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Constitutional Law II
St. Johns University School of Law
Zick, Timothy


I. Public Function Doctrine
a. Definition: Nature of activity: powers or acts are “traditionally exclusively reserved to the state.” (Jackson)
b. “Powers or acts traditionally exclusively reserved to the State”
i. Governments tend to provide things that are public functions. Therefore, anyone doing something that is a public function will usually be doing something that is reserved for the state.
c. Ex’s
i. A municipal park
1. Running a park is traditional state activity (Newton)
ii. Running a Primary election (Terry)
d. But not . . .
i. Running a shopping center (Hudgens)
ii. Regulated utility
1. Important – just b/c it has a public element does not make it a public function!!! There are public functions that are not traditionally exclusively run by the state.
2. Utilities are public services, but not traditionally reserved to state.
iii. Resolving private property disputes under state law
1. Disposing property under state-adopted UCC does not implicate state…slippery slope?
e. There is a danger in broadening this concept (that the person/company has the same limitation as the state when it uses state law to resolve issues). By broadening this concept, we are limiting private companies’ ability to do whatever they want, and that is against the constitution. (private companies can discriminate!)
f. Cases
i. Hudgins [Shopping Center] 1. A shopping center is not a public function
2. The actions of a private shopping mall are not state actions. Operation of a shopping center is not the equivalent of operating a company town, so a person does not have any 1st Amendment rights in the shopping center
3. Size of the mall is not the issue, it’s the function
ii. Evans v. Newton [Park] 1. Senator sets up a trust for a park, the state enforced the trust as a trustee and they enforced exclusion of blacks from the park
2. Court held that the maintenance of the park by municipal trustees was state action b/c parks are traditionally municipal in nature. The city could not divest the park of its public function by turning it over to private trustees
3. Operation of a park is usually deemed a gov’t function, so generally the operation of a park will constitute “state action” under “public function” doctrine. Therefore, even if park is operated by private persons, must still obey constitutional constraints
4. Note- Setting up the machinery to set up an elections is like a park b/c it is traditionally associated with the state (Terry)
iii. Jackson v. Metropolitan Edison Co. [Privately-Owned Utility] 1. P’s electricity was cut off w/out giving her the opportunity to contest the charge. P argues this was a denial of due process. D argues although heavily reg, this is a private co.
2. Holding/Rationale
a. This is not a state action
b. Fact that co. was “affected w/ the public interest” doesn’t make state actor
c. Fact that utility is heavily reg & enjoys a state granted monopoly doesn’t make state actor
d. This is, I some sense, a service to the public, but it is not a function exclusively reserved to the state à has to be exclusively reserved to state
e. Electricity not a traditional gov’t function, and is certainly not exclusively a gov’t function.
f. What would the plant have to have done to be considered to be doing state functions?
i. The state must order it. The state would have had to have actively said that cutting off the electricity to Jackson was allowed without due process.
iv. Rendell-Baker
1. Schooling is not an exclusive governmental function because throughout history there were public schools (public function/gov’t) and private schools (not a public function).
v. Flagg Brothers v. Brooks [Resolution of Disputes]


Zick: a law on the books, alone, is NOT enough. There MUST be something more

A warehouseman had lien on goods stored with him to cover unpaid storage charges. He sold the goods without notice or hearing pursuant to U.C.C. §2-710. The UCC, which the state creates, allowed disputes to be resolved without hearings. Owner claimed DP was required b/c the resolution of disputes was a public function and was an exclusive function for the gov’t.

2. Holding/Rationale
a. Court held resolution of disputes not traditionally exclusi

ctively encouraged.
b. Court held that this state-constitutional amendment amounted to gov’t encouragement of private discrimination.
i. In this time and context, the court said that the fact that the state wrote it in its constitution was enough an act that constituted encouraging discrimination.
ii. Important: The law may different nowadays, where the context and time is different. The court back then, when racism was rampant, was trying to manipulate the law to curtail racism. Nowadays, where racism is not as prevalent, the court may not have as much incentive to manipulate the law in that way.
c. Therefore, the resulting private discrimination will be imputed to the state, and the state constitutional provision violated the 14th Amendment
2. Shelly v. Kraemer [Judicial Enforcement] a. Facts
i. AA buyer wants to come into white hood. White seller. Racially restrictive covenant signed by most people in good saying you can’t sell to blacks. Whites sued to stop the sale. The state court held in white’s favor and stopped sale from going through
b. Holding/Rationale
i. Supreme Court reversed
ii. By virtue of the state court enforcing the covenant, the court acted in a way that violated the black’s constitutional rights. The state was “throwing its weight” behind the enforcement of the racist restrictive covenant
iii. The state is responsible for the act of a private party when the state, by its law, has compelled the act. Here, the state, by enforcing the racist covenant, was considered to be acting.
iv. Would it have made a difference had the seller not wanted to sell to the black person? Meaning, could the Sup Ct force the white guy to sell to the black guy? If the court does not force this, is this also considered as if the state is being discriminatory?