Due Process/Equal Protection

1. Due Process/Equal Protection Protection against certain government actions provided by the 14th Amendment to the U.S. Constitution

2. 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

3. 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

4. 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

5. Is This Fair?

6. 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

7. 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

8. Substantive Due Process • Did you do things right? An expectation that others have the same rights as you allow for yourself

9. 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.

10. Location • 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.

11. Location Context

12. 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

13. Argument • 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.

14. Decision • 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.

15. 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.

16. 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

17. Context • 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

18. 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.

19. Background • 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

20. The Director and Residents of Oxford House

21. 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

22. 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.

23. 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

24. 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

25. 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

26. City of Brookings

27. 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

28. Winker’s House – How Could You Tell Students Live Here?

29. Winker and the Students

30. 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.

31. Winkler • Winkler owns a duplex unit that he rents to students. • One the duplex units contains five residents

32. 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

33. Preserve Property Values?

34. Parking Density

35. 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.

36. 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

37. 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

38. 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

39. 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

40. The Protest Petition • 45 percent of the neighbors signed the petition which represents 18 percent of the properties

41. 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.

42. 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.

43. 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.

44. Analysis • 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.

45. Arkenburg v Topeka

46. 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

47. The Church v Topeka

48. Entanglements

49. Background • 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.

50. Facts • 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