny.

PERSONNEL ADMINISTRATION OF MASSACHUSETTS TRIGGERS INTERMEDIATE LEVEL OF REVIEW. P. 796 DOES THIS AMOUNT to a gender based classification to get a higher level of review? The court says no. discriminatory purpose. Have to show that this was created to discriminate against woman if you cant show this it will get rationale basis. VILLAGE OF ARLINGTON HEIGHTS P. 797 TRYING TO GET REZONED FROM SINGLE FAMILY TO MULTIPLE-FAMILY. Is this on its face a racial classification? No. Proof you need to establish to make out a prima facie case when you have a neutral statute on its face. It applies to both races legally, ex: the test thing. 1. Historical background and decisions that have been made 2. The specific sequences of events leading up to the challenged decision also may shed some light on the decision makers purpose. 3. Departures from the normal procedural sequence also might afford evidence that improper purposes are playing a role.

4. The legislative or administrative history may be highly relevant. Dont count on being able to start a stark pattern, you have to show it was racially discriminatory absent that if dealing with neutral government statute on its face will have to look at 1 of the 4 and say they took race into consideration in making its decision. Washingotn v. davis If it affects one more than the other does not make out a case for racial classification, it is relevant but you will have to show more one of the four.