Introduction to Law and the Legal System, 11th

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CHAPTER I

Introduction

 CHAPTER OBJECTIVES
1. Understand each of five jurisprudential approaches to answering the question, What
is law?
2. Explain the legal objectives that are common to American public and private law.
3. Understand how our nation’s legal history and culture have contributed to law and legal
institutions as we know them today.
4. Develop the ability to read and brief an appellate court opinion.
5. Explain in general terms the concepts underlying the Due Process and Equal
Protection Clauses.
6. Understand the basic differences between civil and criminal law.
7. Understand the basic differences between tort and contract law.

 SUMMARY OVERVIEW
Chapter I began by raising a fundamental jurisprudential question, What is law? Many students
who have not previously thought much about law are surprised to learn that there is no single
universally accepted answer to the question and that the likely best answer is, It depends. After
reading brief synopses of several differing philosophical schools, it becomes apparent why
developing a consensus definition has proven to be so difficult. What followed next were a
discussion of legal objectives that are common to both private and public law in this country, and
a review of Anglo-American historical and cultural heritage with a focus on how these have
contributed to law as we know it today. Because students using this textbook need immediately to
begin developing the ability to read excerpts from judicial opinions, the chapter included a highly
simplified overview of civil procedure. This overview was necessary preparation for students
about to read their first case. Civil procedure is a topic that is covered in considerably more detail
in Chapter V. The chapter continued with some additional comments on reading cases
immediately prior to the first judicial opinion, Miller v. Alabama. An analysis of that case
followed, along with a sample brief, both of which were intended to further help students learn
how to read and understand judicial opinions in general, and the first case in particular. The
chapter then turned to an overview of constitutional due process and equal protection, and a

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2 Chapter I: Introduction

discussion of the differences between civil and criminal law. The chapter concluded with an
explanation of the differences between tort and contract law.

 CHAPTER OUTLINE
I. WHAT IS LAW?
A. Law as Power
B. Natural Law
C. Historical Jurisprudence
D. Utilitarian Law
E. Analytical Positivism

II. SOCIOLOGICAL JURISPRUDENCE, LEGAL REALISM, AND LEGAL SOCIOLOGY

A. Sociological Jurisprudence
B. Legal Realists
C. Legal Sociologists

III. OBJECTIVES OF LAW

A. Continuity and Stability
B. Adaptability
C. Justice, Speed, and Economy
D. Determining Desirable Public Policy

IV. ORIGIN OF LAW IN THE UNITED STATES

A. The Origins of English Common Law
B. The Norman Invasion
C. The Development of the Common Law
D. The Origin of the English Equitable Court

V. A PROCEDURAL PRIMER

VI. READING CASES — PART I

A. Author’s Introduction to Evan Miller v. Alabama and Kuntrell Jackson v. Ray
Hobbs, Director, Arkansas Department of Correction
B. Nomenclature Tips
C. A Short Excerpt from Justice Breyer’s Concurring Opinion, Which Also Was
Joined by Justice Sotomayor
D. “I Respectfully Dissent”
E. A Short Excerpt from Chief Justice Roberts’s Dissent
F. A Short Excerpt from Justice Thomas’s Dissent

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 Chapter I: Introduction 3

G. A Short Excerpt from Justice Alito’s Dissent

VII. CASE QUESTIONS

VIII. READING CASES — PART II

IX. BRIEFING A CASE

A. Sample Brief

X. DUE PROCESS
A. The Fifth and Fourteenth Amendments
B. The Meaning of Substantive Due Process
C. Substantive Due Process and Economic and Social Regulation
D. The Scope of Substantive Due Process
E. Glucksberg Postscript

XI. VAGUENESS AND OVERBREADTH

A. Procedural Due Process
B. Introduction to Melinda Speelman v. Bellingham Housing Authority

XII. CRIMINAL AND CIVIL LAW

XIII. EQUAL PROTECTION OF THE LAW

XIV. TORT AND CONTRACT LAW

A. Torts
B. Contracts

XV. CHAPTER SUMMARY

XVI. CHAPTER QUESTIONS

XVII. NOTES

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4 Chapter I: Introduction

 COURT CASES
Summary
Miller v. Alabama
_____ U. S. _____
Supreme Court of the United States
June 25, 2012

In these two consolidated cases, two juveniles, one from Alabama (Evan Miller) and the other from
Arkansas (Kuntrell Jackson), were prosecuted, convicted, and sentenced in adult courts for capital
murder. One of the cases involved 14-year old Kuntrell Jackson and two other boys who robbed a
video store and in the process the store clerk was killed. Jackson was not armed, did not fire the fatal
shot and in fact waited outside during most of the robbery. In the other case, Evan Miller was also
14 years old at the time of his crime. Miller had a troubled past that included both substance abuse
and an abusive stepparent. He and a friend attempted to steal money from an acquaintance that had
passed out after consuming marijuana and alcohol. The victim revived while the theft was in
progress and Miller thereafter struck him repeatedly with a baseball bat. The boys then set fire to the
victim’s residence and the victim ultimately died from injuries and smoke inhalation. Miller was
tried and convicted as an adult. Jackson and Miller were both tried as adults and were both convicted
of murder. Both were sentenced to life imprisonment without the possibility of parole. In neither case
did the sentencing authority have any discretion under applicable state law to impose a different
punishment. Both sought review of their conviction arguing that a mandatory sentence of life without
parole for a 14-year-old violates the Eighth Amendment’s ban on cruel and unusual punishment.
In a 5–4 decision, the court reversed the lower court decisions in both cases. In so doing, the court
first pointed out that the cruel and unusual punishment concept must properly be viewed through a
historical prism according to “the evolving standards of decency that mark the progress of a maturing
society.” The court looked to its earlier precedents of Roper and Graham as establishing that children
are constitutionally different from adults for purposes of sentencing because they lack maturity, are
more vulnerable to negative influences and outside pressure, and have traits that are less fixed. Thus,
they have diminished culpability and greater prospects for reform.
The mandatory penalty schemes at issue in these cases prevent the sentencer from taking account
these important considerations. By removing consideration of youth and subjecting a juvenile to the
same life-without-parole sentence applicable to an adult, these laws prohibit a sentencing authority
from assessing whether the law’s harshest term of imprisonment proportionately punishes a juvenile
offender. The court felt that this contravenes Graham’s (and also Roper’s) foundational principle:
that the imposition by a state of its most severe penalty on juvenile offenders cannot proceed as
though they were not children.

Case Questions and Answers

1. According to the majority, exactly what legal principle was violated by the
mandatory nature of these sentences?
The legal principle violated by the mandatory nature of these sentences was the principle
of proportionality.

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 Chapter I: Introduction 5

2. What reasons did the majority give for ruling as they did?
The failure to consider the facts and circumstances on an individualized basis creates too
much of a risk that the mandated sentence will amount to a disproportionate punishment.

3. What does the Court require in future cases?

The sentencing process must be individualized so that the sentencer can learn about all
relevant facts and circumstances prior to imposing a sentence.

4. Do you agree or disagree with the majority of justices? What is your reasoning?
The question calls for an opinion.

5. What impact do you believe the decision will have on sentencing in the future?
The question calls for an opinion.

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6 Chapter I: Introduction

Summary
Washington et al. v. Harold Glucksberg et al.
521 U. S. 702
Supreme Court of the United States
June 26, 1997

The plaintiffs/respondents brought suit in federal court challenging a state of Washington statute. The
respondents claimed that the Fourteenth Amendment’s Due Process Clause guarantees competent,
terminally ill patients the right to have a physician assist them in the commission of suicide. The U.S.
District Court and en banc Ninth Circuit U.S. Court of Appeals ruled in favor of the plaintiff/
respondents. The U.S. Supreme Court disagreed with the lower federal courts and ruled that having a
physician assist in the commission of a suicide serves no fundamental liberty interest. They
concluded that the respondents’ claims were contrary to our national history and traditions and
inconsistent with state determinations of public policy. The Supreme Court also ruled that
Washington had acted rationally and had a legitimate interest in preserving life.

Case Questions and Answers

1. What was Doctor Glucksberg’s argument in the U.S. Supreme Court?
Mentally competent, terminally ill patients have a right of “self sovereignty” in “controlling
the time and manner” of their deaths, and therefore such patients have a right to have the
assistance of a physician in hastening the end of their lives (presumably by prescribing life-
ending medications).

2. On what grounds did Chief Justice Rehnquist justify his conclusion that
Washington’s statute did not violate the Due Process Clause?
Chief Justice Rehnquist argued that due process claims have to be evaluated in light of
American history and our nation’s legal traditions. He argued that the respondents’ claims
were not deeply rooted in American history and practice. He traced the common law’s
opposition to suicide and physician-assisted suicides back to the thirteenth century. He also
traced the historical record of opposition to the respondents’ claim from colonial times to the
present. He noted that Washington, itself, had statutorily authorized natural death resulting
from the withholding of or withdrawal of life-sustaining treatment, but in so doing had
expressly rejected physician-assisted suicide (a position supported by the state’s voters who
rejected a ballot initiative supporting the respondents’ position). Rehnquist also argued that
the statute was rationally related to legitimate state interests, such as preservation of life,
protecting vulnerable groups, and the integrity of the medical profession.
Justice Souter said it just isn’t that simple. He was worried about the slippery slope leading
from assisted suicide to euthanasia. He was concerned about how patients would, in fact,
fare in a world in which the right to physician-assisted suicide was constitutionally
recognized. How would patients be protected from medical institutions, family members,
physicians, and others with potential financial interests in the patient’s death, poor
diagnoses, and similar consequences of inadequate care? He also was concerned about the
propriety of the judiciary establishing such a right, especially given the limited investigative
tools granted the judicial branch when contrasted with those available to legislative bodies.

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 Chapter I: Introduction 7

Justice Souter opposed recognizing a fundamental right to assisted suicide because he feared
the future consequences of such a decision. The uncertainties of legalizing physician-assisted
suicide are too great, for the time being, to cloak it with the protection of the Due Process
Clause. This argument is similar to language the Supreme Court used in Powell v. Texas,
392 U.S. 514 (1986), when it refused to prohibit incarceration for public intoxication under
the Eighth Amendment’s cruel and unusual punishment clause, because of the inadequate
state of medical knowledge about the exact nature of alcoholism in the late 1960s. His legal
conclusions seem to flow from his assessment that it is premature to recognize such a liberty
interest in the Due Process Clause of the Fourteenth Amendment.

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8 Chapter I: Introduction

Summary
Melinda Speelman v. Bellingham Housing Authority
273 P.3d 1035
Court of Appeals of Washington, Division One
April 9, 2012

In this case Speelman appeals a trial court’s denial of her request for a preliminary injunction in
her action against the Bellingham Housing Authority (BHA) contesting its termination of her
family’s Section 8 housing subsidy. BHA is a public housing authority that administers the
federal Section 8 Housing Choice Voucher Program in Whatcom County. This program provides
housing assistance in the form of rental subsidies to eligible families. BHA’s administrative plan
permits BHA to terminate such assistance if a family fails to notify BHA within 14 days that any
family member no longer resides at the residence, is absent from the residence for more than
30 days without authorization, or allows persons who are not BHA-approved to live in the
residence. Before any such termination of assistance, BHA is required to send a notice that
advises of termination as well as the right to a hearing concerning the proposed termination.
In February 2011, Speelman and her two minor children moved into Walton Place Two, a BHA-
subsidized apartment in Bellingham. At the time her family moved in, BHA knew that Speelman
was on probation. Speelman subsequently asked the sentencing court to revoke her probation
because she could not pay monthly probation fees. The trial court did so and sentenced her to
75 days in jail. Before beginning her sentence, Speelman arranged for her 19-year-old daughter to
care for Speelman’s other children at the Walton Place Two apartment in her absence. Speelman
did not obtain BHA’s approval for Larsen to live in the apartment or notify BHA that she would
be absent. Thereafter, while responding to a complaint that Speelman’s children were running
around the complex unsupervised, BHA Police Liaison learned that Speelman was incarcerated
and that her daughter was caring for the children. When the BHA authorities were advised of this
situation, BHA sent a letter to Speelman’s home address, notifying her that it would be
terminating her voucher payments. Speelman’s daughter did not open BHA’s letter because
Speelman had instructed her not to open any mail except that from the children’s school. Upon
completing her sentence Speelman returned to her apartment. There, she discovered BHA’s
termination notice. Seven days after the deadline, Speelman requested a hearing. BHA denied
Speelman’s request as untimely. BHA thereafter sent Speelman a final termination notice and
reassigned the housing choice voucher funds to another family. Speelman then sued BHA in
superior court under 42 U.S.C. § 1983, alleging substantive and procedural due process
violations, and requesting both declaratory and injunctive relief. Following the trial court’s denial
of Speelman’s request for a preliminary injunction, she appealed.
In reversing the trial court’s decision, the appellate court found that BHA had violated
Speelman’s constitutional right to procedural due process by providing insufficient notice of its
termination decision. Specifically, the court concluded that in light of the fact that BHA knew
Speelman was incarcerated and would not receive the termination notice sent to her residence, the
letter was not reasonably calculated under the circumstances to provide notice and was
constitutionally insufficient. The court further stated that although BHA’s policy may have been
reasonably calculated to provide adequate notice under normal circumstances, the special
circumstances of this case triggered BHA’s obligation to do something more, and in the absence
thereof BHA violated her procedural due process rights. The court went on to state that Speelman
had shown tangible and substantial injury. Because of the defective notice, she missed the
deadline to appeal BHA’s decision and, as a result, faced eviction without the benefit of a

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 Chapter I: Introduction 9

hearing, which would have provided her the opportunity to be heard on the termination of
her benefits.

Case Questions and Answers

1. Since the Bellingham Housing Authority sent the termination letter to Speelman’s
home, what was the procedural due process problem in this case?
The procedural due process problem was that the termination notice was sent to her home
when BHA had actual knowledge that she was incarcerated at the time and would not
receive it. The court felt in light of that knowledge the letter was not reasonably
calculated to provide adequate notice and was therefore constitutionally insufficient.

2. According to the Washington Court of Appeals, was Speelman entitled to actual

notice of the termination?
No, but according to the court due process did require notice reasonably calculated, under
all the circumstances, to apprise her of the pendency of BHA’s action and afford her an
opportunity to present her objections. Such notice was not given in this case.

3. Due process protects life, liberty, and property. Which of these interests was
infringed in this case?
The housing choice voucher funds Speelman had been receiving created a property
interest that could not be terminated without satisfying the procedural due process
requirements of proper notice and a hearing, which would have provided her the
opportunity to be heard on the termination of her benefits.

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10 Chapter I: Introduction

Summary
Katko v. Briney
183 N.W.2d 657
Supreme Court of Iowa
February 9, 1971

Katko, the plaintiff, trespassed in an uninhabited house owned by the defendant, the Brineys. While
doing so, Katko triggered a loaded spring gun set up by defendants in the bedroom to protect their
property. The state trial court entered judgment for the plaintiff and awarded him both actual and
punitive damages. The defendants appealed the actual damages portion of the verdict.
The Iowa Supreme Court held that reasonable force may be used to protect property but not such
force that inflicts great bodily injury or causes death, even where the injured or deceased party
violated the law by trespassing. The court found that use of a spring gun would be justified only if a
trespasser was committing a felony of violence or one punishable by death, or endangering
human life.

Case Questions and Answers

1. Suppose that, instead of a spring gun, the Brineys had unleashed on the premises a
vicious watchdog that severely injured Katko’s leg? Would the result have been
different? What if the watchdog had been properly chained?
This question is designed to illustrate how the legal process makes use of analogous
situations. Prosser and Keeton, Law of Torts (5th ed., 1984, § 21), suggests that a vicious
dog would be classified with a spring gun and that the owner would be liable if the dog
were left at large. Liability would not attach if the dog were properly chained, as it would
be deemed kept for warning purposes.

2. When may one set a spring gun and not be subject to liability? What can one legally
do to protect property or life?
The Iowa Supreme Court held that reasonable force may be used to protect property but not
such force that inflicts great bodily injury or causes death, even where the injured or
deceased party violated the law by trespassing. The court found that use of a spring gun
would be justified only if a trespasser was committing a felony of violence or one punishable
by death, or endangering human life.

3. What do you think the consequences would have been if the dissenting judge’s
suggestions had become law?
Many shopkeepers and individuals would use spring guns, numerous serious and fatal
accidents would occur, and private individuals would be permitted to punish persons
more severely than could the state after obtaining a criminal conviction.

4. A case involving breaking and entering and shooting a gun might appear to be a
criminal matter. What factors make this a civil lawsuit?
There was a corresponding criminal case, and Katko was convicted. The present action is
civil because it was brought by one private individual (Katko) against another private
individual (Briney) for money damages.

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 Chapter I: Introduction 11

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12 Chapter I: Introduction

Summary
Suggs v. Norris
364 S.E.2d 159
Court of Appeals of North Carolina
February 2, 1988

Suggs sued the estate of Norris for compensation relating to her services rendered in the operation
of Norris’s produce business. Suggs and Norris cohabited while unmarried and were also business
partners. A jury found for Suggs, and the trial judge denied the defendant’s motions for a directed
verdict and judgment notwithstanding the verdict (JNOV). The defendant appealed, arguing on
public policy grounds that because Suggs and Norris were illegally cohabiting, Suggs was not
entitled to compensation under a quantum meruit theory, nor was the agreement Suggs alleged
existed enforceable.
The North Carolina Court of Appeals upheld the lower court’s decision, holding that agreements
regarding finances and property of unmarried but cohabiting couples are enforceable because
sexual services or promises for sexual services do not constitute consideration for the agreements.
There were sufficient facts before the jury, concluded the court, to permit it to find that Suggs and
Norris had a mutual understanding regarding Suggs’s compensation.

Case Questions and Answers

1. Darlene Suggs’s suit against the estate of Junior E. Norris was based on what
legal theories?
The Suggs suit was based on two theories: (a) there was an implied contract between
Norris and Suggs with respect to compensation for the services rendered to produce
business, and (b) she was entitled to compensation under quantum meruit—this is a
restitutionary action one person brings to recover money for services rendered to another
person. It literally means “as much as he (or she) deserves.”

2. Under what circumstances does the court indicate that the contracts between
unmarried but cohabiting persons would not be enforceable?
The court makes clear that agreements between unmarried but cohabiting people are
enforceable unless sexual services or promises provide the consideration for such
agreements. Contracts that are for sexual services are unenforceable because they are
prostitution-like relationships and are contrary to public policy.

3. Why should a court be able to create a contract after a dispute arises for parties
who never signed a binding contract?
A court can create a contract to prevent unjust enrichment because it is the only fair thing
to do under the circumstances.
The court was asked by the estate of Junior Earl Norris to rule that no contract could exist
between Norris and Suggs because it would violate public policy to recognize contractual
rights between unmarried persons who were illegally cohabiting. The court indicated that
it disapproved of adultery but that unless illicit sex was the consideration for an
agreement, unmarried and cohabiting people can enter into valid contracts of all types.

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 Chapter I: Introduction 13

The court felt that the facts in this case could lead to Norris’s heirs being unjustly
enriched at Darlene Suggs’s expense. Despite the nonexistence of an express or implied-
in-fact agreement between the parties, the court was willing to allow the jury to consider
whether a fictitious agreement should be implied as a matter of law in order to bring
about a just result. The court, following the implied-in-law approach, permitted the jury
to decide whether to award a quantum meruit recovery to Darlene Suggs, so that she
would at least receive some compensation for her considerable labors. The court jumped
through hoops to permit the jury to decide what justice required in this case.

4. Do you see any moral principles reflected in the court’s opinion in this case?
This question calls for a student opinion.

 CHAPTER QUESTIONS AND ANSWERS

1. Inmates in a state reformatory brought suit against the state department of
corrections because corrections officials refused to permit certain persons to visit
inmates. The inmates brought suit because receiving visitors is essential to inmates’
morale and to maintaining contacts with their families. They argued that the state
had established regulations to guide prison officials in making visitation decisions,
thus the court should recognize that inmates have a constitutionally protected
liberty right to a hearing whenever prison officials deny a visitation. Convening
such a hearing would make it possible for inmates to determine whether prison
officials had complied with the guidelines or had acted arbitrarily in denying a
visitation. Should the inmates have a due process right to a hearing?
Kentucky Department of Corrections v. Thompson, 490 U.S. 454 (1989)
Although the U.S. District Court and the Court of Appeals for the Sixth Circuit ruled that
the prison’s policies had created a liberty interest in receiving visitors, the U.S. Supreme
Court disagreed. It ruled that the state’s regulations were not sufficiently mandatory to be
interpreted as creating a protected liberty interest. In the absence of a liberty interest,
there was no due process right to the hearing.

2. Terry Foucha, a criminal defendant, was charged with aggravated burglary and a
firearms offense. On October 12, 1984, Foucha was found not guilty by reason of
insanity and was ordered committed to a mental institution until medically
discharged or released pursuant to a court order. In March 1988, doctors evaluated
Foucha and determined that he was “presently in remission from mental illness,
[but] [w]e cannot certify that he would not constitute a menace to himself or to
others if released.” There was testimony from one doctor that Foucha had “an
antisocial personality, a condition that is not a mental disease, and that is
untreatable.” Based on these opinions, the court ordered that Foucha remain in the
mental institution because he posed a danger to himself as well as others. Under
state law, a person who has been acquitted of criminal charges because of insanity
but who is no longer insane can only be released from commitment if he can prove
that he is not a danger to himself or to society. Does the statutory scheme violate
Foucha’s liberty rights under the Due Process Clause?
Foucha v. Louisiana, 504 U.S. 71 (1992)

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14 Chapter I: Introduction

The U.S. Supreme Court ruled that the statute did violate Foucha’s liberty rights under
the Due Process Clause. Due process permits the civil commitment in a mental hospital
of a person who has been acquitted of a criminal offense by reason of insanity so long as
the person is both mentally ill and dangerous. In this case the state was not contending
that Foucha was still mentally ill and, therefore, it had no right to continue holding him
involuntarily in a psychiatric institution as an insanity acquitee. The court noted that
freedom from bodily restraint is central to the concept of liberty under the Due Process
Clause. The state cannot satisfy its burden of proof in Foucha’s case to prove both
elements clearly and convincingly because it does not claim that Foucha is mentally ill.

3. Rhode Island’s legislature enacted laws that prevented liquor retailers from
advertising the retail prices of their merchandise at sites other than their retail
stores. It feared that allowing package stores to advertise their prices freely and
honestly would lower the cost to consumers and increase the use of alcoholic
beverages. 44 Liquormart, a liquor retailer, brought suit seeking a declaratory
judgment on the grounds that Rhode Island’s laws violated the store’s First
Amendment right to freedom of speech. The U.S. District Court made a finding of
fact that Rhode Island’s law had “no significant impact on levels of alcohol
consumption” and concluded that the law was unconstitutional. The district judge’s
rationale was that the statute in question did not further the goal of reducing alcohol
consumption, and further, that its restrictions on commercial freedom of speech
were unnecessary and excessive. The U.S. Court of Appeals for the First Circuit
reversed, however, and the U.S. Supreme Court granted certiorari. Do you believe
that Rhode Island’s statute violates the package store’s First Amendment and due
process right to engage in commercial speech?
44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996)

Rhode Island’s attempt to prevent price advertising of alcoholic beverages was an

infringement of the 44 Liquormart’s First Amendment right of freedom of commercial
speech. Although Section 2 of the Twenty-first Amendment to the U.S. Constitution
delegated to the states’ federal rights under the commerce clause with respect to the sale
and use of alcoholic beverages, that amendment did not impose any limitations on the
First Amendment rights to free speech. Justice Stevens wrote for the Court that Rhode
Island had failed to carry its burden of proof in justifying its total ban of price advertising
and had, therefore, infringed on the petitioner’s free speech rights.

4. Margaret Gilleo is a homeowner in a St. Louis suburb. In December 1990, she

placed a 24-by-36-inch sign on her lawn expressing opposition to Operation Desert
Storm. She contacted police after her sign was stolen on one occasion and knocked
down on another occasion. Police officials told Margaret that her signs were
prohibited by city ordinance. Margaret unsuccessfully petitioned the city council for
a variance, and then filed suit. In her civil rights action, she maintained that the city
ordinance violated her First Amendment right of freedom of speech, which was
applicable to the state through the Fourteenth Amendment Due Process Clause. The
U.S. District Court agreed and enjoined the enforcement of the ordinance. Margaret
then placed an 8½-by-11-inch sign in an upstairs window indicating her desire for
“Peace in the Gulf.” The city, in the meantime, repealed its original ordinance and
replaced it with an ordinance that prohibited all signs that did not fit within ten
authorized exemptions. The ordinance’s preamble indicated that its purpose was to
improve aesthetics and protect property values within the city. Margaret’s peace

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 Chapter I: Introduction 15

sign did not fit within any of the authorized exemptions. She amended her
complaint and challenged the new ordinance because it prohibited her from
expressing her opposition to the war. The city defended by arguing that its
ordinance was content neutral and its purposes justified the limited number of
exemptions. It noted that alternative methods of communication, such as hand-held
signs, pamphlets, flyers, etc., were permissible under the ordinance. How would you
decide this case?
City of Ladue v. Gilleo, 512 U.S. 43 (1994)
A unanimous U.S. Supreme Court ruled that the ordinance had violated respondent
Margaret Gilleo’s free speech rights under the First and Fourteenth Amendments. The
Court weighed the community’s interest in enhancing aesthetics against the individual’s
rights to express her political views in front of her residence. The fact that the ordinance
would totally preclude this powerful and inexpensive way of communicating personal
views was excessive. The Court also noted that Gilleo was attempting to exercise her
rights at her home, a place of special constitutional significance.

5. Keen Umbehr was in the trash collection business. He had an exclusive contract
with Wabaunsee County and six of the county’s seven cities to collect the trash from
1985 to 1991. Throughout his term as the primary trash collector, he publicly
criticized the county board and many of its policies, successfully sued the board for
violating the state open meetings law, and tried, unsuccessfully, to be elected to the
board. The board’s members retaliated against Umbehr by voting to terminate his
contract with the county. Umbehr, however, successfully negotiated new agreements
with five of the six cities whose trash he had previously collected. In 1992, Umbehr
sued the two county board members who had voted to terminate his contract. He
alleged that his discharge–nonrenewal was in retaliation for having exercised his
right to freedom of speech. The U.S. District Court ruled that only public employees
were protected by the First Amendment from retaliatory discharge. The U.S. Court
of Appeals disagreed and reversed. Should independent contractors who have
government contracts be protected by the Fourteenth Amendment’s Due Process
Clause from retaliatory contract discharges resulting from a contractor’s exercise of
speech? Should the well-known system of patronage, a practice followed by
politicians of all stripes by which they reward their supporters with contracts and
discharge those who are their political adversaries or who criticize their policies,
take precedence over First Amendment considerations?
Board of County Commissioners, Wabaunsee County, Kansas v. Umbehr, 518
U.S. 668 (1996)
The Supreme Court said “no.” It refused to distinguish between government employees
and governmental contractors with respect to the exercise of First Amendment rights.
Both are entitled to First Amendment protection from retaliatory discharges from
employment solely because they criticized their employer’s policies.

6. A Cincinnati, Ohio, ordinance makes it a criminal offense for “three or more persons
to assemble, except at a public meeting of citizens, on any of the sidewalks, street
corners, vacant lots, or mouths of alleys, and there conduct themselves in a manner
annoying to persons passing by, or occupants of adjacent buildings.” Coates, a student
who became involved in a demonstration, was arrested and convicted for the violation
of this ordinance. His argument on appeal was that the ordinance on its face violated
the Fourteenth Amendment. Is this a valid contention?

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16 Chapter I: Introduction

Coates v. City of Cincinnati, 402 U.S. 611 (1971)

The U.S. Supreme Court said “yes,” stating that the ordinance was unconstitutionally
vague because it subjected the exercise of the right of assembly to an unascertainable
standard. People of common intelligence must guess at the meaning of “annoying.”
Conduct that annoys some people may not annoy others. The ordinance also violated
the appellant’s constitutional right of free assembly and association protected by the
First Amendment.

7. Fuentes purchased a stove and stereo from Firestone Tire and Rubber Company.
Payment was to be made in monthly installments over a period of time. After two-
thirds of the payments were made, Fuentes defaulted. Firestone filed an action for
repossession, and at the same time instructed the sheriff to seize the property
pursuant to state law. The sheriff seized the property before Fuentes even knew of
Firestone’s suit for repossession. Fuentes claims that she was deprived of due
process because her property was taken without notice or a hearing. What should
the result be?
Fuentes v. Shevin, 407 U.S. 67 (1972)
Fuente’s property was returned to her until there could be a hearing on whether there was,
in fact, a default in violation of the sales contract. The court said that laws allowing for
seizure prior to notice and hearing did not provide due process and were, therefore,
unconstitutional. The court would allow seizure before a hearing if the property were
about to be destroyed or if jurisdiction were about to be lost.

8. Plaintiff brought a class action on behalf of all female welfare recipients residing in
Connecticut and wishing divorces. She alleged that members of the class were
prevented from bringing divorce suits by Connecticut statutes that required
payment of court fees and costs of service of process as a condition precedent to
access to the courts. Plaintiff contended that such statutes violate basic due process
considerations. Is her argument valid?
Boddie v. Connecticut, 401 U.S. 371 (1970)
The U.S. Supreme Court, in an opinion expressing the views of six members of the
Court, held that the statutes did violate due process concepts. A state denies due process
of law to indigent people by refusing to permit them to bring divorce actions except on
payment of court fees and service-of-process costs, which they are unable to pay. A
requirement as to payment of costs, valid on its face, may offend due process because it
operates to foreclose a particular party’s opportunity to be heard.

9. Like many other states, Connecticut requires nonresidents of the state who are
enrolled in the state university system to pay tuition and other fees at higher rates
than residents of the state who are so enrolled. A Connecticut statute defined as a
nonresident any unmarried student if his or her “legal address for any part of the
one-year period immediately prior to [his or her] application for admission … was
outside of Connecticut,” or any married student if his or her “legal address at the
time of his application for admission … was outside of Connecticut.” The statute
also provided that the “status of a student, as established at the time of [his or her]
application for admission … shall be [his or her] status for the entire period of his
attendance.” Two University of Connecticut students who claimed to be residents of
Connecticut were by the statute classified as nonresidents for tuition purposes. They
claimed that the Due Process Clause does not permit Connecticut to deny an

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part.
 Chapter I: Introduction 17

individual the opportunity to present evidence that he or she is a bona fide resident
entitled to state rates and that they were being deprived of property without due
process. Is this a valid argument?
Vlandis v. Kline, 412 U.S. 441 (1973)
Yes. The U.S. Supreme Court held that the Due Process Clause does not permit
Connecticut to deny an individual the opportunity to present evidence that he or she is a
resident entitled to in-state rates. The statute creates a permanent and irrefutable
presumption that because a student’s legal address was outside the state at the time of
application for admission or at some point during the preceding year, the student remains
a nonresident for as long as he or she is a student. That presumption is not necessarily or
universally true. The state has reasonable alternative means of making the crucial
determination. This irrefutable assumption was so arbitrary and unreasonable as to
deprive the taxpayer of property without due process of law. A statute creating a
presumption that operates to deny a fair opportunity to rebut it violates the Due Process
Clause. The Connecticut statute made no distinction on its face between established
residents and new residents. Standards of due process require that the state allow such an
individual the opportunity to present evidence showing that he or she is a bona fide
resident entitled to the in-state rate.

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18 Chapter I: Introduction

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