CONSTITUTIONAL LAW II OUTLINE
Professor Ronner
St. Thomas University School of Law
Spring 2012
CHAPTER 5 THE STRUCTURE OF THE CONSTITUTION’S PROTECTION OF CIVIL RIGHTS AND CIVIL LIBERTIES
B. Application of the Bill of Rights to the States
The Incorporation of the Bill of Rights into the Due Process Clause of the 14th Amendment
5 Provisions of Bill of Rights not incorporated – 2nd Amendment, 3rd Amendment (soldiers quartered in a person’s home), 5th Amendment (right to grand jury indictment in criminal cases), 7th Amendment (right to jury trial in civil cases), 8th Amendment (prohibition against excess fines).
Selective Incorporation
· SC said Bill of rights only apply to fed government, not to states.
· Privileges and immunities appeared to make the bill of rights applicable to the states. SC said this wasn’t true in the slaughterhouse cases.
· 14th Amendment was thought of to be a good way to apply the Bill of Rights to the States.
· Now through the 14th Amendment the Bill of Rights and applied to the states.
· Court adopted Selective Incorporation of Bill of Rights regarding each Amendment within the Bill of Rights (known as Selective Incorporation).
Some Bill of Rights Amendments apply differently in state court than they do in Federal Court.
Williams v. FL – SC held that states need not use 12 person juries in criminal cases, even though that is the practice in federal courts.
Apodaca v. Oregon and Johnson v. LA – SC held that states may allow non-unanimous jury verdicts in criminal cases.
Duncan v. Louisiana – Duncan, a defendant convicted of a misdemeanor battery, is suing the state of Alabama contending that his denial of a right to a jury trial violates his 14th amendment Due Process Clause. Issue is whether the 14th Amendment Due Process Clause makes the 6th Amendment’s right to a jury trial applicable to the States?
YES.
The right to a jury trial is protected under the 14th Amendment thus is applicable to all the states. Because the court believes that trial by jury in criminal cases is fundamental to the American scheme of justice they hold that the 14th Amendment guarantees a right of jury trial in all criminal cases.
CONCURRENCE – BLACK – believes that the that the 14th Amendment makes the entire Bill of Rights applicable to the states. Does not believe that the states should act as labs when dealing with rights within the Bill of Rights.
àDefendant wanted jury trial in state court when state constitution didn’t guarantee right to jury trial.
àCourt rules right to jury trial is applied to states through the 14th Amendment.
àTest – whether a right is among those fundamental principles of liberty and justice which lie at the base of all our civil and political institution, whether its basic in our system of jurisprudence; and whether it’s a fundamental right, essential to a fair trial.
àJury is to repel the government unchecked power.
à6th Amendment is now Selective Incorporation into the 14th Amendment to the states.
Powell v. AL – train where girls claim they were raped. Young black men (Scotsburrow boys) were sentenced to death quickly without an attorney to defend them.
àSC ruled this was mob violence – overturned convictions.
àSC ruled ever Defendant in a capital case gets an attorney well before the trial occurs.
McDonald – right to bear arms applies to local and state governments.
5th Amendment applies to the states but not the right to jury.
C. The Application of the Bill of Rights and the Constitution to Private Conduct
The Requirement for State Action
State Action – can’t make a case about a constitutional issue unless it is the government violating your constitutional rights. Private parties can’t violate your constitutional rights.
Civil Rights Cases – civil rights act of 1875 prohibited racial denial of service in inns. However, the privately owned inn couldn’t be sued for violating black’s rights because the innkeepers were a private party not capable of violating someone rights.
àCongress cannot enact a law prohibiting private action.
àThe states have to be the one’s prohibiting private action, not the federal government.
Morrison – reaffirmed that congress cannot regulate private action through the 14th Amendment.
The Civil Rights Cases – US v. Stanley – Civil Rights Cases – Owners Stanley and Nichols, charged with refusing to allow persons of color to stay at their inns, are suing the US based on the passage of the Civil Rights Act of 1875 which subjects any person who denies another person full and equal enjoyment of inns, public transportation, theaters, and other places of amusement to criminal prosecution. Whether Congress has the power to pass laws prohibiting discrimination by private citizens under the 14th Amendment?
NO.
14th only prohibits state action. Congress only has the power to enact legislation affecting the actions of states, not the acts of individuals.
The Exceptions to the State Action Doctrine
State Action Doctrine Exceptions – (1) the public functions exceptions – private entity must comply with the Constitution if it is performing a task that has been traditionally done by the government; (2) entanglement exception – private conduct must comply with the Constitution if the government has authorized , encouraged, or facilitated the unconstitutional conduct.
3 Exceptions to State Action Doctrine –
(1) Public Function
Why Protect Against State Action??? To give power to the states to make laws. Not to regulate each individuals autonomy.
The Public Functions Exception (Public functions exception are presented in elections and private property used for public purposed).
Marsh v. Alabama – Marsh, a Jehovah’s witness who attempted to distribute religious materials in Chickasaw, is suing Alabama based on the violation of her 1st and 14th Amendment rights when Marsh was arrested for refusing to leave the sidewalk in Chickasaw. This town was privately owned by Gulf Shipbuilding Corporation. Was the 1st and 14th Amendment applicable to this privately owned town??
YES.
Court rules that neither a state nor a municipality may bar the distribution of religious or political literature on its sidewalks. The channels of communication within the privately owned town must remain free and open. The court weighs the rights of property owners versus the right of free speech in which the right to free speech is heavily favored.
àJehovah witness arrested for not leaving sidewalk when asked to stop distributing religions materials. The town was privately owned.
àCourt says doesn’t matter that this is privately owned because it is acting like government in that it is a municipality.
àCourt says the town is acting like a municipality thus the rules applicable to municipalities apply here.
àOnce you open your doors to the public you diminish your rights.
à”When we balance the constitutional rights of owners of property versus those of the people to enjoy freedom of press and religion, as we must here, we remain mindful of the fact that the latter occupy a preferred position.”
Jackson v. Metropolitan Edison Co. – Jackson, a customer of Metropolitan Electricity (a privately owned company with an exclusive license from the State of Penn to deliver electricity to a certain service area), is suing Metropolitan for violating her 14th Amendment rights when is shut off her electricity without adequate notice and without a hearing in court. Whether Jackson can bring a private cause of action against Metro under the 14th Amendment?
NO.
A person cannot bring a private action under the 14th Amendment. Though Metro is a privately owned company subject to extensive government regulations this does not make it a state action.
Court looks to the nexus because the State and the challenged action so that the action of the private actor may be fairly treated as that of the State itself.
Petitioner argues the fact that Metro has a monopoly makes it a state actor. Court disagrees.
Petitioner argues this is an essential function thus it is considered a public function. Court does not find this convincing because the company is not using State power such as Eminent Domain, etc.
Court finds Metro is not a state actor merely because it was heavily regulated, privately owned utility, enjoying a partial monopoly in supplying electricity to PA.
RULE – Whether there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself.
àJackson is arguing she should have notice and a hearing (due process) before shutting off an essential service (power).
àCourt rules because this a private company with private caction this is not a state action.
àTEST – if the activity is exclusively and traditionally a prerogative of the state?
DISSENT – Marshall – Edison has termination policy approved by the state. This makes it seem more like a state action.
Terry v. Adams – The Jaybird Democratic Association, a political party with exclusively white membership, in which Jaybird’s president admitted that the purpose of the party was to exclude blacks from voting in the primary in their county. The political party is dominate in the county in that the political candidates submit their candidacy to the Jaybirds. Does the 15th Amendment apply to a private political party that control elections engaged in state action?
YES.
Barring black from voting would be unconstitutional if it were done by the state. It does not matter that the state does not control the Jaybirds because the state allows the Jaybirds to run the election process in this county. The Jaybird primary is effect part of the election process in that the process determine who shall rule and govern in the county.
àthis political groups action is considered a state action because the Jaybirds deep involvement and influence in the primaries which typically produces the winner of the general primary. Thus their exclusion of blakcs was a state action that violated their 15th Amendment rights.
RONNER TEST – (1) is there state action? (2) is there a constitutional violation?
Evans v. Newton – Members of the board of managers of White Park, who were attempting to make White Park an exclusively white park however the city refused to make the park whites only, sued the city asking that the city transfer the title of the park to a private party so the park could be exclusively white without violating the 14th Amendment. Several African American citizens intervened to stop the transfer of title to private parties in which the trial court appointed private owners and the African American citizens appealed to the SC. Whether operating a park constitutes a public function subjecting the owner to the 14th Am
gar v. Edmondson Oil – Lugar, a debtor that owned money to his supplied Edmondson Oil, sued Edmondson, a creditor that sought an ex parte writ of attachment of Lugar’s property in which the court granted to the writ of attachment with which the Sheriff executed it, for acting with the state depriving him of his property without due process of law. Whether obtaining and executing an ex parte writ of attachment constitutes state action under the 14th Amendment?
YES.
Two Part Approach – (1) the deprivation must be caused by the exercise of a right or privilege crated by the State, and (2) the responsible party must be a state actor.
(1) the deprivation in this case was the write of attachment which was produced by the state (state action).
(2) Edmondson’s joint participation with the State to seize the property made Edmondson a state actor.
Lugar – used 2 part test
à2 Part Test – (1) deprivation caused by exercise of a right; (2) state actor.
àAnalysis – (2) sheriff was working symbiotically with the creditors which court considers state action.
Flagg Brothers v. Brooks – SC held that a private creditor’s self help repossession did not constitute state action and thus due process was not required prior to the sale of her belongings. She was evicted and a cop arranged the storage of her stuff at a warehouse in which the warehouse demanded she pay the storage fees or it would sell her property. She tried bringing a constitutional action against the warehouse however, the court ruled that because the warehouse was a private actor that there was no violation of her constitutional rights. Petitioners argument that the company had a power traditionally exclusively reserved to the state was rejected because the sheriff’s action was unnecessary since the warehouse had the right to sell the goods without payment for storage.
àSheriff’s roll was passive thus did not constitute state action.
Peremptory Challenges – the ability of a litigant to excuse prospective jurors without showing cause.
Batson v. Kentucky – SC held that equal protection prohibits prosecutors from using peremptory challenges in a discriminatory fashion in criminal cases.
àPeremptory Challenge – you can strike a juror during voir dire without cause.
Edmonson v. Leesfield – Edmonson, a black construction worker that working on a construction site for Leesfield, is suing Leesfield for negligence when he was injured on a Leesfield construction site when a Leesfield employee allowed a truck to drive through the construction site which then hit Edmonson. During voir dire, Leesfield used 2 peremptory challenges on the basis that the jurors were black in which Edmonson asked the court to require an additional reason to remove the jurors besides their race because of the ruling in Batson v. Kentucky. TC denied the request. Whether excluding jurors on the basis of their race in a civil action constitutes a state action subjecting Leesfield to the 14th Amendment???
YES.
Court cites Powers v. Ohio where the court held that a criminal Def regardless of their race may object to a prosecutor’s race based exclusion of persons from the jury. Court ruled that a prosecutor’s race based peremptory challenge violates the equal protection rights of those excluded from the jury.
Court applies the 2 part test from Lugar – whether the claimed constitutional deprivation resulted from the exercise of a right or privilege having its source in state authority; and whether the private party charged with the deprivation could be described in all fairness as a state actor.
(1) Is satisfied because peremptory challenges have no significance outside a court of law in which they are not constitutionally required and are permitted only by law.
(2) To determine this the court looks to – (1)the extent to which the actor relies on governmental assistance and benefits; (2)whether the actor is performing a traditional governmental function; and (3)whether the injury caused is aggravated in a unique way by the incidents of governmental authority.
Court rules that without the overt significant participation of the government, the peremptory challenge system as well as the jury trial system could not exist. The party who exercises a challenge invokes the formal authority of the court which must discharge the prospective juror thus effecting the final and practical denial of the excluded individual’s opportunity to serve on the jury.
