I. CBC v. Retirement World
1. State Action
The first question that has to be asked is whether Retirement World is a state actor at all. Only state government and its sub-entities are bound by the Fourteenth Amendment, not private parties. In determining whether an ostensibly private party is in fact acting in a way that requires adherence to constitutional requirements, the courts have found four categories of state action:
a) private parties performing public functions;
b) government entangled with private parties;
c) legislative approval of private action; and
d) judicial enforcement of private action
Here, the only possible category that fits is the first one. In Marsh v. Alabama (1946) the Court found a company-owned town to be a state actor, as it had all the features of a town. The facts here are quite similar to that in Marsh, except that the residents themselves own the town. Homeowners of course are not state actors, but when they act together to create the semblance of a town, there is much more reason to find state action. While shopping centers have been found not to be state actors (Hudgens v. NLRB (1976)), the facts here are much closer to Marsh. Thus, even though the public function prong of the state action doctrine is limited, this is probably one situation where it would apply.
Conclusion: Retirement World is probably a state actor.
2. Free Exercise Clause
The question is whether the first ordinance violates the Free Religious Exercise Clause of the First Amendment. Generally speaking, if a statute burdens religious conduct only incidentally, as part of a generally applicable rule of conduct, then the Free Exercise claim fails. (Employment Division v. Smith (1990)). In Smith, for example, a generally applicable rule that firing from a job for drug use disqualifies one for unemployment compensation was held valid, despite the fact that it burdened the religious exercise of the plaintiffs, who smoked a hallucinogenic drug as part of a Native American religious ritual. However, government action aimed at religious exercise in particular will be subject to strict scrutiny and probably struck down (Church of the Babalu Aye v. Hialeah (1993)).
Here, there is reason to suspect that the statute, even though facially neutral, was motivated by concerns over the CBC’s rituals. The impetus from the statute arose because of the discovery of the cult’s action, and its exceptions suggest that very little animal cutting will be banned except that done by the CBC. Note also that any legitimate interest the town might have had in protecting animals could have been taken care of by an animal theft and/or an animal cruelty statute that would not have been so closely targeted at the CBC’s actions.
Note finally that it doesn’t matter whether the ritual is central or peripheral to the religion’s dogma. The Supreme Court has been unwilling to inquire, in Free Exercise cases, into the centrality of a particular ritual.
Conclusion: The cutting ordinance is probably unconstitutional.
3. Free Speech/Time Place and Manner Regulation
The parade ordinance seems to be a targeted law masquerading as a neutral law, here, a time, place, and manner restriction on speech. The first requirement of such restrictions is that they be content-neutral. Here, the ordinance is facially neutral, but because it was enacted immediately after the CBC started requesting permits, and because its numerical cut-off is just under the number of people necessary for the ritual, there’s good reason to believe that it is content-based. Thus, as a content-based restriction on speech in a traditional public forum — a street — the ordinance would have to satisfy strict scrutiny.
It is unlikely that the statute could satisfy strict scrutiny. There is no compelling reason for the restriction, except residents’ dislike of the speech or their fear that it will lead to converts, neither of which is a legitimate, let alone a compelling, reason for restricting speech.
If for some reason a court held that the ordinance was in fact content-neutral, then the ordinance would have to be narrowly tailored and allow the speakers an alternative means of making their message heard (Ward v. Rock Against Racism (1989)). The narrow tailoring requirement here is not as strict as that similarly-worded requirement in equal protection (Ward). Even so, it might be asked whether the speakers did in fact have an alternative means of speaking, since the ordinance bans all marches of six or more people for six months, thereby making it impossible for the CBC to perform the ritual as it is required to be performed, i.e., with seven individuals. Moreover, the ban on use of props would also make the ritual harder to perform, and thus burden speech, probably unnecessarily (since any legitimate government interest, such as a concern for safety or litter, could be taken care of by less speech restrictive means). A total ban on marches for that long a period is a significant burden on speech, which might fail even the lenient time, place or manner test.
Under either analysis, then, the ordinance is probably unconstitutional.
Conclusion: The parade ordinance would probably be declared unconstitutional.
2012 Essay Question
In 2012, at the urging both of religious conservatives and women’s groups concerned with sexual exploitation, Congress passed and the President signed “The Prevention of Sexual Exploitation Act (PSEA).” The Act described the sex trade as “a multi-billion dollar industry that has deleterious effects on our social fabric.” Congress identified women as “overwhelmingly the victims of the sex trade” and so targeted its enforcement provisions against “johns” (the solicitors of acts of prostitution). The Act made it a federal crime, punishable by a fine of up to $5000 and a year in prison, for any male to offer money, goods, or services in exchange for various described sex acts, including sexual intercourse and sodomy. Under the Act, a prostitute is not guilty of any crime. (Sweden, incidentally, enforces a similar law aimed at preventing prostitution.) The Prevention of Sexual Exploitation Act will go into effect on January 1, 2013.
Jimmy Bates, the owner of the Wild Burros Ranch, a popular brothel located in Pahrump, Nevada, is concerned about the effects the new federal law will have on his business. Although brothels are legal in many Nevada counties, including the county in which the Wild Burros Ranch is located, he expects the fear of federal enforcement of PSEA will discourage men from patronizing his place of business. Of the 20 prostitutes working at Wild Burros, nineteen are female and one is a male (available only by special appointment).
Please discuss whether Jimmy Bates can bring an action seeking to enjoin enforcement of the new federal law. Also discuss what constitutional claims Bates can make and how the Supreme Court, if his case got that far, would likely resolve the various constitutional issues.
Constitutional Law 2011 Essay Question
Please limit your answer to the space provided below or, if you are typing, to a maximum of 800 words.
Vermont is known both for its abundance of birds and abundance of birdwatchers. In recent years, birdwatchers have descended on the state capitol in Montpelier to lobby for legislation to protect the state’s bird population from its most significant predator, the house cat. Each year, cats attack nesting sites and kill several million Vermont birds. Cats also threaten the state’s substantial investment in efforts to increase bird populations, such as by placing bird houses in state parks and planting trees and other vegetation that provide suitable bird habitat.
This year, the Vermont legislature, responding to the pleas of bird lovers, passed the Bird Protection Act of 2011, which addresses the threat presented by cats to the state’s birds. Among its provisions are:
Section 6: It shall be a crime punishable by up to six months in jail or a fine not to exceed $5000 to transport into the State, for purposes of sale or delivery within the State, any cat that has not been spayed or neutered.
Section 8: Any cat, unaccompanied by its owner or another person over the age of 12, found outside a building on public or private land, including the land of the owner, is subject to seizure and euthanizing. If the owner of the cat can be determined, said owner shall be responsible for the costs of the euthanizing his or her cat, up to a charge of $50. The owner of any euthanized cat, if he or she is known, shall be notified within 48 hours after the euthanizing.
Section 9: This law shall become effective on July 1, 2011.
Various persons and organizations would like to challenge one or more provisions of Vermont’s Bird Protection Act. First, the National Cat Breeders Association of America (NCBAA) wishes to challenge the constitutionality of Section 6. Second, Cathy Felinda, a Vermont cat owner who likes to let her two pet cats (Stalker and Mauler) roam freely around her suburban neighborhood, would like to challenge Section 8.
Please discuss the constitutional issues that might be raised by suits filed by the NCBAA and Felinda seeking to enjoin enforcement of the Act.
ESSAY PROBLEM (1)
The State of Maine has a contract with Corrections Corporation of America (CCA) to operate its state prison. In return for staffing and maintaining the state-built prison facility, CCA receives compensation from the State. In 2008, CCA received $2 million from Maine under the prison contract.
CCA has developed a unique way of dealing with discipline problems among inmates at the Maine State Prison. Inmates who are identified as having violated prison regulations or orders from guards are moved to "The Freezer" for a specified period of time. The Freezer is an underground floor within the prison consisting of ten cells and maintained at a constant temperature of 50 degrees. Inmates being temporarily housed in The Freezer are not given extra blankets or warmer clothing. Burt Wayne, CCA's Director of Maine Prison Operations, says the threat of lock-up in The Freezer has reduced discipline problems. Wayne also contends that the cool temperatures tend to make the inmates kept there lethargic and less dangerous to guards and other inmates.
Statistics show that a disproportionate number of French-Canadian inmates have been locked up in The Freezer. French-speaking inmates make up only 10% of the Maine prison population, but constitute 50% of the inmates sent to The Freezer. (The French-Canadian inmates are, for the most part, residents of Canada who were lawfully in Maine working for American timber companies with logging contracts in the northern part of the state.) CCA officials attribute the high rates of confinement in The Freezer among French-Canadians ("Canucks" as they are generally called within the prison) to their arrogant attitudes and penchants for starting fights with American-born inmates. French-Canadian inmates, on the other hand, say they have been singled out for discriminatory treatment by guards who are quick to accuse them of violations of regulations when they excuse the same behavior in the case of American inmates. The French-Canadians say they are often called derogatory names such as "Puckhead" or "Mooseturd" by guards. They also say that sometimes their slow responses in conforming to the orders of guards is due to their poor understanding of English.
The ACLU in Portland has been contacted by two French-Canadian inmates, Par LeVoux and Francis Francais, who complain that they were locked-up in the Freezer for nothing more than complaining about prison food. They say that guards accused them of intentionally dropping their food on the floor. LaVoux and Francais contend that as they were carrying their trays to their table, grumbling about the dinner of spam and lime jello as they did so, the trays slipped, spilling the food. They say that they were given no opportunity by prison officials to explain their actions before being sent to The Freezer.
Please write a memo identifying what constitutional arguments may be used to challenge the use of The Freezer within the Maine prison system. Your memo should evaluate the strengths of possible challenges.
ESSAY PROBLEMS (Set 2)
Bee Backlater suffers from an incurable brain disease. Doctors estimate that she has less than six months to live. Bee has made arrangements with Cyrogenic Coordinators of America (CCA) to have her body preserved in a liquid nitrogen tank in the hope that science will one day discover a cure for her disease, and that she could then be thawed and restored to life. Bee has also taken out a "whole-body" insurance policy with CCA, which could provide her with a sizeable bankroll when she is revived.
For her plans of a life in the future to have any chance of success, it is critical that Bee Backlater be quick-frozen soon, before the disease does more damage to her brain tissue. Bee has gone to court seeking an injunction that would allow a trained professional from Cyrogenic Coordinators of America to assist with her suicide. She and CCA seek to enjoin enforcement of a state law that make it a criminal offense to assist with a suicide and a law that requires bodies to be disposed of after death in a manner consistent with regulations prescribed by the Department of Health. Department of Health regulations
allow for bodies to be cremated, buried, or donated for scientific research, but do not permit cryogenic preservation.
What constitutional arguments is Bee Backlater likely to advance? What arguments is likely to make in response? What is the likely outcome of this litigation?
As part of its festivities for Martin Luther King Day, the City of Atlanta sponsored a play about Dr. King's life called "I Have a Dream." The play depicted Dr. King as he led marches, wrote a letter from the Birmingham jail, gave his famous speech at the Washington Memorial, and was assassinated in Memphis. The costs of producing the play were paid for out of general city funds.
Among those who auditioned for the role of Dr. King, four actors were clearly superior to the others in acting ability. All four were determined to be of equivalent acting ability. The four superior actors included a black man who looks like Martin Luther King, a black man who does not look like King, a white man, and a black woman.
May the city's casting director consider the race, gender, and physical appearance of the four actors in making the choice of the actor who will play Dr. King in "I Have a Dream?" Would your analysis be any different if it were assumed that the white man was slightly better actor than the other three? What analysis should a court adopt if the casting director's choice of the black male who looked like Dr. King were to be challenged by the other actors under the equal protection clause?
ESSAY PROBLEM (Set 3)
(A) After discovering five dandelions in their Johnson County background, George and Ira Glenn contacted Yardmasters, Inc. to arrange for a chemical treatment of their lawn. The treatment proved successful in eliminating the unsightly weeds but also, unfortunately, eliminated Argus, the Glenns' cocker spaniel and dearest possession.
It had always been the Glenn's wish to be buried next to Argus, who they both thought of as a family member. The Glenns visited with the manager of Pleasant View Cemetery in the hopes of purchasing a burial plot which might be used for Argus and which, at some future date, would accommodate Ira and George. However, the Glenns were told by Pleasant View's manager that Kansas law prohibited the commingling of animal and human remains. The manager told them that the law was meant to address the concerns of people who felt that the presence of buried animals would detract from the "dignity " of a cemetery. "If not for this silly law", the manager said "we'd be proud to bury Angus here with you at Pleasant View." The manager referred the Glenns to K.S.A. Section 6765.3 which states:
No animal shall be buried within the grounds of any cemetery unless that cemetery is exclusively open to animal burials. In no case shall any animal be buried within 100 feet of any human burial plot.
The Glenns assessed their options. They could (1) bury Argus in Happy Hollow Pet Cemetery in Lenexa or in their own backyard, (2) purchase a family burial plot for Argus and themselves in Missouri (which has no law similar to K.S.A. Section 6765.3) or (3) store Argus in a meat locker while they sought a court order enjoining the enforcement of K.S.A. Section 6765.3. The Glenns have chosen option three. They can't bear the thought of spending eternity miles away from their beloved Argus, nor can they stomach their own burial in Missouri, having both graduated from KU.
Pleasant View Cemetery has expressed a willingness to join the Glenns in a lawsuit challenging the constitutional issues raised by Section 6765.3. Is the lawsuit likely to be successful?
(B) Assume that Texas, as an additional deterrent to murder, enacts a law that requires all Texas inmates executed for first-degree murder to be buried in a newly-established cemetery at the State Penitentiary. The cemetery is visible from the windows of inmates sitting on Texas' death row.
Joyce Hinkle, the mother of condemned Texas inmate, Alex Hinkle, desperately wants Alex to be buried with her husband at Forest Hills Cemetery in San Antonio. She has asked you to represent her in lawsuit challenging the Texas law. How, if at all, do the constitutional issues in this lawsuit differ from (A)? Is Joyce Hinkle likely to be able to bring her son home to San Antonio for burial?
ESSAY PROBLEM (Set 4)
The airplane crash in Wyoming that took the life of Jessica Dubroff, the seven-year old who was attempting to become the youngest person ever to pilot a cross-country air trip, prompted widespread outrage. The decision to allow Jessica to pilot an aircraft, especially during takeoff and in a thunderstorm, was called irresponsible at best and murder at worst.
The Federal Aviation Administration (FAA) certifies pilots and regulates aircraft operating procedures. The FAA requires that "pilots in command be at least 17 years of age" and pass a series of written tests, oral tests and flight maneuver tests (14 CFR § 61. 96). FAA regulations stipulate that "no person may operate an aircraft unless the pilot in command is certified under this chapter" (14 CFR § 91. 5). The "pilot in command of an aircraft is directly responsible for, and is the final authority as to, the operation of an aircraft" (14 CFR § 91.3). Although FAA regulations make it clear that each aircraft must have a certified pilot in command of the aircraft, no regulation directly prohibits a pilot in command from letting another person operate an aircraft, including during takeoffs or landings. FAA regulations do stipulate, however, that "no person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another" (14 CFR § 91.13).
Responding to public concern about airplanes operated by children, the state of Michigan enacted a law, Mich. statute § 1996, prohibiting "persons under 15 years of age from controlling or operating any aircraft during any landing or takeoff from any airport in the state." The Act created an exception for emergency situations when "the pilot in command becomes incapacitated or unable to operate the aircraft in a safe manner." Any licensed pilot or guardian who allows a child under age 15 to operate an aircraft (except in an emergency) during takeoffs and landings is subject to imprisonment of up to one year and fines of up to $10,000. The Attorney General of Michigan has also expressed the opinion that such actions by parents or licensed pilots might be prosecutable under Michigan's general "child endangerment" statutes.
Ima Moran, the mother of six-year old Jesse Moran, plans to sue in federal court for, a declaration that Michigan has no authority to prosecute parents or licensed pilots for allowing child pilots to land or takeoff at Michigan airports. Ima Moran, a resident of Full Moon Bay, New Hampshire, alleges that she plans to take a cross-country air trip with her son Jesse and a FAA-certified pilot, that they intend to land their aircraft in Saginaw, Michigan, and that she intends to have Jesse at the controls of- the aircraft during that and all other scheduled landings and takeoffs. Ima Moran argues that Mich. statute § 1996 violates the Supremacy and Commerce Clauses of the U.S. Constitution.
Please discuss the constitutional issues presented by Moran's lawsuit.
ESSAY PROBLEM (Set 5)
On December 1, 2006, the following story appeared in the Los Angeles Tribune:
DOD Plans Chimp Experiments
by Lou Grant
The Los Angeles Tribune has learned that the Department of Defense plans to begin experiments on chimpanzees early next year at its Fort Ketrick facility north of San Diego. The Department hopes to learn from the experiments how fighter pilots will react in combat when exposed to potentially lethal doses of radiation.
In the Fort Ketrick experiments, some 40 chimpanzees will be trained to perform on flight simulation machines. After the chimpanzees have achieved a certain level of proficiency on the simulator, they will be placed in a flight simulator in a sealed radiation chamber and exposed to lethal doses of radiation. Various monitoring devices will be strapped to the chimps and their reactions will be videotaped for later observation and analysis.
The experiment, which has received the personal approval of the President, will cost taxpayers about $240 million.
The Tribune story shocked Sue Goodall, President of Friends of Animals, a public interest organization promoting the humane treatment of animals. Goodall is certain that her organization's membership, totally 20,000 nationwide, would support any legal action that might be taken to block the proposed experiments at Fort Ketrick.
Goodall has asked you to represent her organization in a suit to enjoin the Department of Defense's experiments. Your research has turned up a law that might be the basis for a legal challenge, California Primate Experimentation Act. Relevant sections from the law appear below:
California Primate Experimentation Act
§ 121 No experiment using non-human primates may be conducted in the state of California without a permit issued by the state Director of Agriculture.
§ 124(b) No permit shall be issued for an experiment which subject non-human primates to unreasonable pain or distress.
(c) No permit shall issued for an experiment which will cause, or is likely to cause, the death of non-human primates unless the benefits of the experiment to human health are clear and substantial.
§ 166 It shall be unlawful to transport into the state of California non-human primates for purposes of experimentation, except in compliance with the provisions of this Act.
§ 301 Any citizen may be bring suit in the courts of this state to enforce any provision of this Act.
You have discovered that some fifty chimpanzees were air shipped from Virginia for participation in the experiment. They arrived at Fort Ketrick on December 5. The Secretary of Defense has not applied to the California Department of Agriculture for an experimental permit, and has stated his clear intention not to do so.
Please answer each of the following questions in the order given. Limit your answer to one bluebook.
A. Will the court consider the merits of the Friends of Animal's case? What are the principal issues that need to be resolved before the merits are reached?
B. The Department of Defense will probably argue that the California Humane Experimentation Act cannot lawfully be applied against its proposed experiment. What are the bases for the contention, and how will the court likely resolve the issues, assuming it reaches the merits?C. Wally Cox, a California Congressman, has introduced legislation in the House that would specifically prohibit the DOD from using its appropriations to fund experiments using chimpanzees. The President has indicated that he considers the proposed legislation an unconstitutional limitation of his inherent powers and powers as Commander-in-Chief of the Armed Forces. Does the President have a strong argument? Why or why not?
Exploring Constitutional Law