Appendix — Carter v. Miller

‘Supreme Court of the United States

Ocroszn Tut, 1976

No. 76-1171

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.

On Writ Of Certiorari To The United States

Court Of Appeals For The Seventh Circuit

Chronological Schedule of Relevant Docket Entries

Amended Complaint and Exhibits Attached to Original

rr

Motion to Strike Plaintiff’s Complaint and Dismiss

Plaintiff’s Cause of Action

Memorandum Opinion and Order of District Court

Notice of Appeal nr

Judgment of the United States Court of Appeals Re-

versing and Remanding to the Distriet Court, and

r EE

Order of the United States Court of Appeals Staying

e ..

15

17

8

APPENDIX

CHRONOLOGICAL SCHEDULE OF

RELEVANT DOCKET ENTRIES

Ix Tue Unrrep Srares District Court

For The Northern District Of Illinois

Eastern Division.

No. 74 C 2886

10-8-74— Filed Complaint.

10-22-74 Filed Amended Complaint.

12-2-74—Filed Motion to Strike Plaintiff's Complaint and

Dismiss the Plaintiff's Cause of Action.

12-2-74—Filed Brief and Memorandum in Support of De-

fendant's Motion to Strike Plaintiff's Amended

Complaint and Dismiss Plaintiff’s Cause of Ac-

tion.

12-20-74—Filed Plaintiff’s Notice of Filing and Memoran-

dum in Opposition to Defense Motion to Strike

and Dismiss.

1-20-75—-Memorandum Opinion and Order entered by Me-

Garr, J. granting Defense Motion to Strike and

Dismiss.

2-12-75—Filed Plaintiff’s Notice of Appeal.

2-19-75—Filed Plaintiff’s Designation for Complete Rec-

ord.

Ix Tue Unrrep States Covet Or Aprzats

For The Seventh Circuit

No. 75-1162

3-3-75—Filed Record on Appeal.

3-24-75—Filed Appellant’s Brief.

3-24-75—Filed Motion of the Illinois Department of Cor-

rections, Operation Dare and Just Jobs for Leave

to Appear as Amici Curiae and to File Brief In-

stanter.

3-25-75—Filed Motion of the Chicago Council! of Lawyers

and the John Howard Association for Leave to

Appear as Amici Curiae and to File Brief In-

stanter.

3-26-75—Filed Amici Curiae Briefs.

4-24-75—Filed Appellee’s Brief.

6-3-75—Oral argument heard. Cause taken under advise-

ment.

14-77—Filed Per Curiam Opinion reversing and re-

manding to the District Court. Campbell, J., Con-

curring.

1-25-77—Entered Order granting Appellee’s Motion for

Stay of Mandate.

In Tur Supreme Court Or Tue Unrrep Srartes

No. 76-1171

2-24-77—Petition for Writ of Certiorari filed by Defend-

ant.

4-18-77—-Order entered granting Writ of Certiorari.

8

In Tae Unrrep States Disrmor Court

For The Northern District Of Illinois

East Divisi

LUTHER MILLER, on his own behalf

and on behalf of all others similarly situ-

ated,

Plaintiffs, | Civil Action

vs. >

No. 74 C 2886

JAMES Y. CARTER, Public Vehicle

License Commissioner,

Defendant. J

AMENDED COMPLAINT

1. This is a complaint brought by plaintiff Luther Mil-

ler, on his own behalf and on behalf of all others similarly

situated, against defendant James Y. Carter, Public Ve-

hicle License Commissioner, seeking to overturn the denial

of a public chauffeur’s license. Defendant has denied said

license by enforcing a Chicago Municipal Ordinance which

is repugnant to the Constitution of the United States. Said

ordinance conclusively denies persons convicted of felonies

and some misdemeanors public chauffeurs’ licenses, in vio-

lation of the Fifth, Eighth and Fourteenth Amendments

to the Constitution of the United States. Plaintiffs seek

by way of a declaratory judgment that said ordinance vio-

lates the aforementioned rights guaranteed by the Consti-

tution of the United States, an injunction enjoining enforce-

ment of said ordinance, and other equitable relief.

2. This is a civil action authorized by 42 U.S.C. 51983

to redress the deprivation under color of state law of

rights guaranteed by the Constitution of the United States.

_

3. Jurisdiction of this Court is invoked pursuant to 28

U.S.C. §1343(3), 51343 (4), 52201 and 2202.

4. Plaintiff Luther Miller is a citizen of the United

States and a resident of the Northern District of Illinois.

He is, and at all times relevant hereto has been, a resident

of the City of Chicago, and a driver licensed to drive by the

State of Illinois. He is further an ex-offender.

5. Defendant James Carter is the Public Vehicle Li-

cense Commissioner of the City of Chicago. His office is

created pursuant to Chapter 21-1 of the Municipal Ordi-

nances of the City of Chicago and he is vested with sole

authority to issue public chauffeur’s licenses for public

chauffeurs within the City of Chicago. He is sued indi-

vidually and in his official capacity.

6. Plaintiff Miller was convicted in 1963 or 1964 in the

State of Florida of a misdemeanor, to wit the unauthorized

use of a motor vehicle and sentenced to 60 days in jail.

Plaintiff was not represented by an attorney.

7. Plaintiff Miller was further convicted of armed rob-

bery in August, 1965 in the Cireuit Court of Cook County

and sentenced to 7-12 years in the penitentiary. He was re-

leased from the Illinois State Penitentiary and placed on

18 months’ parole in February, 1972.

8. In August, 1973, plaintiff Miller was discharged from

parole by the Illinois Parole and Pardon Board, having

satisfactorily fulfilled the terms of his parole agreement.

9. On September 6, 1974, plaintiff Miller went to the

offices of defendant Carter and attempted to apply for a

public chauffeur’s license. Said license is an absolute pre-

requisite for persons who wish to be employed as public

chauffeurs, pursuant to Chicago Municipal Ordinance 28.1,

—

entitled “Public Chauffeur“ and appended hereto as Plain-

tiff’s Exhibit A.

10. Plaintiff Miller was not allowed to apply for a pub-

lic chauffeur’s license by Mark O. Cooper, Administrative

Assistant to defendant Carter. Cooper, a duly authorized

agent of Carter, and a representative of the Publie Ve-

hicle License Commission, who was at all times herein

relevant acting within the scope of his employment, cited

plaintiff Miller’s armed robbery conviction and Chapter

28 of the Chicago Municipal Ordinances in justifying his

actions. (See Cooper’s statement, appended hereto as Plain-

tiff’s Exhibit B.)

11. Plaintiff Miller brings this action on his behalf and

pursuant to Rule 23 of the Federal Rules of Civil Procedure,

on behalf of all persons denied, or to be denied, chauffeur’s

licenses by reason of having been convicted of a crime in-

volving the use of a deadly weapon. The persons in the

class are so numerous that joinder of all members is im-

practicable; the claims of the representative party are

typical of the claims of the class; and the representative

party will fairly and adequately protect the interests of

the class. In addition, the defendants have acted and re-

fused to act on grounds generally applicable to the class,

thereby making appropriate final injunctive and declara-

tory relief with respect to the class as a whole.

12. It is the general and uniform practice of defend-

ant Carter to either refuse to allow or to thereafter deny

applications for public chauffeur’s licenses to any and all

members of the class plaintiff represents, pursuant to Ordi-

nance 28-1-3, as shown by Plaintiff’s Exhibit C appended

hereto.

~~

13. Defendant Carter has acted under color of law of

the State of Illinois, and specifically under Chicago Mu-

nicipal Ordinance 28-1-3, to deprive plaintiff and the mem-

bers of the class of plaintiffs of rights secured hy the Fifth,

Eighth, and Fourteenth Amendments to the Constitution

of the United States. The Chicago Municipal Ordinance is

repugnant to the Constitution of the United States and

Section 1983 of title 42 of the United States Code in that:

a. It 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 to the Constitution of the United States.

b. It imposes arbitrary, discriminatory and de-

liberately repressive treatment upon ex-offenders, who

have already paid their debt to society, by extending

punishment beyond the term imposed by the sentencing

court and thereby causes ex-offenders to be permanent-

ly penalized for the commission of acts as to which

Illinois law (Ill. Rev. Stat., Ch. 38, §1005-8-1 et seq.)

has set a maximum sentence, in violation of the Eighth

Amendment and Fourteenth Amendment to the Consti-

tution of the United States.

e. It singles out a class of persons for denial of

access to a governmentally-established prerequisite to

employment by denying public chauffeur’s licenses to

persons convicted of certain crimes, in violation of the

Equal Protection Clause of the Fourteenth Amendment

to the Constitution of the United States.

d. It singles out for discriminatory treatment

Blacks and other minorities, who statistically are con-

vieted of crimes in excess of their percentage of the

population of the City of Chicago and the State of

*

Illinois, with the result being that the denial of public

chauffeur’s licenses on the basis of conviction con-

stitutes a form of discrimination on the basis of race,

in violation of the Fourteenth Amendment to the Con-

stitution of the United States and Section 1983.

14. Plaintiff and members of the class he represents

have no plain, adequate or complete remedy at law to

redress the wrongs alleged herein. This suit for declara-

tory judgment and injunctive and other equitable relief is

their only means of securing adequate relief. Plaintiff and

members of the plaintiff class are now suffering and will

continue to suffer irreparable injury from the actions of

the defendants, as set forth herein.

Wherefore, plaintiffs pray that this Court enter judg-

ment granting plaintiffs:

a. A declaratory judgment that that portion of Chicago

Municipal Ordinance 28-1-3, which denies issuance of pub-

lie chauffeur’s licenses to those persons convicted of a

crime involving use of a deadly weapon, violates plain-

tiff’s rights secured by the Fifth, Eighth and Fourteenth

Amendments to the Constitution of the United States, and

that such ordinance is on its face unconstitutional.

b. A preliminary and permanent injunction enjoining

the defendants from enforcing or implementing Chicago

Municipal Ordinance 28-1-3.

c. A preliminary and permanant injunction requiring

defendants to issue to plaintiff Miller a public chauffeur’s

license, and a preliminary and permanent injunction pro-

hibiting defendants from denying issuance of a public

chauffeur’s license to members of plaintiff class solely be-

cause of conviction of a crime involving the use of a deadly

—

—8— EXHIBIT A“ ATTACHED TO COMPLAINT

§§ 28.1-1 to 28.1-4

weapon, which acts as an automatic bar to issuance of said CHAPTER 28.)

license, as set out in Chicago Municipal Ordinance 28-1-3. PUBLIC CEAUFFLURS

4 — in the —— of wae — from the date m2 — — —

D * 2814 Cut investigation 28.112 Palsc information

e. Reasonable attorney’s fees and expenses. 217 de — 271 —

t. Such other and further relief as this Court may find a——<_ i °

to be just and equitable.

28.11. The definitions of the words “chauficur” and “public passenger vehicle” denne

in chapter 2 of this code apply to the same words when used in this chapter. (Passed.

12-20-51, Coun. J. p. 1601.)

Respectfully submitted,

28.12. It is unlawful for any person to drive a public passenger vehicle on any License

/s/ Mark Jaffe public way for the transportation of passengers for hire {ruin place to place within the

corporate limits of the city without first having obtained a |'cense as a public chaufleur

Howard Eglit (Passed. 1220-51, Coun. J. h. 1601.)

Roger Baldwin Foundation

of ACLU, Ine. 28.1.3. Applications for public chauffcur licenses shall be made in writing to the Application

’ comnussioner upen forms provided by mm therefor. They shall contain the full name

5 South Wabash, Room 1516 — 1141 — —— of the — 2 — 2 = r as may = ©

1 2 2 qu compussioner to properly owtily oan disclose any infor-

Chicago, Illinois 60603 mation as to his character, reputation, physical qualifications, past employment 20d

312/726-6180 — 2 — 1 deems relevant to the question of qualification of the

«© or w Chauficur's license.

Robert Masur Every applicant shall be at least eighteen years old, a citizen or declarant of

Legal Assistance Foundation paw = FAQ Fe, gf A AY JF, 4

chauffeur's heense. shall to speak, write the Eny:tish nage,

of Chicago by of sound physique, have good sirht, not he subject to epilepsy, vertigo, heart trouble

* or other infirmity of body or mind and not be addicted to the use of drugs or in-

911 South Kedzie toxicating hquors which may render him unfit to dmve a public passenger vehicle.

Chicago, Illinois 60612 No public chauffeur's license shull be is-ved to any person who has been convicted

312/638-2343 of a felony of any criminal offense involving moral turpitude within eight years prior

1 Se cep Seam, cee any 5 See oan See See anaes

since the time of his conviction, an honorable discharee from any branch armed

Alan Freedman conte of tho United Sate of Amwcinn, ond & in Go Garton of Ge pxifis

W Law by the issuance of such license. No such license shall be issued to any person at any

1105 East 63rd Street time after conviction of « crime involving the we of @ deadly weapon, traffic in

; moni narcotic drugs. infamous crime against nature, incest or rape. (Passed. Coun.

——— — amend. 820-70, p62)

inti 28.14. The character and ation of cach applicant shall he investigated under Character

Attorneys for Plaintiff. PR a A a uy Tt pt

a report of such investigation cont»ining any facts relevant to the character and repula-

8 lien of the applicant shall be forwarded by the capiain to the conmnissioner of police.

_ whe shall forward the same to the commissioner together with his recommendation.

> If the commussioner shall de satisfied that the applican: is of goou «haracter and repu-

tation and is a suitable person to be entrusted vith driving a public passenger vehicle

he shal! issue the license lending such imvestization the commissioner may issuc 4

~ temporary permit authoring the applicant to drive a public passenger vehicle until the

time designated in such permit If the investigation is now completed by that time the

commuessioner may, in his discretion, extend the time of such permit until such further

c

1220 51. Coun Jp. 1601

8

7

>

—

ExuHiBit B“ ATTACHED TO COMPLAINT

4 : - 2

‘oO LO LO 7 J +> COA Sr

Jie. Leiter. F100 CEA Cen 72.

Appey Fea Hees, Chu FF:

Zs Le r F i SR i's. .

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a=) Jam

EXHIBIT “C” ATTACHED TO COMPLAINT

PUBLIC YFHICLE LICZNSE GOMMUSSION

20 CITY OF CHiCAGO

2 tices: 25 ct NOT BE ISSUED TO You iF YOU H Zzvza CEEN

cc. li — os

(A) Crime involving the use of a Ceadiy weapon.

(2) Chace involve: the use or selling of narcotics,

(C) Crime against ucture, incest er rape. °

(E] Felony (within the past eight (ears).

Delicision of a FELONY: A crime or offense that is

purichstble dy ceath seatence or by imprisonment in

a peciteontiary, suchas: BURGLARY, LARCENY,

ROSS=R¢, etc.

CiTY INFCPRI {ATION TESTS

It must be ur¢erstood that vous Knowledge cf city streets, location of public

buildings ane your ability to use city cirectoyos are of prime importance if you

are to become a PACTESSICNAL CHAUTTIUR. A muitizle choice questionnaire

will be given you. You will be rcguired to answer 14 cucstions correctly. You

will be permitted one test per cay, if you fail the test you may take it on suc-

ceeding Cars.

Do not request Aclp in answering these questions. If you can not answer 14 of

these questions correctly, you are not ready to operate a taxicab on the streets

of Chica zs. :

SS r OF ANSWERS FRCU OTHER APPLICANTS OR SUPPLYING ANSWERS

WILL ASSULT Ls NZV se YCUR T=st.

VISION 42355 SEARING

STANDIORD LTLETS VILL SE GiIVIN SY Tic: MICLAN, Tests may be taken

with or wiinou: —— If test is gen with glass, pictures submitted must

show applic..: wearing gasses, rt or Sun Giasces will be accepted ONLY on

presentation oi Goctors Cer-iLiicate incicating their necessity.

GINEPAL

In the evert you cuinge vour address citer application is made, notify this office

so that instructions ,notifications, ets., can be forwarded to you without delay.

When your fingerprints are returned and evaluated, you will be notified at once

by MAIL, :

Applic: = L$ must surnich four (4) recent photozgrapis, appro: deny 11/2 * 1 -1/2

with I‘ ead, tres must Save a waite backtround; brown or tinted back.

gfrunes w ull set be accep-2¢. % bats or caps or scarfs will de worn in photo-

rp. tae °

INFORMATION 2.°3-STATLO C2 OLSTTZED WiLL RESULT IN THE DENIAL OF

YOUR .. e. Cra sa THESE CON LITO 3 NO ASF UNIS WV iLL Sz

NI. °

*

SA LTD ir Z :e aT ex 2282:

: 5 11 22 43

White Se Park tl. Addision & Clark st. #2. Roscoe

Western. (3. 35in & Wentworth. | K

City Hall 51. Nandotos & Clark, . #2, Clark & | 7

“"aligon, - £3. “Vasain-:ton & Lasatle. *

USE "XM's" fer ien your envice.

| um

esu VEHICLE LICENS® COM! HSSION

CITY OF GinCAGO

0

ISSUAIICE OF LICENSE

THE FEE FOR THIS LICENSE 1S FIVE DOLLARS ($5.00).

‘TO APPLICANTS TOR PUBLIC CHAFFEUR LICENSE:-

in iter this a cat it must de rememveres that this is an AFFIDAVIT

and that zl questions must be answered fully and correctly.

If there is a ect in your mind as to the meaning of a question, ASK THE

EXAILUINER. :

When you have answered all the czestions and sworn to the truth of your

answers, the Dxaminer will notarize your application.

False statements or misrepresentatica in your answers will result in a

denial of your applications NO REFUNDS CAN ZZ MADE IN THESE CASES.

THE TEE FOR THIS LICENSE IS FIVE DOLLARS

FOLLO'Y TIIZSE INSTP.UCTIONS CAREFULLY:

Print your teme Last Name first. U your Illinois Drivers License carries

a Middle Initial, use it when filling out this application.

You must present Social Security Identification to Examiner.

Enter Your Correct Address ane Telephone Number.

Tilt MCOST IMPOD.TANT STEP IN YCUR aAPPLIC/ TION IS THD QUESTION:

“Eove vou ever been erresteé for any offenses?" The accuracy with which you

ent er this questien determines the EARLIEST DATE your license will be

issued. UE you OMIT, FORGIT or FALSIFY on any arrest you may bave had,

yu will be required to return to this office for an explanatian of the error and

the cpplicaticn must be sent back to the Police Department for further considera~

tion. This means chat the issuance of your license can be held up 7 to 10 days.

DETINITICN OF CFrFENSES:- This meacs whenever you have deen arrested

sau tasten to a poiice station for ery charge whatsoever or been brought in on

a warrant, whether it was while you were serving in the armed forces or ina

City, State or Country. These arrests must be listed with the approximate date

of ecca, whether or net you were convicted zue sentence tc carve time, dis

charged, reicasca aftcr interrezation, fined, placec on proSaiion or given

tvvervision, N=: Z 222, TOSL VS TIME is CSTALYING YOUR LICENSE,

455. ER THESE QUESTIONS COM OLITELY AID HONZTSTLUY. Tickets received

fer zs Sie visiciions need not ve iicied,with zue exceptions of: "Leaving the

Scene of an .ccident" and “Driving Under tne Infivesce of Aicohol" arrests.

Ii acG@itiouss svace is required to iet your arrests, tae Examiner will supply

you with 2ddiitonal corcs.

fou ore in cut of an cffense that you were arrested for, request a check

zom tae Ixaminer.

‘

SZS: FALSE STATEMENTS WILL RESULT Di CIONIAL OF TOUR

LICLISE WITH NO REFUND OF YOUR 58. o fee. J

— 1

Ir Tae Usrrep States Distaicr Court

For The Northern District Of Illinois

Eastern Division

LUTHER MILLER, on his own behalf

and on behalf of all others similarly situ-

ated,

Plaintiffs, | No. 74 C 2886

vs. — Judge

McGarr

JAMES Y. CARTER, Public Vehicle

License Commissioner,

Defendant. .

MOTION TO STRIKE PLAINTIFF’S COMPLAINT

AND DISMISS PLAINTIFPF’S CAUSE OF ACTION

Now comes the Defendant, James Y. Carter, by and

through his attorney, Richard L. Curry, Corporation Coun-

sel of the City of Chicago, and moves this Honorable

Court to strike Plaintiff's Amended Complaint and dis-

miss its cause of action for the following reasons:

1. The Court lacks jurisdiction over the subject mat-

ter herein and the parties hereto.

2. The doctrine of Respondeat Superior does not apply

under the Civil Rights Act (42 U.S.C. § 1981 et seq.).

3. The Complaint fails to allege facts sufficient to state

a claim for which relief may be granted.

Wherefore, for the foregoing reasons, the defendant,

James Y. Carter, Public Vehicle License Commissioner of

—14—

the City of Chicago, moves this Honorable Court to strike

the plaintiff's Amended Complaint and to dismiss plain-

tiff's cause of action.

Richard L. Curry, Corporation Counsel

Of The City Of Chicago,

Attorney for James Y. Carter,

Public Vehicle License Comr.,

Defendant,

By /s/ Frank J. Dolan

Assistant Corporation Counsel

121 N. LaSalle Street, 60602

Room 511, City Hall

Chicago, Illinois

Tel. 744-6910

—15—

Is Tae Usrrep Srares Disraicr Cover

For The Northern District Of Illinois

Eastern Division

LUTHER MILLER, et al., 0

Plaintiffs,

vs.

JAMES Y. CARTER,

> No. 74 C 2886

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. 51983 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

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.

2

Plaintiff challenges the provision on the grounds that it is

eruel 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 proteetion under

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 DeV eau 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

Se a eG a

= =

In Tae Unrrep Srares District Covrr

For The Northern District Of Illinois

Eastern Division

LUTHER MILLER, 0

Plaintiff,

2 > No. 74 C 2886

JAMES Y. CARTER,

Defendant. ,

NOTICE OF APPEAL

Notice is hereby given that Luther Miller, plaintiff here-

in, appeals to the United States Court of Appeals for the

Seventh Cireuit from the order entered in this action on

January 17, 1975.

The names of the parties of this order and the names

and addresses of their respective representatives are:

Luther Miller appellant herein, who is represented by

Howard Eglit, Roger Baldwin Foundation of the ACLU,

5 South Wabash, Chicago, Illinois, 60603, Robert Masur,

Legal Assistance Foundation of Chicago, 911 S. Kedzie,

Chicago, Illinois, 60612 and Alan Freedman, Legal As-

sistance Foundation of Chicago, 1105 E. 63rd Street, Chi-

cago, Illinois, 60637; James Y. Carter, who is represented

by Frank J. Dolan and Melvyn L. Romanoff, Office of the

Corporation Counsel, Room 511, Chicago City Hall, Chi-

cago, Illinois, 60602.

Dated: February 11, 1975

/s/ Robert Masur

Attorney for Luther Miller,

Plaintiff

Legal Assistance Foundation

9118. Kedzie Avenue

Chicago, III. 60612

==

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 BAvER, Cireuit Judges, and

CAMPBELL, Senior District Judge.*

er Curiam. The issue before us is whether a Chicago

14 which permanently bars persons convicted of

certain offenses from obtaining a public chauffeur's

license violates the due process and equal protection

clauses of the Fourteenth Amendment. The District

Court sustained the ordinance. We reverse.

intiff convicted of armed robbery in 1965,

2 ＋ 20 years old, and, after serving seven yer

William J. Campbell, Senior District Judge

of Sn District Court for the Northern District

of Illinois, is sitting by designation.

—19—

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 refused 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 to the com-

missioner, who submits the name of an applicant to the

captain of the police district in which the applicant

resides for a “character and reputation” investigation.

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

the commissioner rules on the application:

“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

+ ae nger 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

passage quoted above, and of other crimes involving

moral turpitude, are ineligible to apply for licenses for a

period of eight years following conviction. Ch. 28.1-3.

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

this court held unconstitutional the blie Vehicle

—20—

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 clause of

Fourteenth Amendment requi that a “ mental

licensing body which judges the fitness of an applicant

must afford that applicant uate notice and a hear-

ing.“ Id., 489 F.2d at 1382. Such a hearing on plaintiff

Luther Miller’s application, however, would be a mere

formality because of the prohibition in Ch. 28.1-3

against granting a license to one who has committed a

crime involving the use of a deadly weapon.

In addition to the provisions previously discussed, the

ordinance specifies standards of conduct required of

licensees 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

convicted for such offense, would 1 — 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 — be permitted to retain

it, although convieted of armed robbery only yesterday.

The eity'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

*

licensing but was convicted after receiving the license,

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

eed, 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

application, like commission of one of the prohibited

offenses while licensed, does not automatically result in

revocation.

Such distinctions those members of the class of

ex-offenders are irrational, regardless of the importance

of the public safety considerations underlying the statute

or the relevance of prior convictions to fitness. In fact,

allowing existing licensees who commit felonies to 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 sufficiently evaluated to protect the

public th 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 A. ae one and not the other. Ac-

— — insofar as Ay + — — ye =

irrationally among class of ex-offenders, they violate

the — protection clause of the Fourteenth Amend-

men

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. 82

— who files a separate opinion concurring in the

ny t, would Jy 2 the L. . on this 1 because of

is concern t equal- protection iciency 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-

—22—

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

poses of the case before us, yg By

— unnecessarily into the thicket of irrebuttable

1—— for reasons which we can summarize as

The irrebuttable presumption doctrine, invoked by the

II-

the era when substantive due concepts led the

ELAN — 1

social legislation it deemed itrary or capricious.

renaissance of the doctrine has been fatal to state laws

1 LIAN. ent of Correc-

Just Jobs. Chi

showi

necessary for the the and es from

the limited number of orm Ms iver. While

available I. ex-offenders 57 Ror * Whi

we are these ie-

ee unsympathetic pu 1

Ir 7 7 5 FHS ing

1 — invalid.

Department of U.S. 44

1975), Cleveland Board ee oe 414 US.

413 Vis" oe 8 79 2. Hi, 492 U8. “ai (197s

402

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

* Wap Se — — inois, supra, 405

In Schlesinger u. Wisconsin, 270 U.S. 230 (1926), the Court,

per Mr. Justice Mc held a Wisconsin estate tax

statute unconstituti because its provision that all

ers for less than uate consideration within six

ype @ Sum be gifts in contemplation A, =

v equal protection clauses, in

gifts in fact without contemplation [of death] are

conc] to have been so

to actualitres while like at other times are not

jo gly A u. Donnan, 285 U.S. 312

n r. Justice Sutherland, overturned a

similar f tox provision as “eo —

(Footnote continued on following page)

—23—

lating — 1 for pur poses of voting rights‘ and

— — tuition.“ driver's license suspension,“ child

custody,’ and pregnancy disability.“ Federal ns

concerning food stamp eligibility were also held un-

constitutional on the same rationale.’ In all these cases

= ive classifications were judged by balancing

vantages and feasibility of individualized deter-

1. — against the inflexibility and uent

harshness of th the classification. In each case the rt

struck down the classification established, and required

an individualized factual determination into the

eligibility of the plaintiff for the benefits or penalties

attendant upon membership in the class. It did not,

continued

capricious as to cause it to fall before the due rocess of law

clause of the Fifth Amendment. . 285 U.S. at 326. This

was so because “the presumption here created . is made

definitely conclusive— incapable of being overcome by proof of

the most positive character.” 28% U.S. at 324. In cases

the Court referred to earlier decisions discussing the due

— implications of conelusive ey presumptions.

Bailey » labama, 211 U.S. 452 (1908); Bailey v. Alaba

219 S. 219 1911); Keller v. United States, 213 U.S. 1

(1909); and JK CR Co. v. Turnipseed, 219 US.

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

5 Vlandis v. Kline, 412 U.S. 441 (1973).

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

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

Cleveland Board of Education v. LaFleur, 414 4 — =

1974); Turner v. Department of Employment Security,

S. 44 (1975).

1 ne may aloe have Deen the basin in part

the Court’s decision in Jimenez v. Weinberger,

Gees 11974). J

inion, and has been cri of the irrebuttable ption

ine, the Court’s ae at 417 U.S. 636-638 certainly

— 4 the earlier cases. In fact, Mr. Justice Blackmun’s Far

the Court in Mathews v. Lucas, 96 S.Ct. 2755 (1

distinguishes — as involving conelusive presumptions.

*

however, forbid consideration of the factors i

classification in making that PAF gy *

The irrebuttable 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-

— have been criticized within“ and without“ the

u

1% See Viandis v. Kline, 412 U.S. 441, 452-454 (197

Cleveland Board of Education v. LaFleur, 414 us 2 247

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.

2 Keller v. 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 n authoritatively repudiated,” Vlandis v. Kline,

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

less than an attack upon the very notion of law-making itself.

Cleveland Board of Education v. LaFleur, supra, 414 U.S. at

660. The Chief Justice has criticized the doctrine since Sta

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

the traditional legislative power h operate by clamification®

itio egislative power rate classi ion.”

Cleveland Board of Education v. LaFleur, supra, 414 U.S. at

652 (concurring opinion).

See Bezanson, Some = te Paes Irrebuttable

Presumption Doctrine, 7 J J. Rev. 644 (1974): Note, The

Irrebuttable Presumption Doctrine in the Supreme Court, 87

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

Doctrine: Process or Due Protection?, 72 Mich. L. Rev.

800 (1974); Note, Jrrebuttable 88 An Illusory

Conchusive Preemption Cases: The Search For T Newer

ve Pre 1 Cases: or ewer

area Protection Continues, 24 Cath. L. Rev. 217 (1975).

commentators have com ined that the Court has never -

laned what prompted K to invoke the doctrine in some cases

in others.

3

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

authored by Mr. Justice Rehnquist, might be viewed as

24 „n we cannot say

that the doctrine has lost the support of a majority of the

Court because it has been invoked subsequent to Salfi to

strike down a Utah statute, Turner v. Department of

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

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

in Salfi!? would be thought 9 for this case by

a majority of the Supreme Court. Inasmuch as our

1% It was said that, if extended, the irrebuttable presumption

doctrine of the prior cases could become

“a virtual engine of destruction for countless legislative

judgments which have heretofore been thought wholly

consistent with the Fifth and Fourteenth Amendments to

the Constitution.” 422 U.S. at 772.

‘6 An omission which is particularly striking in light of Mr.

Justice Rehnquist’s dissent in Cleveland Board of Education v.

LaFleur, 414 U.S. 632, 659 (1974), adverting specifically to

the effect of the irrebuttable presumption doctrine on man-

datory retirement statutes.

„ “The question is whether Congress, its concern havin

been ly aroused by the possibility of an abuse whic

it rr desired to avoid, could rationally have conclud-

ed that icular limitation or qualification would

protect against its occurrence, and that the e. and other

difficulties of individual 2 just the inherent

passe su led) this approach to the problem of in-

dividual fairness when the legislature operates by classifica-

tion appears to be consistent with the emphasis in Vlandis v.

Kline, 412 US. 2 452-454 (1973), upon the reasonable

i

available to Connecticut. Cf. Dean Milk Co. v. City of

Madison, Wisconsin, 340 U.S. 349 (1951).

—26—

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

— to reach the more difficult due process ques-

The judgment is reversed, and the case is remanded

for further proceedings consistent with this —

REVERSED AND REMANDED.

CAMPBELL, Concurring.

Plaintiffs complaint challenged the constitutionali

of Ch. 28.1-3 defendant’s conduct —1—

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 rerequisite to employment by denying

oe chauffeur’s —— 8 11 convicted of cer-

crimes,” in violation of the Equal i

of the Fourteenth Amendment. 6

The Distriet Court ted defendant's motion to dis-

miss on the ground that there existed a rational

relationship between the classification (persons con-

victed of a crime involving the use of a dead 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 persons convicted of a crime involving the

use of a deadly weapon did not violate the Due Process

Clause, holding that the “test of the appropriateness of

the classification is whether it has a reasonable

relationship to the goals sought to be attained.”

On appeal, plaintiff contends that the ordinance

creates an irrebuttable presumption of unfitness, barr-

ing issuance of a chauffeur’s license irrespective of

evidence to the contrary and thus deprives him of any

opportunity for a meaningful hearing. He also contends

the ordinance violates the Equal Protection Clause

—

—

—27—

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 affo 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, less of the

i nce of the public safety considerations un-

— Terlying the statute or the relevance of prior convic-

tions to fitness. In fact, allowing existing licensees

who commit felonies to continue to be eligible 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 oo 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, —

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

— should also be addressed and resolved by this

rt. 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 opportuni for a meaningful hearing), that

deficiency easily could be cured by amending the or-

dinance so as to provide for the automatic revocation of

any license held by a person who, subsequent to issuance

and as against

urges that his right to work is

t that the

— 11 of problem or not attacking the problem

a or ng

at all It is that the State’s action be rational-

8 based and free invidious discrimination.“ 397

n liar

disadvantage of a suspect class.” Massachusetts Board of

Retirement v. M we US. , 49 L. Ed. 2d 520, 524,

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

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

fundamental rights are by the First

Amendment, such as the right of individuals to associate

for the advancement of itical beliefs, Williams v.

(1973). Also viewed as tal” are the right to

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

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

The State’s classification rationally furthers the

purpose identified by the State: Through mandatory

retirement at age 50, the legislature seeks to protect

—30—

the public by assuring physical

uniformed police. Sime i

declines with ase, mandatory retirement at 50

Nor do I believe the strict scrutiny rule should be

applied on the ground that the legislative classification

* In Frontiero, the Court held unconstitutional a statu

scheme, which required that, in order to claim a 2 1

dependent” for pespenss of optaini — quactere

allowances and medical and dental a female member

of the armed services had to establish that she contributed to

v. Reed, 404 U.S. 71”. Chief Justice Burger ustice

Blackmun joined ye -4 4,8 4

Serene , n. br the view that it is

unnecessary for the in this case to sex as a

of toch © Madinat u Ne the far-reaching implications

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

tly su our decision today did not add sex to the

narrowly limited group of classifications which are inherently

— - view, we can and should decide this case on the

authority of and reserve for the future any expansion of

its rationale.” 411 U.S. at 691-692. It thus remains less than

clear whether sex is a “suspect class” for the purpose of .

aed Genta ee a Bee, Kake Shevin, 416 9 81

ity dp DY, EY S. 484, 496 n. 20 and Bren-

„ Gissen v.

498 (1975), Wein 0 AGS. 636 (1978)

ase

v. Wi 420 U.S.

v. Stanton, 421 U.S. 7, 13 (1975), Craig v. Boren,

— —

The Supreme Court has noted that a suspect class is

one “saddled with such disabilities, or subjected to such

a history of purposeful unequal treatment, or relegated

to such a position of political powerlessness as to com-

mand extraordinary protection from the majoritarian

political process.” Rodri supra, at 28. Murgi

supra. Admittedly, signi icant societal disabilities n

derive solely from fact that a person is an ex-

offender, — wd in the area of employment oppor-

tunities. Nevertheless, the Supreme rt decisions

which have considered expanding the category of

“suspect” classifications have shown a clear reluctance to

recent decision in Murgia, in which the Court declined

an opportunity to include the aged as a “suspect class”,

notwithstanding the Court’s acknowl 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” for pur-

poses of the Equal Protection Clause, and would hold 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

mouse vernmental 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

respect to the care and safety of public 888 As

the defendant correctly argues, persons who chovse to be

transported in taxicabs obviously are unable to make an

informed choice in -y ~y! the driver, and therefore

are entitled to assume that, having been licensed by the

—32—

City, the licensee is a person of satisfactory character

and competence. No doubt the City of Chileans has a

legitimate interest in attempting to insure that public

chauffeur licensees are persons of good character, are

capable of being entrusted with the operation of a public

passenger vehicle.

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 responsibilities of a public

chauffeur. The past 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 John

Howard Association concedes, well over 60% of those

arene for the commission of crimes nationally are ex-

ers.

Accordingly, the distinction drawn between ex-

offenders and other applicants for public chauffeur’s

licenses is rationally related to a legitimate legislative

— and therefore does not contravene the Equal

rotection 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

8 pest ly oe record of an applicant is

˖ rospect of a driver placing a passenger in ical

jeopardy. Accordingly, the ordinance gives Gone

weight to crimes such as armed robbery and rape than

to crimes not involving violence and crimes not directed

against other persons. If anything, this added specificity

Nor do I believe, as plaintiff contends, Reed

404 U.S. 71 (1971) created a new and Att —

protection standard in cases which do not require application

of the strict scrutiny rule. Need evidences no intention to

discrimination ‘cases, "which may "well: ee 2 2 8p

class”. See, n. 4, supra. *

—33—

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 und that he was previously convicted

of a crime involving the use of a deadly weapon 1. —

him of rights guaranteed under the Due Process Clause

of the Fourteenth Amendment. Plaintiff correctly

— that any hearing held en 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 * 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

— — of law by the City's failure to provide a —

fendant's contention in this respect is based primari

on Board of Regents u. Roth, 408 U.S. 564 (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,

8

was not deprived of either liberty or property under the

Due Process Clause, and therefore was not entitled to a

hearing.

believe the rt 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 icant from an entire of

employment , “ry Board _— v.

supra at 574; ware v. Board r Examiners, 353

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

implicitly rejected by this Court’s decision in Freitag,

supra.

Consideration of plaintiffs “irrebuttable presumption”

argument requires a brief review of the leading, and in

some instances, ntly inconsistent case law in this

area. In Bell u. 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 1. for the damage caused in

the accident. The Court that the failure to provide

such a hearing deprived uninsured motorists due

process of law. While Beli does not use the term

“irrebuttable presumption”, it clearly mandates a

“meaningful heari at which the licensee might es-

tablish his non-liability. “It is a propo tion which ly

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 Dir 8 the Court decided Stanley v. Il-

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

Illinois statute which served absolutely to 1 an un-

wed father of custody of his illegitimate child. Al

the law of T that a parent could not

denied custody wi t notice, a hearing, and of

parental unfitness, unwed fathers were conclusively

oo gy to be unfit, and therefore were not afforded a

ing. In holding the statute unconstitutional, the

Court stated:

—35—

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

marri fathers are unsuitable and neglectfui

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.” 405 U.S.

at 654-655.

The Stanley Court rejected Illinois’ argument that it

should not be ny: to undergo the undergo the in-

convenience of a ing because unwed fathers are so

seldom fit and proper parents.

“The establishment of prompt efficacious

procedures to achieve itimate 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 past for-

malities, it needlessly risks running over

the important interests of both nt 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 (1978) and United States Department of

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

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

— * plying for admission. Relying on Stanley, the

rt t:

—36—

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

tainty cannot, in and of itself, save the conclusive

ey — 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

TVN bona fide residence are available.” 412

S. at .

In Murry, the Court held unconstitutional Section 5(b)

of the Food ~y: 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 a per-

son not eligible for food stamp relief. The Supreme

Court agreed with the District Court’s conclusion that

~) Act created “an irrebuttable presumption contrary

act.”

Consistent with the aforementioned decisions, the

Court su uently decided Cleveland Board of Educa-

tion v. La r, 414 U.S. 632 (1974). In r, the

Court held unconstitutional a maternity leave rule re-

quiri a pregnant teacher to commence maternity

leave five months prior to the expected birth of her

child, and precluding re-em t prior to three

months following birth. The rt held that the prin-

ciples enunciated in Stanley and Vlandis were con-

trolling, and that “the conclusive presumption embodied

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

nor] universally true’, and is violative of the Due

Clause.” 414 U.S. at 646.

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 ex 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-

—37—

pensation statute's incorporation of a conclusive

presumption of incapacity during so long a period before

and after childbirth is constitutionally invalid under the

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

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

Balanced against the foregoing authorities are cases

involving mandatory retirement statutes and the

Supreme Court's decision in Weinberger v. Salfi, 422

U.S. 749 (1975). In Mellvaine v. Pennsylvania, 415 U.S.

986 (1975), the Court dismissed, for want of a substan-

tial federal question, an appeal from the Pennsylvania

Supreme Court which wed a state law requiring

retirement of police at age sixty. Mcllvaine was —

interpreted as upholding the constitutionality of man-

datory retirement statutes against equal protection and

due process claims. Thus the Second Circuit in Rubino v.

Ghezzi, 512 F. 2d 431 (2nd Cir., 1975) affirmed the Dis-

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

[irrebuttable presumption] were before the Court in

Mellvaine and . 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,

33 F. 2d 331 (1976) affirming summary judgment in

detendant’s favor in an action challenging an Ohio

statute requiring retirement at age seventy.

In this circuit, the issue was presented in Gault v.

Garrison, 523 F. 2d 205 (1975) in which a tenured school

teacher was forced to retire at r pursuant to

school board policy. Plaintiff challenged the policy on

equal protection grounds and as an irrebuttable

presumption in violation of the Due Process Clause. In

Gault, this Court took note of the Supreme Court's dis-

missal “for want of substantial federal question” of the

ap in Mellvaine. It was further noted that a three

j district court in Weisbrod v. 383 F. Supp.

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

of a substantial federal question in McIlvaine required

—38—

dismissal of a constitutional challenge made by plaintiff

Weisbrod, a HUD attorney, to a F law mandating

retirement at age seventy. The Supreme Court sum-

marily affirmed. Weisbrod v. Lynn, 420 U.S. 940 (1975).

The Gault Court recognized that if Weisbrod and

Mcllvaine were to be considered binding precedents,

they would not be distinguishable from the Gault case.

— „ — declined to resolve the — 1

case stay rther proceedi pending

Supreme Court's decision in M. usetts Board of

Retirement v. Murgia, with respect to which the

— reme Court had recently noted probable jurisdiction.

U.S. 974 (1975). The hope, obviously, was that the

—— Court in Murgia would resolve the due process

question presented by plaintiff Gault—i.e., whether a

mandatory retirement statute creates an un-

constitutional ng yt resumption that, because of

age, the employee is unable to continue to adequately

perform the services for which he has been hired.

As did the panel in Gault, we also awaited the

— reme Court’s decision in Murgia, hoping that further

t _ be shed on the constitutionality of statutes

— rrebuttable presumptions, particularly in view

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

749 (1975), discussed i upholding the con-

stitutionality of a statute which quite obviously creates

an irrebuttable presumption and forever excludes cer-

tain 1 — — Se In certain benefits under the

Security A

On June 25, — the Supreme Court decided Murgia,

without discussing the constitutionality of mandatory

statutes under the Due Process Clause, and without

characterizing the statute, requiring retirement of

Massachusetts State Police at fifty, as creating an

1 fty —y 4 - 1 — 4 1 L 228

ifty are u

duties of a Massachusetts state po 4 officer.

Murgia Court ld — constitutionality of the 42 te

in question solely on protection ing

that the strict scrutiny rule was not 1 that the

HS

—39—

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. 8

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

provision of the Social Security Act which defined

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

benefits 2 exclude the widow or step-child of any

earner who had been the husband or

— | of the claimant for a period of &. than nine

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

rule was to — sham marriages ed to

enable one spouse to claim benefits upon the —

4 death of the wage earner. The Salfi Court held

“The question is whether Congress, its concern hav-

ing been reasonably aroused by the possibility of an

abuse which it legitimately desired to avoid, could

rationally have concluded both that a particular

limitation or qualification would protect against its

occurrence, and that the expense and other 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.

In reaching this conclusion, the Court placed a heavy

emphasis on the fact that “social welfare legislation” was

involved, requiring broader discretion in the use of

legislative classifications in order to maximize the use of

available funds and resources. Thus, the Court quoted

extensively from its prior decisions in Flemming v.

Nester, 363 U.S. 603, 611 (1960). Dandridge v.

Williams, 397 U.S. 471, 485 (1970),5 Richardson v.

4 “Particularly when we deal with a withholding of a non-

contractual benefit under a social welfare program such as

aay sy we must recognize that the Due Process

— 1414 IIIA

— a Phat pn 2 72 — 1 utterly lacking

1 eee a State does

not violate the ual Protection Clause merely because the

— e by its laws are imperfect.” 397 U.S. at

—40—

Belcher, 404 U.S. 78, 81 (19717 and Geduldig v. Aiello,

417 U.S. 484 (1974). Consistent with its emphasis that

the claim in was distinguishable because social

welfare legislation was involved, the Court declined to

follow Stanley and LaFleur on the ground that, unlike

the claims asserted in those cases, i involved:

“a non-contractual claim to receive funds from the

public treasury [which] enjoys no constitutionally

protected status, Dandridge v. Williams, supra,

though of course Con may not invidiously dis-

criminate among such claimants on the basis of a

‘bare congressional desire to harm a politically un-

popular 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,...(1 > US. of Agriculture v. Murry,

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

The Court distinguished Vlandis on the ground that

“the Social — 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 easily 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

obtaining disability benefits, unless the child were eligi-

ble under other provisions of the Act regarding

legitimization, inheritance or defective

ceremonies. The Jimenez Court concluded that the

pose of the statutory scheme was to revent spurious

claims and insure that only those y en to dis-

ability benefits received such payments. The Court, dis-

tinguishing Dandridge on the ground that the purpose of

6 “A statu classification in the of welfare

consistent with the Equal Protection R

Amendment if it is rationally based free from invidious

discrimination. 404 U.S. at 81.

— =

the legislative provision in Jimenez did not concern the

allocation of finite resources, gave considerable weight

to tne fact that the classification created an irrebuttable

— — that the dilemma of noneligible il-

timate children “is compounded by the fact that the

statute denies them any nity to prove dependen-

cy in order to establish their ‘claim’ to support and,

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

respect, the Court — 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 dependenc

2 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.’

—

not make plainly relevant evidence of such bona fides

inadmissible.” 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

— HK ne

presenting evidence that the marriage was not a sham

“we cannot say whether the irrebuttable p-

tion doctrine or the substitute analysis followed in

— tedtaded, 1 Utes & be to

3 and would do so in plain-

tiffs’ favor

A careful reading of the | decision suggests that

present in that case were a combination of factors which

—43—

— since neither marital intent, life 4 nor

knowledge of terminal illness has been shown by

— te No cqnEny Cece.” 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 irrebuttable ption.

Fisher v. Secretary of U.S. Dept. H 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 ive goal. In

Mandis, 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 2-5 * 412 yaad at 451. Similarly, the

“school boards have

available to 21 alternative methods of

keeping physically unfit teachers out of the classroom.”

414 U. 1 * n. 4

minations of eligibility will necessarily — —

interfere with the satisfactory operation of an overall

—

such as those encom under the Social Security

Act, involving distribution of benefits to millions of

claimants requiring 12 promulgation of prophylac-

tic rules concerning eligibility.

Finally, the Salfi Court emphasized that individual

determinations —— not effectively filter out sham

marital arrangements. | think it is safe to say that in

most other instances, adequate ye procedures will

advance, rather than retard, the fact-finding process.

Turning to the ordinance challenged by ~_-

Miller, none of the foregoing considerations

applicable. I therefore believe we should be guided 2

the Court's decisions in Stanley, Vlandis and LaFleur.

Of particular significance is the fact that, subsequent to

the decision in Safi, 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 Viandis, the hearing procedure which this Court

required in Freitag offers a “reasonable and ical

means of establishing the pertinent facts on w ich the

City’s] objective is premised.” 412 U.S. at 451.

wt the use * — en presum — or

eligibility is particularly where prec

an applicant from a ease the a

denied th the use of irrebuttable ptions 00

ineligibility. 7 Psychologist Ex-

aminers, 521 F.2d 1 Oc. G = 1 5).

os be considered in — eps, 1 —

icated su criminal record of an —

for a public chauffeur’s license is a valid i

— =

in determining the applicant’s character and fitness.

process considerations require only that the appli-

cant be given a meaningful opportunity 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 1 tions- mandatory

— A aye to solely on traditional

protection On the basis of what I under-

stand to be the present state of the law, the ordinance in

the instant case creates an irrebuttable presumption

which deprives plaintiff of a meaningful hearing in

violation of the Process Clause of the Fourteenth

Amendment. Accordingly, I would reverse led pon by

of the District Court both on the ground reli

the majority, and on the ground that the ordinance

deprives the ‘plaintiff of due process of law.

A true Copy:

Teste:

—

In the

Anited 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,

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 ae-

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

Rules of Appellate Procedure.

—47—

Respectfully submitted,

WILLIAM R. QUINLAN,

Corporation Counsel of the City of Chicago,

511 City Hall, Chicago, Illinois 60602,

Attorney for Petitioner.

Dari. PAasca.e,

Rosert Rerkez, :

Assistant Corporation Counsel,

Henry Gruss,

Of Counsel.