# Petition — Carter v. Miller

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1978
- **Citation:** 434 U.S. 356

## Text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1716%3A01. Public record. Not legal advice.