Petition — Carter v. Miller

Supreme Court U.

FILE

FEB 241977

Supreme Court of the Anited States

Ocroser Term, 1976

No. F6-1171

JAMES Y. CARTER, Public Vehicle License

Commissioner of the City of Chicago,

Petitioner,

VS.

LUTHER MILLER, on his own behalf and on

behalf of all others similarly situated,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

WILLIAM R. QUINLAN,

Corporation Counsel of the City of Chicago,

511 City Hall, Chicago, Illinois 60602,

Counsel for Petitioner.

Danie. Pasca.e,

Rosert Rxrxx,

Assistant Corporation Counsel,

Of Counsel.

— — b ̃ . —

Midwest Law Printing Co., Chicago 60601, Financial 63988

TABLE OF CONTENTS

OPINIONS BELOW

JURISDICTION

QUESTION PRESENTED

CONSTITUTIONAL PROVISIONS, STATUTES

AND ORDINANCES INVOLVED

STATEMENT OF THE CASE:

The Complaint

The Decision of the District Court

The Opinion of the Court of Appeals

REASONS FOR GRANTING TEE WRIT:

The Holding That Incumbent Licensees And New

Applicants May Not Be Subject To Different Pro-

cedural Treatment Is Contrary To Principles Laid

Down By This Court.

An Equal Protection Right To A Hearing In The

Absence Of A Due Process Claim To A Hearing

Is Without Precedent And Establishes A New

Theory Of Entitlement To Hearings In A Broad

Range Of Government Activities

CONCLUSION

APPENDICES:

A—Memorandum Opinion and Order of the United

States District Court

B—Opinion of the United States Court of Appeals

C—Order of the United States Court of Appeals

Staying Mandate

aw uw

10

la

3a

3la

LIST OF AUTHORITIES CITED

Board of Regents v. Roth, 408 U.S. 564 (1972)

Perry v. Sindermann, 408 U.S. 593 (1972)

Constitution of the United States:

Amendment XTV

United States Code:

Title 42, § 1983

Municipal Code of the City of Chicago:

Chapter 28.1-2

Chapter 28.1-3

Chapter 28.1-10

8,9

In THe

Supreme Court of the United States

Octosrr Term, 1976

No.

JAMES Y. CARTER, Public Vehicle License

Commissioner of the City of Chicago,

Petitioner,

vs.

LUTHER MILLER, on his own behalf and on

behalf of all others similarly situated,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

The petitioner, James Y. Carter, Public Vehicle Com-

missioner of the City of Chicago, respectfully prays that

a writ of certiorari issue to review the judgment and

opinion of the United States Court of Appeals for the

Seventh Circuit, entered in this proceeding on January

4, 1977.

OPINIONS BELOW

The memorandum opinion and order of the district

court in favor of defendant-petitioner, entered January

17, 1975, are unreported but are reproduced below in

Appendix A.

The opinion of the Court of Appeals, filed January 4,

1977, reversing the judgment of the district court, is not

yet reported. It is reproduced in Appendix B.

JURISDICTION

The judgment of the Court of Appeals was entered on

January 4, 1977.

A motion for stay of mandate pending application to

this Court for a writ of certiorari was filed on January

24, 1977. On January 25, 1977, an order was entered by

the Court of Appeals staying the mandate until

February 24, 1977.

The jurisdiction of this Court herein rests on U.S.

Code Title 28, § 1254(1).

—

~~

QUESTION PRESENTED

Is an ordinance which conclusively denies issuance of

a publie thauffeur’s license to any applicant convicted of

certain armed felonies violative of the Equal Protection

Clause because revocation of a present licensee 's

previously granted license is discretionary rather than

mandatory?

CONSTITUTIONAL PROVISIONS, STATUTES

AND ORDINANCES INVOLVED

Constitution of the United States

Amendment XIV:

... No State shall make or enforce any law

which shal! abridge the privileges or immunities of

ante

Municipal Code of the City of Chicago

Chapter 28.1-2:

It is unlawful for any person to drive a public

irst having obtained a license as a public

chauffeur.

any time after conviction of a crime involving the

use of a deadly weapon

Chapter 28.1-10:

——

STATEMENT OF THE CASE

The Complaint

In his amended complaint the respondent sought in-

junctive and declaratory relief from Chapter 28.1-3 of

the Municipal Code of the City of Chicago which

provides that no public chauffeur’s license (taxi driver's

license) “shall be issued to any person at any time after

conviction of a crime involving the use of a deadly

weapon... .” Respondent alleged that he had been con-

victed of armed robbery, had served a sentence in the Il-

linois penitentiary and completed parole. He alleged

that pursuant to the ordinance and based upon his

criminal conviction he had been denied a public

chauffeur’s license. This denial, he alleged, was in viola-

tion of his rights under the Fifth, Eighth and

Fourteenth Amendments of the Constitution of the

United States.

The Decision of the District Court

In its memorandum opinion and order (Appendix A)

the District Court dismissed respondent’s complaint. The

court found that the ordinance did not violate the

Eighth Amendment because punishment of offenders

was not its purpose. The court found no denial of equal

protection because the classification of persons convicted

of a crime involving use of a deadly weapon is rationally

related to the protection of the users of public vehicles.

Finally the court declared that an irrebutable presump-

tion barring a specified class of persons from a certain

occupation is not a denial of due process where, as in

this instance, there is a rational relationship between the

classification and goals sought to be achieved.

afin

The Opinion of the Court of Appeals

The judgment of the Court of Appeals for the Seventh

Circuit (Appendix B) reversed and remanded the deci-

sion of the district court. The court of appeals concluded

that the ordinance which conclusively denies a public

chauffeur’s license to any applicant convicted of an

armed felony resulted in a denial of equal protection

because another ordinance provides that a present licen-

see’s license is not automatically revoked as a conse-

quence of such an offense, but instead may be revoked in

the discretion of the Mayor. The court did not hold that

applicants for the license have a due process right to a

hearing nor did it consider the differing interests of

present licensees and new applicants as bases for differ-

ing procedural treatment. Rather, the court assumed

that the class in issue was that of ex-offenders and held

that the mandatory denial of a license to newly applying

offenders consiituted a denial of equal protection as a

consequence of the fact that revocation of licenses of

offenders already licensed is discretionary.

The court of appeals declined to rule on respondents’

due process arguments. A concurring opinion of District

Judge Campbell, however, considered respondents’ con-

tention that the ordinance constituted an impermissible

irrebutable presumption and concluded that the or-

dinance should be held violative of the Due Process

Clause.

==

REASONS FOR GRANTING WRIT

THE HOLDING THAT INCUMBENT LICENSEES

AND NEW APPLICANTS MAY NOT BE SUBJECT TO

DIFFERENT PROCEDURAL TREATMENT IS CON-

p= J TO PRINCIPLES LAID DOWN BY THIS

COURT.

AN EQUAL PROTECTION RIGHT TO A HEARING

IN THE ABSENCE OF A DUE PROCESS CLAIM TO A

HEARING IS WITHOUT PRECEDENT AND ES-

TABLISHES A NEW THEORY OF ENTITLEMENT TO

HEARINGS IN A BROAD RANGE OF GOVERNMENT

ACTIVITIES.

The Municipal Code of Chicago conclusively denies a

taxi driver’s license to any new applicant having been

convicted of an armed felony but allows revocation of a

current licensee’s license for such conviction only after a

hearing. The Court of Appeals found this disparity to be

an irrational discrimination in the treatment of

offenders and accordingly held it violative of the Equal

Protection Clause. The court specifically did not find the

respondent applicant to have interests entitling him to a

hearing as a matter of due process but instead accorded

him a hearing as a matter of equal protection.

In holding this disparity to be an irrational dis-

crimination the Court of Appeals ignored decisions of

this Court which permit recognition of substantially

differing interests of new applicants and present

licensees as an appropriate basis for the differing treat-

ment of the two classes. Moreover the recognition of an

equal protection claim to a hearing where due process

analyses do not mandate such a proceeding is un-

precedented and opens a new avenue to claims for

hearings in a wide range of governmental activities.

Possession of a chauffeur's license is an essential con-

dition of employment as a taxi driver in the City of

Chicago. (Chapter 28.1-2, supra p. 4) For this reason the

City’s licensing officers have effective power to ter-

minate the employment of any taxi driver in the City.

Indeed the revocation of a driver’s license operates not

only to terminate that individual’s current employment

relationship but permanently ends his eligibility to con-

tinue in his chosen calling with any other employer of

taxi drivers in the City. Thus although the City is not an

employer of taxi drivers its influence over a driver's

livelihood equals or exceeds the power it would have if

drivers were in fact governmental employees. In

recognition of this power over continued employment the

City’s revocation procedure includes a hearing. This

Court's decisions in Board of Regents v. Roth, 408 U.S.

564 (1972), and Perry v. Sindermann, 408 U.S. 593

(1972), indicate that were the City the employer of

drivers such a hearing would be a mandatory due

process requirement. The interests affected by license

revocations plainly merit similar procedural treatment

in the opinion of the City Council, whether required by

the Constitution or not.

The interests of new license applicants such as respon-

dent, however, are clearly different. Like new applicants

for governmental employment they have no rights

analogous to a property interest upon which a due

process entitlement can be premised. Had they such an

interest this case could and would have been straight-

forwardly resolved in respondent’s favor upon the due

process arguments which he vigorously advanced in

both the district court and the court of appeals.

——

Thus the disparate treatment accorded applicants and

incumbent licensees simply reflects the differing in-

terests of career drivers and those who contemplate such

employment for the first time. For these reasons that

disparity is not based, as the court of appeals held, upon

an irrational distinction.

E „ *

The decision of the court of appeals in finding respon-

dent entitled to a hearing solely on equal protection

grounds cited no authority and is indeed unprecedented.

It suggests a wholly new theory of entitlement to

hearings in governmental licensing proceedings.

Perhaps more important are the implications of this

decision in the area of governmental employment.

Because of the substantial similarity of interests of

applicants for occupational licensing and applicants for

governmental employment it appears clear that the deci-

sion of the Court of Appeals will open the door to claims

for hearings by unsuccessful aspirants to public employ-

ment. Thus the scope of Board of Regents v. Roth and

Perry v. Sindermann will be vastly broadened to reach a

result which is indeed inconsistent with the doctrine of

those decisions. For these reasons the implications of the

decision extend beyond the licensing of cab drivers in

the City of Chicago and merits the early attention of this

Court.

—10—

CONCLUSION

| For the foregoing reasons, a writ of certiorari should

issue to review the judgment and opinion of the Court of

Appeals for the Seventh Circuit.

Respectfully submitted,

WILLIAM R. QUINLAN,

Corporation Counsel of the City of Chicago,

511 City Hall, Chicago, Illinois 60602,

Counsel for Petitioner.

Danie, Pascate,

Rosert Rerke,

Assistant Corporation Counsel,

Of Counsel.

February 23, 1977

—la—

APPENDIX A

In Tae Unrrep Srares Disraicr Court

For The Northern District Of Illinois

Eastern Division

LUTHER MILLER, et al.,

Plaintiffs,

* + No. 74 C 2886

JAMES Y. CARTER,

Defendant. |

MEMORANDUM OPINION AND ORDER

Plaintiff has brought this suit as a class action seeking an

injunction against enforcement of an allegedly invalid or-

dinance of the City of Chicago. His claim is asserted under

42 U.S.C. §1983 to redress the deprivation under color of

state law, of rights guaranteed under the Fifth, Eighth, and

Fourteenth Amendments to the Constitution of the United

States. The defendant has moved to dismiss the complaint.

The plaintiff, Luther Miller, was convicted in 1965 of

armed robbery. After serving his sentence and fulfilling the

conditions of his parole, on September 6, 1974, he attempted

to apply for a public chauffeur’s license. This license is an

absolute prerequisite to employment as a public chauffeur,

pursuant to Chicago Municipal Ordinance 28.1. Plaintiff

was not allowed to apply by the Public Vehicle License Com-

mission because of a provision of the above ordinance which

denies such a license to anyone convicted of “a crime involv-

ing the use of a deadly weapon”. Ch. 28.1-3. It is this pro-

vision which is challenged herein.

—2a—

Plaintiff challenges the provision on the grounds that it is

cruel and unusual punishment, that it violates his rights to

due process in that it establishes an irrebuttable presump-

tion, and that it violates his right to equal protection urder

the law. Since the ordinance is not meant to be a means of

punishing offenders, there is no basis for concluding that it

is violative of the Eighth Amendment. Furthermore, there

is clearly a rational relationship between the classification

created, those persons convicted of a crime involving the

use of a deadly weapon, and the goal of this ordinance, the

protection of the public who make use of public vehicles. ef.

Slaughter v. City of Chicago, No. 71 C 2986, N. D. III., June

7, 1972. Therefore, there are no grounds for finding a vio-

lation of the Equal Protection Clause of the Fourteenth

Amendment.

Plaintiff argues strenuously that this ordinance creates an

irrebuttable presumption that persons who have been con-

vieted of a felony involving the use of a deadly weapon are

unfit to be entrusted with the responsibilities imposed upon

holders of public chauffeur’s licenses. While this is one way

of regarding the ordinance, it does not help to focus the

legal issue. The Supreme Court has upheld the use of a per

se rule to exclude a class of persons from a certain occupa-

tion in DeVeau v. Braisted, 363 U.S. 144 (1960). The test of

the appropriateness of the classification is whether it has a

reasonable relationship to the goals sought to be attained.

Cleveland Board of Education v. LaFleur, 414 US. 632

(1974). The ordinance in issue here meets that test.

Accordingly, defendant’s motion to dismiss is granted.

Enter

Frank J. McGarr

United States District Judge

Dated: January 17, 1975

—3a—

APPENDIX B

In the

United States Court of Appeals

For the Seventh Circuit

No. 75-1162

LUTHER MILLER, et al.,

Plaintiffs-A ppellants,

JAMES Y. CARTER,

Defendant-A ppellee.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division

No. 74 C 2886—Frank J. McGarr, Judge.

ARGUED JUNE 3, 1975—DEcIDED JANUARY 4, 1977

Before TONE and BAUER, Circuit Judges, and

CAMPBELL, Senior District Judge.*

Per Curiam. The issue before us is whether a Chicago

ordinance which permanently bars persons convicted of

— offenses 2 obtaining 4 .— chauffeur’s

icense violates ue equal protection

clauses of the Fourteenth Amendment. The District

Court sustained the ordinance. We reverse.

Plaintiff was convicted of armed robbery in 1965,

when he was 20 years old, and, after serving seven years

* The Honorable William J. Campbell, Senior District Judge

States District Court for for the Northern District

designation.

of the United

of Illinois, is sitting by

—4a—

in the Illinois State Penitentiary, was paroled in 1972.

He satisfactorily completed his parole and was discharg-

ed 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 re on the

ground of Chicago Municipal Ordinance, Ch. 28.1-3,

which provides that such a license may not

“be issued to any person at any time after convic-

tion of a crime involving the use of a deadly

weapon, traffic in narcotic drugs, the infamous

crime against nature, incest or rape.”

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.

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 te the com-

missioner, who submits the name of an applicant to the

captain of the police district in which the applicant

resides for a “c ter and reputation” investigation.

Ch. 28.1-4. After receiving the police captain’s report,

the commissioner rules on the application:

“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

1 > al vehicle he shall issue the license.”

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

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.

In Freitag v. Carter, 489 F.2d 1377 (7th Cir. 1973),

this court held unconstitutional the blic 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 appli-

cant “subject to. . . infirmity of. mind... which

may render him unfit to drive a public passenger vehi-

cle.” We held that the due process clause of the

Fourteenth Amendment requi that a “governmental

licensing body which judges the fitness of an applicant

must afford that applicant adequate notice and a hear-

ing.” Id., 489 F.2d at 1382. Such a — 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.

In addition to the provisions previously discussed, the

ordinance specifies standards of conduct required of

licensees and sets penalties for violations of those stan-

dards. 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

cunvicted for such offense, would disqualify any appli-

cant for a chauffeur’s license. Engaging in this

behavior does not, however, lead to automatic revoca-

tion. 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.

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 inst 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 receiv-

ing the license, or one who committed the crime before

—ba—

licensing but was convicted after receiving the license,

would, apparently, be eligible to retain the license. In-

deed, 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 eligi-

ble to retain the license, for under Ch. 28.1-10 mis-

representation or omission of a material fact in the

= ee like commission of one of the prohibited

offenses while licensed, does not automatically result in

revocation.

Such distinctions among those members of the class of

ex-offenders are irrational, less 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 con-

tinue 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 — 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. Ac-

cordingly, 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 Amend-

ment.

Plaintiff has also argued that the challenged or-

dinance violates the due process clause because it

creates an irrebuttable presumption that a person con-

victed of a specified offense is forever unfit to be en-

trusted with a public chauffeur’s license. J

Campbell, who files a separate opinion concurring in

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 sen-

sitive.' In any event, the equal- ion ground dis-

poses of the case before us, we are unwilling to

plunge unnecessarily into the thicket of irrebuttable

prqsumoptions, for reasons which we can summarize as

The irrebuttable presumption doctrine, invoked by the

Supreme Court in several recent cases,’ 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.’ The

renaissance of the doctrine has been fatal to state laws

| Briefs filed by amici curiae (Illinois Department of Correc-

and John How ard Association) urge that the policy of absolute

other more sensitive occupations, fails to take account of ex-

2 Tyner 0. Department of Haoloyment Sees ity, 423 U.S. 44

rtment of A

29 Cleveland Board r, 414 US.

N United States Dey re v. nowt

413 U.S. 508 (1973); v. Kline, 412 U.S. 441 (197

Stanley v. Illinoi U.S. 645 (1972). Cf. Jimenez v

. 405

Weinberger, 417 U.S. 628 (1974). Two previous decisions, Bell

v. Burson 402 U.S. 535 (1971), and Carrington v. Rash, 380

U.S. 89 (1965), have been explained as resting, at least in

SPI pan Ge came — « Illinois, supra, 405

S. at 653-656.

1 Wisconsin, 270 U.S. 230 (1926), the Court,

ae held a in estate tax

the legislative classifications were j balancing

the tages and feasibility of ind ized deter-

minations against the inflexibility and

harshness of the classification. In each case the

struck down the classification established, and required

r

eligibility n or

attendant upon membership in the class. It did not,

mplications of conclusive presumptions.

labama, 211 U.S. 452 (1908 Tur

8 8. 1

2

i

v.

8. 1); Keller v. United

2 ‘and 5 We & X. C. X Co. v. Turnipseed, 219 U.S.

Carrington v. Rash, 380 U.S. 89 (1965).

„ Viandis v. Kline, 412 U.S. 441 (1973).

Bell v. Burson, 402 U.S. 535 (1971).

Stanley v. Illinois, 405 U.S. 645 (1972).

* Cleveland Board of Education v. LaFleur, 414 U.S. 632

te ye Department of Employment Security, 423

—9a—

however, forbid consideration of the factors behind the

classification in making that determination.”

The ifrebuttable presumption is has been

criticized from its inception.’ Mr. Justice Holmes

pointed out that the creation of a conclusive pre-

sumption is simply an enactment of a rule of substantive

law. The Court’s more recent invocations of the doc-

trine have been criticized within“ and without“ the

„See Viandis v. Kline, 412 U.S. 441, 452-454 (1973), and

Cleveland Board of Education v. LaFleur, 414 U.S. 632, 647

nn. 13 & 14 (1974

See Mr. Justice Holmes’ dissent in Schlesinger v. Wiscon-

sin, supra, 270 U.S. at 241, and Mr. Justice Stone's dissent in

Heiner v. Donnan, supra, 285 U.S. at 332.

Keller u. United 213 U.S. 138, 149 (1909) (dissent);

Bailey v. Alabama, 219 U.S. 219, 245 (1911) (dissent).

Mr. Justice Rehnquist has characterized the doctrine as

relying “heavily on notions of substantive due process that

have authoritatively repudiated,” Viandis v. Kline,

supra, 412 U.S. at 463, and as “in the last analysis nothing

660. ‘The Chief Justice has eriticized the ctrine since

v. Illinois, 405 U.S. 645, 662 (1972), and Mr. Justice

expressed concern “about the implications of the doctrine for

e 8

Doctrine_in the Supreme Court, 87

Harv. L. Rev. 1534 (1974); Note, The Conclusive ption

800 (1974); Note, table Prenempiome ,yit-

( > An

Anal I. Rev. 449 (1975). The

Conclusive > The Search For A Newer

} 24 Cath. L. Rev. 217 (1975).

Besides out that few, if any, le

would survive consistent ication of the doctrine, the

commentators have that the Court has never ex

—10a—

While Wei v. Salfi, 422 U.S. 749 (1975),

authored by Mr. Justice Rehnquist, a. AA...

*

a back from the ine,“

12 ne,’ we cannot say

Employment Security, 423 U.S. 44 (1975), and to anti,

guish in Mathews v. Lucas, 96 S.Ct. 2755, 2765 (1976),

the earlier Jimenez v. Weinberger, 417 U.S. 628 (1974).

Yet in sustaining a state compulsory-retirement-for-age

statute in Massachusetts Board of Retirement v. Murgia,

95 S.Ct. 2562 (1976), last June, the Court made no

reference to the doctrine."

In summary, we cannot say whether the irrebuttable

presumption doctrine or the substitute analysis followed

Sri for this case

a majority of the Supreme rt. Inasmuch as —

lt was said that, if extended, the irrebuttable presumption

doctrine of the prior cases could Sesame 1

“a virtual ine of destruction for countless legislati

sateen win te Bip nel Perth Sethe

wi i

the Constitution.” 422 U.S. at 772. _

An omission which is particularly striking in li

Justice Rehnquist's dissent in Cleveland Board e

. * 14 632, 659 (1974), adverting specifically to

1. 4. r .

datory retirement statutes. - —

be question is whether Congress, its concern havi

re y aroused by the ibility of i

.

a. 17 —— IN J other

difficulties of individual determinations Justified. the inherent

(Emphasis cupplied$ This eepresch to the problent ef’ |

Gividual — when the operates Aeg.

e eee ee,

tne, ,

alternative of i on

—lla—

equal-protection holding decides the case, it is un-

necessary to reach the more difficult due process ques-

tion

The judgment is reversed, and the case is remanded

for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

CAMPBELL, Concurring.

Plaintiff's complaint challenged the constitutionality

of Ch. 28.1-3 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 uisite to employment by denying

public e eur’s licenses to persons convicted of cer-

tain crimes,” in violation of the Equal Protection Clause

of the Fourteenth Amendment.

The District Court ted defendant’s motion to dis-

miss on the grou that there existed a rational

relationship between the classification (persons con-

victed 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 ex-

clusion of all convicted of a crime involving the

use of a dead did not violate the Due Process

Clause, holding that the “test of the i of

appropriateness

the classification is whether it has a reasonable

relationship to the goals sought to be attained.”

On appeal, plaintiff contends that the ordinance

creates an irrebuttable presumption of unfitness, barr-

Ir hearing” He also contends

the ordinance violates the Equa! Protection Clause

—l2a—

of the Fourteenth Amendment in two respects: (1) that

the ordinance unconstitutionally discriminates against

2 previously convicted of a crime involving use

of a deadly weapon, as against all other persons; and (2)

that the distinction in treatment aff 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:

“Such distinctions among those members of the

class of ex-offenders are irrational, regardless of the

importance of the public safety considerations un-

derlying the statute or the relevance of prior convic-

tions to fitness. In fact, allowing existing licensees

who commit felonies to continue to be eli ible for

licensing undercuts the reasonableness of 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 og for a license

who has committed one of described felonies

and a licensee who has done the same are similar]

situated, and no justification exists for automatical-

ly 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, the

violate the equal protection clause of the Fourteent

Amendment.

While I agree fully with this conclusion, I respectfully

suggest that the remaining contentions advanced by

laintiff should also be addressed and resolved by this

ourt. If the only constitutional deficiency of this or-

dinance 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 or-

dinance so as to provide for the automatic revocation of

any license held by a person who, subsequent to issuance

—13a—

thereof, is convicted of certain felony offenses. Upon

of such an amendment and the continued

ref to afford this plaintiff a meaningful hearing (i. e.

one at which the result is not preordained by an irrebut-

table presumption of unfitness), I would anticipate Mr.

Miller's return to the district court to challenge the con-

stitutionality 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

— 1 equal protection issue, should be resolved at

is time.

EQUAL PROTECTION

Plaintiff argues that the ordinance, on its face, dis-

criminates against one group of persons—those previous-

ly convicted of a crime involving the use of a deadly

weapon—as inst all other persons and as against

other ex-offenders.'

In order to assess this aspect of plaintiff's equal

protection claim, it is of course necessary first to deter-

mine the appropriate standard by which the con-

stitutionality of the ordinance should be measured.

Plaintiff urges that his right to work is such a fun-

damental right that the classification provided for in the

ordinance should be tested inst a constitutional stan-

dard of “strict scrutiny,” and upheld only if found to be

necessary to promote a compelling governmental in-

terest. Shapiro v. Thompson, 394 U.S. 618 (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 inst the test of rationality set forth in Dan-

dridge v. Williams, 397 U.S. 471 (1970), wherein the

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 Ls ages for such a

i

be

license by more than eight years. In tion, persons con-

vieted of certain other felonies may be issued a license

irrespective of the date of conviction, if they have been

2 — discharged from a branch of the Armed Services in

the interim.

—l4a—

Court held that “the Equal Protection Clause does not

— — yo Hr — ttacki 1 —

* aspect a em or a ing m

tall . may is that the State’s action be rational-

iy based and free from invidious discrimination.” 397

U.S. at 486-487.

The strict scrutiny test, 1 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 exer-

cise of a fundamental right or operates to the liar

disadvantage of a suspect class.” Massachusetts rd of

Retirement v. Murgia, ... U. S. , 49 L. Ed. 2d 520, 524,

96 S. Ct. (1976); San Antonio Independent School District

v. Rodriguez, 411 U.S. 1 (1973). Included among such

fundamental rights are ted by the First

Amendment, such as the right of individuals to associate

for the —“sirey of political beliefs, Williams v.

Rhodes, 393 U.S. 23 (1968), and at least to some extent

the right of personal privacy, Roe v. Wade, 410 U.S. 113

(1973). Also — as fundamental“ are the right to

vote, Bullock v. Carter, 405 U.S. 134 (1972) and the 1

of interstate travel, Shapiro v. Thompson, 394 U.S. 618

(1969). I am not persuaded, however, that the right to

employment in a particular field of endeavor is “fun-

damental” in a sense which requires application of the

strict scrutiny rule. Of particular note is the Su

Court’s recent decision in Massachusetts Board of

ment v. Murgia, supra, wherein the Court found “no —

port 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 man-

datory retirement statute which uired that state

police officers retire at age fifty, upheld the con-

stitutionality of the statute under the Equal Protection

Clause on the ground that the classification was

rationally related to a legitimate state objective:

The State’s classification rationally furthers the

purpose identified by the State: ‘Through mandatory

retirement at age 50, the legislature seeks to protect

— ——

a — — — —

—

*

the public by assuring physical 2 of its

uniformed police. Since physica ility 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.” .... U.S. at ..... 49 L.Ed.2d at

525-526.

Nor do I believe the strict scrutiny rule should be

applied on the ground that the legislative classification

— to the peculiar disadvantage of a suspect

. 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 (1967); McLaughlin v. Florida, 379

U.S. 184 (1964); alienage: Graham v. Richardson, 403

U.S. 365 (1971); ancestry or nationality: Oyama „.

California, 332 U.S. 633 (1948) and possibly, sex: F'ron-

tiero v. Richardson, 411 U.S. 677 (1973).?

2 In Frontiero, the Court held unconstitutional a statutory

Sh uired that, 5 ee to claim a a a

. purposes ning inc q rs

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 lowed a serviceman to claim his wife as a -

un for es in this case to sex as a

yd TT with all of bs far-reaching — 82

of such a holding. Reed v. Reed, 404 U.S. 71. . . which abun-

dantly su our decision today did not add sex to the

— — my view. we of e which

for

eat le® Feed and at 691-692. It thus remains less than

clear whether cox fp 0 ‘suspect ig tage) tor the purpese # .

(Sra) Geculdig vA ny test. Ses, 496 820 and 1

Geduldi 496 n. 20 Bren-

I. dissenting at (497 806s v. Ballard, 419 U.S.

498 (1975); Wi 420 U.S. 636 (1975);

Stanton v. Stanton, (us? 13 (1975), Craig v. Boren, 45

LW 4057 (1976).

—l6a—

The one 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 com-

mand extraordinary protection from the majoritarian

SS supra, at 28. Murgi

supra. Admittedly, significant societal disabilities n

— — solely — A, - 4 , person is an ex-

offender, cularly in area of employment —

tunities. Nevertheless, the Supreme Court . —

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 ha — 1 which the Court yy

an opportunity to inc aged as a “suspect class”,

notwithstanding the Court’s acknow t 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” ae par

poses of the Equal Protection Clause, and would the

strict scrutiny rule inapplicable.

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

——— ernmental interest. The defendant need

only establish that the classification is rationally related

to a legitimate legislative purpose. I believe that stan-

dard has been satisfied in this case.

_ 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

vey ~S Af ff SE

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, ng been licensed by the

— 4 i nl — —

—17a—

City, the licensee is a person of satisfactory character

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 publie

passenger vehicle.

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 be-

ing entrusted with the res ibilities of a —

chauffeur. The conduct of an applicant may be the

best indicator of his present character and his future ac-

tions. 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

~ for the commission of crimes nationally are ex-

offenders.

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.“ I would also reject plaintiff's conten-

tion 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

j y. Accordingly, the ordinance gives greater

‘weight to crimes such as armed robbery and than

to crimes not involving violence and crimes not directed

against other persons. If anything, this added specificity

* Nor do I believe, as plaintiff contends, that Reed 2

404 U.S. 71 (1971) created a new and more stringent eq

ee.

of the strict scrutiny rule. Reed evidences no i ion to

deviate from the rationality standard, except in sex

discrimination cases, which may well in a “suspect

class”. See, n. 4, supra.

*

supports the constitutionality of the statute by more

narrowly defining the class of persons to whom public

chauffeur’s licenses may not issue.

DUE PROCESS

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, af-

ford 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.

In the instant case, plaintiff contends that the absolute

bar against issuance to him of a public chauffeur’s

license on the nd 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 ag AY evidence attesting to his pres-

ent good character. Thus, plaintiff argues that the or-

dinance 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.

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

rocess of law by the City’s failure to provide a hearing.

fendant’s contention in this respect is based I y

on Board of Regents v. Roth, 408 U.S. (1972),

wherein the Court held that an untenured professor who

had been hired for one year, following which he was in-

formed that he would not be rehired for the next year,

was not deprived of either liberty or property under the

~ Process Clause, and therefore was not entitled to a

earing.

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 v. Roth,

supra at 574; Schware v. Board of Bar Examiners, 353

U.S. 232 (1957). In addition, defendant’s contention is

implicitly rejected by this Court’s decision in Freitag.

supra,

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 (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 presen-

ting evidence of non-liability for the damage caused in

the accident. The Court held that the failure to provide

such a hearing dep ved uninsured motorists due

process of law. While Bell does not use the term

“irrebuttable presumption”, it clearly mandates a

mes ningful hearing” at which the licensee might es-

tablisn 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.

The following year, the Court decided Stanley v. II-

linois, 405 U.S. 645 (1972), holding unconstitutional an

Illinois statute which served absolutely to deprive an un-

wed father of custody of his illegitimate child. 3

the law of Illinois provided that a parent could not

denied custody without notice, a hearing, and proof of

parental unfitness, unwed fathers were conclusively

resumed to be unfit, and therefore were not afforded a

ring. In holding the statute unconstitutional, the

Court stated:

—20a—

“It may be, as the State insists, that most un-

married fathers are unsuitable and neglectful

parents. It may also be that Stanley is such a

parent and that his children should 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 in-

dicates that Stanley is or has been a lectful

father who has not cared for his children.” USS.

at 654-655.

The Stanley Court rejected Illinois’ argument that it

should not be required to undergo the undergo the in-

convenience of a hearing because unwed fathers are so

seldom fit and proper parents.

“The establishment of prompt efficacious

procedures to achieve legitimate state ends is a

proper state interest worthy of cognizance in con-

stitutional adjudication. But the constitution recog-

nizes 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 t for-

malities, it needlessly risks running roughshod over

the important interests of both parent and child. It

therefore cannot stand.” 405 U.S. at 656-657.

A year later the Court decided Viandis v. Kline, 412

U.S. 441 (1973) and United States Department of

Agriculture v. Murry, 413 U.S. 508 (1973). In Vlandis,

the Court held unconstitutional a necticut 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:

—2la—

“The State's interest in administrative ease and cer-

tainty cannot, in and of itself, save the conclusive

— from invalidity under the Due Process

‘lause where there are other reasonable and prac-

ticable means of establishing the pertinent facts on

which the State's objective is premised. In the situa-

tion before us, reasonable alternative means for

22 bona fide residence are available.” 412

». at .

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 per-

son not eligible for food stamp relief. The 4 —

Court agreed with the District Court's conclusion that

8 Act created an irrebuttable presumption contrary

to fact.”

Consistent with the aforementioned decisions, the

Court r decided Cleveland Board Educu-

tion +. LaFleur, 414 U.S. 632 (1974). In LaFleur, the

Court held unconstitutional a maternity leave rule re-

quiring a pregnant teacher to commence maternity

ive five months prior to the expected birth of her

child, and 1 . prior to three

months following birth. The rt held that the prin-

ciples enunciated in Stanley and Viandis were con-

trolling, and that “the conclusive presumption embodied

in these rules, like that in Landis, is neither ‘necessari-

{nor} universally true’, anc is violative of the Due

Clause.” 414 U.S. at 16.

More recently, the Court again applied the “irrebut-

table presumption” rule, holding unconstitutional a Utah

statute which rendered pregnant women ineligible for

unemployment benefits for a iod extending from

twelve weeks before the expected date of childbirth until

six weeks following childbirth: “The presumption of in-

capacity 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 com-

— statute s incorporation cone

mption of incapacity during so nies a period

cade after childbirth is eunstitutionally te id under

principles of the LaFleur case.” — v. Dept.

Employment Security, 423 U.S. 44 (1975).

Balanced against the foregoing authorities 222

involving mandatory retirement statutes the

Su Court's decision in 1 — v. sai 422

U. 9 (1975). In Mellvaine . nsylvania, 415 U.S.

e the Court dismissed. r

tial federal question, an from the Pennsylvania

— — Court which u a state law requiring

da retirement statutes protection —

oa mt eal in Rubino v.

trict 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

lirrebuttable presumption] were before the Court in

Mellvaine aii. the Supreme Court did not consider

those issues to present a substantial federal question.”

512 F. 2d at 433.

The Sixth Circuit followed Rubino in Talbot v. Pyke,

533 F. 2d 331 (1976) affirming 1 — judgment in

defendant's favor in an action challenging an Ohio

statute requiring retirement at age seventy.

presum in violation of the Due Process Clause. In

Gault, yy +

missal “for want of substantial federal question” of the

in Mellvaine. It was further noted that a three

district court in Weisbrod v. 383 F. Supp.

D. D.C. 1974), had held that the ismissal for want

of a substantial federal question in

dismissal of a constitutional chal made by plaintiff

Weisbrod, a HUD attorney, to a F law mandating

retirement at age seventy. The Su Court sum-

marily affirmed. Weisbrod +. Lynn, U.S. 940 (1975).

The Gault Court recognized that if Weisbrod and

Mellvaine were to be considered — 1 precedents,

constitutional irrebutiable ption that, because of

age, the employee is unable to continue to adequately

perform the services for which he has been hired.

Supreme Court's decision in Murgia, hoping that further

Court's decision in Murgia, hoping that further

41 of statutes

irrebuttable presumptions, particu in view

of the rt's decision in Weinberger v. Salfi, 422 U.S.

749 (1975), discussed 1 upholding the con-

—24a—

statute was designed to achieve a legitimate legislative

pu and that the classification was rationally related

to achievement of that purpose.

In the interim, the Court decided Weinberger v. .

422 U.S. 749 (1975), upholding the constitutionality of a

provision of the ial Security Act which defined

“widow” and “child”, for the purpose of survivor's

benefits to exclude the widow or hild of any

deceased w earner who had been husband or

step-father of the claimant for a period of less than nine

months at the time of death. The stated pu of the

rule was to discou rage sham marriages designed to

enable one spouse to claim benefits upon the anticipated

—_ death of the wage earner. The Salfi Court held

rationally have concluded both that a particular

limitgtion or qualification would protect against its

occurrence, and that the expense and other dif-

ficulties of individual determinations justify the in-

herent imprecision of a prophylactic rule. We con-

clude that the duration-of-relationship test meets

this constitutional standard.” 422 U.S. at 777.

Belcher, 404 U.S. 78, 81 (1971) and Geduldig v. Aiello,

417 U.S. 484 (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 nd that, unlike

the claims asserted in those cases, i involved:

“a non-contractual claim to receive funds from the

public treasury [which] enjoys no constitutionally

protected status, Dandridge v. Williams, supra,

of course may not invidiously dis-

criminate among such claimants on the basis of a

‘bare congressional desire to harm a politically un-

lar group,’ U.S. Dept. of Agriculture v. Moreno,

413 U.S. 528, . . . (1973), or on the basis of criteria

which bear no rational relation to a legitimate

legislative Jimenez v. Weinberger, 417 U.S.

628. . (1974); U.S. of Agriculture v. Murry,

413 U.S. 508, . . . (1973).” 422 U.S. at 772.

The Court distinguished Mlandis 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.

I find some difficulty in so 17 distinguishing

Jimenez v. Weinberger, 417 U.S. 628 (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

ogee by my benefits, unless the child were eligi-

ble u other isions of the Act regarding

legitimization, inheritance or defective marriage

ceremonies. The Jimenez Court concluded that the pur-

pose of the statutory scheme was to nt rious

claims and insure that only those actually enti to dis-

ability benefits received such payments. The Court, dis-

tinguishing Dandridge on the ground that the purpose of

—26a—

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

resumption, noting that the dilemma of noneligible il-

— ~~ “is compounded by the 24 —

statute denies them any opportunity to prove de n-

cy in order to establish — ‘claim’ to su and,

hence, their right to eligibility.” 417 U.S. at 635. In this

respect, the Court noted that:

“It does not follow, however, that the blanket and

conclusive exclusion of appellants’ subclass of il-

legitimates 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 dependen

208 right to insurance benefits 417 U.S.

at

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.’

Similarly, notwithstanding the Court’s effort to dis-

tinguish m, the Salfi decision is difficult to square

with Stanley, Vlandis and LaFleur. The challen

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 Viandis, the basis

for distinction is difficult to comprehend. The Court

seems to be saying that both the residency rule in Vlan-

dis and the challenged provision in Salfi “speak in terms

of the bona fides of the parties”, but unlike the residency

rule in Mandis, the challenged provision in Salfi does

ede

inguish, on is 0 rinci rom

Court's decision in U.S. “ Agate 4 urry, 413

’ For the same reasons, the at

U.S. 508 (1973). *

—27a—

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.

The extent to which the foregoing cases conflict with

one another, and the extent to which the irrebuttable

presumption rule has een criticized, leads the majority

to conclude that

“we cannot say whether the irrebuttable presump-

tion 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

canst gocaction holding decides this case, it is un-

necessary to reach the more difficult due process

question.”

As previously indicated, I believe it is necessary to

resolve the due process issue, and would do so in plain-

tiffs’ favor.

A careful reading of the Salſi decision suggests that

present in that case were a combination of factors which

might render application of the irrebuttable presump-

tion rule inappropriate. First is the already discussed

fact that the challenged provision was but a part of a

comprehensive social welfare legislative scheme. Second-

ly, the Court noted that the “pro hylactic approach” ob-

viates the need to expend limited social welfare

resources for the purpose of considering “large numbers

of individualized determinations”. The Court also recog-

nized that the 2 i = a | rule protects

claimants, whose relationship with the deceased exceed-

ed nine months, from the “uncertainties and delays of

administrative inquiry into the circumstances of their

i Further, the Court noted that the very ex-

istence of the rule could discourage sham marriages.

Finally, and perhaps most importantly, the Court

recognized that it is not “at all clear that individual de-

terminations could effectively filter out sham arrange-

—28a—

ments, since neither marital intent, life expectancy, nor

knowledge of terminal illness has been shown by

— to be reliably determinable.” 422 U.S. at 782

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 1 gw

Fisher v. Secretary of U.S. Dept. of Health, Ed. and

Welfare, 522 F. 493 (7th Cir., 1975).

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 a 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 ob-

jective is premised.” 412 U.S. at 451. Similarly, the

LaFleur urt 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.

Thus, while “an interest in devising prompt and ef-

ficient procedures to achieve legitimate objectives

will not suffice to justify classifications which constitute

irrebuttable presumptions, LaFleur, su at 646,“ it

nevertheless would appear that a classification will not

be held unconstitutional where individualized deter-

minations of eligibility will necessarily and significant!

interfere with the satisfactory operation of an overall

legislative scheme. Such instances might well be limited

to large and comprehensive social welfare programs,

* 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 —

characterize praiseworthy government officials no less.

perhaps more, than mediocre ones.” 405 U.S. at 656.

—29a—

such as those encom uuder the Social Security

Act, involving distribution of benefits to millions of

claimants and requiring the promulgation of prophylac-

tic rules concerning eligibility.

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.

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 un-

constitutional. Turner v. Dept of Employment Security,

423 U.S. 44 (1975).

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.

oreover, the use of irrebuttable presumptions of in-

eligibility is particularly repugnant where preclude

an applicant from ever taining the credentials

necessary to engage in a particular field of endeavor.

The right to en 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 im-

portant right, and one which should not be summarily

denied through the use of irrebuttable presumptions of

ineligibility. See, Berger v. Board of hologist Ex-

aminers, 521 F.2d 1056 (D.C. Cir. 1975).

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 in-

dicated supra, the past criminal record of an applicant

for a public chauffeur’s license is a valid consideration

—30a—

in determining the applicant’s character and fitness.

Due process considerations require only that the appli-

cant be given a meaningful a, to present

evidence of good character and fitness in contravention

of any contrary inference based upon his prior conduct.

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 presump-

tions of ineligibility. On the other, the dissenting opin-

ions 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 „ 77 —mandatory

retirement—continues to solely on traditional

equal protection grounds. On the basis of what I under-

stand to be the 1— 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 Process Clause of the Fourteenth

Amendment. Accordingly, I would reverse J

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.

A true Copy:

Teste:

—3la—

APPENDIX C

In the

United States Court of Appeals

For the Seventh Circuit

January 25. 1977

Before

Hon. WILLIAM J. BAUER. Circuit Judge

Hon.

Hon.

No. 75-1162

LUTHER MILLER,

Plaintiff-A ppellant,

v.

JAMES Y. CARTER,

Defendant-A ppellee.

Appeal from the United States District Court for the

Northern District of Illinois Eastern Division.

No. 74 C 2886

This matter comes before the Court on the “MOTION

FOR STAY OF MANDATE,” filed herein on January

24, 1977 by counsel for the defendant-appellee. On con-

sideration whereof,

IT IS ORDERED that the mandate of this Court be

STAYED to and including February 24, 1977 in ac-

cordance with the provisions of Rule 41(b) of the Federal

Rules of Appellate Procedure.