CARTER v. MILLER
Argument of William R. Quinlan
Chief Justice Warren E. Burger: We will hear arguments next in Carter against Miller 1171.
Mr. Quinlan I think you may proceed.
Mr. William R. Quinlan: Mr. Chief Justice and may it please the Court.
This case is here on a writ of certiorarai from the Seventh Circuit and involves review as two primary issues.
The first being is in ordinance that conclusively denies issuance of a public chauffeurs' license to an applicant convicted of a crime, involving use of a deadly weapon, violative with the Equal Protection Clause, because revocation of a present licensee's previously granted license is discretionary after a hearing rather than mandatory.
Secondly, whether the ordinance violets the Due Process Clause of the Fourteenth Amendment because an applicant is presumed unfit for licenser after he has been convicted of an offense involving the use of a deadly weapon.
The facts in this case are primary that the respondent Miller submitted an application to petitioner Carter who is the Chicago Public Vehicle Commissioner for a taxicab driver's license.
He takes public chauffeurs' license, but primarily it is used for a taxicab driver's.
In the application Mr. Miller acknowledged in response to a question on the application form that he had been convicted of armed robbery.
The Commissioner said in the applicable municipal ordinance, which prohibits the issuance of a cab driver's license to an applicant convicted of a crime involving the use of a deadly weapon, refused Mr. Miller a license.
Thereafter respondent Miller filed the instant Section 1983 action alleging violations of Fifth, Eighth and Fourteenth Amendments and the United States District Court for the Northern District of Illinois, seeking declaratory injunctive relief.
His complaint in the District Court was dismissed.
The Seventh Circuit Court of Appeals reversed and this Court granted Commissioner Carter's petition for a writ of certiorari.
The Court of Appeals held that the ordinance results in a denial of equal protection because it discriminated irrationally among classes of ex-offenders.
The Court declared that an applicant for a license who has committed one of the described felonies and a licensee who has done the same are similarly situated and no justification exists for automatically disqualifying one and not the other.
This is basically the issue that we dispute that was being found contrary to our position in the Court of Appeals.
Initially, I think it is appropriate to observe that what we are dealing with here is primarily an equal protection case.
It involves the traditional equal protection test which should be applied to an ordinance or any kind of statutory legislation of this nature.
There is no strict scrutiny test should be applied in this instance.
We do not yet have a suspect classification.
This Court has never ruled the ex-offenders following to the category of suspect classification, nor is there a fundamental right, in our opinion, involved in this case, and that again the Court while it has ruled that the right to work is an important right, it has never ruled that the right to work is a fundamental right.
Furthermore, we believe it is important also to stress that what we are dealing with here is something that I think both the court below and the respondent has basically agreed that the consideration of a criminal conviction is rationally related to the goal attempting to be achieved by the City Council that is primarily the protection of the taxicab passenger and that this is a legitimate consideration.
The dispute resolves around the issue whether or not this ex-offender who is disqualified by reason of being an applicant automatically, violates the Equal Protection Clause when that same type of individual is not automatically disqualified if in fact he is already a licensee.
We think that there are primary two factors which differentiate the circumstances of applicants and licensees, which justify the disparity and treatment of applicants and licensees.
First, a current licensee has a career stake, a property interest in this employment which may not be terminated except after a due process hearing.
Justice John Paul Stevens: Mr. Quinlan does that factor have anything to do with the justification for the ordinance namely the protection of the passenger?
Mr. William R. Quinlan: No, I would not say so Your Honor.
What you are really saying in this instance is that that is a legitimate classification because there is a rational reason for the classification.
I did attempt to point out as I said earlier that I do think that the ordinance itself is rationally related to the goal of protecting the taxicab passenger and providing for public safety that I think the court below agreed was a rationally related purpose.
Justice John Paul Stevens: But that is not quite the same the saying that the discrimination or the classification is rationally related to the justification for the ordinance.
Mr. William R. Quinlan: I am not sure I am following --
Justice John Paul Stevens: What I understand you to say is there is a reason for a rule which protects the passenger from a driver who may have been guilty of an armed robbery, but that is not a reason for differentiating between two drivers, both of whom are convicted of armed robbery, one of whom had a prior license, one who did not.
Mr. William R. Quinlan: That is correct and I am submitting there is another justification for that.
In that they are in a different category in the sense that they possess different rights namely that the individual who is already licensed now sets something at stake namely his career, his employment.
The right to have that license can deprive him of his opportunity for employment.
I think this Court in Bell versus Burson suggested the same thing when it indicated that the denial of the license there on the basis of the allegation that he may or may not have been liable merely because he was in an automobile accident, he did not put up the appropriate insurance, would also indicate that once you should have the license, your status changes.
We are submitting that that is the situation here that the status of the two individuals have in fact where the two categories are different and have changed once the license has been issued, so to take the license, we must employ additional procedural steps rather than in denying the license.
Justice John Paul Stevens: Are there any cases holding that you can have different standards of eligibility for a position for a lawyer, or doctor, or something like that depending on whether you are already in the profession or merely seeking to get in.
Mr. William R. Quinlan: Well, I think the Board of Regents v. Roth and Perry v. Sindermann indicate what we are talking about is the problem of property right or some sorts of --
Unknown Speaker: That goes to the questione with the entire hearing, but the question I am asking is as to the substantive rules that define eligibility for the license or the profession whatever, are there any case is holding that the distinction you present in this ordinance is a proper distinction.
Then you have different rules for people who are in the business and for those who seek to get in.
Mr. William R. Quinlan: At the moment I cannot honestly think of a specific case which so holds.
I think though from the reading of the cases in the generic area, this can be implied in determining what is the stake at interest here to be preserved, and I think that quite clearly if you are in the profession there is a greater stake at issue than if you are not in the profession.
Justice Thurgood Marshall: What good with the hearing to this man?
Mr. William R. Quinlan: What good the hearing to this man?
Unknown Speaker: Yeah.
Mr. William R. Quinlan: They have indicated that the court below did not feel that any hearing whatsoever would be of any benefit to the individual.
However, a hearing is provided both for denial of a license for applicants, as well as a denial of a license for a existing licensee.
What could be determined on a hearing would be whether or not he was not in fact the individual for one purpose.
Whether in fact he was convicted of that crime, whether in fact perhaps that conviction was reversed on appeal?
Justice Thurgood Marshall: I thought he filled out a blank and said all of that.
Mr. William R. Quinlan: No, all he said he was convicted of armed robbery.
Justice Thurgood Marshall: Well, that is enough.
What is (Inaudible).
Mr. William R. Quinlan: Well, as I am saying it would none of the circumstance in this case, I think you are quite --
Unknown Speaker: I understand that you draw a line that if somebody already has a license and somebody does not have, but one, you get a hearing and other you do not.
Well, I do not see any difference into getting a hearing doing any good.
Mr. William R. Quinlan: Well, in this case this particular individual, I think you are absolutely correct because he has admitted the fact that he was convicted of armed robbery does not challenge that, does not suggest that he was not the individual that was reversed to anything of that nature.
I was suggesting as a hypothetical instance, there would possibly be some purpose for going through with the hearing.
Justice John Paul Stevens: Mr. Quinlan, let me ask you one other question in terms of the justification for the ordinance, namely the safety of the passenger - could not one reasonably conclude that the driver who has more recently committed an offense, poses a greater threat to the safety of the passenger than one who committed an offense many years ago and that the conviction by an existing driver therefore poses a greater threat to safety than one of the offender eight, or ten years ago?
Mr. William R. Quinlan: Well, I think that question really has two sub-issues to it: The first that I would address is that what you are basically saying, is that perhaps in a situation of licensed drivers, the consideration of a conviction that occurred more recently as opposed to one that occurred some time ago, would be a portent consideration.
I would consider that within the classification first namely, he is a licensed driver.
The second suggestion you are making is whether or not there is the difference between a conviction at the present time, for a licensed driver, and one for one who is non-licensed at all and as I would indicate, I think that the standard is different in judging the licensed driver, the test is much more strict, and second of all I think that would have to be a judgment that would have to be determined by the hearing officer in terms of dealing with licensed taxicab drivers, and he would have to make the individual judgment.
The other judgment has been made by the legislative body.
Justice John Paul Stevens: It seemed to me that -- but the thought was running through my mind is it conceivably to the extent that the distinction between the old offender and the recent offender is relevant.
The recent offender is the more dangerous of the two, and therefore he is the one who should be automatically excluded to protect the passenger rather than the other one.
So I wonder if your classification is not perverse in terms of the reason for it.
Mr. William R. Quinlan: Well, I would address that by saying that that primarily is a determination for legislative body in enacting a provision which provides qualification to obtain a license.
They have made a legislative determination that one who has been convicted of an offense, involving the use of a deadly weapon should not receive a taxicab license.
We would then submit that the test that has to applied to that is a traditional equal protection test, is that rationally related to the goal namely protecting the taxicab passenger, if that is true then it meets that test and we would submit that does meet that test.
Now, the next step is going back to the same argument, we have provided greater rights for the cases of licensees and it really does not directly relate as to whether it was more recent or less recent, the conviction I would think under those terms.
However, this would be a consideration at the time of the hearing and I am sure that if in the circumstances surrounding, but I do not think it is mandated Your Honor.
Justice Thurgood Marshall: I would assume that if a man had been sentenced for armed robbery and sentenced for 20 years and served five and had a license you would not take away from him, but from another armed robber who was arrested and tried and convicted and the judge suspended the sentence and said, what a great man he was.
And nobody could change that, but the legislature, I do not know.
Mr. William R. Quinlan: That is correct Your Honor, and unless we get into the next argument as to whether or not we should be dealing with the issue of whether this voilates due process which is the second question and whether we should be applying the substantive due process doctrine to legislative enactments, and I think that is always a possibility, but then as this Court has recognized, it is extremely fraught with dangers.
Justice Thurgood Marshall: I am not there yet, I have not gotten to equal protection yet.
Mr. William R. Quinlan: Well, I am not sure I understand Your Honor's approach to the equal protection is, would be basically, or based primarily and whether or not this was a ligitimit governmental interest namely, the protection of the safety of the traveling public.
We would submit that it is.
Justice Thurgood Marshall: Well, I would assume that it would protect the public, if every licensed driver who had been convicted, had a big thing upon his windshield, I am a convicted felony murderer, but the public does not know that.
There is no way that I can see that you can justify saying that a man who has not applied for a license until after he was convicted is automatically dangerous.
Dop you see my problem?
Mr. William R. Quinlan: As opposed to one who has the license.
Justice Thurgood Marshall: Yes.
I might think they are both dangerous.
Mr. William R. Quinlan: Well, I think we and the legislative body would conquer with that.
All I --
Justice Thurgood Marshall: Then stop both of them from driving.
Mr. William R. Quinlan: Well we are not suggesting that we do not, we are suggesting that a different procedure is applied to the individual who has a license on the basis that he has more of a stake in that license, after having received his career is at stake.
He does have a license; he is earning a living by use of that license.
That is not true with the applicant and that his interest or stake is less, therefore his due process rights are less.
Justice Thurgood Marshall: How many drivers are involved in this, do you know?
Mr. William R. Quinlan: In this type of situation, I personally involve one another case which was not appealed.
Justice Thurgood Marshall: But you would not -- there are no figures on an appeal.
Mr. William R. Quinlan: No, there is not Your Honor.
Unknown Speaker: I should not have (Inaudible).
Mr. William R. Quinlan: I would not assume so; I would assume those who did have this conviction or this problem would not apply being aware of what the ordinance provided, been an absolute prohibition.
I do -- as we indicated primarily we thought that the Bell versus Burson case where the Court had said, once a licence is issued, there was continuing possession may become essential pursuit or a livelihood indicate or basis for this distinction.
It seems clear that the principle must apply with even greater force than the taxicab driver which is inevitably related to the driver's livelihood.
We indicated before the interest and rights of the applicant are very different than those of the individual who has received his license.
Also another factor that is relevant in terms of considering the difference between the two individuals is that the incumbent licensees have a work record which is an indication of their fitness.
The applicants, they have no such record and the Commissioner would be compelled in their case to predict reliability or rehabilitation based upon whatever they might be inclined to present.
We are not submitting that this is administrative convenience, it is rather based on the City Council's conclusion that is impossible to make the type of evaluations which you are hearing on a question of rehabilitation in terms of one who had been convicted previously would require.
It is simply felt that such judgment would necessarily be speculative for the reason that the techniques for such evaluations are not available.
The Court has recognized that the legislature may make classifications that in doing so do not file Equal Protection Clause.
In Marshall versus the United States, this Court upheld a statute which conclusively denied a convict of narcotics act access to rehabilitative commitment if he had two or more felonies.
There the Court said -- the Court has frequently noted the legislative classifications need not to be perfect or ideal in the line drawn by Congress at two felonies, for example, might with his much soundness have been drawn at one, but the Court had cut them off exclusively there at two, and this is a similar type of situation on legislative judgment.
They are drawing a line and cutting them off conclusively.
It is not something that is unique, it occurs in many other instances.
We believe the procedures applied on the Chicago ordinance do not resolve the denial of equal protection or due process.
Respondent's contention that all the applicant should be giving a hearing would perhaps result in some ex-offenders, applicants gaining a license, but again it is not every situation that the legislative body must address itself to.
We feel that the Dandridge case indicated quite clearly that a legislative body could one step at the time to deal with those particular types of problems that it felt was necessary to deal with and it did not have to deal with each situation.
Furthermore, that while the ordinance does not apply to other types of occupational licensee, this we do not feel is, or requires this to be held as violates with Equal Protection Clause, and the basis for that is primarily that again the legislative body has chosen to select out this area and felt that this particular type of problem was more dangerous to the traveling public.
In a taxicab type of situation the traveling public is particularly and uniquely uniformed in selecting the cab.
They are also in a mobile influent type of situation.
There is no supervision in that type of situation, and accordingly to select this out and not to use it in other type of instance, say, in Food/Beverage (ph) License and things of that nature is not on unreasonable distinction for the legislative body to draw out.
It is reasonable that they would select that type of procedure and that they would employ this type of doctrine in that instance.
The respondents have suggested that this constitutes an irrebuttable presumption and accordingly, it is violative of the Due Process Clause.
We would submit that in trying to apply this type of principle namely the irrebuttable presumption that it is a type of situation that occurs in any instance with the legislative body draws a line and make some sort of classification, it can always be argued that the other side of the coin is an irrebuttable presumption and accordingly violative of the due process.
We would submit that this is not an appropriate case in which to apply the doctrine of due process, or irrebuttable presumption involving due process.
The reasons for this, we would submit, that indications in which irrebuttable presumption has been employed, in most instances the two fold occurrences have taken place.
One is either that the particular fact was never established in any type of a due process procedure.
It is merely an alleged fact.
Two - that the fact itself was not necessarily related to the goal that was trying to be protected.
In this instance we would submit that when we are talking about a conviction, the best use of the due process procedure has been employed namely the trial system before a Court of Law.
The determination has been made, the conviction has taken place.
There we are not talking about a fact that may or not be true or an allegation and the Schware case, there was a situation where there was several alleged facts namely arrests, there was the use of aliases and the membership in the Communist Party.
All three of these were set forth as a basis for denying the fitness of the applicant to receive a license to practice law.
In none of those incidences, namely in a case of arrest, was there any determination that this was in fact the case.
The arrests were never processed any further and no conviction was obtained; it was merely an allegation.
The membership in the Communist Party had nothing to do with whether or not this applicant was fit to practice law, was not rationally related, the aliases were used with a purpose because he was a Jewish member of society, he was active in Italian Labor Unions and there was no indication that any of these were rationally related.
Finally we would submit again that you would have to look at the stake or the interest of the party has in receiving protection, and an individual who has not received a license does not have the same degree of stake or interest in that particular license at that moment, and accordingly, those factors would indicate that this is not an appropriate instance in which to apply the due process doctrine of irrebuttable presumption.
Justice John Paul Stevens: Mr. Quinlan can I ask you one another question about Roth against Dailey (ph) the Illinois case which has applied to the litigant in that case held the last sentence of this section invalid.
What is this?
Would that case be distinguishable from this one on its facts?
And if not what is the status of the ordinance, why it may be just sued in the wrong form, is that the problem here?
Mr. William R. Quinlan: Well, it is distinguishable on the facts even it involves an ambulance driver Your Honor and an ambulance --
Justice Thurgood Marshall: Had he previously been licensed?
Mr. William R. Quinlan: Yes he had Your Honor.
Justice Thurgood Marshall: Oh I see.
Mr. William R. Quinlan: And then the ordinance was subsequently amended to apply to ambulance driver, and then he went to apply for a relicensing at that time he was turned down on the basis of this provision in 28.1-3.
He then went into Court challenging the ordinance, the Court held that was unconstitutional as applied to him.
There is clearly language in that opinion which suggests that the prohibition on anyone who has been convicted of offense with a deadly weapon was irrational and did not, and was violative of the Equal Protection Clause, but the Court did hold that it was unconstitutional as applied to him.
We would submit the unique facts there clearly indicate that the case should be limited to just those facts.
Justice Thurgood Marshall: He reapplid.
Mr. William R. Quinlan: He reappled.
That is correct and that it should be limited to just those facts because of the unique nature of them.
Justice Potter Stewart: The Court in this case considered the Res judicata effect of that decision?
Mr. William R. Quinlan: No, it did not Your honor.
Justice Potter Stewart: Was that decision brought to the Court's attention?
Argument of Robert Masur
Mr. Robert Masur: That decision was brought to the Court's attention, but the Court did not rely on it.
Justice John Paul Stevens: Why was that case and the Appellant Court and the Illinois Supreme Court was on unconstitutional ground?
Mr. Robert Masur: Well, first of all Your Honor, it would involve an ordinance and not a statute.
Unknown Speaker: I see.
Mr. Robert Masur: As to challenge to a statute on constitutional grounds would go to Illinois Supreme Court, but not to an ordinance.
Justice Thurgood Marshall: I see.
Chief Justice Warren E. Burger: Mr. Masur with only two minutes remaining I think we will not ask you to speech your argument.
We will let you commence at 10 o'clock tomorrow morning.
Argument of Robert Masur
Chief Justice Warren E. Burger: We will resume arguments in Carter against Miller.
Mr. Masur you may proceed.
Mr. Robert Masur: Mr. Chief Justice and may it please the Court.
Mr. Miller is an ex-offender who was denied a license necessary to seek employment in the City of Chicago as a public chauffeur.
Before the Court today is a question of constitutionality of that part of the ordinance which bars his licenser for life.
Unfortunately, Luther Miller's story is altogether too familiar in our society today.
A man convicted of a felony prior to the time he reached 20 years of age, a man who was sentenced to serve a term in prison, and who upon release, as an adult, finds himself faced with numerous occupationally disabling requirements.
Chief Justice Warren E. Burger: Would your case be any different, with the issue would be any different if his convictions had been at the age 40, let us say, instead of 20?
Mr. Robert Masur: No Your Honor.
The ordinance would similar be on constitution.
At the early time, when Mr. Miller's need for a job is most acute, at the very time when it is most important for him to attempt to establish himself as a reputable member of the society, he finds that the collateral consequences of his conviction make it difficult for him to find employment.
Such was the case for Mr. Miller.
Nine-and-one-half years after his conviction Miller applied for a public chauffeur's license from the City of Chicago.
The license was a prerequisite for a number of common unskilled jobs in the City of Chicago including private bus drivers, private chauffeurs, and most typically taxicab drivers.
Miller's application was denied because the ordinance here at question prohibits a licenser for life of anyone who was convicted of an offense involving the use of a deadly weapon.
No pardon from the Executive of the State of Illinois.
No certificate of rehabilitation from the Court of Law.
No conduct which Mr. Miller might engage in subsequent to his conviction, lawful conduct, will in anyway remove that bar.
Mr. Miller's story is therefore both typical and atypical in our society today.
It is typical because there are in fact numerous occupational disqualifications which are applied to ex-offenders.
It is for that reason the American Bar Association filed its amicus brief in this case.
It is for that reason that the ABA has generally banned leading a nationwide drive to remove the kind of disabling licenser requirements which is before the Court today.
This ordinance is atypical, because it is the most severe and restrictive ordinance that at least counsel for the respondent has ever encountered.
Justice William H. Rehnquist: If your arguments were sustained I suppose the City of Chicago could revert to a policy of automatically revoking licenses on the basis of conviction of a felony for those who already have them as well as denying them and without bilaterally equal protection.
Mr. Robert Masur: Your Honor, our argument does not rest solely on whether or not a licensee may keep his license after conviction.
The statute, the ordinance as a whole is irrational.
The terms --
Justice William H. Rehnquist: Well, what do you mean an ordinance as a whole is irrational?
Is that what we are here to decide?
Mr. Robert Masur: Your Honor we are only here to decide a single specific part of the ordinance, but the ordinance --
Justice William H. Rehnquist: But under what provision of constitution do you say, we are empowered to decide that it is irrational?
Mr. Robert Masur: The ordinance, the issue before the Court is a single question as to whether or not the lifetime ban as to Mr. Miller for conviction of offense of involving in use of a deadly weapon is unconstitutional.
For that -
Justice William H. Rehnquist: Under what provision of the Constitution?
Mr. Robert Masur: The Equal Protection Clause and the Due Process Clause.
Justice William H. Rehnquist: If your argument under the Equal Protection Clause were sustained, couldn't that be cured by simply making exactly the same ban applicable to those who already have licenses?
Mr. Robert Masur: No Your Honor because -- and I intend to get into it more completely later, but the basic -- the fact is that when you examine the ordinance as a whole which I believe you must and not simply isolate one specific disabling offense.
One can see as was demonstrated yesterday that the disabling offense does not serve rationally the purpose that the City articulates as its only defense which is to protect public safety.
Justice Potter Stewart: But surely Mr. Justice Rehnquist has read the implications of this question.
So far as the Equal Protection Clause goes if there are no more classifications then there cannot be invidious classification and then your Equal Protection Clause argument would fail if Chicago treated of both of these classifications identically, i.e. applicants for licenses and those who already have licenses.
Anybody convicted of an offense involving a gun is disqualified from a license then there would be no further classification.
Mr. Robert Masur: There are further classifications Your Honor because the ordinance is a unified system and there are people who are subject to an eight year ban on licenser.
People who have been convicted of misdemeanors involving more turpitude and all other felonies other than very select few.
Those are the felonies who are only subject to an eight year ban include such people who have been convicted of murder by strangulation that is to say not involving a deadly weapon (ph).
Justice Potter Stewart: But if Chicago treated both licensees and applicants precisely the same with respect to this kind of a disability an offense involving a gun, or those disabilities involving an eight year ban, or whatever there would be no more classifications for you to complain about, would there?
Mr. Robert Masur: I am not sure that I am understanding Mr. Justice Stewart that there are a number of classifications set up by the ordinance.
Justice Potter Stewart: And if Chicago obliterated all of them and just treated both applicants and licensees identically --
Mr. Robert Masur: And prohibit the licenser of anybody who is convicted of any offense.
Justice Potter Stewart: Whatever they want to do as long as they do not create any differences, any distinctions between applicants and the licensees.
Mr. Robert Masur: If there were in ordinance before the Court which obviously is not.
If an ordinance were before the Court which involved simply saying anybody ever convicted of anything, may never get a license.
Justice Potter Stewart: And any licensee who was convicted of anything looses his license?
Mr. Robert Masur: That is right.
It is our position that such an ordinance would also be unconstitutional.
Justice Potter Stewart: Under the Equal Protection Clause?
Mr. Robert Masur: Yes, Your Honor because that kind of a disproportionate treatment as between somebody who has convicted of an offense 15-20 years ago and someone who has never actually convicted of an offense.
That disproportionate result that is created would violate the Equal Protection Clause.
That for example, was --
Justice Thurgood Marshall: (Inaudible) cruel and the human punishment?
Mr. Robert Masur: We have raised the issue Your Honor in the Trial Court, but we have not --
Justice Thurgood Marshall: That is cruel and unusual punishment to tell a man he cannot have a license to drive a car.
Mr. Robert Masur: My understanding of the case law Your Honor is that cruel and unusual punishment does not apply to licensing situations like this although I think that it is in the sense cruel and unusual.
Justice Thurgood Marshall: At least you do not agree with the law.
Mr. Robert Masur: In that particular case perhaps not Your Honor.
In James v. Strange for example, where the State of Kansas had a legitimate as recognized by the Court, a legitimate interest in recouping money from persons convicted of an offense, when the state paid for their defense.
Nonetheless this Court held despite their legitimate interest that the disproportionality that was involved there --
Justice Potter Stewart: There were classifications in that case we think, weren't they?
Mr. Robert Masur: Surely, there were classifications as between those persons and others who had not been in prison.
There are classifications here too Mr. Justice Stewart, there will be a classification between all people.
Justice Potter Stewart: Justice Rehnquist's question was: if you prevail on your Equal Protection Clause claim, couldn't Chicago immediately solve its constitutional defect by simply treating licensees the same as applicants and your answer is no, I do not understand why you say no, but I understand that your answer is no, it could not?
So I do not take any more of your time.
Mr. Robert Masur: The licensing scheme -- and it is our opinion that you cannot divorce the particular clause that is before the Court from the entire scheme.
The licensing scheme sets up a general system to evaluate the character and reputation of every single applicant for a license.
Justice William H. Rehnquist: Are you saying that your client can raise difficulties which you conceive to be inherent in the licensing scheme which did not affect the denial of the license to him?
Mr. Robert Masur: The difficulties that are inherent in this licensing scheme go to the rationality of the entire scheme as applied to this particular clause.
The ordinance - and this is chapter 28.1-4 - provides that if the Commissioner shall be satisfied that the applicant is of good character and reputation and is a suitable person to be interested with driving of public passenger vehicle.
He shall issue the license.
As part of that decision that the Commissioner must make in every single case.
The Commissioner is empowered to look into an applicant's employment history, his reputation in the community, his physical qualifications whatever the Commissioner deems relevant for character and fitness.
There is therefore an evaluative mechanism to deal with every single applicant except and that is licensees and applicants alike, except as far as Mr. Miller is concerned and the other few people who are barred for life by this ordinance.
The licensing scheme here, established by the Chicago public chauffeurs ordinance, creates a crazy quilt of categories and disabilities.
Similar or identical offenses are treated differently.
Past employment is sometimes relevant and sometimes it is not irrelevant.
Character and fitness is always relevant except one it is not.
That is Luther Miller was convicted 13 years ago of an offense involving the use of a deadly weapon, but a licensee who was convicted yesterday may retain his license.
Someone convicted of murder by strangulation, kidnapping for ransom, battery, may be licensed after eight years, Miller may never be licensed.
And people with drunk driving records have no disability whatsoever.
Justice Thurgood Marshall: I beg your pardon.
Mr. Robert Masur: People with drunk driving histories have no presumptive disability whatsoever.
Justice Thurgood Marshall: Oh, presumptive, I left out before --
Mr. Robert Masur: That is right.
Presumably every applicant's past history can be evaluated by the Commissioner; that is what makes this ordinance so irrational.
We are not saying to this Court that the Commissioner may not consider.
Justice Thurgood Marshall: Are you alleging that in the State of Illinois, the Commissioner investigates every applicant for a chauffeur's driver's license as to his character, his employment etcetera.
Yes, Your Honor.
That is what the ordinance provides.
Justice Thurgood Marshall: Suppose a year.
Mr. Robert Masur: Your Honor I have no idea.
Justice Thurgood Marshall: Up in the thousands?
Mr. Robert Masur: This is only in the City of Chicago, Mr. Justice Marshall.
Justice Thurgood Marshall: In the City of Chicago how many taxis do you have?
Mr. Robert Masur: Probably.
Justice Thurgood Marshall: Impossible.
You do not really assume that they -- all you are doing you are going to take a license and you answer some questions, isn't that a fact?
Mr. Robert Masur: Your Honor, there is nothing to that effect in the record all I can --
Justice Thurgood Marshall: That is what I am asking you, but are you saying that, that is actually the practice?
Mr. Robert Masur: I do not know Your Honor the -- the law sets that this is what is there to do.
Justice Thurgood Marshall: Is it that you do not know what the practice is?
Mr. Robert Masur: This case was --
Justice Thurgood Marshall: Is it, that you do not know?
Mr. Robert Masur: Yes, Your Honor.
Yesterday the issue that was discussed most before the Court to see was the issue as so the distinction between licensees and applicants, and the Court, the Commissioner admitted that the only purpose of the public chauffeur's ordinance was to protect the public safety.
At the same time the Commissioner admitted that the treatment of licensees had no relevance to the question of public safety and indeed that the scheme turns reality on its head.
That recent convictions become far more relevant as to safety than past convictions.
Chief Justice Warren E. Burger: Is that your position that statutory scheme of this kind is unconstitutional because it protects the public against some of the hazards, but not all of the hazards of having ex-felons, driving taxicabs.
Mr. Robert Masur: No, Your Honor.
It is our possession that the irrational classifications created by this ordinance and that disproportionate results that followed from it, do not in fact -- are not in fact rationally related to the only articulated purpose for the ordinance which is to protect the public safety.
Justice Potter Stewart: Your contention therefore is that the City Council of Chicago which is a body that enacted this ordinance really, are not crazy?
Mr. Robert Masur: No Your Honor.
I think --
Unknown Speaker: And that is the definition of lunacy as I suppose.
Mr. Robert Masur: I think that this ordinance is not rational.
This ordinance Your Honor, I think is properly viewed within the context of traditional offender disabilities that have been imposed upon people who once committed a crime.
Traditionally those disabilities grew out of a societal desire to ostracize to continue to ostracize, in fact to prohibit the reintegration of offenders into society --
Justice Potter Stewart: And our law is full of examples in every state of the Union I would be almost certain and very perhaps very, very unwisely as you and the ABA and others say, but like the wisdom does not mean unconstitutionally.
Mr. Robert Masur: Well, first of all although there are numerous laws across the country there --
Justice Potter Stewart: All sorts of disabilities imposed upon convicted felonies.
Mr. Robert Masur: That is correct Your Honor, but the fact is that most of those disability ordinances and statutes are nowhere near for years this and in fact the general trend in the country is to remove them or to mitigate
Justice Potter Stewart: By legislative action.
Mr. Robert Masur: By legislative action.
Justice Potter Stewart: Perhaps that is very, very wise as you say, but that does not have anything to do with the constitutionality, does it?
Mr. Robert Masur: But this ordinance Your Honor it is our contention --
Justice Thurgood Marshall: Your contention as this one as is.
Mr. Robert Masur: That this is irrational.
Take for example, the Commissioner says this is for the public safety and for the public safety we must ban people for life who committed offense 15-20 years ago.
He chooses first of all to ban people convicted of the use of a deadly weapon.
As our brief establishes, you could be convicted of the most minor misdemeanor and fall within this lifetime ban.
In addition, the lifetime ban includes people convicted of incest, or of the infamous crime against nature which I believe is (Inaudible).
Justice John Paul Stevens: Mr. Masur I just have pursued Justice Rehnquist's question before, do you really have standing to complain about other people who are included in the ordinance who committed less serious offenses than your client did, now we are dealing with the question whether the ordinance can constitutionally be applied to one who committed armed robbery.
Is that therefore relevant to ask about people who may have been convicted of unlawful possession of hunting knife or something like that?
Mr. Robert Masur: I believe it is Your Honor, because the ordinance as a whole - we are not asking the Court declare on constitutional that part of the ordinance which is not before it clearly - but the ordinance as a whole goes along way in establishing whether or not this is a rational scheme that the City has set up as applied to my client Luther Miller, and it is our contention that if the Court looks at the ordinance as a whole examines the categories that it establishes --
Justice John Paul Stevens: To say, we are with you that it is irrational to include incest, would that entitle your client to relief?
Mr. Robert Masur: Not simply that Your Honor, I agree.
However, the fact --
Justice John Paul Stevens: Or say, we agree as irrational to include misdemeanors involving in deadly weapon.
Would that entitle your client to relief?
Mr. Robert Masur: The fact that these offenses are included in a lifetime ban is an indication that what was motivating the City Council, the intent behind this ordinance is not as the Commissioner has argued before this Court, but that there was some attempt to pick out to choose those offenses which the City Council was morally upset by and to ostracize those people for life.
In that sense the inclusion of the armed robbery or the use of a deadly weapon within that fall -- it some indication that in fact this is not at all necessary as they indicate to protect the public safety.
In addition, Mr. Justice Stevens the City has the evaluative mechanism for every single applicant to determine.
Justice John Paul Stevens: Well, they could have done a better job.
That is true, but soon they have mixed motive.
Soon some members of the Council thought they really ought to punish people if they have done anything wrong in society so they do not let them to drive a cab, but some members of the Council thought there is also a safety problem herein.
People who have committed armed robbery do impose a greater threat to the safety of passengers than others do.
Would the mix motivation deprive the ordinance of rationality?
Mr. Robert Masur: Not in and of itself, but the mixed motivation has led to in ordinance which does not in fact rationally further the goals which they have established.
It is also disproportionate Mr. Justice Stevens in the sense that they have chosen certain crimes and there is a lifetime bar.
In fact, the City in its opening brief on Page 28 says something to the effect that admittedly the decision as to whether or not to impose a five year ban or a ten year ban or a lifetime ban is somewhat arbitrary and those are the Commissioner's words.
Well, if it were a five year ban or a ten year ban Mr. Miller would now be eligible for a license.
Justice Thurgood Marshall: It is your possession that the City in this case was just about every single one of the provisions of this ordinance.
Mr. Robert Masur: No Your Honor.
It is --
Justice Thurgood Marshall: I thought that is what you said.
Mr. Robert Masur: No Your Honor, what --
Justice Thurgood Marshall: You said that it shows what their motive is.
Mr. Robert Masur: What I am suggesting to the Court is that by looking at the ordinance as a whole, one can ascertain that in fact this ordinance was not established for the sole purpose which they have, the Commissioner has articulated today.
That as a general licensing scheme it is irrational.
As to all other licensing provisions in the City of Chicago they simply rely on character and fitness.
Justice Thurgood Marshall: Then my question again is, that requires a City to justify each provision as being "rational".
Mr. Robert Masur: Well, it is true yes.
Justice Thurgood Marshall: Is that the burden of proof you want to put on the City?
Mr. Robert Masur: I do not think it is a burden --
Justice Thurgood Marshall: Or is that the burden you want us to put on the City?
Mr. Robert Masur: I do not know Your Honor, but the fact is of course the City has ignored all of the other provisions in the ordinance other than the immediate one before and that is in my opinion because --
Justice Thurgood Marshall: Did you say that the City now has to judge by each one including incest?
Mr. Robert Masur: I believe that the City in coming before to the Court and saying to the Court the purpose of this ordinance is public safety is required to come to the Court and say the position of Mr. Miller within that scheme is irrational.
He is being irrationally treated as related to all other people that this is the sole purpose of the ordinance public safety.
It is proper therefore --
Justice Thurgood Marshall: That because you could not rationally deny a license to a person guilty of incest, you cannot hold your man responsible, that is your argument.
Mr. Robert Masur: I do not believe it is Mr. Justice Marshall.
Chief Justice Warren E. Burger: Suppose the only prohibition where the one applies to your man here, there were no others in the ordinance, would you still stay it was unconstitutional?
Mr. Robert Masur: Mr. Chief Justice are you saying if only armed robbers cannot get a license and everybody else was eligible for a license would it be rational?
No, I believe it would not be ,rational because the City Council would be in the position of setting out one group of persons a classification and treating them radically differently from all other identically, or similarly situated people and not just that the treatment is different but there is the disproportionality of the treatment is so great.
On the one hand somebody is eligible immediately for licenser and on the other hand Miller is barred for life.
Justice Potter Stewart: Well, then now you say would it be rational, does that?
It has nothing to do with, does it with whether or not it is constitutional?
Mr. Robert Masur: As I understand the Equal Protection Clause --
Justice Potter Stewart: I do not think the Equal Protection Clause has much to do with rationality, does it has to do with classification?
Mr. Robert Masur: And if the classifications are not rational?
Justice Potter Stewart: No, no if they are invidiously discriminatory.
Rationality, as a criteria in a constitutionality, would have about 40 years ago, I thought, perhaps I misunderstood.
Mr. Robert Masur: Well, perhaps we chose a wrong route.
I believe that it would be invidiously discriminatory as well Mr. Justice Stewart to set up with licensing scheme that looked like that.
Say, as I indicated before and I think it is appropriate for the Court to look to the history of discrimination that has been opposed on ex-offenders.
Ex-offenders, as a group, are people who have no political power indeed to until very recently in most states they were denied the right to vote.
Because they are in that position they are subject to this kind of an ordinance which allows a city to say to a person, if you have done something once the rest of your life is meaningless in terms at least of seeking employment through any licensing agency, the City of Chicago.
I think that is important therefore that Court look to carefully at the ordinance and not simply to see whether there is a line that somehow might be acceptable here.
The ordinance, as the ABA points out and as presidential commissions have pointed out, is contrary to good public policy.
Most states or many states including Illinois have rejected the presumptions behind this kind of an inordinance and Illinois all licensing schemes provide that a conviction may be taken into account which we have never denied here, but they may not in and of themselves to be presumptive bars.
The City of Chicago for all purposes, except this ordinance and one or two others, does exactly the same.
To deny a person the right to seek employment, which is after all is not a fundamental right under this Court's holding, certainly a very important right.
It is certainly unwise and in fact, in our opinion, unjust.
I believe that there is substantial precedent from this Court to establish the unconstitutionality of this ordinance.
This is, the ordinance is in sum, is disproportionate in the sense the James v. Strange was.
Schware versus the Board of Bar Examiners establishes that in order to consider somebody for a license, in that case it was bar license, one must look at their present fitness for a licenser.
Justice Potter Stewart: Was there any protection for this?
Mr. Robert Masur: It was decided under the Due Process Clause Mr. Justice Stewart, but in In re Griffiths which was an Equal Protection case that Court cited and relied upon Schware and again condemned undifferentiated bars to employment.
I believe the ordinance here before the Court is unconstitutional that indeed without wishing to engage in a hyperbole that it is contrary to many of the notions which govern our society.
Which is to say that an individual ought to have the right and the opportunity to seek to improve and to advance himself, and that to hold against him because of a serious mistake which he made as a youth, or as a young man.
It is contrary to the notions upon which we generally govern ourselves.
Justice John Paul Stevens: Mr. Masur may I ask you two questions: First, you attacked to classification for licensees and applicants on the ground that the justification for the ordinance does not justify that classification.
Well, perhaps the classification could be justified by some other consideration generally, your opponent argues that the right to the job should be more respected in the case of one who has the job than one who is merely seeking the job.
What do you say about the validity of that general justification for this kind of distinction?
I think he acknowledged that it was not supported by Case Law except to the extent of hearings were provided in Roth and so forth.
Well, you have not really attacked the classification in general terms apart from the fact that it does not relate specifically to the justifications for this ordinance.
Do you accept the validity of this distinction otherwise or not?
Mr. Robert Masur: No, Your Honor.
The Commissioner suggests two justifications for that distinction between licensees and applicants.
One of them as a track record and so you point out a licensee may not in fact have a track record at all.
Indeed the irony is that the licensee, even if he has a track record here is a person who commits a crime while he is a licensee.
In addition, the track record argument does not deal with the fact that an applicant may have an employment history not driving a cab generally, but equally longer, longer than the cab driver and finally, even if and this turns more to his argument that essentially there is an interest involved.
Even if the licensee has more of an interest in taking and keeping his license than the applicant does in getting it.
There is no justification there in Case Law for imposing differential standards as between licensees and applicants, and indeed even if the interest is there, the disproportionate results in light of the fact that the licensee is just committed a crime and my client committed a crime 13 years ago, the disproportionate result makes it irrational.
Justice John Paul Stevens: My second question perhaps I should not ask you, is Luther Miller in this case the same as in Miller against Tumney (ph).
Unknown Speaker: (Inaudible).
Mr. Robert Masur: Thank you very much.
Chief Justice Warren E. Burger: Do you have anything further?
Argument of William R. Quinlan
Mr. William R. Quinlan: Just a few comments Mr. Chief Justice.
In response to Justice Stevens' question of yesterday and today with the differential treatment, it is our feeling that there has been some misconception in what the burden of the City is here and primarily who has the burden.
I think we would all agree if we are talking about equal protection, then the burden is primarily not that of the legislative body or the City in establishing justification for the classification.
It is presumed to be well.
And then the second issue is whether or not there really is any justification for treating the two classifications or two parties differently, and we submit that there is a basis for treating them differently and that primarily is because one has status of being on the job or having a license and has a greater interest and that must be considered in terms of this Court's ruling in Roth and Sinderman.
In terms of making sure that it is arbitrarily deprived and they are entitled to a hearing and they are titled to more rights and more consideration, this has been traditionally the case of all instances in dealing with individuals who have employment and individuals who do not have employment that their right that is the right to the individual on the job are greater than the right to the individual not on the job.
That does not suggest that they can be arbitrarily dealt with but they are dealt with differently and we are submitting that the test for the burden of the City is not to demonstrate, there is not invidious discrimination, and that there is a rational relationship, and that this is conclusively related to public safety.
But our burden is really to show that there is some reason for treating the classes differently and the burden is on the other side to show that there is no reason, and we submit that there is reason for treating the parties differently and what we have here also is a two-tier problem.
The first problem is to determine whether or not it is reasonable to treat people who are convicted of a crime dealing with a weapon differently than others.
We submit it is related to the goal of protecting the traveling public in cabs.
That has been accepted by the court below and we think it is rational to submit that that is related to it.
Secondly, is there any basis for treating licensees that is incumbents and applicants differently?
We submit yes, that the rights in the interest at stake are different and that in the case of incumbents or licensees Roth, Sinderman require that they would be given further right and further benefits than do applicants or applicants entitled to receive.
Justice Thurgood Marshall: You still say the only reason is the protection of the public?
Mr. William R. Quinlan: I beg your pardon sir.
Justice Thurgood Marshall: Safety probably is the only reason.
Mr. William R. Quinlan: No, I say that is the goal to be achieved by this as to safety for the traveling of public, yes sir.
Justice Thurgood Marshall: Well, what -- you do not have any other reason?
Mr. William R. Quinlan: For the particular classification?
Justice Thurgood Marshall: For denying licenses to convicted people?
Mr. William R. Quinlan: Well, that would be the reason for the classification that is the justification for it.
It also applies to narcotics as well as the others.
Justice Thurgood Marshall: And incests.
Mr. William R. Quinlan: And incests, I agree, not incests primarily -- but the reason for that is that is a peculiar problem with cab --
Justice Thurgood Marshall: What if you are a cab driver who drive the families, right. [Laughter]
Mr. William R. Quinlan: That might be unique situation yes sir.
Chief Justice Warren E. Burger: Thank you gentleman.
The case is submitted.