Constitutional Law II Outline

Zietlow ConLawII Fall 2011

1) STATE ACTION DOCTRINE:

a) Intro:

i) Limits reach of fed law & judicial power. Const. ONLY applies to state ACTION.

(1) State action: police, city parks, legislature/statutes, etc.

(2) NOT state action: target, state inaction, etc.

(3) Somewhere b/w: state court rulings, charter school, public transit, etc.

ii) When is a private actor also state actor?

(1) Public Function: func. must be traditionally AND exclusively reserved to state

(2) Entanglement: state uses coercive power to make private entity violate const.

(a) “Significant state involvement” – Symbiotic relationship like Burton.

(b) State Authorization or Encouragement-

(i) Funding and licensing alone are not enough

(ii) Mere acquiescence is not enough

(iii) State must have used coercive power or significant encouragement

(c) KEY- did the state involvement cause the injury? à hinges on causation.

b) CIVIL RIGHTS CASES: 14th Amd about relationship b/w individual and state

i) States protect rights & fed gov’t only serves as backstop. Seek redress from state

c) STATE INACTION & GOV’T NEUTRALITY:

i) State INACTION is NOT state action.

ii) Deshaney- court custody order, WISS knew of abuse, didn’t act, & child died. HELD: harm caused by private individual & DPC protects people from state, not each other

iii) Flagg Brothers v. Brooks:

(1) RULE: action of private party is considered state action IF state delegated to party a function traditionally exclusively reserved to the state.

(2) NY state law allowed warehouse to sell property (INACTION) à state acquiescence to private action doesn’t turn it into state action

iv) Lugar v. Edmondson Oil Co.:

(1) Prejudgment attachment needed state’s clerk of court to certify notice.

(2) DIFFERENCE: gov’t actually involved in causing the injury

d) JUDICIAL ACTION AS STATE ACTION:

i) Court enforcement = state action

(1) YES- 1) NYT v. Sullivan (state libel case), 2) Peremptory challenges of jurors, and 3) Court ordered pre-judgment attachment.

(2) NO- court enforcement of a will

ii) Shelly v. Kraemer-

(1) Rule: judicial enforcement of private racially restrictive covenant is state action.

(a) Imposes obligation on state courts to find an invalid covenant.

(2) State intervention blocked private sale.

iii) Barrows v. Jackson- courts cannot enforce (action) racially restrictive covenants

iv) Evans v. Newton- privatizing segregated park SA b/c predominant character was municipal. City remained entwined in management or control of the park.

(1) Trust invalid, reverts to heirs.

(a) Closing park didn’t violate b/c loss shared = b/w races.

(b) Trust & Will laws non-discriminatory & GA court had to follow.

(2) DIFFERENCES:

(a) Shelly- 2 people agree until state intervened. ACTIVE INTERVENTION

(b) Evans- 2 people asked court to protect covenant. PASSIVE APPROVAL

(i) Passive approval not enough to satisfy the state action requirement.

v) TRESPASS: Bell v. MD- 14th Amd. “does not forbid a State to prosecute for crimes committed against a person or his property.” If LO doesn’t want to allow a certain race on his land or sell to them they are allowed absent valid statute.

e) EXCEPTIONS:

i) State Authorization & Approval of Private Conduct (Entanglement):

(1) Private Conduct (private actor = state actor):

(a) Burton v. Wilmington PAuthority-

(i) Rule: race discrimination by business located in & is part of a state-owned public facility is SA.

(ii) Focuses on symbiotic relationship b/w state & private actor.

1. Two issues with “symbiotic relationship”:

a. Money of public & private entities is entangled

b. State encouraged private discrimination by looking other way.

2. ONLY CASE WHERE SYMBIOSIS creates state action.

3. CS is giving money to State & State is giving tax breaks to CS.

4. Gov’t failure to stop discrimination creates “significant nexus” b/w parties so they cannot be considered “purely private.”

(b) Gilmore- exclusive city park use by segregated private schools not allowed.

(c) Norwood- state cannot grant financial aid (book subsidies) if it has significant tendency to facilitate, reinforce, & support private discrimination.

(d) Rendell-Baker- school fired teachers w/o DP. State required school for problem kids & provided 90+% of budget. NOT state actor b/c no state reg. compelled or influenced (no different from contractors).

(2) State Licensing and Authorization:

(a) Public Utilities Commission v. Pollak- NEED NOTES

(b) Moose Lodge No. 107 v. Irvis-

(i) Rule: granting liquor license to discriminatory private club is not SA.

1. Monopolistic nature of license, licensing, & regulation NOT enough.

(ii) Active Participation b/c law required paperwork (Lodge’s constitution required discrimination). Passive Observer b/c reg. did not foster or encourage discrimination (merely sits back & observes it).

(iii) IF gov’t tried to enforce liquor license requirement to enforce their own constitutions WOULD BE violative b/c it would require discrimination.

(c) Jackson v. Metropolitan Edison Co.-

(i) Private utility co., licensed & regulated by state, cuts power w/o hearing.

(ii) Approval not enough, need coercive authority to require violation.

(iii) NO SA b/c function is not “traditionally exclusively” prerogative of state

ii) Private Actor Performing Public Function:

(1) Rule: gov’t cannot privatize function to avoid constitutional scrutiny.

(a) TEST: “traditionally & exclusively reserved to the state” = public function

(b) Applies: police, firefighters, tax collection, & company town.

(c) Does not apply: malls, dispute resolution, nursing homes.

(2) Marsh v. Alabama-

(a) Rule: when private property is equivalent to a public “business block” it ceases to be strictly private & 1st Amd. rights can no longer be curtailed.

(b) Greater access & encouragement of public use, the less arbitrary freedom is granted to owner as to use & condition of his property.

(3) White Primary Cases- elections = public functions

(a) Nixon- State statute excludes blacks from primary- SA.

(b) Smith- parties cannot discriminate in primary voting by excluding race PF-SA

(c) Terry- Jaybirds discriminatory pre-primary elections not allowed b/c it is only election that counts. State aware of unofficial policy of discrimination. PF-SA.

(4) SEE Evans v. Newton- park is more like police & has a public character. PF-SA

2) 14TH AMENDMENT EQUAL PROT