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QUESTION 8
The City of Brotherly and Sisterly Love adopted an ordmance prohibiting "speech or symbols that arouse anger in, deride or insult another on the basis of race." (^) The City has charged a member of the Segregation Forever Society under that ordmance for displaying an emblem above the entrance to its headquarters. The City alleges that the emblem is racially derisive andinsulting because the motto on the emblem proclaims that "Separate Is Inherently Desirable."
QUESTION:
Discuss any constitutional grounds upon which the ordinance may be challenged.
DISCUSSION FOR QUESTION 8
The city's ordinance must be measured against First Amendment principles which prevent the government from abridging or impairing freedom of speech. See also Article 2, Section 10 of the Colorado Constitution. A statute properly may criminalize speech which constitutes "fighting words." Cha~linskvv. New Hampshire, 315 U.S. 568, 572, 62 S.Ct 766, 769,86 L.Ed. 1031 (1942); Whimbush v. People, 869 P.2d 1245, 1248 (Colo. 1994). "Fighting words," however, must plainly tend to incite or animate an immediate breach of peace or unlawful conduct, or to provoke immediate retaliatory action or violence. Cha~linsky,a t 572; Whimbush, a t 1248; Goodinrr v. Wilson, 405 U.S. 518,523 (1972). I t is debatable whether the message on the building's headquarters, even if taken as arousing anger, derisive or insulting, tends toward such imminent incitement.
The law in question may also be unconstitutionally overbroad. Given the preferred status accorded to free speech by the federal and state constitutions, a statute which restricts speech must be narrowly drawn to avoid criminalizing an intolerable range of constitutionally protected conduct. Osborne v. Ohio, 495 U.S. 103, 112, 110 S.Ct. 1691, 1697, 109 L.Ed.2d 98 (1990); P e o ~ l ev. Batchelor, 800 P.2d 599,602 (Colo.1990); People v. Smith, 862 P.2d 939, (Colo. 1993). If a statute substantially infringes upon constitutionally protected speech while proscribing speech which is not constitutionally protected, it will be struck down as facially overbroad. Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 2917, 37 L.Ed.2d 830 (1973); Batchelor, 800 P.2d a t 601; Smith, 862 P.2d a t 941. The regulation may be a basis not only for prosecuting individuals whose opinions simply may be objectionable but also those that represent a political perspective and do not necessarily provoke a violent response. Because of the potential to regulate speech merely because it is "offensive to some who hear" it, the law probably sweeps too broadly. Gooding, 405 U.S. a t 527.
In addition to being overbroad, the law may be challenged as affording no definite meaning with respect to what it proscribes. It may therefore be unconstitutionally vague. Gooding at 528. Vague laws violate First and Fourteenth Amendment principles by: 1) failing to provide fair warning to the innocent; 2) impermissibly delegating basic policy matters to non-legislative entities for resolution on an ad hoc and subjective basis, with attendant dangers of arbitrary and discriminatory application; and, 3) where a vague statute abuts on sensitive areas of basic First Amendment freedoms, operating to inhibit the exercise of those freedoms. Gravned v. Citv of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). When legislation is challenged as void for vagueness, the essential inquiry is whether the statute forbids the doing of a n act in terms so vague that persons of ordinary intelligence must necessarily guess as to its meaning and differ as to its application. Smith v. Gomen, 415 U.S. 566, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974); Gravned, supra. The law's prohibition against speech that might "arouse anger in, deride or insult another," does not appear to give clear guidelines which would prevent guessing a t the meaning and application of those terms.
(While the doctrines of vagueness and overbreadth are often interrelated, they are conceptually distinct. Whereas an overbroad law substantially burdens protected speech, an impermissibly vague law fails to provide fair notice of what conduct is prohibited and allows arbitrary and discriminatory enforcement. Board of Education v. Wilder, 960 P.2d 695, 703 (Colo. 1998).)
Essay 8 Gradesheet
1. Recognition of First AmendmentIFree Speech protections.
Seat Score Please use blue or black pen and write numbers clearly
2. An^ ordinance may, however, criminalize speech that constitutes "fighting words."
2a. "Fighting words" must incite immediate or imminent breach of peace, unlawful conduct or provoke action or violence.
3. Ordinance may be overbroad.
3a. It must be narrowly drawn to avoid prohibiting Constitutionally protected speech.
4. Ordinance may be void for vagueness.
4a. No definite meaning of what the ordinance proscribes (no fair notice).
5. Ordmance^ may be unconstitutional because it is content or viewpoint discrimination.
QUESTION 4
The State of Excess has a culturally diverse population whose racial composition is reflected proportionately in the makeup of its legislature. Based upon a study showing that older automobiles are primarily responsible for air pollution in the state, the legislature unanimously passed a law that imposes a n environmental impact fee upon the registration of any automobile manufactured prior to 1990.
Although every lawmaker went on record in support of the legislation on grounds it would protect the environment, and no other reasons or statements were offered in support of the law's enactment, it has become evident that the law disproportionately burdens historically disadvantaged racial minorities. A coalition of these disproportionately impacted minorities has sued in Federal Court on grounds that the law invidiously discriminates in violation of the Equal Protection Clause of the Fourteenth Amendment.
QUESTION:
Discuss the validity of the coalition's claim.
Essay 4 Gradesheet 21453
seat rm score uI
Please use blue or black pen and write numbers clearly
1. The Equal Protection Clause prohibits official discrimination on the basis of race. 1 - -
- An equal protection violation requires proof of discriminatory intent. (^) 2 - -
3. A racially disproportionate impact by itself does not establish an
equal protection violation.
4. A racially disproportionate impact may, however, provide indication of
discrimination. 4 -.
- Unconstitutional discrimination may be express or apparent on the face of the law.
- The law here does not, on its face, reveal a discriminatory purpose. (^) 6.-
7. A racially neutral law on its face may be discriminatory
in its application (effect or impact).
8. A racially disproportionate impact, when attributable to racially neutral
applications and criteria, does not constitute discrimination. (^) 8 .-
- Circumstantial evidence may be a basis for establishing discrimination violative of the equal protection guarantee. (^) 9 .- 10. Proof of discrimination may be gleaned from:
a. legislative history; or
b. a clear pattern unexplainable on grounds other than race.
QUESTION 5
The State of Density adopted a law requiring all commercial trucks using coastal highways to install special lights enabling drivers to see better in foggy conditions. This law was adopted pursuant to studies showing that fog in coastal areas is particularly dense and has been a cause of numerous accidents. The cost of installing these lights is insignificant and not an issue. Nor is there any argument with respect to whether the law is designed to promote safety. The National Trucking Association, on behalf of affected commercial truck drivers, has challenged the law on grounds that it is burdensome and only applies to commercial trucks. Association attorneys point out that commercial trucks are engaged in interstate commerce and are not the only type of vehicles involved in the type of weather-related accidents which prompted the state's action.
OUESTION:
Discuss any possible constitutional challenges to the Density law.
seat score m Please use blue or black pen and write numbers clearly
COMMERCE CLAUSE
1. Recognition^ of^ commerce clause issue.
2. Recognition that law is non-protectionist. 3. Law addresses a legitimate state concern. 4. Burden is incidental ( insignificant cost).
5. Burden does not exceed safety benefits.
EQUAL PROTECTION
6. Recognition of equal protection issue. 7. Recognition of classification between commercial trucks and other vehicles. 8. Recognition that rational basis test applies to equal protection issue. 9. Recognition that law must be upheld if the facts indicate that a plausible reason exists for the law as written. 9. 10. Recognition that government may regulate on an incremental basis.^ 10.
1 1. Determination that a compelling basis does not exist for an equal protection challenge.^^1 1.
7/ QUESTION 9
The city code of Big City establishes a ceiling of 3,000 taxi licenses for the town. The code further provides that the Transportation Commissioner shall regulate taxis within Big City. The code states, in part:
The commissioner shall have the authority to revoke, deny, or otherwise alter a taxi license for reasons of health condition or other impairment of the licensee. The commissioner shall consider such evidence as is relevant in reaching a decision, including that submitted by the licensee. Such revocation, denial, or alteration shall be final.
Danny Driver, a licensed taxi operator, was hit from behind while stopped at a light. Talking with the police afterward, Danny casually mentioned that he was taking some prescription medicine and feeling a little light-headed. The police report said Danny was not at fault, but stated that he was "under medication and exhibiting the effects of drugs."
Based on this report, the commissioner immediately revoked Danny's taxi license. The notice of revocation sent to Danny stated that his use of medication impaired his ability to operate a taxi safely. The notice also stated that he was free to apply for a new license after 30 days and satisfactory completion of a physical exam and drug test. There is currently an 18 month waiting list of approved applicants for taxi licenses.
QUESTION:
Discuss Danny's potential avenues for appealing the commissioner's decision and to what relief he might be entitled.
DISCUSSION FOR QUESTION 9 Page Two
government to afford the party further process. Under this standard, Danny can be afforded significantly more procedural protection with relatively little burden on the government.
Because Danny was afforded no opportunity for a hearing before his taxi license was revoked, he has the basis for an appeal. The Big City ordinance provides that the commissioner "shall consider" relevant evidence, including evidence from the licensee, but there is no procedure for doing so. In this case the commissioner did not consider evidence from the licensee, so Danny had no opportunity to present his side of the case. There can be little dispute that Danny is entitled to some kind of hearing before the permanent revocation of his license, and that he did not receive anything close to it in this case. At a minimum, he should be afforded the opportunity to respond to the allegations that led to revocation of his license.
While Danny has been told he has the right to reapply for his license after 30 days, this does not constitute an appeal of his license revocation. Reapplication in competition and on the same footing with all other applicants does not afford Danny any protection of the license he previously possessed. The fact that he has been told as part of the notice of his license revocation that he may take this step does not force his efforts to secure relief into this channel. The city cannot define the procedures relating to these licenses in a constitutionally defective manner just because the city creates the property interest itself. Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982).
There is a general rule in administrative law that an individual must pursue all relief available from the agency before seeking review in the courts. McKart v. U.S., 395 U.S. 185 (1969). This notion of exhausting administrative remedies should have no effect on Danny's claim. Danny must appeal to the court because there is simply no avenue available within the agency for relief. The new application process is inadequate as discussed above. Further, even though the ordinance states that the commissioner "shall" consider evidence, there is no mechanism for the commissioner to hear Danny's evidence.
Danny no doubt wants his license back. He should be entitled to some kind of hearing on his revocation, but since his revocation involved a potential safety issue, it is unlikely that he will be entitled to reinstatement pending the outcome of his hearing. Courts use the balancing test in Mathews v. Eldridge, supra., for determining when a hearing must be given and the type of hearing required. When immediate adverse effects may result from government action, the issue is whether the parties affected are entitled to a hearing before the government acts or whether a hearing after governmental action is sufficient. Generally courts have required some sort of hearing before the governmental action resulting in harm occurs. Id. However, in cases involving public health and safety, post deprivation hearings have been held to be constitutional even though the government has taken drastic governmental action. Ewing v. Mytinger and Casselberry, Inc., 339 U.S. 594 (1950).
While Danny's right to earn a living at his chosen occupation has been impaired, the Supreme Court has lately not been inclined to require the full trial-type hearing they called for in Goldberg v. Kelly and have been satisfied with less formal procedures (see the balancing factors discussed above in Mathews v. Eldridge). Due process requires at a minimum, notice, an opportunity to comment and respond to the evidence, and the development of a record for review. Thus, Danny at a minimum should be entitled to be told the charges against him and respond to them before the commissioner.
DISCUSSION F O R QUESTION 9 Page Three
Perry v. Sinderman, 408 U.S. 593 (1972) (a fired professor with de facto tenure). A record of some kind is necessary to provide a basis for review later on.
It is unlikely that Danny can get reinstatement pending his hearing. While many cases talk about requiring due process prior to the termination of a property interest, public health and safety concerns can justify post-termination process. North American Cold Storage Co. v. Chicago, 21 1 U. S. 306 (1908) established this principle when the confiscation of possibly tainted food was upheld when an opportunity for a hearing was provided immediately after the seizure. In a more recent case more directly on point, Barry v. Barchi, 443 U.S. 55 (1979), the court approved a post deprivation hearing when a jockey was suspended for alleged drug use. Thus, in conclusion Danny would most likely be entitled to a hearing, but not to reinstatement pending the hearing and its outcome.
QUESTION 7
To protest a recent United States Senate election in the state of Utopia, Marcia Jones burned her voter registratipn card. She was arrested under a Utopia law prohibiting the willful and knowing destruction of a voter registration card. The state contends that voter registration cards are an efficient and effective means of verifying the identity and eligibility of voters and deterring voter fraud.
Utopia claims that the authority for the law is derived from Article I, Section 4 of the United States Constitution. Section 4 gives states the right to prescribe the time, place, and manner of holding elections for U. S. Senators.
QUESTION:
Discuss whether the burning of Ms. Jones' voter registration card is protected under the First Amendment of the United States Constitution.
DISCUSSION FOR QUESTION 7
The burning of a voter registration card, as a means of making a political point, constitutes symbolic speech. Expression of this nature has both a speech and nonspeech element. When these elements coalesce into the same course of conduct, the government interest in regulating the nonspeech component may justify incidental restrictions on expressive freedom. United States v. O'Brien, 391 U.S. 367, 376 (1968). The necessary inquiry focuses upon whether the state has the power to regulate the subject matter, the regulation advances an important or substantial government interest, the government interest is unrelated to suppression of speech, and the incidental burden on speech is no greater than necessary to advance the government's interest. Id. at 377.
The state's power to manage United States Senate elections is established by the federal constitution. The validity of laws regulating the electoral process that might affect rights of speech and expression will be reviewed under a balancing test. If the restriction of speech is severe, it must achieve a compelling state interest. See, generally, Burdick v. Takushi, 504 U.S. 428 (1992). The smooth and effective functioning of the voting system and avoidance of fraud constitute important or substantial interests. These concerns also represent concerns that are unrelated to expression. Identification can be established readily, however, by cross-referencing voter registration lists and other credible forms of identification (such as driver's licenses or birth certificates). Given the ease of verifying a voter's identification, even without a voter registration card, the incidental burden on speech appears greater than necessary to account for the government's interest.
QUESTION 7
Senator Kiljoy of the Colorado State Legislature drafted a bill entitled "Keeping Colorado's Female Minority Youth Safe and Sound." The provisions -ofthis bill would establish a statewide curfew between'the hours of 10 p.m and 6 a.m. for non-emancipated Hispanic, Afiican-American, Native American, and Asian females under the age of 18. The basis for this legislation is nationally accepted research proving that minority females are most likely to be assaulted, injured in accidents, or become pregnant between the hours of 1 0 p.m and 6 a.m Numerous civil liberties groups have threatened to challenge the bill as unconstitutional if adopted.
OUESTION:
Discuss the grounds upon which this bill might be challenged under the U.S. Constitution and the standards of review that would be applied to such challenges.
DISCUSSION FOR QUESTION 7
The proposed legislation concerns classifications based upon race, gender and age, thereby implicating the "equal protection" clause of the Fourteenth Amendment to the U.S. Constitution. The purpose of the question is have exam takers identify the constitutional basis under which such a law can be challenged, the nature of the categories created by the legislation, and the varying standards of review to which each classification would be subject.
The Fourteenth Amendment provides that no state shall "deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." U.S. CONST. AMEND. XIV. Equal protection is implicated where a state or local law treats certain classes of people differently from others. See. ex.. Loving: v. Virginia, 388 U.S. 1, 10- (1967). Here, because the proposed state legislation creates classifications treating female minority minors differently than other citizens, a constitutional challenge to the state legislation would be grounded in the Fourteenth Amendment's prohibition against state action that deprives citizens of equal protection of the laws.
Test takers also may identify the concept of procedural or substantive "due process"-- and the potential deprivation of "liberty" by the proposed curfew -- as an additional basis for challenging the legislation. An examinee will not receive credit for elaborating on this concept (other than the point allocated on the scoresheet for general identification of the Fourteenth Amendment as the appropriate vehicle for challenging the state legislation) unless s h e correctly recognizes that a due process challenge to the legislation at issue is inapplicable because only certain classes of citizens are affected by the legislation versus all citizens; or the loss of a freedom involved is unlikely to be deemed a fimdamental right; or the restriction at issue is not so unjustifiable as be violative of due process. See. e.g., Bolling v. Shame, 347 U.S. 497,499 (1954); Loving v. Virginia, 388 U.S. 1, 10-13 (1967).
Courts apply varying standards of scrutiny when examining challenges to classifications under the equal protection clause. Classifications based upon racelnational originlethicity are considered "suspect classifications" requiring strict scrutiny by the courts. Adarand Constructors. Inc. v. Pena, 5 15 U.S. 200, 228 (1995). Strict scrutiny requires legislation to be necessary to serve a compelling or overriding state interest and that such legislation be narrowly tailored to achieve that interest. Adarand at 227; Richmond v. J.A. Croson Co., 488 U.S. 469,493 (1989).
A gender-based classification is constitutionally permissible when it is substantially related to an important governmental interest. C r a i ~v. Boren, 429 U.S. 190, 197 (1976). Gender is considered to be a quasi-suspect category meriting intermediate or mid-level scrutiny. Id.
Age is not a suspect category, and therefore requires only minimal or rational basis scrutiny. See. e.g.. Gregorv v. Ashcroft, 501 U.S. 452.470 11991): Massachusetts Board of Retirement v. Murgia, 427 U.S. 307 (1976). As such, legislation implicating age need only to be rationally related to legitimate governmental interests. Id.
