01/04/77 LUTHER MILLER et al., v. JAMES Y. CARTER,
[Editor's note: footnotes (if any) trail the opinion]
[1] UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
[2] LUTHER MILLER et al., Plaintiffs-Appellants,
v.
[3] JAMES Y. CARTER, Defendant-Appellee
[4] No. 75-1162
[5] 547 F.2d 1314
BLUE BOOK CITATION FORM: 1977.C07.2 (http://www.versuslaw.com)
[6] Date Decided: January 4, 1977
[7] Appeal from the United States District Court for the Northern
District of Illinois, Eastern Division No. 74 C 2886 - Frank J. McGarr,
Judge.
[8] APPELLATE PANEL:
[9] Tone and Bauer, Circuit Judges, and Campbell, Senior District
Judge.* Campbell
[10] PER CURIAM DECISION
[11] The issue before us is whether a Chicago ordinance which
permanently bars persons convicted of certain offenses from obtaining a
public chauffeur's license violates the due process and equal protection
clauses of the Fourteenth Amendment. The District Court sustained the
ordinance. We reverse.
[12] Plaintiff was convicted of armed robbery in 1965, when he was 20
years old, and, after serving seven years in the Illinois State
Penitentiary, was paroled in 1972. He satisfactorily completed his
parole and was discharged in August 1973. In September 1974 he applied
for a public chauffeur's license to qualify for employment as a taxicab
driver. His application was refused on the ground of Chicago Municipal
Ordinance, Ch. 28.1-3, which provides that such a license may not
[13] "be issued to any person at any time after conviction of a crime
involving the use of a deadly weapon, traffic in narcotic drugs, the
infamous crime against nature, incest or rape."
[14] Plaintiff thereupon filed this action for injunctive and
declaratory relief. The motion of the defendant, the city's Public
Vehicle License Commissioner, to dismiss the complaint was granted by
the District Court, and judgment was entered in his favor.
[15] Chapter 28.1-2 of the Chicago Municipal Ordinance requires that
any person employed in "transporting . . . passengers for hire" have a
public chauffeur's license. Applications for the license are made to the
commissioner, who submits the name of an applicant to the captain of the
police district in which the applicant resides for a "character and
reputation" investigation. Ch. 28.1-4. After receiving the police
captain's report, the commissioner rules on the application:
[16] "If the commissioner shall be satisfied that the applicant is of
good character and reputation and is a suitable person to be entrusted
with driving a public passenger vehicle he shall issue the license." Ch.
28.1-4.
[17] The commissioner is prohibited, however, as we have seen, from
issuing a license to any person convicted of certain crimes, including
the one of which plaintiff was convicted. Persons convicted of felonies
not listed in the passage quoted above, and of other crimes involving
moral turpitude, are ineligible to apply for licenses for a period of
eight years following conviction. Ch. 28.1-3.
[18] In Freitag v. Carter, 489 F.2d 1377 (7th Cir. 1973), this court
held unconstitutional the Public Vehicle License Commissioner's denial
of an application for a public chauffeur's license under a clause of Ch.
28.1-3 which prevented the issuance of a license to any applicant
"subject to . . . infirmity of . . . mind . . . which may render him
unfit to drive a public passenger vehicle." We held that the due process
clause of the Fourteenth Amendment required that a "governmental
licensing body which judges the fitness of an applicant must afford that
applicant adequate notice and a hearing." Id., 489 F.2d at 1382. Such a
hearing on plaintiff Luther Miller's application, however, would be a
mere formality because of the prohibition in Ch. 28.1-3 against granting
a license to one who has committed a crime involving the use of a deadly
weapon.
[19] In addition to the provisions previously discussed, the
ordinance specifies standards of conduct required of licensees and sets
penalties for violations of those standards. Ch. 28.1-10 through
28.1-15. Ch. 28.1-10 describes, as conduct which can lead to the
revocation of a license, the violation of "any criminal law which, if
convicted for such offense, would disqualify any applicant for a
chauffeur's license . . .." Engaging in this behavior does not, however,
lead to automatic revocation. Rather, "the commissioner may recommend to
the mayor that [the] license . . . be revoked and the mayor, in his
discretion, may revoke such license." (Emphasis supplied.) Thus,
plaintiff Miller is absolutely barred from obtaining a license, although
he was convicted of armed robbery over eleven years ago, while someone
who already holds a license may be permitted to retain it, although
convicted of armed robbery only yesterday.
[20] The city's purported justification for this different treatment
of persons who commit one of the listed offenses after receiving a
license is that they have a "track record" that the commissioner and
mayor can balance against the felony in evaluating fitness. The validity
of this distinction is dissipated, however, by the fact that a licensee
has an opportunity to obtain a favorable exercise of this discretion
regardless of how short a time the license has been held. Thus, one who
committed armed robbery within a few days of receiving the license, or
one who committed the crime before licensing but was convicted after
receiving the license, would, apparently, be eligible to retain the
license. Indeed, one who was convicted of armed robbery before applying,
but concealed that fact and so obtained a license, would, according to
the ordinance, also be eligible to retain the license, for under Ch.
28.1-10 misrepresentation or omission of a material fact in the
application, like commission of one of the prohibited offenses while
licensed, does not automatically result in revocation.
[21] Such distinctions among those members of the class of
ex-offenders are irrational, regardless of the importance of the public
safety considerations underlying the statute or the relevance of prior
convictions to fitness. In fact, allowing existing licensees who commit
felonies to continue to be eligible for licensing undercuts the
reasonableness of the basis for the classification, which is that the
felony is per se likely to create a serious risk which cannot be
sufficiently evaluated to protect the public through individualized
hearings. An applicant for a license who has committed one of the
described felonies and a licensee who has done the same are similarly
situated, and no justification exists for automatically disqualifying
one and not the other. Accordingly, insofar as Ch. 28.1-3 and 28.1-10
discriminate irrationally among the class of ex-offenders, they violate
the equal protection clause of the Fourteenth Amendment.
[22] Plaintiff has also argued that the challenged ordinance violates
the due process clause because it creates an irrebuttable presumption
that a person convicted of a specified offense is forever unfit to be
entrusted with a public chauffeur's license. Judge Campbell, who files a
separate opinion concurring in the result, would decide the case on this
ground, because of his concern that the equal-protection deficiency in
the ordinance can readily be remedied by the city, and, if it is, we
will soon be faced with another case raising the due process issue. We
cannot predict whether the city will amend the ordinance to retain an
absolute bar to employment as a public chauffeur which it has not seen
fit to apply to any other occupation, no matter how sensitive.1 In any
event, the equal-protection ground disposes of the case before us, and
we are unwilling to plunge unnecessarily into the thicket of
irrebuttable presumptions, for reasons which we can summarize as
follows.
[23] The irrebuttable presumption doctrine, invoked by the Supreme
Court in several recent cases,2 has its roots in the era when
substantive due process concepts led the Court to strike down state and
federal economic and social legislation it deemed arbitrary or
capricious.3 The renaissance of the doctrine has been fatal to state
laws regulating residency for purposes of voting rights4 and college
tuition,5 driver's license suspension,6 child custody,7 and pregnancy
disability.8 Federal regulations concerning food stamp eligibility were
also held unconstitutional on the same rationale.9 In all these cases
the legislative classifications were judged by balancing the advantages
and feasibility of individualized determinations against the
inflexibility and consequent harshness of the classification. In each
case the Court struck down the classification established, and required
an individualized factual determination of the eligibility of the
plaintiff for the benefits or penalties attendant upon membership in the
class. It did not, however, forbid consideration of the factors behind
the classification in making that determination.10
[24] The irrebuttable presumption analysis has been criticized from
its inception.11 Mr. Justice Holmes pointed out that the creation of a
conclusive presumption is simply an enactment of a rule of substantive
law.12 The Court's more recent invocations of the doctrine have been
criticized within13 and without14 the Court.
[25] While Weinberger v. Salfi, 422 U.S. 749, 45 L. Ed. 2d 522, 95 S.
Ct. 2457 (1975), authored by Mr. Justice Rehnquist, might be viewed as a
major step back from the doctrine,15 we cannot say that the doctrine has
lost the support of a majority of the Court because it has been invoked
subsequent to Salfi to strike down a Utah statute, Turner v. Department
of Employment Security, 423 U.S. 44, 46 L. Ed. 2d 181, 96 S. Ct. 249
(1975), and to distinguish in Mathews v. Lucas, 427 U.S. 495, 96 S. Ct.
2755, 2765, 49 L. Ed. 2d 651 (1976), the earlier Jimenez v. Weinberger,
417 U.S. 628, 41 L. Ed. 2d 363, 94 S. Ct. 2496 (1974). Yet in sustaining
a state compulsory-retirement-for-age statute in Massachusetts Board of
Retirement v. Murgia, 427 U.S. 307, 96 S. Ct. 2562, 49 L. Ed. 2d 520
(1976), last June, the Court made no reference to the doctrine.16
[26] In summary, we cannot say whether the irrebuttable presumption
doctrine or the substitute analysis followed in Salfi17 would be
thought appropriate for this case by a majority of the Supreme Court.
Inasmuch as our equal-protection holding decides the case, it is
unnecessary to reach the more difficult due process question.
[27] The judgment is reversed, and the case is remanded for further
proceedings consistent with this opinion.
[28] REVERSED AND REMANDED.
[29] CASE RESOLUTION
[30] REVERSED and REMANDED.
IN AGREEMENT
[31] CAMPBELL.
[32] Plaintiff's complaint challenged the constitutionality of Ch.
28.1-3 and defendant's conduct pursuant thereto, contending that the
ordinance "deprives persons of a right to employment and to earn a
living without due process of law", in violation of the Due Process
Clause of the Fourteenth Amendment, and that it "singles out a class of
persons for denial of access to a governmentally-established
prerequisite to employment by denying public chauffeur's licenses to
persons convicted of certain crimes," in violation of the Equal
Protection Clause of the Fourteenth Amendment.
[33] The District Court granted defendant's motion to dismiss on the
ground that there existed a rational relationship between the
classification (persons convicted of a crime involving the use of a
deadly weapon) and the goal which the ordinance seeks to achieve (the
protection of the public). Accordingly, the court held that the
ordinance did not violate the Equal Protection Clause. In addition, the
court held that the automatic exclusion of all persons convicted of a
crime involving the use of a deadly weapon did not violate the Due
Process Clause, holding that the "test of the appropriateness of the
classification is whether it has a reasonable relationship to the goals
sought to be attained."
[34] On appeal, plaintiff contends that the ordinance creates an
irrebuttable presumption of unfitness, barring issuance of a chauffeur's
license irrespective of evidence to the contrary and thus deprives him
of any opportunity for a meaningful hearing. He also contends that the
ordinance violates the Equal Protection Clause of the Fourteenth
Amendment in two respects: (1) that the ordinance unconstitutionally
discriminates against applicants previously convicted of a crime
involving use of a deadly weapon, as against all other persons; and (2)
that the distinction in treatment afforded ex-offender applicants, on
the one hand, and licensees convicted of such offenses subsequent to
issuance of the license, on the other, is irrational. The majority would
resolve this appeal solely on the basis of plaintiff's second equal
protection argument, holding that:
[35] "Such distinctions among those members of the class of
ex-offenders are irrational, regardless of the importance of the public
safety considerations underlying the statute or the relevance of prior
convictions to fitness. In fact, allowing existing licensees who commit
felonies to continue to be eligible for licensing undercuts the
reasonableness of the basis for the classification, which is that the
felony is per se likely to create a serious risk which cannot be
sufficiently evaluated to protect the public through individualized
hearings. An applicant for a license who has committed one of the
described felonies and a licensee who has done the same are similarly
situated, and no justification exists for automatically disqualifying
one and not the other. Accordingly, insofar as Ch. 28.1-3 and 28.1-10
discriminate irrationally among the class of ex-offenders, they violate
the equal protection clause of the Fourteenth Amendment."
[36] While I agree fully with this conclusion, I respectfully suggest
that the remaining contentions advanced by plaintiff should also be
addressed and resolved by this Court. If the only constitutional
deficiency of this ordinance were the fact that it irrationally
distinguishes between certain ex-offender applicants and those who are
convicted of certain crimes subsequent to the issuance of a license
(affording the latter, but not the former, an opportunity for a
meaningful hearing), that deficiency easily could be cured by amending
the ordinance so as to provide for the automatic revocation of any
license held by a person who, subsequent to issuance thereof, is
convicted of certain felony offenses. Upon passage of such an amendment
and the continued refusal to afford this plaintiff a meaningful hearing
(i.e., one at which the result is not preordained by an irrebuttable
presumption of unfitness), I would anticipate Mr. Miller's return to the
district court to challenge the constitutionality of the ordinance on
the remaining grounds heretofore advanced in the district court and
again on appeal. In view of the realistic possibility that this would
occur, and in the interest of avoiding unnecessary litigation, I believe
the due process issue, as well as the remaining equal protection issue,
should be resolved at this time.
[37] EQUAL PROTECTION
[38] Plaintiff argues that the ordinance, on its face, discriminates
against one group of persons - those previously convicted of a crime
involving the use of a deadly weapon - as against all other persons and
as against other ex-offenders.1
[39] In order to assess this aspect of plaintiff's equal protection
claim, it is of course necessary first to determine the appropriate
standard by which the constitutionality of the ordinance should be
measured. Plaintiff urges that his right to work is such a fundamental
right that the classification provided for in the ordinance should be
tested against a constitutional standard of "strict scrutiny," and
upheld only if found to be necessary to promote a compelling
governmental interest. Shapiro v. Thompson, 394 U.S. 618, 22 L. Ed. 2d
600, 89 S. Ct. 1322 (1969). The defendant, on the other hand, argues
that the legislative classification under consideration does not
interfere with the exercise of any fundamental rights, and should be
measured against the test of rationality set forth in Dandridge v.
Williams, 397 U.S. 471, 25 L. Ed. 2d 491, 90 S. Ct. 1153 (1970), wherein
the Court held that "the Equal Protection Clause does not require that a
State must choose between attacking every aspect of a problem or not
attacking the problem at all . . . It is enough that the State's action
be rationally based and free from invidious discrimination." 397 U.S. at
486-487.
[40] The strict scrutiny test, requiring that a legislative
classification be upheld only if it is necessary to advance a compelling
state interest, will be used to measure the constitutionality of a
legislative classification "only when the classification impermissibly
interferes with the exercise of a fundamental right or operates to the
peculiar disadvantage of a suspect class." Massachusetts Board of
Retirement v. Murgia, 427 U.S. 307, 49 L. Ed. 2d 520, 524, 96 S. Ct.
2562 (1976); San Antonio Independent School District v. Rodriguez, 411
U.S. 1, 36 L. Ed. 2d 16, 93 S. Ct. 1278 (1973). Included among such
fundamental rights are those protected by the First Amendment, such as
the right of individuals to associate for the advancement of political
beliefs, Williams v. Rhodes, 393 U.S. 23, 21 L. Ed. 2d 24, 89 S. Ct. 5
(1968), and at least to some extent the right of personal privacy, Roe
v. Wade, 410 U.S. 113, 35 L. Ed. 2d 147, 93 S. Ct. 705 (1973). Also
viewed as "fundamental" are the right to vote, Bullock v. Carter, 405
U.S. 134, 31 L. Ed. 2d 92, 92 S. Ct. 849 (1972) and the right of
interstate travel, Shapiro v. Thompson, 394 U.S. 618, 22 L. Ed. 2d 600,
89 S. Ct. 1322 (1969). I am not persuaded, however, that the right to
employment in a particular field of endeavor is "fundamental" in a sense
which requires application of the strict scrutiny rule. Of particular
note is the Supreme Court's recent decision in Massachusetts Board of
Retirement v. Murgia, supra, wherein the Court found "no support to the
proposition that a right of governmental employment per se is
fundamental." In Murgia, the Court refused to apply the strict scrutiny
rule to a mandatory retirement statute which required that state police
officers retire at age fifty, and upheld the constitutionality of the
statute under the Equal Protection Clause on the ground that the
classification was rationally related to a legitimate state objective:
[41] "The State's classification rationally furthers the purpose
identified by the State: Through mandatory retirement at age 50, the
legislature seeks to protect the public by assuring physical
preparedness of its uniformed police. Since physical ability generally
declines with age, mandatory retirement at 50 serves to remove from
police service those whose fitness for uniformed work presumptively has
diminished with age." 427 U.S. at 315, 49 L. Ed. 2d at 525-526.
[42] Nor do I believe the strict scrutiny rule should be applied on
the ground that the legislative classification operates to the peculiar
disadvantage of a "suspect class". Indicative of classifications which
have been strictly scrutinized on the ground that they affect a "suspect
class" are those based upon race: Loving v. Virginia, 388 U.S. 1, 18 L.
Ed. 2d 1010, 87 S. Ct. 1817 (1967); McLaughlin v. Florida, 379 U.S. 184,
13 L. Ed. 2d 222, 85 S. Ct. 283 (1964); alienage: Graham v. Richardson,
403 U.S. 365, 29 L. Ed. 2d 534, 91 S. Ct. 1848 (1971); ancestry or
nationality: Oyama v. California, 332 U.S. 633, 92 L. Ed. 249, 68 S. Ct.
269 (1948) and possibly, sex: Frontiero v. Richardson, 411 U.S. 677, 36
L. Ed. 2d 583, 93 S. Ct. 1764 (1973).2
[43] The Supreme Court has noted that a suspect class is one "saddled
with such disabilities, or subjected to such a history of purposeful
unequal treatment, or relegated to such a position of political
powerlessness as to command extraordinary protection from the
majoritarian political process." Rodriguez, supra, at 28. Murgia, supra.
Admittedly, significant societal disabilities often derive solely from
the fact that a person is an ex-offender, particularly in the area of
employment opportunities. Nevertheless, the Supreme Court decisions
which have considered expanding the category of "suspect"
classifications have shown a clear reluctance to do so. See, for
example, the concurring opinions of Justices Stewart and Powell,
expressing the views of four members of the Court, in Frontiero, and the
Court's recent decision in Murgia, in which the Court declined an
opportunity to include the aged as a "suspect class", notwithstanding
the Court's acknowledgement that "the treatment of the aged in this
Nation has not been wholly free of discrimination . . ." Accordingly, I
would not deem ex-offenders to constitute a "suspect class" for purposes
of the Equal Protection Clause, and would hold the strict scrutiny rule
inapplicable.
[44] It follows that the constitutionality of the ordinance under the
Equal Protection Clause does not hinge on whether or not the statute is
necessary to promote a compelling governmental interest. The defendant
need only establish that the classification is rationally related to a
legitimate legislative purpose. I believe that standard has been
satisfied in this case.
[45] Clearly, the City of Chicago has a legitimate interest in
promoting public safety, and in this connection, may regulate the
issuance of public chauffeur's licenses so as to better insure that the
character and competence of the licensee is consistent with the high
standards traditionally imposed upon common carriers with respect to the
care and safety of public passengers. As the defendant correctly argues,
persons who choose to be transported in taxicabs obviously are unable to
make an informed choice in selecting the driver, and therefore are
entitled to assume that, having been licensed by the City, the licensee
is a person of satisfactory character and competence. No doubt the City
of Chicago has a legitimate interest in attempting to insure that public
chauffeur licensees are persons of good character, are capable of being
entrusted with the operation of a public passenger vehicle.
[46] There is also a rational basis for considering an applicant's
prior criminal record in determining whether he is a person of good
character, worthy of being entrusted with the responsibilities of a
public chauffeur. The past conduct of an applicant may be the best
indicator of his present character and his future actions. As the amicus
curiae brief filed in appellant's behalf by the Chicago Council of
Lawyers and the John Howard Association concedes, well over 60% of those
arrested for the commission of crimes nationally are ex-offenders.
[47] Accordingly, the distinction drawn between ex-offenders and
other applicants for public chauffeur's licenses is rationally related
to a legitimate legislative goal, and therefore does not contravene the
Equal Protection Clause.3 I would also reject plaintiff's contention
that the ordinance unconstitutionally distinguishes between those
convicted of crimes involving the use of a weapon and ex-offenders
convicted of certain other offenses. (The ordinance prohibits absolutely
the issuance of a public chauffeur's license to the former, but allows
under certain circumstances issuance of a license to the latter).
Defendant's principal concern in considering the past criminal record of
an applicant is the prospect of a driver placing a passenger in physical
jeopardy. Accordingly, the ordinance gives greater weight to crimes such
as armed robbery and rape than to crimes not involving violence and
crimes not directed against other persons. If anything, this added
specificity supports the constitutionality of the statute by more
narrowly defining the class of persons to whom public chauffeur's
licenses may not issue.
[48] DUE PROCESS
[49] In Freitag v. Carter, 489 F.2d 1377 (7th Cir., 1973), this Court
held that a governmental licensing body which judges the fitness of an
applicant for a public chauffeur's license must, as a matter of due
process, afford the applicant adequate notice and a hearing. Freitag
held that the applicant was entitled to a hearing and an opportunity to
present evidence of his present mental condition, notwithstanding an
investigation which showed that, some fourteen years earlier, the
applicant had been a patient at a state mental hospital.
[50] In the instant case, plaintiff contends that the absolute bar
against issuance to him of a public chauffeur's license on the ground
that he was previously convicted of a crime involving the use of a
deadly weapon deprives him of rights guaranteed under the Due Process
Clause of the Fourteenth Amendment. Plaintiff correctly argues that any
hearing held upon his application for a public chauffeur's license would
be utterly meaningless, since his status as an ex-offender stands as an
absolute bar to the issuance of a license, notwithstanding the amount
and/or quality of evidence attesting to his present good character.
Thus, plaintiff argues that the ordinance creates an unconstitutional
irrebuttable presumption that he is a person of unsatisfactory
character, depriving him of any opportunity for a meaningful hearing and
thereby denying him due process of law.
[51] The defendant argues that the plaintiff was not deprived of
either his "liberty" or "property", and that accordingly, he was not
deprived of procedural due process of law by the City's failure to
provide a hearing. Defendant's contention in this respect is based
primarily on Board of Regents v. Roth, 408 U.S. 564, 33 L. Ed. 2d 548,
92 S. Ct. 2701 (1972), wherein the Court held that an untenured
professor who had been hired for one year, following which he was
informed that he would not be rehired for the next year, was not
deprived of either liberty or property under the Due Process Clause, and
therefore was not entitled to a hearing.
[52] I believe the Court in Roth sufficiently distinguished the facts
of that case from instances involving the issuance or nonissuance of a
license, the absence of which forecloses the applicant from an entire
range of employment opportunities. Board of Regents v. Roth, supra at
574; Schware v. Board of Bar Examiners, 353 U.S. 232, 1 L. Ed. 2d 796,77 S. Ct. 752 (1957). In addition, defendant's contention is implicitly
rejected by this Court's decision in Freitag, supra.
[53] Consideration of plaintiff's "irrebuttable presumption" argument
requires a brief review of the leading, and in some instances,
apparently inconsistent case law in this area. In Bell v. Burson, 402
U.S. 535, 29 L. Ed. 2d 90, 91 S. Ct. 1586 (1971), the Court held
unconstitutional a Georgia statute which provided that an uninsured
motorist's driver's license would be suspended if he became involved in
an accident resulting in damage, and would remain suspended until
liability had been determined. The statute did not provide for any
hearing procedure under which the driver might avoid suspension of his
license by presenting evidence of non-liability for the damage caused in
the accident. The Court held that the failure to provide such a hearing
deprived uninsured motorists due process of law. While Bell does not use
the term "irrebuttable presumption", it clearly mandates a "meaningful
hearing" at which the licensee might establish his non-liability. "It is
a proposition which hardly seems to need explication that a hearing
which excludes consideration of an element essential to the decision"
would not be a meaningful hearing. 402 U.S. at 542.
[54] The following year, the Court decided Stanley v. Illinois, 405
U.S. 645, 31 L. Ed. 2d 551, 92 S. Ct. 1208 (1972), holding
unconstitutional an Illinois statute which served absolutely to deprive
an unwed father of custody of his illegitimate child. Although the law
of Illinois provided that a parent could not be denied custody without
notice, a hearing, and proof of parental unfitness, unwed fathers were
conclusively presumed to be unfit, and therefore were not afforded a
hearing. In holding the statute unconstitutional, the Court stated:
[55] "It may be, as the State insists, that most unmarried fathers
are unsuitable and neglectful parents. It may also be that Stanley is
such a parent and that his children should be placed in other hands. But
all unmarried fathers are not in this category; some are wholly suited
to have custody of their children. This much the State readily concedes,
and nothing in this record indicates that Stanley is or has been a
neglectful father who has not cared for his children." 405 U.S. at
654-655.
[56] The Stanley Court rejected Illinois' argument that it should not
be required to undergo the inconvenience of a hearing because unwed
fathers are so seldom fit and proper parents.
[57] "The establishment of prompt efficacious procedures to achieve
legitimate state ends is a proper state interest worthy of cognizance
in constitutional adjudication. But the Constitution recognizes higher
values than speed and efficiency . . . Procedure by presumption is
always cheaper and easier than individualized determination. But when,
as here, the procedure forecloses the determinative issues of competence
and care, when it explicitly disdains present realities in deference to
past formalities, it needlessly risks running roughshod over the
important interests of both parent and child. It therefore cannot
stand." 405 U.S. at 656-657.
[58] A year later the Court decided Vlandis v. Kline, 412 U.S. 441,
37 L. Ed. 2d 63, 93 S. Ct. 2230 (1973) and United States Department of
Agriculture v. Murry, 413 U.S. 508, 37 L. Ed. 2d 767, 93 S. Ct. 2832
(1973). In Vlandis, the Court held unconstitutional a Connecticut
statute which, in determining the tuition to be paid by students
enrolled at a state university, classified as permanent non-residents
all unmarried students who had legally resided outside of Connecticut
within twelve months prior to applying for admission. Relying on
Stanley, the Court held that:
[59] "The State's interest in administrative ease and certainty
cannot, in and of itself, save the conclusive presumption from
invalidity under the Due Process Clause where there are other reasonable
and practicable means of establishing the pertinent facts on which the
State's objective is premised. In the situation before us, reasonable
alternative means for determining bona fide residence are available."
412 U.S. at 451.
[60] In Murry, the Court held unconstitutional Section 5(b) of the
Food Stamp Act, 7 U.S.C. Section 2014(b) which, in effect, denied food
stamp eligibility to any household containing a person eighteen years or
older who had been claimed as a "dependent" for federal income tax
purposes within the preceding twelve months by a person not eligible for
food stamp relief. The Supreme Court agreed with the District Court's
conclusion that the Act created "an irrebuttable presumption contrary to
fact."
[61] Consistent with the aforementioned decisions, the Court
subsequently decided Cleveland Board of Education v. LaFleur, 414 U.S.
632, 94 S. Ct. 791, 39 L. Ed. 2d 52 (1974). In LaFleur, the Court held
unconstitutional a maternity leave rule requiring a pregnant teacher to
commence maternity leave five months prior to the expected birth of her
child, and precluding re-employment prior to three months following
birth. The Court held that the principles enunciated in Stanley and
Vlandis were controlling, and that "the conclusive presumption embodied
in these rules, like that in Vlandis, is neither 'necessarily [nor]
universally true ', and is violative of the Due Process Clause." 414
U.S. at 646.
[62] More recently, the Court again applied the "irrebuttable
presumption" rule, holding unconstitutional a Utah statute which
rendered pregnant women ineligible for unemployment benefits for a
period extending from twelve weeks before the expected date of
childbirth until six weeks following childbirth: "The presumption of
incapacity and unavailability for employment created by the challenged
provision is virtually identical to the presumption found
unconstitutional in" LaFleur. Thus, the Court concluded "that the Utah
unemployment compensation statute's incorporation of a conclusive
presumption of incapacity during so long a period before and after
childbirth is constitutionally invalid under the principles of the
LaFleur case." Turner v. Dept. of Employment Security, 423 U.S. 44, 46
L. Ed. 2d 181, 96 S. Ct. 249 (1975).
[63] Balanced against the foregoing authorities are cases involving
mandatory retirement statutes and the Supreme Court's decision in
Weinberger v. Salfi, 422 U.S. 749, 45 L. Ed. 2d 522, 95 S. Ct. 2457
(1975). In McIlvaine v. Pennsylvania, 415 U.S. 986, 39 L. Ed. 2d 884, 94
S. Ct. 1583 (1975), the Court dismissed, for want of a substantial
federal question, an appeal from the Pennsylvania Supreme Court which
upheld a state law requiring retirement of police at age sixty.
McIlvaine was quickly interpreted as upholding the constitutionality of
mandatory retirement statutes against equal protection and due process
claims. Thus the Second Circuit in Rubino v. Ghezzi, 512 F.2d 431 (2nd
Cir., 1975) affirmed the District Court's refusal to convene a three
judge district court in an action challenging a state statute requiring
retirement of judges at age seventy. The Rubino Court held that "the
issues of equal protection and due process [irrebuttable presumption]
were before the Court in McIlvaine, and . . . the Supreme Court did not
consider those issues to present a substantial federal question." 512
F.2d at 433.
[64] The Sixth Circuit followed Rubino in Talbot v. Pyke, 533 F.2d
331 (1976) affirming summary judgment in defendant's favor in an action
challenging an Ohio statute requiring retirement at age seventy.
[65] In this circuit, the issue was presented in Gault v. Garrison,
523 F.2d 205 (1975) in which a tenured school teacher was forced to
retire at age sixty-five pursuant to school board policy. Plaintiff
challenged the policy on equal protection grounds and as an irrebuttable
presumption in violation of the Due Process Clause. In Gault, this Court
took note of the Supreme Court's dismissal "for want of substantial
federal question" of the appeal in McIlvaine. It was further noted that
a three judge district court in Weisbrod v. Lynn, 383 F. Supp. 933
(D.D.C. 1974), had held that the dismissal for want of a substantial
federal question in McIlvaine required dismissal of a constitutional
challenge made by plaintiff Weisbrod, a HUD attorney, to a Federal law
mandating retirement at age seventy. The Supreme Court summarily
affirmed. Weisbrod v. Lynn, 420 U.S. 940, 43 L. Ed. 2d 420, 95 S. Ct.
1319 (1975).
[66] The Gault Court recognized that if Weisbrod and McIlvaine were
to be considered binding precedents, they would not be distinguishable
from the Gault case. However, the Court declined to resolve the merits
of the case, and stayed further proceedings pending the Supreme Court's
decision in Massachusetts Board of Retirement v. Murgia, with respect to
which the Supreme Court had recently noted probable jurisdiction. 421
U.S. 974, 95 S. Ct. 1973, 44 L. Ed. 2d 466 (1975). The hope, obviously,
was that the Supreme Court in Murgia would resolve the due process
question presented by plaintiff Gault, - i. e., whether a mandatory
retirement statute creates an unconstitutional irrebuttable presumption
that, because of age, the employee is unable to continue to adequately
perform the services for which he has been hired.
[67] As did the panel in Gault, we also awaited the Supreme Court's
decision in Murgia, hoping that further light might be shed on the
constitutionality of statutes creating irrebuttable presumptions,
particularly in view of the Court's decision in Weinberger v. Salfi, 422
U.S. 749, 45 L. Ed. 2d 522, 95 S. Ct. 2457 (1975), discussed infra,
upholding the constitutionality of a statute which quite obviously
creates an irrebuttable presumption and forever excludes certain persons
from receiving certain benefits under the Social Security Act.
[68] On June 25, 1976, the Supreme Court decided Murgia, without
discussing the constitutionality of mandatory statutes under the Due
Process Clause, and without characterizing the statute, requiring
retirement of Massachusetts State Police at age fifty, as creating an
irrebuttable presumption that officers over the age of fifty are
physically unable adequately to perform the duties of a Massachusetts
state police officer. The Murgia Court upheld the constitutionality of
the statute in question solely on equal protection grounds holding that
the strict scrutiny rule was not applicable, that the statute was
designed to achieve a legitimate legislative purpose and that the
classification was rationally related to the achievement of that
purpose.
[69] In the interim, the Court decided Weinberger v. Salfi, 422.S.
749, 45 L. Ed. 2d 522, 95 S. Ct. 2457 (1975), upholding the
constitutionality of a provision of the Social Security Act which
defined "widow" and "child", for the purpose of survivor's benefits to
exclude the widow or step-child of any deceased wage earner who had
been the husband or step-father of the claimant for a period of less
than nine months at the time of death. The stated purpose of the rule
was to discourage sham marriages designed to enable one spouse to claim
benefits upon the anticipated early death of the wage earner. The Salfi
Court held that:
[70] "The question is whether Congress, its concern having been
reasonably aroused by the possibility of an abuse which it legitimately
desired to avoid, could rationally have concluded both that a particular
limitation or qualification would protect against its occurrence, and
that the expense and other difficulties of individual determinations
justify the inherent imprecision of a prophylactic rule. We conclude
that the duration-of-relationship test meets this constitutional
standard." 422 U.S. at 777.
[71] In reaching this conclusion, the Court placed a heavy emphasis
on the fact that "social welfare legislation" was involved, requiring
broader discretion in the use of legislative classifications in order to
maximize the use of available funds and resources. Thus, the Court
quoted extensively from its prior decisions in Flemming v. Nestor, 363
U.S. 603, 611, 4 L. Ed. 2d 1435, 80 S. Ct. 1367 (1960).4 Dandridge v.
Williams, 397 U.S. 471, 485, 25 L. Ed. 2d 491, 90 S. Ct. 1153 (1970);5
Richardson v. Belcher, 404 U.S. 78, 81, [30 L. Ed. 2d 231, 92 S. Ct.
254] (1971)6 and Geduldig v. Aiello, 417 U.S. 484, 41 L. Ed. 2d 256, 94
S. Ct. 2485 (1974). Consistent with its emphasis that the claim in Salfi
was distinguishable because social welfare legislation was involved, the
Court declined to follow Stanley and LaFleur on the ground that, unlike
the claims asserted in those cases, Salfi involved:
[72] "a noncontractual claim to receive funds from the public
treasury [which] enjoys no constitutionally protected status, Dandridge
v. Williams, supra, though of course Congress may not invidiously
discriminate among such claimants on the basis of a 'bare congressional
desire to harm a politically unpopular group," U.S. Dept. of Agriculture
v. Moreno, 413 U.S. 528, [534, 37 L. Ed. 2d 782, 93 S. Ct. 2821] (1973),
or on the basis of criteria which bear no rational relation to a
legitimate legislative goal. Jimenez v. Weinberger, 417 U.S. 628, [41 L.
Ed. 2d 363, 94 S. Ct. 2496,] (1974); U.S. Dept. of Agriculture v. Murry,
413 U.S. 508, [37 L. Ed. 2d 767, 93 S. Ct. 2832,] (1973)." 422 U.S. at
772.
[73] The Court distinguished Vlandis on the ground that "the Social
Security Act does not purport to speak in terms of the bona fides of the
parties to a marriage, but then make plainly relevant evidence of such
bona fides inadmissible." 422 U.S. at 772.
[74] I find some difficulty in so easily distinguishing Jimenez v.
Weinberger, 417 U.S. 628, 41 L. Ed. 2d 363, 94 S. Ct. 2496 (1974),
wherein the Court declared unconstitutional a provision of the Social
Security Act which, in effect, precluded an illegitimate child born
after the onset of the parent's disability, from obtaining disability
benefits, unless the child were eligible under other provisions of the
Act regarding legitimization, inheritance or defective marriage
ceremonies. The Jimenez Court concluded that the purpose of the
statutory scheme was to prevent spurious claims and insure that only
those actually entitled to disability benefits received such payments.
The Court, distinguishing Dandridge on the ground that the purpose of
the legislative provision in Jimenez did not concern the allocation of
finite resources, gave considerable weight to the fact that the
classification created an irrebuttable presumption, noting that the
dilemma of noneligible illegitimate children "is compounded by the fact
that the statute denies them any opportunity to prove dependency in
order to establish their 'claim' to support and, hence, their right to
eligibility." 417 U.S. at 635. In this respect, the Court noted that:
[75] "It does not follow, however, that the blanket and conclusive
exclusion of appellants' subclass of illegitimates is reasonably related
to the prevention of spurious claims. Assuming that the appellants are
in fact dependent on the claimants, it would not serve the purposes of
the Act to conclusively deny them an opportunity to establish their
dependency and their right to insurance benefits . . .". 417 U.S. at
636.
[76] The Court concluded that "to conclusively deny one subclass
benefits presumptively available to the other denies the former the
equal protection of the laws guaranteed by the due process provision of
the Fifth Amendment." 417 U.S. at 637.7
77] Similarly, notwithstanding the Court's effort to distinguish
them, the Salfi decision is difficult to square with Stanley, Vlandis
and LaFleur. The challenged provision in Salfi clearly creates an
irrebuttable presumption, and in view of the Court's decisions in Murry
and Jimenez, the fact that the Social Security Act is involved would not
seem to be a wholly dispositive factor. Particularly with respect to
Vlandis, the basis for distinction is difficult to comprehend. The Court
seems to be saying that both the residency rule in Vlandis and the
challenged provision in Salfi "speak in terms of the bona fides of the
parties", but unlike the residency rule in Vlandis, the challenged
provision in Salfi does not "make plainly relevant evidence of such bona
fides inadmissible." 422 U.S. at 772. But clearly, the statutory
provision under consideration in Salfi did nothing less than preclude a
widow, who married the deceased wage earner less than nine months prior
to his death, from presenting evidence that the marriage was not a sham
designed to enable one spouse to claim benefits upon the death of the
other.
[78] The extent to which the foregoing cases conflict with one
another, and the extent to which the irrebuttable presumption rule has
been criticized, leads the majority to conclude that
[79] "we cannot say whether the irrebuttable presumption doctrine or
the substitute analysis followed in Salfi would be thought appropriate
for this case by a majority of the Supreme Court. Inasmuch as our
equal-protection holding decides this case, it is unnecessary to reach
the more difficult due process question."
[80] As previously indicated, I believe it is necessary to resolve
the due process issue, and would do so in plaintiffs' favor.
[81] A careful reading of the Salfi decision suggests that present in
that case were a combination of factors which might render application
of the irrebuttable presumption rule inappropriate. First is the already
discussed fact that the challenged provision was but a part of a
comprehensive social welfare legislative scheme. Secondly, the Court
noted that the "prophylactic approach" obviates the need to expend
limited social welfare resources for the purpose of considering "large
numbers of individualized determinations". The Court also recognized
that the duration-of-relationship rule protects claimants, whose
relationship with the deceased exceeded nine months, from the
"uncertainties and delays of administrative inquiry into the
circumstances of their marriages." Further, the Court noted that the
very existence of the rule could discourage sham marriages. Finally, and
perhaps most importantly, the Court recognized that it is not "at all
clear that individual determinations could effectively filter out sham
arrangements, since neither marital intent, life expectancy nor
knowledge of terminal illness has been shown by appellees to be reliably
determinable." 422 U.S. at 782-783.
[82] This Court has already recognized the special status afforded
social welfare legislation in the context of a classification which
might otherwise be viewed as creating an unconstitutional irrebuttable
presumption. Fisher v. Secretary of U.S. Dept. of Health, Ed. and
Welfare, 522 F.2d 493 (7th Cir., 1975).
[83] In addition, some consideration must be given to the extent to
which individualized determinations of eligibility would so burden the
system as to substantially interfere with achievement of the legislative
goal. In Vlandis, for example, the Court specifically noted that, as
alternatives to the conclusive presumption in that case "there are other
reasonable and practical means of establishing the pertinent facts on
which the State's objective is premised." 412 U.S. at 451. Similarly,
the LaFleur Court observed that "school boards have available to them
reasonable alternative methods of keeping physically unfit teachers out
of the classroom." 414 U.S. at 647, n. 14.
[84] Thus, while "an interest in devising prompt and efficient
procedures to achieve legitimate objectives . . ." will not suffice to
justify classifications which constitute irrebuttable presumptions,
LaFleur, supra, at 646,8 it nevertheless would appear that a
classification will not be held unconstitutional where individualized
determinations of eligibility will necessarily and significantly
interfere with the satisfactory operation of an overall legislative
scheme. Such instances might well be limited to large and comprehensive
social welfare programs, such as those encompassed under the Social
Security Act, involving distribution of benefits to millions of
claimants and requiring the promulgation of prophylactic rules
concerning eligibility.
[85] Finally, the Salfi Court emphasized that individual
determinations might not effectively filter out sham marital
arrangements. I think it is safe to say that in most other instances,
adequate hearing procedures will advance, rather than retard, the
fact-finding process.
[86] Turning to the ordinance challenged by plaintiff Miller, none of
the foregoing considerations are applicable. I therefore believe we
should be guided by the Court's decisions in Stanley, Vlandis and
LaFleur. Of particular significance is the fact that, subsequent to the
decision in Salfi, the Court applied the irrebuttable presumption rule
in holding a statutory provision unconstitutional. Turner v. Dept. of
Employment Security, 423 U.S. 44, 46 L. Ed. 2d 181, 96 S. Ct. 249
(1975).
[87] As in Vlandis, the hearing procedure which this Court required
in Freitag offers a "reasonable and practical means of establishing the
pertinent facts on which the [City's] objective is premised." 412 U.S.
at 451. Moreover, the use of irrebuttable presumptions of ineligibility
is particularly repugnant where they preclude an applicant from ever
obtaining the credentials necessary to engage in a particular field of
endeavor. The right to engage in a particular type of employment may not
be a "fundamental right" for the purposes of the strict scrutiny test,
but it is nevertheless a very important right, and one which should not
be summarily denied through the use of irrebuttable presumptions of
ineligibility. See, Berger v. Board of Psychologist Examiners, 172 U.S.
App. D.C. 396, 521 F.2d 1056 (1975).
[88] Contrary to the defendant's contention, due process arguments
based upon the presence of an irrebuttable presumption are not simply
indirect efforts to attack a statute on equal protection grounds. Under
the Equal Protection Clause, an unconstitutional classification may not
be considered in determining eligibility. As indicated supra, the past
criminal record of an applicant for a public chauffeur's license is a
valid consideration in determining the applicant's character and
fitness. Due process considerations require only that the applicant be
given a meaningful opportunity to present evidence of good character and
fitness in contravention of any contrary inference based upon his prior
conduct.
[89] As does the majority, I fully recognize that, to say the least,
this area of the law continues to evolve. On the one hand, decisions
such as Bell, Stanley, Vlandis, LaFleur and Turner reflect a disdain for
irrebuttable presumptions of ineligibility. On the other, the dissenting
opinions in each of those cases and the Court's decision in Salfi
suggest the unworkability of a rule forbidding all conclusive
classifications. And as evidenced by the Murgia decision, the area
involving perhaps the clearest use of conclusive presumptions -
mandatory retirement - continues to be tested solely on traditional
equal protection grounds. On the basis of what I understand to be the
present state of the law, the ordinance in the instant case creates an
irrebuttable presumption which deprives plaintiff of a meaningful
hearing in violation of the Due Process Clause of the Fourteenth
Amendment. Accordingly, I would reverse the judgment of the District
Court both on the ground relied upon by the majority, and on the ground
that the ordinance deprives the plaintiff of due process of law.
[90] APPELLATE PANEL: FOOTNOTES
[91] * The Honorable William J. Campbell, Senior District Judge of
the United States District Court for the Northern District of Illinois,
is sitting by designation.
[92] ..... BEGIN FOOTNOTEHERE .....
[93] 1 Briefs filed by amici curiae (Illinois Department of
Corrections, Operation Dare, Just Jobs, Chicago Council of Lawyers, and
John Howard Association) urge that the policy of absolute preclusion is
inconsistent with state-imposed qualifications for other more sensitive
occupations, fails to take account of experience showing the possibility
of rehabilitation, is unnecessary for the protection of the public, and
removes from the limited number of employment opportunities
realistically available to ex-offenders that of taxicab or bus driver.
While we are not unsympathetic to these public-policy arguments, they
are more appropriately addressed to the legislative branch and can be
when consideration is given to amending the ordinance we hold invalid.
[94] 2 Turner v. Department of Employment Security, 423 U.S. 44, 46
L. Ed. 2d 181, 96 S. Ct. 249 (1975); Cleveland Board of Education v.
LaFleur, 414 U.S. 632, 94 S. Ct. 791, 39 L. Ed. 2d 52 (1974); United
States Department of Agriculture v. Murry, 413 U.S. 508, 37 L. Ed. 2d
767, 93 S. Ct. 2832 (1973); Vlandis v. Kline, 412 U.S. 441, 37 L. Ed. 2d
63, 93 S. Ct. 2230 (1973); Stanley v. Illinois, 405 U.S. 645, 31 L. Ed.
2d 551, 92 S. Ct. 1208 (1972). Cf. Jimenez v. Weinberger, 417 U.S. 628,
41 L. Ed. 2d 363, 94 S. Ct. 2496 (1974). Two previous decisions, Bell v.
Burson, 402 U.S. 535, 29 L. Ed. 2d 90, 91 S. Ct. 1586 (1971), and
Carrington v. Rash, 380 U.S. 89, 13 L. Ed. 2d 675, 85 S. Ct. 775 (1965),
have been explained as resting, at least in part, upon the same
rationale. Stanley v. Illinois, supra, 405 U.S. at 653-656.
[95] 3 In Schlesinger v. Wisconsin, 270 U.S. 230, 70 L. Ed. 557, 46
S. Ct. 260 (1926), the Court, per Mr. Justice McReynolds, held a
Wisconsin estate tax statute unconstitutional, because its provision
that all transfers for less than adequate consideration made within six
years of death be deemed gifts in contemplation of death violated the
due process and equal protection clauses, in that gifts "in fact made
without contemplation [of death] are . . . conclusively presumed to have
been so made without regard to actualities, while like gifts at other
times are not thus treated." 270 U.S. at 240. In Heiner v. Donnan, 285
U.S. 312, 76 L. Ed. 772, 52 S. Ct. 358 (1932), the Court, per Mr.
Justice Sutherland, overturned a similar federal estate tax provision as
"so arbitrary and capricious as to cause it to fall before the due
process of law clause of the Fifth Amendment . . .." 285 U.S. at 326.
This was so because "the presumption here created . . . is made
definitely conclusive - incapable of being overcome by proof of the most
positive character." 285 U.S. at 324. In both cases the Court referred
to earlier decisions discussing the due process implications of
conclusive evidentiary presumptions. Bailey v. Alabama, 211 U.S. 452, 53
L. Ed. 278, 29 S. Ct. 141 (1908); Bailey v. Alabama, 219 U.S. 219, 55 L.
Ed. 191, 31 S. Ct. 145 (1911); Keller v. United States, 213 U.S. 138, 53
L. Ed. 737, 29 S. Ct. 470 (1909); and Mobile, J. & K. C.R. Co. v.
Turnipseed, 219 U.S. 35, 55 L. Ed. 78, 31 S. Ct. 136 (1910).
[96] 4 Carrington v. Rash, 380 U.S. 89, 13 L. Ed. 2d 675, 85 S. Ct.
775 (1965).
[97] 5 Vlandis v. Kline, 412 U.S. 441, 37 L. Ed. 2d 63, 93 S. Ct.
2230 (1973).
[98] 6 Bell v. Burson, 402 U.S. 535, 29 L. Ed. 2d 90, 91 S. Ct. 1586
(1971).
[99] 7 Stanley v. Illinois, 405 U.S. 645, 31 L. Ed. 2d 551, 92 S. Ct.
1208 (1972).
[100] 8 Cleveland Board of Education v. LaFleur, 414 U.S. 632, 94 S.
Ct. 791, 39 L. Ed. 2d 52 (1974); Turner v. Department of Employment
Security, 423 U.S. 44, 46 L. Ed. 2d 181, 96 S. Ct. 249 (1975).
[101] 9 United States Department of Agriculture v. Murry, 413 U.S.
508, 37 L. Ed. 2d 767, 93 S. Ct. 2832 (1973). The doctrine may also have
been the basis, in part at least, for the Court's decision in Jimenez v.
Weinberger, 417 U.S. 628, 41 L. Ed. 2d 363, 94 S. Ct. 2496 (1974).
Although the Chief Justice authored that opinion, and has been critical
of the irrebuttable presumption doctrine, the Court's discussion at 417
U.S. at 636-638 certainly echoes the earlier cases. In fact, Mr. Justice
Blackmun's opinion for the Court in Mathews v. Lucas, 427 U.S. 495, 96
S. Ct. 2755, 49 L. Ed. 2d 651 (1976), distinguishes Jimenez as involving
conclusive presumptions. 96 S. Ct. at 2765.
[102] 10 See Vlandis v. Kline, 412 U.S. 441, 452-454, 37 L. Ed. 2d 63,
93 S. Ct. 2230 (1973), and Cleveland Board of Education v. LaFleur, 414
U.S. 632, 647 nn. 13 & 14, 94 S. Ct. 791, 39 L. Ed. 2d 52 (1974).
[103] 11 See Mr. Justice Holmes' dissent in Schlesinger v. Wisconsin
supra, 270 U.S. at 241, and Mr. Justice Stone's dissent in Heiner v.
Donnan, supra, 285 U.S. at 332.
[104] 12 Keller v. United States, 213 U.S. 138, 149, 53 L. Ed. 737, 29
S. Ct. 470 (1909) Bailey v. Alabama, 219 U.S. 219, 245 (1911) (dissent).
[105] 13 Mr. Justice Rehnquist has characterized the doctrine as
relying "heavily on notions of substantive due process that have been
authoritatively repudiated," Vlandis v. Kline, supra, 412 U.S. at 463,
and as "in the last analysis nothing less than an attack upon the very
notion of law-making itself." Cleveland Board of Education v. LaFleur,
supra, 414 U.S. at 660. The Chief Justice has criticized the doctrine
since Stanley v. Illinois, 405 U.S. 645, 662, 31 L. Ed. 2d 551, 92 S.
Ct. 1208 (1972), and Mr. Justice Powell expressed concern "about the
implications of the doctrine for the traditional legislative power to
operate by classification." Cleveland Board of Education v. LaFleur,
supra, 414 U.S. at 652 (concurring opinion).
[106] 14 See Bezanson, Some Thoughts on the Emerging Irrebuttable
Presumption Doctrine, 7 Ind. L. Rev. 644 (1974); Note, The Irrebuttable
Presumption Doctrine in the Supreme Court, 87 Harv. L. Rev. 1534 (1974);
Note, The Conclusive Presumption Doctrine: Equal Process or Due
Protection ?, 72 Mich. L. Rev. 800 (1974); Note, Irrebuttable
Presumptions: An Illusory Analysis, 27 Stan. L. Rev. 449 (1975). But see
Simson, The Conclusive Presumption Cases: The Search For A Newer Equal
Protection Continues, 24 Cath. L. Rev. 217 (1975). Besides pointing out
that few, if any, legislative classifications would survive the
consistent application of the doctrine, the commentators have complained
that the Court has never explained what prompted it to invoke the
doctrine in some cases but not in others.
[107] 15 It was said that, if extended, the irrebuttable presumption
doctrine of the prior cases could become
[108] "a virtual engine of destruction for countless legislative
judgments which have heretofore been thought wholly consistent with the
Fifth and Fourteenth Amendments to the Constitution." 422 U.S. at 772.
[109] 16 An omission which is particularly striking in light of Mr.
Justice Rehnquist's dissent in Cleveland Board of Education v. LaFleur,
414 U.S. 632, 659, 94 S. Ct. 791, 39 L. Ed. 2d 52 (1974), adverting
specifically to the effect of the irrebuttable presumption doctrine on
mandatory retirement statutes.
[110] 17 "The question is whether Congress, its concern having been
reasonably aroused by the possibility of an abuse which it legitimately
desired to avoid, could rationally have concluded both that a particular
limitation or qualification would protect against its occurrence, and
that the expense and other difficulties of individual determinations
justified the inherent imprecision of a prophylactic rule." 422 U.S. at
777. (Emphasis supplied.) This approach to the problem of individual
fairness when the legislature operates by classification appears to be
consistent with the emphasis in Vlandis v. Kline, 412 U.S. 441, 452-454,
37 L. Ed. 2d 63, 93 S. Ct. 2230 (1973), upon the "reasonable alternative
means of making the crucial determination" available to Connecticut. Cf.
Dean Milk Co. v. City of Madison, Wisconsin, 340 U.S. 349, 95 L. Ed.
329, 71 S. Ct. 295 (1951).
IN AGREEMENT FOOTNOTES
[111] 1 In this latter respect, plaintiff notes that the ordinance
allows issuance of a public chauffeur's license to certain other
ex-offenders whose convictions pre-date application for such a license
by more than eight years. In addition, persons convicted of certain
other felonies may be issued a license irrespective of the date of
conviction, if they have been honorably discharged from a branch of the
Armed Services in the interim.
[112] 2 In Frontiero, the Court held unconstitutional a statutory
scheme which required that, in order to claim a spouse as a "dependent"
for the purposes of obtaining increased quarters allowances and medical
and dental benefits, a female member of the armed services had to
establish that she contributed to over one-half of her husband's
support. The same statutory scheme allowed a serviceman to claim his
wife as a "dependent" without regard to whether she, in fact, was
dependent upon him for any part of her support. The Opinion of the Court
was authored by Justice Brennan on behalf of himself and Justices
Douglas, White and Marshall. Justice Stewart's brief concurrence agreed
"that the statutes before us work an invidious discrimination in
violation of the Constitution. Reed v. Reed, 404 U.S. 71, [30 L. Ed. 2d
225, 92 S. Ct. 251] ". Chief Justice Burger and Justice Blackmun joined
in an opinion authored by Justice Powell concurring in the judgment but
expressing the view that "it is unnecessary for the Court in this case
to characterize sex as a suspect classification with all of the
far-reaching implications of such a holding. Reed v. Reed, 404 U.S. 71,
30 L. Ed. 2d 225, 92 S. Ct. 251 . . . which abundantly supports our
decision today did not add sex to the narrowly limited group of
classifications which are inherently suspect. In my view, we can and
should decide this case on the authority of Reed and reserve for the
future any expansion of its rationale." 411 U.S. at 691-692. It thus
remains less than clear whether sex is a "suspect class" for the purpose
of applying the strict scrutiny test. See, Kahn v. Shevin, 416 U.S. 351,
40 L. Ed. 2d 189, 94 S. Ct. 1734 (1974); Geduldig v. Aiello, 417 U.S.
484, 496, 41 L. Ed. 2d 256, 94 S. Ct. 2485 n. 20 and Brennan J.,
dissenting at 497-505, Schlesinger v. Ballard, 419 U.S. 498, 42 L. Ed.
2d 610, 95 S. Ct. 572 (1975); Weinberger v. Wiesenfeld, 420 U.S. 636, 43
L. Ed. 2d 514, 95 S. Ct. 1225 (1975); Stanton v. Stanton, 421 U.S. 7,
13, 43 L. Ed. 2d 688, 95 S. Ct. 1373 (1975), Craig v. Boren, 429 U.S.
190, 97 S. Ct. 451, 50 L. Ed. 2d 397, 45 U.S.L.W. 4057 (1976).
[113] 3 Nor do I believe, as plaintiff contends, that Reed v. Reed,
404 U.S. 71, 30 L. Ed. 2d 225, 92 S. Ct. 251 (1971) created a new and
more stringent equal protection standard in cases which do not require
application of the strict scrutiny rule. Reed evidences no intention to
deviate from the rationality standard, except perhaps in sex
discrimination cases, which may well involve a "suspect class". See, n.
4, supra.
[114] 4 "Particularly when we deal with a withholding of a
noncontractual benefit under a social welfare program such as [Social
Security], we must recognize that the Due Process Clause can be thought
to interpose a bar only if the statute manifests a patently arbitrary
classification, utterly lacking in rational justification." 363 U.S. at
611.
[115] 5 "In the area of economics and social welfare, a State does not
violate the Equal Protection Clause merely because the classifications
made by its laws are imperfect." 397 U.S. at 485.
[116] 6 "A statutory classification in the area of social welfare is
consistent with the Equal Protection Clause of the Fourteenth Amendment
if it is 'rationally based and free from invidious discrimination' . .
." 404 U.S. at 81.
[117] 7 For the same reasons, the Salfi decision is difficult to
distinguish, on the basis of applicable legal principles, from the
Court's decision in U.S. Dept. of Agriculture v. Murry, 413 U.S. 508, 37
L. Ed. 2d 767, 93 S. Ct. 2832 (1973).
[118] 8 As the Stanley Court emphasized, the "Constitution recognizes
higher values than speed and efficiency. Indeed, one might fairly say of
the Bill of Rights in general, and the Due Process Clause in particular,
that they were designed to protect the fragile values of a vulnerable
citizenry from the overbearing concern for efficiency and efficacy that
may characterize praiseworthy government officials no less, and perhaps
more, than mediocre ones." 405 U.S. at 656.
[119] ..... END FOOTNOTEHERE .....
[Editor's note: Illustrations from the original opinion, if any, are
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19770104
1977.C07.2