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Due Process/Equal Protection. Protection against certain government actions provided by the 14 th Amendment to the U.S. Constitution. The 14 th Amendment. Post Civil War Legislation Makes the Bill of Rights applicable to the States It is the “work horse” amendment

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due process equal protection

Due Process/Equal Protection

Protection against certain government actions provided by the 14th Amendment to the U.S. Constitution

the 14 th amendment
The 14th Amendment

Post Civil War Legislation

Makes the Bill of Rights applicable to the States

It is the “work horse” amendment

But it is a slippery slide

the 14 th amendment is based on states rights and responsibilities to its citizens
The 14th Amendment is Based on States’ Rights and Responsibilities to its Citizens

Due Process of the Law

Equal Protection of the Laws

The Right to Travel

Civil Rights

To be Free From Arbitrary Decisions

due process
Due Process
  • Due process is best defined in one word--fairness.
  • Throughout the U.S.'s history, its constitutions, statutes and case law have provided standards for fair treatment of citizens by federal, state and local governments.
  • Standards are known as due process. When a person is treated unfairly by the government, including the courts, he is said to have been deprived of or denied due process
procedural due process
Procedural Due Process
  • An aspect of informed consent
  • An expectation that you will receive the same level of fair treatment as others
  • An expectation that the procedure will follow an exact chain of events
substantive due process
Substantive Due Process
  • Substantive due process is a far narrower concept than procedural; it is an absolute check on certain governmental actions notwithstanding "the fairness of the procedures used to implement them." A violation of "substantive" due process occurs only where the government's actions in depriving a person of life, liberty, or property are so unjust that no amount of fair procedure can rectify them. Irrationality and arbitrariness imply a stringent standard against which state action is to be measured in assessing a substantive due process claim
substantive due process8
Substantive Due Process
  • Did you do things right?

An expectation that others have the same rights as you allow for yourself

belle terre v boraas
Belle Terre v Boraas
  • A New York village ordinance restricted land use to one-family dwellings, defining the word "family" to mean one or more persons related by blood, adoption, or marriage, or not more than two unrelated persons, living and cooking together as a single housekeeping unit and expressly excluding from the term lodging, boarding, fraternity, or multiple-dwelling houses. After the owners of a house in the village, who had leased it to six unrelated college students, were cited, this action was brought to have the ordinance declared unconstitutional as violative of equal protection and the rights of association, travel, and privacy.The District Court held the ordinance constitutional, and the Court of Appeals reversed.
  • Belle Terre is a village on Long Island's north shore of about 220 homes inhabited by 700 people. Its total land area is less than one square mile. It has restricted land use to one-family dwellings excluding lodging houses, boarding houses, fraternity houses, or multiple-dwelling houses.
  • The “gated community” is 98 percent residential, several public buildings and churches, a two commercial uses.
supreme court analysis
Supreme Court Analysis
  • The present ordinance is challenged on several grounds: that it interferes with a person's right to travel; that it interferes with the right to migrate to and settle; that it bars people who are uncongenial to the present residents; that it expresses the social preferences of the residents for groups that will be congenial to them; that social homogeneity is not a legitimate interest of government; that the restriction of those whom the neighbors do not like steps on the newcomers' rights of privacy; that it is of no rightful concern to villagers whether the residents are married or unmarried
  • It is said, however, that if two unmarried people can constitute a "family," there is no reason why three or four may not. But every line drawn by a legislature leaves some out that might well have been included. That exercise of discretion, however, is a legislative, not a judicial, function. It is said that the Belle Terre ordinance reeks with an animosity to unmarried couples who live together.6 There is no evidence to support it; and the provision of the ordinance bringing within the definition of a "family" two unmarried people belies the charge.
  • The regimes of boarding houses, fraternity houses, and the like present urban problems. More people occupy a given space; more cars rather continuously pass by; more cars are parked; noise travels with crowds. A quiet place where yards are wide, people few, and motor vehicles restricted are legitimate guidelines in a land-use project addressed to family needs. This goal is a permissible one. The police power is not confined to elimination of filth, stench, and unhealthy places. It is ample to lay out zones where family values, youth values, and the blessings of quiet seclusion and clean air make the area a sanctuary for people.
the oxford house series
The Oxford House Series

The House must be democratically self-run.

The House membership is responsible for all household expenses.

The House must immediately expel any member who uses alcohol or drugs,

which each house must fulfill

in order to obtain and retain its Oxford House Charter.

oxford house promise
Oxford House Promise
  • “There is no need to seek prior approval for leasing to an Oxford House. Oxford House, Inc., will legally defend any claim of zoning violation made by localities still unfamiliar with the 1988 amendments to the Fair Housing Act.”

Oxford House Web Site

  • The Oxford House case deals with the Fair Housing Act and reasonable accommodation. However, the real meaning of the case is about due process and the actions of Oxford House and the City of Universal City, MO
the concept congregate housing
The Concept – Congregate Housing
  • Oxford Houses are a nationwide network of self-governing, transitional residences where recovering alcoholics and drug addicts can live in a supportive group setting. Oxford House locates its group homes in residential neighborhoods. Residents seek jobs in the community, pay for their room and board, and are expelled if they relapse. To be economically viable, an Oxford House must have a minimum of eight to twelve residents.
  • Oxford House locates in Universal City, Missouri without the necessary special permit that needs to be granted for group housing
  • The City uses its enforcement powers and threatens to evict
  • City’s group home is eight persons or less and limited to a physical or mental disability
further actions
Further Actions
  • City amends its ordinance to permit larger group homes with a special use permit but the definition still is limited to only persons with a mental or physical disability
  • Although the City further amends its ordinance to accommodate Oxford house, and drops the case, the court assigns cost to the City for attorney’s fee
basic decision
Basic Decision
  • The Appeals Court rules for the City on the matter of attorney’s fees
  • Oxford House must give the City a chance to go through its’ regular procedures and grant them relief.
  • Oxford House shot themselves in the foot. They signed the lease with no intention of informing the city, obtaining a permit, and knowingly violated the 10 person rule.
and more
And, More
  • Oxford House filed a premature, superfluous law suit in hopes of bullying the City to grant them their wishes without further review.
  • Because they were the catalyst for the action, they are not entitled to damages or fees
however note the supreme courts says
However – Note – The Supreme Courts Says:
  • In a 6-3 decision resolving a dispute over the application of the Fair Housing Act, the court said communities may set occupancy limits, space requirements and other restrictions on houses occupied by unrelated people, like group homes, but only if they also apply to everyone else living in the area.
  • Thus, the case is about fairness and justice between two groups
take home point
Take Home Point
  • A person with a disability need not be given more rights that the residents of the area, but they should have the same rights
  • In other words, the law should work equally for both groups
city of brookings v bradley winker
City of Brookings v Bradley Winker
  • Winker is convicted of violating a Brookings’ ordinance that prohibits more than three unrelated individuals from living as a single family (so does Manhattan, Kansas)
  • Winker is the landlord and owns a main floor and a basement apartment. Four students were living in the main floor apartment
  • The apartment is in a zoning district that permits two single family dwelling units per structure
the ordinance
The Ordinance
  • An individual or two or more persons related by blood or law occupying a dwelling unit and living as a single household entity or two or more persons related by blood or law occupying a dwelling unit and living as a single household entity together with the number of unrelated adults so that the family contains no more than three adults who are unrelated by blood or law or not more than three unrelated adults occupying a dwelling unit and living as a single household entity.
  • Winkler owns a duplex unit that he rents to students.
  • One the duplex units contains five residents
the city s claim
The City’s Claim
  • The purpose of the ordinance is to regulate density and to preserve the property values of older neighborhoods
  • Students are not a suspect class given special equal protection treatment
winker s claim
Winker’s Claim
  • He claims there is no rational relationship between the classification created by the definition of "family" and the object of controlling density of population
  • Under this ordinance, twenty male cousins could live together, motorcycles, noise, and all, while three unrelated clerics could not. A greater example of over- and under-inclusiveness we cannot imagine. The ordinance indiscriminately regulates where no regulation is needed and fails to regulate where regulation is most needed.
court s decision
Court’s Decision
  • Brookings is a college town that experiences many density problems in its older neighborhoods
  • A line must be drawn somewhere and the courts feels that it is neither arbitrary nor capricious to limit the number of unrelated individuals who may live in a designated single family unit
  • The ordinance is valid
cary v rapid city south dakota
Cary v Rapid City South Dakota
  • Jane Cary files for a zoning change from General Agriculture to medium density residential
  • The City approves the rezoning, but before the protest time limit expires, the neighbors file a petition of protest
some background
Some Background
  • The City annexed the property in 1992 and classified as “no use zone.”
  • After annexation the City placed an street assessment of $90,000 on Ms. Cary’s property. The tax also rose from $122. to $3,168 per year
  • The Cary’s used the property as a horse pasture for $150 rent per year
things unfold
Things Unfold
  • The City, in 1994, rezones the property to General Agriculture use to reduce her property taxes
  • In 1995 she is ready to sell to a developer contingent on rezoning and submits the change to medium density residential
  • The protest petition is filed
the protest petition
The Protest Petition
  • 45 percent of the neighbors signed the petition which represents 18 percent of the properties
the law reads
The Law Reads
  • If such [a proposed zoning] ordinance be adopted, the same shall be published and take effect as other ordinances unless the referendum be invoked, or unless a written protest be filed with the auditor or clerk, signed by at least forty percent of the owners of the lots included in any proposed district and the lands within one hundred fifty feet from any part of such proposed district measured by excluding streets and alleys. In the event such a protest be filed, the ordinance shall not become effective as to the proposed district against which the protest has been filed.
cary s claim
Cary’s Claim
  • On appeal, Cary argues the protest provision of the statute is unconstitutional because it does not provide standards and guidelines for the delegation of legislative authority, nor does it contain a legislative bypass provision to remove the ultimate legislative authority and lawmaking power from the protesters.
  • She claims the absence of such provisions is an unlawful delegation of legislative power that results in a small number of property owners being able to prevent a landowner's use of property.
the court reasons that
The Court Reasons That:
  • This not a typical "protest" statute. Normally enabling acts provide for the filing of protest petitions by a specified number of property owners within a prescribed distance of the land affected by the amendment under consideration. If sufficient protests are filed, a larger affirmative vote of the municipal legislative body than normally needed to enact an ordinance is required to adopt the protested amendment and render the protest ineffective.
  • Legislative power is vested in the legislature and this essential power may not be abdicated or delegated.
  • When a legislative body retains a police power, articulated standards and guidelines to limit the exercise of the police power are unnecessary.
  • A person's right to use his or her land for any legitimate purpose is constitutionally protected. However, The law does not permit the use of a person's property to be held hostage by the will and whims of neighboring landowners without adherence or application of any standards or guidelines. Under this law "the property holders who desire to have the authority to establish [a restriction] may do so solely for their own interests or even capriciously.
procedural due process46
Procedural Due Process
  • Did you do things right?
  • Would other reasonable people have come to the same conclusion?
  • Was the decision arbitrary?
  • Was the decision based on factual conclusions
  • The First Christian Church of Topeka owns an tract of ground 4 blocks square bounded by West 18th , Stone Ave., West 19th and Gage Blvd. The property was purchased following a fire at their main church in downtown Topeka. The tract is zoned R-1 residential.
  • Prior to this action the church erected some structures for school purposes on the tract. The church contemplates building a new church and youth center.
  • The First Christian Church files a rezoning request seeking a change from R-1 residential to E multi-family dwelling for a 13 story, 145 unit high-rise Senior Citizens' residence to be operated through a separate non-profit corporation controlled by the church
1 st hearing
1st Hearing
  • The Planning Commission conducted a public hearing attended by approximately 14 persons - owners of homes in the vicinity. The residents protested the rezoning citing increased traffic and the suitability of the structure to its surrounding neighborhood. The Planning Commission vote 7 - 0 against the proposal and placed on record the following facts:
the findings
The Findings
  • Conflict with the adopted Land Use Plan
  • Conflict of an intense use in a single family neighborhood
  • Use of a parking lot for both the church and the high-rise
  • Insufficient open space to buffer the high-rise from the neighborhood
  • Poor siting of building increases traffic
  • Insufficient right-of-way to increase width of road
amended plan
Amended Plan
  • The recommendation of the Planning Commission is sent to the governing bodies of the City and County for final action. The church requested a delay to file a new application - the matter is referred back to the Planning Commission for reconsideration of the changed application
  • The church amends its application to a 10 story, 135 unit high-rise; the building footprint is moved towards the center of the tract to increase open space and decrease the intrusion on the neighborhood; a r.o.w. easement is offered to the City to increase the street size.
the next hearing
The Next Hearing
  • Notice of the amended hearing is given and at the public hearing the neighboring residents again make the same objections and concerns. The Planning Commission unanimously recommends the change. This recommendation is adopted by the governing bodies of the City and the County.
the neighbors file suit
The Neighbors File Suit
  • Seven neighbors join in an action before the District Court requesting a permanent injunction to bar the zoning change alleging that the decision was unlawful, arbitrary, capricious and unreasonable.
  • There are two major contentions:
    • The action itself is unreasonable in that the highrise will cause unacceptable levels of traffic and conflict with the predominant single family use of the area.
    • The church should not have been allowed to amend its application once the Planning Commission voted against the proposal.
district court upholds the city
District Court Upholds the City
  • KS Supreme Court Review
  • The Kansas Supreme Court first notes that it must be understood that the GOVERNING BODY HAS THE RIGHT TO PRESCRIBE ZONING AND RIGHT TO REFUSE TO CHANGE ZONING. The role of the court is limited to determining the lawfulness of the action taken and (2) the reasonableness of such action. THERE IS a presumption that the Governing Body acted reasonably and the court will not interfere with the decision unless it is clearly compelled to do so.
court reviews the contentions
Court Reviews the Contentions
  • On examination the Court finds that the character of the neighborhood is decidedly mixed and not overwhelmingly residential. Within 2 blocks of the site there is:
  • Neighborhood shopping
  • Federal Land Bank
  • Multiple family dwellings
  • Commercial printing plant
  • Service station
  • Seabrook shopping area
  • Churches
  • Veterans Administration Complex
  • The Court notes that certain residents object to building the proposed high-rise for several reasons. These reasons have been considered by the Planning Commission and they are insufficient to prevent the proposed rezoning. The wishes of the neighbors are to be considered, but zoning is not a Plebiscite of the neighborhood - the final considerations are to be judged by the benefit and harm to the overall community.
due regard
Due Regard
  • The very most that could be said about the matter is that it fairly debatable.
  • Since the reasons for change appear rational, and the City used reasonably facts to render its final decision, the Court will not substitute its judgment for that of the City.
  • The action was reasonable, the hearing fairly conducted with due regard for all concerned.
classic test of reasonableness
Classic Test of Reasonableness
  • The hearings were fairly conducted
  • The City considered all the pertinent facts
  • The application was amended to modify perceived impacts to the neighborhood
  • The proposal was not out of scale with its surroundings
  • Traffic generation was modified by road widening
  • The City's reasons for change were clearly stated
  • Plaintiffs failed to show unreasonableness in the City's decision
  • The City is granted a presumption of reasonableness
the 14 th amendment and equal protection of the laws
The 14th Amendment and Equal Protection of the Laws
  • The laws of a state must treat an individual in the same manner as others in similar conditions and circumstances
  • The equal protection clause is not intended to provide "equality" among individuals or classes but only "equal application" of the laws
  • The result, therefore, of a law is not relevant so long as there is no discrimination in its application.
different levels of scrutiny
Different Levels of Scrutiny
  • Generally speaking, the state is only required to lay a rational basis or a legitimate state purpose for laws and statutes that do not treat all citizens equally.
  • However, if a suspect classification is involved, the courts will demand a compelling interest test under strict scrutiny
the suspect classifications
The Suspect Classifications
  • Race, Creed
  • Color, National Origin
  • Procreation
  • Voting
  • Gender
  • Disability
other protected classification
Other Protected Classification


The Right to Own Firearms?

Right to Life?

the bottom line
The Bottom Line
  • Focuses on how fairly or unfairly our actions distribute benefits and burdens among the members of a group.
  • Fairness requires consistency in the way people are treated.
  • Examples of what is offered as morally justifiable reasons for treating people differently: need, merit, effort, fault.
  • The principle states: "Treat people the same unless there are morally & civilly relevant differences between them."
city of cleburne v cleburne living center
City of Cleburne v Cleburne Living Center
  • An early equal protection case dealing with group homes and persons with mental handicaps
  • This is an equal protection case rather than litigation under the Americans With Disabilities Act because it occurred in early 1982 – before the act was passed
  • Cleburne Living Centers purchases a building for a group home to accommodate 13 persons with a mental/physical disability supervised by 2 trained adults
  • Cleburne City rejects the application as a “residence” and classifies it as a “home for the feebleminded.” This type of facility requires a special use permit.
  • A special use permit in Cleburne would need to be renewed each year after a review by the BZA
  • At the hearing the public expressed grave concerns about housing feeble-minded people in a home when they are free to come and go
  • The BZA and the City denied the permit
  • The reasons given were:
    • Overcrowding in the area
    • Protest petitions from person who live within 200 feet of the facility
    • Fear of elderly residents
    • Located in a 500 year floodplain
    • Across the street from a high school (residents might be harassed by the students)
the trials
The Trials
  • U.S. District Court upholds the City’s position
  • Court of Appeals holds that mental retardation is a “quasi suspect” classification and should have required “strict scrutiny” so that the City would have to lay a compelling basis for its actions.
  • The case is then passed to the U.S. Supreme Court
supreme court
Supreme Court
  • First, the Supreme Court rejects the notion that the City should be subject to strict scrutiny. It does not find that mental retardation is a suspect classification
  • Next, the court reviewed the reasons given by the City for denying the special permit. In other words, does the requirement for a special use permit for this facility single out the residents for dis-equal treatment and violate their equal protection rights?
  • The court notes that the city does not require a special use permit for boarding houses, fraternities, hospitals, sanitariums, nursing homes, or private care facilities for the dying. It is true, therefore “that the residents of the CLC would be different, but no weight should be given to this difference unless they would threaten the legitimate interests of the city.”
  • Fears of the nearby or elderly residents are based on negative attitudes rather than legitimate concerns and are not permissible for different treatment
  • A private bias toward other people may be beyond the reach of the law, but the law cannot, directly or indirectly, give them effect
  • The facility may indeed be across from the high school but many of the resident may be students at that school
  • The facility may be in a 500 year floodplain but so is the high school and most of the nearby residents
  • There is no evidence to support the contention that the residents would be a treat to neighborhood safety
  • We are urged to believe that the ordinance is aimed at avoiding concentration of population and at lessening congestion of the streets.
  • These concerns obviously fail to explain why apartment houses, fraternity and sorority houses, hospitals and the like, may freely locate in the area without a permit
  • So, too, the expressed worry about fire hazards, the serenity of the neighborhood, and the avoidance of danger to other residents fail rationally to justify singling out a home such as this for the special use permit, yet imposing no such restrictions on the many other uses freely permitted in the neighborhood.
  • In short, the requirement for a special permit and its subsequent denial appears to rest on the irrational fears of the residents and the City against the residents of the home. The City is ordered to issue the special use permit.
future resident s of the cleburne living center
Future Resident’s of the Cleburne Living Center

One child in 800 live births has Down’s Syndrome

taxpayers of weymouth twsp v weymouth
Taxpayers of Weymouth Twsp v Weymouth
  • The zoning ordinance of Weymouth Township NJ excluded all mobile homes except in one Planned District where they were allowed as “affordable housing” for persons aged 52 and over.
  • The Weymouth Taxpayers Associated filed suit asserting that their equal protection rights were violated in that the elderly could live in mobile homes but children or younger adults could not
the trial court
The Trial Court
  • The trial court held that “age restrictions” were beyond the power of regulatory land use controls and violated the equal protection clause of the NJ constitution
nj supreme court
NJ Supreme Court
  • This 1975 case predates the amended Federal Fair Housing Act that allows exclusive housing for elderly that meets certain criteria
  • The plaintiff did not demonstrate that Weymouth Township lacked a rational basis for enacting this particular planned district
  • The federal equal protection clause does not demand that all persons be treated equally. It only requires that the dis-equal treatment of similarly situated persons be rationally related to a justified state interest
age limits
Age Limits
  • The cutoff age for the planned district is age 52 – although this seems somewhat arbitrary Justice Holmes said:
  • “When a legal distinction is determined, as no one doubts that it may be, between night and day, childhood and maturity, or any other extremes, a point has to be fixed or a line has to be drawn, or gradually picked out by successive decisions to mark where the change takes place. When there is no mathematical or logical way of fixing it precisely, the decision of the legislature must be accepted unless we can say that it is very wide of any reasonable mark.”
village of willowbrook v grace olech
Village of Willowbrook v Grace Olech
  • The Village installs a drainage culvert near the Olech’s that causes flooding on the property
  • The Olech’s sue the Village for flood damage
  • In the meantime, the Village undertakes a project to bring municipal water to the area so the residents can disconnect from water wells
  • Grace pays $9,300 – her share of the project
now comes the village
Now Comes The Village
  • A month later the Villages asks for a 33’ easement in addition to the payment
  • The Village hoped to install a road and other public utilities
  • The easement is more than twice the customary 15’ asked from everyone else in the Village
  • Grace tells the Village to Take a Walk
the plot thickens
The Plot Thickens
  • The Olech’s well fails
  • They run a “garden hose” across the street to the neighbor to pump water
  • The Village relents and accepts the 15’ easement and begins the project in November of 1995
  • The hose freezes
  • They are without water until the project is finished – March 1996
the attorneys earn their fees
The Attorneys Earn Their Fees
  • Grace files suit in U.S. District Court in April 1998
  • “Willowbrook picked on her out of sheer vindictiveness to grant a 33’ easement when it only required 15’ from other residents. They retaliated because they were mad at me for suing them”
  • The District Court dismissed the case – lack of proof of harassment by Village
the u s court of appeals
The U.S. Court of Appeals
  • Court of Appeals reverses finding of the District Court and found that the Village did display ILL WILL against Grace
  • “If the power of the government is brought to bear on a harmless individual …. The individual ought to have a remedy in federal court”
  • Harmless Indeed?
the supreme court
The Supreme Court
  • The Supreme Court grants review and although they did not reach the same ILL WILL conclusion, they did find for the “Widow Olech”
  • “The purpose of the equal protection clause is to secure every person within the State’s jurisdiction against intentional and arbitrary discrimination – even if it is a class of one
  • A person – a class of one – can sue for equal protection claims even if they are not a member of a protected classification

What the Village officials felt like after the decision and paying a lot of $$$$$$

the widow mrs blodwin olech and her daughter rogene
The Widow Mrs. Blodwin Olech and Her Daughter Rogene

Grace Olech and her daughter after hearing about the final decision in their Supreme Court Case