Carter v. Miller – Oral Argument – November 29, 1977

Media for Carter v. Miller

Audio Transcription for Opinion Announcement – January 17, 1978 in Carter v. Miller
Audio Transcription for Oral Argument – November 30, 1977 in Carter v. Miller

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Warren E. Burger:

We will hear arguments next in Carter against Miller 1171.

Mr. Quinlan I think you may proceed.

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.

John Paul Stevens:

Mr. Quinlan does that factor have anything to do with the justification for the ordinance namely the protection of the passenger?

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.

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.

Audio Transcription for Oral Argument – November 30, 1977 in Carter v. Miller

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William R. Quinlan:

I am not sure I am following —

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.

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.

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.

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 —

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.

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.

Thurgood Marshall:

What good with the hearing to this man?

William R. Quinlan:

What good the hearing to this man?

Yeah.

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?

Thurgood Marshall:

I thought he filled out a blank and said all of that.

William R. Quinlan:

No, all he said he was convicted of armed robbery.

Thurgood Marshall:

Well, that is enough.

What is (Inaudible).

William R. Quinlan:

Well, as I am saying it would none of the circumstance in this case, I think you are quite —

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.

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.

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?

Audio Transcription for Oral Argument – November 30, 1977 in Carter v. Miller

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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.

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.

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.

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.

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.

Thurgood Marshall:

I am not there yet, I have not gotten to equal protection yet.

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.

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?

William R. Quinlan:

As opposed to one who has the license.

Thurgood Marshall:

Yes.

I might think they are both dangerous.

William R. Quinlan:

Well, I think we and the legislative body would conquer with that.

All I —

Thurgood Marshall:

Then stop both of them from driving.

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.

Audio Transcription for Oral Argument – November 30, 1977 in Carter v. Miller

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Thurgood Marshall:

How many drivers are involved in this, do you know?

William R. Quinlan:

In this type of situation, I personally involve one another case which was not appealed.

Thurgood Marshall:

But you would not — there are no figures on an appeal.

William R. Quinlan:

No, there is not Your Honor.

I should not have (Inaudible).

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.

Audio Transcription for Oral Argument – November 30, 1977 in Carter v. Miller

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William R. Quinlan:

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.

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?

William R. Quinlan:

Well, it is distinguishable on the facts even it involves an ambulance driver Your Honor and an ambulance —

Thurgood Marshall:

Had he previously been licensed?

William R. Quinlan:

Yes he had Your Honor.

Thurgood Marshall:

Oh I see.

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.

Thurgood Marshall:

He reapplid.

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.

Potter Stewart:

The Court in this case considered the Res judicata effect of that decision?

William R. Quinlan:

No, it did not Your honor.

Potter Stewart:

Was that decision brought to the Court’s attention?

Robert Masur:

That decision was brought to the Court’s attention, but the Court did not rely on it.

Audio Transcription for Oral Argument – November 30, 1977 in Carter v. Miller

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John Paul Stevens:

Why was that case and the Appellant Court and the Illinois Supreme Court was on unconstitutional ground?

Robert Masur:

Well, first of all Your Honor, it would involve an ordinance and not a statute.

I see.

Robert Masur:

As to challenge to a statute on constitutional grounds would go to Illinois Supreme Court, but not to an ordinance.

Thurgood Marshall:

I see.

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.