# Appendix — Carter v. Miller > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1716%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1978 - **Citation:** 434 U.S. 356 ## Text ‘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. . f . Vex Ce rte: 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1716%3A02. Public record. Not legal advice.