*1 resiliency by possible demonstrate parties with the technology existing cups types of in stacks. various when Edwards made the ’213 and ’360 inventions. Consequently, these ‘after Resiliency a result of the structures the fact’ tests by conducted Foster Grant significant ’213 both described purpose of this lawsuit have limit- 1 of ’213 closes with the ’360. Claim probative ed value. [Emphasis added.] following: “said intermediate section of the inwardly up- means inclined stacking We can find no fault with the statement cup present objected toward the axis to wardly to. pro- shoulder means and to inner

aforesaid The judgment appealed from is AF- thin-wall, support resilient therefor vide FIRMED. pressure applied there axial when like, shoulder means the external telescopically associated container.” Claim following: closes with “the ’360 flexibility plastic thin mate-

inherent cup in combination with the

rial of serving structural aforesaid features to im- al., Luther MILLER et action to a part resilient stack of nested s-Appellants, Plaintiff cups jamming cups without when such are subjected pressure.” to axial CARTER, James Y. Defendant-Appellee.

Apparently, presenting its claim that subject anticipated matter was obvi- No. 75-1162. ous, attempted Grant to prove Foster United States Court Appeals, prior in existence containers the critical Circuit. Seventh resiliency achieved the dates claimed. Argued June 1975. on recently cups were run fabricated Tests simulating form cups which had been Decided Jan. prior to the critical dates. produced objects Grant

Foster the under following passage,

lined assertion set district court:

forth Johnson,

Specifically, Foster Grant’s

expert, admitted cross-examination attempt duplicate there was no variables,

the process such as sheet thick- 2283), (R. plug (R. 2284-87, design

ness

2291-94), plug temperature (R. 2288-

90, 2293-94) which were actually used to alleged prior cups.

make the art Johnson

also admitted that the selection of these alters the per-

variables construction and a cup (R.

formance of or container 2294-

95). tests were These all made on cups

and containers manufactured by today’s

technology. The mission of this Court is the prior determine art ‘at the time the made’,

invention was 35 U.S.C. 103. The technology

advance since 1957 and demonstrating be denied

1958 cannot can be achieved today’s what tech-

(cid:127) any light does not shed on what nology

Chapter 28.1-2 the Chicago Municipal of requires any person Ordinance em- “transporting in . . . ployed passen- for hire” gers public have a chauffeur’s Applications for the license are license. commissioner, to the who submits the made applicant of captain an name of Masur, Nancy Pre- Eglit, Robert Howard applicant district in which the police resides 111.,for Robert, Chicago, ston, J. Jerome reputation” investiga- “character and a for plaintiffs-appellants. receiving 28.1-4. After po- Ch. tion. Corp. Coun- Quinlan, Acting report, captain’s R. rules lice commissioner William Counsel, Retke, Corp. Asst. sel, application: R. Robert 111., defendant-appellee. for Chicago, “If the commissioner shall be satisfied applicant good is of character BAUER, Circuit TONE and Before reputation and is a suitable person and CAMPBELL, District Senior and Judges, with driving public be entrusted a passen- Judge.* he vehicle shall issue the ger license.” Ch. 28.1-4. CURIAM. PER however, prohibited, The commissioner Chicago a is whether issue before us seen, from issuing we have a license to as persons bars permanently which ordinance crimes, convicted of any person certain in- offenses from obtain- certain of convicted cluding one of which plaintiff was con- license violates chauffeur’s public a ing Persons convicted of felonies not victed. of equal protection clauses process and passage quoted above, listed The District Fourteenth Amendment. involving turpitude, are crimes moral We reverse. the ordinance. sustained for for ineligible apply period licenses robbery of armed was convicted Plaintiff following Ch. eight years conviction. old, and, years he was when 28.1-3. the Illinois years in serving seven after Carter, (7th Freitag v. 489 F.2d 1377 paroled in 1972. Penitentiary, was State 1973), this court Cir. held unconstitutional parole his satisfactorily completed He Vehicle Public License Commissioner’s Sep- August 1973. discharged in application public an for a chauf- denial for chauf- public applied 1974 he tember a clause of 28.1-3 license under Ch. feur’s qualify license feur’s prevented the issuance license which refus- application was His a taxicab driver. “subject to infir- applicant . any Chicago Or- Municipal on ed . . mind . . which mity dinance, 28.1-3, provides which Ch. him unfit to drive a may render may not a license such vehicle.” We held that the due passenger time person any issued “be of the Fourteenth Amend- clause involving of a crime conviction after “governmental licens-. required that ment deadly weapon, traffic narcot- use of judges the fitness ing body against na- crime drugs, infamous ic applicant ade- must afford that applicant ture, rape.” or incest Id., hearing.” and a 489 F.2d notice quate in- hearing action for thereupon plaintiff filed this Luther 1382. Such Plaintiff however, The motion declaratory relief. would be a application, junctive Miller’s defendant, prohibition city’s formality Public Vehicle because of the mere Commissioner, the com- a license to one granting dismiss 28.1-3 Ch. License Court, a crime by the District committed granted who has plaint was deadly weapon. his entered in favor. use judgment was Illinois, * sitting District of Campbell, Dis- Northern J. Senior William The Honorable designation. Judge States District Court the United trict under Ch. provisions previously misrepresentation 28.1-10 In addition to the omission of a material fact discussed, specifies in the applica- the ordinance standards tion, like prohibit- commission one of the of licensees and required conduct sets licensed, ed offenses while does not auto- violations of those standards. penalties matically result in revocation. through 28.1-15. Ch. 28.1-10 28.1-10 Ch. *3 describes, conduct which can lead to the as Such distinctions among those members license, the class of “any the violation irrational, revocation ex-offenders are regardless of importance the which, public law if convicted for such the criminal safety underlying considerations the statute offense, any disqualify applicant for prior or the relevance of convictions to fit- . .” Engaging license a chauffeur’s fact, allowing ness. existing licensees not, however, this behavior does lead to who commit felonies eligi- continue to be Rather, automatic revocation. “the com- licensing ble undercuts the reasonable- may mayor missioner recommend classification, ness of the basis for ... be license revoked and [the] is that the felony per se likely to discretion, mayor, in his may revoke create serious risk which cannot be suffi- Thus, (Emphasis supplied.) license.” such ciently protect evaluated to public is absolutely Miller barred from plaintiff through individualized hearings. An appli- license, obtaining although he was con- a license who cant for has committed one of robbery years armed over eleven victed the described felonies and a licensee who already while someone who ago, holds a has done the same are similarly situated, permitted it, may be al- license retain justification no and exists for automatically though convicted of armed robbery only disqualifying one and not the other. Ac- yesterday. cordingly, insofar as Ch. 28.1-3 and 28.1-10 irrationally discriminate among the class of city’s purported justification for this ex-offenders, they violate equal protec- persons treatment of different who commit tion clause the Fourteenth Amendment. receiving one of listed offenses after they is that have a Plaintiff has also argued license “track record” the chal- lenged ordinance process violates the mayor the commissioner and bal- due can because it clause creates an irrebuttable against felony evaluating ance fit- person that a convicted of a validity ness. The of this distinction is dis- specified offense is forever unfit to en- be however, sipated, by the fact that a licensee public with a trusted chauffeur’s license. opportunity an has obtain favorable Judge Campbell, who files a separate opin- regardless exercise this discretion of how concurring result, in the ion would decide a time the short license has been held. ground, the case on this because of his Thus, one who committed robbery armed equal-protection concern that the deficiency days receiving license, a few within readily in the ordinance can by remedied who or one committed the crime before and, is, if it city, we will soon be faced licensing but was convicted receiving after with another case raising the due license, would, apparently, eligible predict We cannot issue. whether the city Indeed, the license. one who was .retain will amend the ordinance to retain an abso- convicted of armed robbery before apply- employment lute bar to chauf- ing, but concealed that fact and so obtained it feur which has not seen fit to apply license, would, ordinance, according occupation, any no matter how sensi- eligible license, also be to retain the event, tive.1 In equal-protection (Illinois Depart- sary protection 1. Briefs filed amici curiae public, for the of the and re- Corrections, Operation Dare, Jobs, ment of Just from the limited moves number of Lawyers, Chicago Council and John Howard realistically opportunities available to ex-of- Association) urge policy of absolute fenders that of taxicab or bus driver. While we preclusion state-imposed is inconsistent with unsympathetic public-policy are not to these qualifications occupa- for other more sensitive arguments, they appropriately are more ad- tions, experience fails to take account of show- legislative dressed to the branch and can be rehabilitation, ing possibility is unneces- us, suspension,6 and custody,7 the ease before child disposes of pregnancy unnecessarily plunge unwilling to disability.8 Federal regulations we are concerning presump- stamp eligibility the thicket into food were also held uncon- tions, which we can summarize for reasons stitutional same rationale.9 In all as follows. cases the these classifications judged by balancing advantages were doctrine, The irrebuttable feasibility of individualized determina- Supreme Court in several invoked the inflexibility tions and conse- cases,2 in the era when has its roots recent quent harshness of the classification. process concepts led substantive case Court struck down the each classi- and federal eco- down state strike established, required fication indi- it deemed arbi- legislation social nomic factual vidualized determination of the eli- renaissance of the trary capricious.3 or plaintiff gibility benefits regu- state laws *4 been fatal doctrine has attendant residency voting penalties upon membership of in the purposes lating tuition,5 not, however, driver’s license It did college and class. forbid considera- rights4 given amending consideration discussing when Court referred to earlier decisions process we hold invalid. implications ordinance the due of conclusive evi- dentiary presumptions. Bailey Alabama, v. 211 Department Employment Securi- v. 2. Turner 141, 452, (1908); 53 29 S.Ct. L.Ed. 278 U.S. 249, 44, 181 ty, S.Ct. 46 L.Ed.2d 423 U.S. 96 Alabama, 219, Bailey 145, v. 219 U.S. 31 S.Ct. La- v. Education 791, Board of (1975); Cleveland (1911); States, Keller 55 L.Ed. 191 v. United 52 632, Fleur, L.Ed.2d 39 414 U.S. 94 S.Ct. 470, 138, (1909); 213 U.S. 29 S.Ct. 53 L.Ed. 737 Department Agricul- (1974); States United Mobile, Turnipseed, J. & K. R. Co. C. v. 219 508, 2832, Murry, U.S. 93 S.Ct. 37 v. 413 ture 136, 35, (1910). 31 S.Ct. 55 L.Ed. U.S. 78 Kline, (1973); v. 412 Vlandis U.S. 767 L.Ed.2d (1973); 2230, 441, 37 L.Ed.2d 63 Stan- 93 S.Ct. Rash, Carrington 89, 775, 4. v. 380 U.S. 85 S.Ct. Illinois, 645, 1208, ley U.S. 92 S.Ct. 31 405 v. (1965). 13 675 L.Ed.2d (1972). v. Cf. Jimenez 551 L.Ed.2d 628, 2496, Weinberger, 94 41 U.S. S.Ct. 417 (1974). decisions, Kline, previous 441, 2230, 5. v. 363 Two Vlandis 412 U.S. 93 L.Ed.2d S.Ct. Burson, 535, 1586, (1973). U.S. 91 S.Ct. 29 402 Bell v. 63 37 L.Ed.2d Rash, Carrington (1971), v. 380 L.Ed.2d 90 775, 89, (1965), 675 13 L.Ed.2d 85 S.Ct. U.S. Burson, 535, 1586, 6. Bell v. 402 U.S. 91 S.Ct. 29 resting, part, explained as least in at have been (1971). 90 L.Ed.2d Illinois, Stanley v. upon the same rationale. 653-656, 1208. supra, at 92 S.Ct. 405 U.S. Illinois, Stanley 645, 1208, v. 92 7. 405 U.S. S.Ct. (1972). 31 551 Wisconsin, 230, Schlesinger U.S. 46 270 3. In v. Court, per 260, (1926), 70 L.Ed. 557 S.Ct. LaFleur, McReynolds, a Wisconsin es- of Education v. 414 held 8. Cleveland Board Mr. Justice unconstitutional, 632, 791, its (1974); because tax statute 94 39 tate U.S. S.Ct. L.Ed.2d 52 ade- provision that transfers less than Department Employment all Security, Turner v. years of quate made within six consideration 44, 249, 423 96 46 L.Ed.2d U.S. S.Ct. 181 contemplation gifts in be deemed death (1975). equal pro- process and the due death violated clauses, gifts “in fact made with- tection Department Agriculture 9. United States v. contemplation are . . con- . [of death] out 2832, 508, Murry, 413 U.S. 93 S.Ct. 37 L.Ed.2d clusively presumed to been so made with- have may (1973). doctrine also 767 have been actualities, regard gifts like at while out least, basis, part at for the Court’s deci- 270 U.S. at are not thus treated.” other times 628, Weinberger, in Jimenez v. 417 U.S. 94 sion Donnan, 240, 285 In Heiner v. 46 261. S.Ct. 2496, (1974). Although 363 41 L.Ed.2d S.Ct. 358, 312, (1932), 76 L.Ed. 772 52 S.Ct. U.S. opinion, Justice authored that Chief Sutherland, Court, per overturned Mr. Justice presump- critical of the irrebuttable has been provision as arbi- estate tax “so similar federal doctrine, the Court’s discussion at 417 tion U.S. capricious trary as to cause it fall before 636-638, certainly 94 S.Ct. 2496 echoes the clause of the Fifth of law the due fact, Mr. Justice earlier cases. Blackmun’s 326, 52 285 U.S. Amendment Lucas, opinion for the v. Court Mathews 427 pre- was so because “the at 361. This S.Ct. sumption 495, 2755, (1976), 49 U.S. L.Ed.2d 651 is made defi- here created ... distinguishes Jimenez as conclusive incapable being nitely overcome conclusive — 511, S.Ct. at positive presumptions. 427 U.S. at by proof character.” most In both cases 2765. U.S. because it has behind the the factors classification invoked tion of subsequent Salfi strike down a statute, Utah Turner making that determination.10 Department of Employment Security, presumption analysis irrebuttable 46 L.Ed.2d 181 inception.11 from its Mr. has been criticized (1975), and to distinguish in Mathews v. out the cre- pointed Holmes Justice Lucas, 495, 511, simply of a conclusive ation 2765, 49 (1976), L.Ed.2d 651 the earlier Jim- rule substantive law.12 an enactment of a enez v. Weinberger, 417 U.S. invocations more recent The Court’s (1974). 41 L.Ed.2d 363 Yet in sustain- have been criticized within13 and doctrine ing a state compulsory-retirement-for-age without14 the Court. in Massachusetts Board of Retire- statute Salfi, Murgia, ment v. Weinberger While 2562, 49 (1976), June, last (1975), 45 L.Ed.2d au- Court made no reference to the doctrine.16 Rehnquist, might thored Mr. Justice major step viewed back from the doc- summary, we cannot say whether trine,15 say we cannot the doctrine has doctrine or the support majority lost the analysis substitute followed in Salfi17 Kline, 441, 452^154, tinues, 10. See Vlandis v. 24 Cath.L.Rev. 217 Besides and Cleve- few, pointing any, out that if classifi- LaFIeur, Board of Education land cations would survive applica- the consistent 632, 647 nn. 13 & 94 S.Ct. 39 L.Ed.2d doctrine, tion of the the commentators have *5 (1974). 52 complained that the explained Court has never prompted what it to invoke the doctrine in 11. See Mr. Justice Holmes’ dissent in Schlesin- some cases but not in others. Wisconsin, 241, ger supra, v. 270 U.S. at 46 260, and Mr. Justice Stone’s dissent in S.Ct. that, extended, 15. It was said if the irrebuttable Donnan, 332, supra, v. 285 at Heiner U.S. 52 prior doctrine of the cases could S.Ct. become engine “a virtual of. destruction for countless States, 138, 149, 12. Keller v. United 213 U.S. 29 legislative judgments which have heretofore 470, (1909) (dissent); Bailey 737 53 L.Ed. thought wholly been consistent with the Fifth Alabama, 219, 245, 145, v. 55 and Fourteenth Amendments to the Constitu- (1911) (dissent). 191 L.Ed. tion.” 422 U.S. at 95 S.Ct. at 2470. Rehnquist 13. Mr. Justice has characterized the particularly 16. An striking omission which is relying “heavily on doctrine as notions of sub- light Rehnquist’s of Mr. Justice dissent stantive due that have been authorita- LaFIeur, Cleveland Board of Education v. 414 Kline, tively repudiated,” supra, v. Vlandis 412 632, 659, U.S. 39 L.Ed.2d 52 93 U.S. and as “in the last (1974), adverting specifically to the effect of analysis nothing upon less than an attack the irrebuttable doctrine on man- very lawmaking notion of itself.” Cleveland datory retirement statutes. LaFIeur, supra, v. Board Education 94 S.Ct. at 806. The Chief Justice has question 17. “The Congress, is whether its con- Stanley Illinois, criticized the doctrine since having reasonably cern aroused 645, 662, 405 possibility of an legitimately abuse which it (1972), expressed and Mr. Justice Powell con- avoid, rationally could desired have conclud- implications cern “about the of the doctrine for particular qualifica- ed both that a limitation or legislative power operate by the traditional protect against occurrence, tion would its classification.” Cleveland Board Education expense and other difficulties of indi- LaFIeur, supra, 94 S.Ct. at justified vidual determinations the inherent im- (concurring opinion). precision prophylactic of a rule.” 422 U.S. at (Emphasis supplied.) at 2472. Bezanson, Thoughts 14. See Some on the approach problem Doctrine, This Emerging Presumption individual fair- Irrebuttable legislature operates by Note, when the (1974); ness Ind.L.Rev. 644 classifi- The Irrebuttable appears Presumption Court, Supreme cation phasis consistent Doctrine in the with the em- Kline, (1974); Note, in Vlandis Harv.L.Rev. The 452- Conclu- Presumption 2230, 2236, Equal sive Doctrine: Process or Protection?, (1974); upon Due Note, 72 Mich.L.Rev. 800 the “reasonable alternative means of Presumptions: Illusory making Irrebuttable An the crucial determination” available to Analysis, (1975). City Stan.L.Rev. 449 But see Connecticut. Cf. Dean Milk Co. v. Simson, Presumption Madison, Wisconsin, The Conclusive Cases: Equal The Search For A Newer Con- Protection 95 L.Ed. 329 this teenth (1) case Amendment in two thought appropriate respects: Inas- Supreme Court. majority unconstitutionally of the ordinance dis- by a holding against de- criminates equal-protection applicants previously as our much case, unnecessary is to reach the of a it convicted crime use of a cides weapon, as process question. deadly persons; all other due difficult more (2) that distinction in treatment reversed, and the case is judgment The afforded applicants, ex-offender on the one proceedings consist- for further remanded hand, and licensees convicted of such of- opinion. this ent subsequent license, fenses to issuance AND REMANDED. REVERSED other, is irrational. majority solely appeal would resolve basis CAMPBELL, J. Senior Dis- WILLIAM plaintiff’s equal protection argu- second concurring. Judge, trict holding ment, that: challenged con- complaint Plaintiffs among distinctions members “Such those and defendant’s stitutionality of Ch. 28.1-3 irrational, of the class ex-offenders are thereto, contending that pursuant conduct regardless of the importance public of the right “deprives persons ordinance safety underlying considerations the stat- living without earn prior relevance of ute or the convictions law”, of the Due in violation process of fact, allowing existing to fitness. li- Amend- Clause of Fourteenth Process who felonies censees commit to continue “singles ment, it out class and that licensing eligible for to be undercuts the governmen- of access to a for denial persons of the basis for the classi- reasonableness employ- prerequisite tally-established se fication, the felony which is that per public chauffeur’s licenses by denying ment create serious risk likely to which can- crimes,” certain convicted persons sufficiently protect evaluated to not be Equal Clause of of the Protection violation through individualized hear- Amendment. Fourteenth for a has ings. applicant An license who granted defendant’s District one committed felonies described *6 that on the there to dismiss motion who has done the same are and a licensee relationship between the a rational situated, justification existed similarly and no ex- of a (persons convicted crime automatically disqualifying classification one ists for deadly weapon) involving use of a the Accordingly, the other. insofar and not the ordinance seeks to goal which as Ch. 28.1-3 and 28.1-10 the discriminate (the public). the Ac- protection irrationally among of achieve the class of ex-offend- held the they equal court that ordinance violate the cordingly, ers, protection the Equal the Protection Clause. the Fourteenth not violate clause of Amendment.” did the auto- addition, court that the held agree conclusion, I fully I with this While a persons of all convicted of exclusion matic suggest remaining that respectfully the deadly weapon involving the use of a crime by plaintiff advanced should contentions Clause, the Due Process not violate did by this be addressed and resolved also holding appropriate- “test of the that the deficiency only If the constitutional Court. it a is whether has of the classification ness the fact it irra- of ordinance were this that relationship goals sought the to reasonable distinguishes ex- between certain tionally attained.” to be applicants those are con- offender who subsequent certain crimes contends that the victed of appeal, plaintiff On latter, (affording the presump- of a license an irrebuttable issuance creates ordinance former, a unfitness, opportunity issuance of a but not barring of tion deficiency easily meaningful hearing), of that evidence irrespective license chauffeur’s by amending cured the ordinance deprives him of could be contrary and thus to automatic revoca- hearing. provide to meaningful for a so as opportunity any who, by a person license held violates tion of that the ordinance also contends He thereof, is convicted issuance subsequent of Four- Equal Clause Protection 1320 felony Upon passage attacking every offenses.

of certain aspect problem of a or not and the continued of an amendment attacking problem such at all is It plaintiff meaningful this to afford enough refusal that the State’s action be rationally e., is not hearing (i. one at which result based and from free invidious discrimina- an irrebuttable preordained by 486-487,90 397 U.S. at tion.” S.Ct. at 1162. unfitness), anticipate I would Mr. Mil- of test, scrutiny The strict requiring challenge court to the district ler’s return be upheld classification only if it constitutionality the ordinance necessary is advance compelling state remaining grounds heretofore advanced interest, will used be to measure the consti- on again appeal. court and district tutionality a legislative classification possibility view of the realistic this “only when the classification impermissibly occur, avoiding and in the interest of interferes with the exercise of a fundamen- unnecessary litigation, I believe right operates tal to the peculiar disad- issue, remaining equal as well as the vantage suspect class.” Massachusetts issue, protection should be resolved Murgia, Board of 427 Retirement U.S. time. 307, 312, 96 L.Ed.2d (1976); San Independent Antonio EQUAL PROTECTION School District Rodriguez, 411 U.S. ordinance, argues that the its Plaintiff (1973). 36 L.Ed.2d 16 Included face, against discriminates group one among such fundamental rights are those previously persons convicted of —those protected Amendment, First such as deadly the use of weap- crime right individuals to associate for the against persons all other on—as and as political beliefs, advancement Williams v. against other ex-offenders.1 Rhodes, 21 L.Ed.2d aspect In order to assess this plaintiff’s and at least to some extent claim, equal protection it right personal course neces- privacy, Wade, Roe v. sary first to determine appropriate 35 L.Ed.2d (1973). by which the constitutionality standard viewed as Also right “fundamental” are the vote, should Carter, be measured. Plain- Bullock ordinance urges right 849,31 tiff that his to work is such a (1972) right and the right travel, Shapiro fundamental classification of interstate v. Thompson, provided for in ordinance should

tested constitutional persuaded, however, standard I am not scrutiny,” upheld only right “strict if found a particular necessary promote a compelling field endeavor “fundamental” in a *7 governmental Shapiro Thomp- requires interest. v. which application sense of the son, 618, 1322, scrutiny 89 S.Ct. 22 particular strict rule. Of note is defendant, 600 The Supreme on the other the Court’s recent decision in Mas- hand, argues that legislative the classifica- sachusetts Board of Retirement Murgia, v. tion under consideration does not supra, interfere wherein the Court found “no support any with the exercise of proposition fundamental to the right govern- that a of rights, employment per and should be measured the mental se is fundamental.” rationality Murgia, test set forth in v. Dandridge of In the Court apply refused to a the Williams, 471, 1153, 397 90 scrutiny U.S. 25 strict to rule a mandatory retire- L.Ed.2d 491 wherein the Court held ment statute which required po- that state Equal that “the Protection Clause does not age lice officers retire at fifty, upheld require a State must choose between the constitutionality of the statute under addition, respect, plaintiff persons 1. this latter In notes that convicted of certain fel- public may allows issuance of a irrespective ordinance chauf- onies be issued a license conviction, they license to certain other feur’s ex-offenders if the date have been honor- pre-date application discharged ably convictions for whose from a branch of the Armed by eight years. a than In such license more Services the interim.

1321 ground on the 93 S.Ct. Clause U.S. Protection Equal rationally (1973).2 related was classification objective: state legitimate a to Supreme has The Court noted a sus- rationally classification State’s one pect class is “saddled with such disabili- “[T]he by purpose identified ties, subjected furthers history to such a pur- or mandatory retirement Through treatment, State: unequal relegated poseful protect legislature seeks 50, the political age position of powerlessness a as such prepared- assuring physical extraordinary protection from to command physi- police. Since uniformed of its majoritarian political ness process.” Rodri- age, with declines ability generally cal supra, 411 U.S. at 93 S.Ct. at 1294. guez, re- serves mandatory retirement supra. Murgia, Admittedly, significant so- fit- service those whose police move from solely disabilities often derive from cietal presumptively work uniformed person ex-offender, ness for that a is an the fact age.” U.S. diminished has in the area employment op- particularly 49 L.Ed.2d at 96 S.Ct. Nevertheless, portunities. Supreme 525-526. decisions which have considered ex- “suspect” panding category of classifi- scrutiny rule strict do I believe Nor have shown a clear cations reluctance do ground that on the applied should See, example, the concurring opin- so. pe- operates classification Powell, Stewart and ex- ions of Justices disadvantage “suspect class”. culiar views of four members of the pressing which have classifications Indicative Frontiero, Court, in and the Court’s recent strictly scrutinized been Murgia, which Court de- decision are those “suspect class” a affect they opportunity aged include clined Virginia, v. Loving race: upon based class”, “suspect notwithstanding 18 L.Ed.2d 1, 87 S.Ct. acknowledgement that “the treat- 184, Court’s Florida, 379 McLaughlin v. (1967); aged in ment of the this Nation has not (1964); alien- 13 L.Ed.2d wholly free of .” Richardson, discrimination age: Graham I Accordingly, would not deem ex-offenders (1971); ances- 29 L.Ed.2d California, “suspect purposes class” for 332 to constitute Oyama nationality: try or Clause, (1948) Equal Protection and would of the 92 L.Ed. Richardson, scrutiny inapplicable. rule hold the strict Frontiero v. sex: possibly Frontiero, far-reaching implications held unconstitutional of the the Court of such a hold that, required statutory Reed, in or- which ing. scheme [92 Reed “dependent” spouse as a to claim abundantly sup der L.Ed.2d 225] obtaining quarters purposes allow- increased today, ports did not add our decision sex benefits, a female medical and dental ances and narrowly group of limited classifications which armed services had to establish member view, my inherently suspect. we can are to over one-half her contributed that she authority case on the decide this and should statutory support. same husband’s any expansion for the future reserve Reed and his wife to claim serviceman allowed scheme 691-692, 411 U.S. at rationale.” its regard “dependent” whether without aas than remains less clear wheth at 1773. It thus fact, upon she, dependent him was purpose “suspect class” for the er sex is Opinion part support. of the Court of her See, scrutiny applying strict test. Kahn v. on behalf Justice Brennan authored *8 Shevin, 351, 94 40 L.Ed.2d 416 U.S. Douglas, Mar- White and and Justices himself Aiello, (1974); Geduldig v. 417 U.S. concurrence Stewart’s brief Justice shall. 20, 94 S.Ct. 41 L.Ed.2d 256 and 496 n. work an before us agreed “that the statutes 497-505, J., dissenting at Brennan the in violation of Con- discrimination invidious Ballard, 2485; Schlesinger v. v. Reed, 404 U.S. 71 [92 Reed stitution. (1975); Weinberger v. 42 L.Ed.2d 610 Burger Justice Chief 225]”. 30 L.Ed.2d Wiesenfeld, opinion joined in an au- Blackmun and Justice Stanton, (1975); Stanton v. L.Ed.2d concurring in by Powell Justice thored 7, 13, expressing that “it is judgment the view but Boren,-U.S.-, Craig unnecessary case to char- classification, suspect with all a sex as acterize public constitutionality follows that chauffeur’s licenses It is rationally re- Equal legitimate Protection to a under lated goal, ordinance therefore does hinge on whether not the not contravene Equal does not Clause Protection I necessary promote Clause.3 compel- reject is a would also statute plaintiff’s contention that the ling governmental interest. defendant ordinance un- constitutionally distinguishes that the between those only need establish classification of crimes convicted involving the use of a rationally legitimate legislative related to a weapon and ex-offenders convicted of I that standard purpose. believe has been cer- (The tain other offenses. prohib- ordinance in this case. satisfied absolutely its public issuance of a chauf- City Chicago legiti- Clearly, the has a former, feur’s license to the but allows un- promoting public safety, mate interest der certain circumstances issuance of a connection, may regulate and in this latter). license to the principal Defendant’s public so issuance of chauffeur’s licenses as in considering concern past criminal insure that the character to better and com- applicant of an record prospect of the licensee is consistent petence placing a passenger driver in physical jeop- high imposed traditionally standards ardy. Accordingly, gives ordinance upon respect common carriers with weight greater to crimes such as armed safety public passengers. care and As robbery rape than to crimes not involv- correctly argues, persons defendant who ing violence crimes not against directed transported to be choose in taxicabs obvi- persons. If anything, this' added ously are unable to make an informed specificity supports the constitutionality of selecting driver, and therefore choice by the statute more narrowly defining the that, entitled to assume having are persons class of to whom public chauffeur’s City, licensed is a person licensee may licenses not issue. satisfactory competence. character and City Chicago legiti- doubt the No has DUE PROCESS attempting mate interest to insure that Carter, Freitag 489 F.2d 1377 (7th public persons chauffeur licensees are Cir., 1973), this Court held that a govern- character, good capable being entrusted licensing mental body judges which the fit- operation of a public passenger with the applicant ness of an for a public chauffeur’s vehicle. must, license as a matter process, of due There is also rational basis for consider- applicant afford the adequate notice and a ing applicant’s prior an criminal record in hearing. Freitag held the applicant determining is person good whether he entitled to hearing was and an opportuni- character, being worthy entrusted with ty present evidence of present his mental responsibilities of public chauffeur. condition, notwithstanding investigation past applicant conduct of an may be that, which showed some years fourteen present the best indicator of his character earlier, applicant had patient been a and his future actions. As the amicus curi- hospital. a state mental appellant’s ae brief filed in behalf case, In the plaintiff instant contends Chicago Lawyers Council and the John the absolute bar issuance to concedes, Howard Association well over 60% him of a chauffeur’s license on the of those arrested for the commission of he previously convicted of nationally crimes are ex-offenders. a crime the use of a deadly weap- Accordingly, the distinction drawn be- deprives him of rights guaranteed under applicants tween ex-offenders and other the Due Process Clause of the Fourteenth believe, contends, plaintiff scrutiny do I Nor rule. Reed evidences no intention to Reed, Reed rationality standard, except deviate from the (1971) perhaps cases, created new and may more in sex discrimination *9 stringent equal protection See, “suspect standard in cases well involve a class”. n. su- require application pra. which do not of the strict argues correctly damage, and would remain suspended Plaintiff until Amendment. upon application liability his had hearing held been any determined. that The statute would be provide license not chauffeur’s did for hearing procedure a for as an status might since his under which the driver utterly meaningless, suspen- avoid his an absolute bar of license by presenting sion stands evidence of ex-offender license, notwithstanding non-liability damage of a caused in the issuance attest- The of evidence accident. held that quality and/or Court amount the failure Thus, character. present good provide hearing deprived his such a ing to unin- creates argues process the ordinance motorists due that sured law. While plaintiff not presump- does use the Bell term unconstitutional “irrebuttable an unsatisfactory clearly he it person presumption”, that is a mandates a “mean- tion hearing” character, ingful him of at which the depriving any opportunity might licensee thereby deny- his hearing non-liability. establish “It meaningful proposi- a is a hardly of law. tion which process due seems to need ing explication him hearing a which excludes consideration argues plaintiff defendant The element of an essential to the decision” “liberty” or deprived of either his was not not be meaningful hearing. he was accordingly, “property”, at 1591. U.S. S.Ct. procedural deprived of not a hear- City’s provide failure following year, law Court decided respect contention in this Illinois, Defendant’s ing. Stanley U.S. Regents Board primarily on based (1972), holding uncon- Roth, 564, 92 33 L.Ed.2d U.S. an Illinois statute stitutional which served the Court held that an (1972), wherein absolutely to deprive an unwed father of professor who had hired for untenured his custody illegitimate child. Although following which he was informed year, one provided law of Illinois parent that a the next not be rehired for he would be custody notice, not denied could without liberty deprived was not either year, hearing, unfitness, and proof parental Clause, and under the Due Process property fathers presumed unwed were conclusively hearing. not entitled to unfit, therefore be and therefore were not afforded hearing. holding the statute unconsti- sufficiently the Court Roth I believe tutional, the Court stated: from facts of that case distinguished the be, may insists, as the “It State that most or nonis- issuance instances fathers are unmarried unsuitable and ne- license, the of which of a absence suance parents. may It glectful also be that an entire applicant from forecloses Stanley parent is such a and that his opportunities. Board range placed in children should be hands. Roth, supra Regents v. all unmarried fathers But are not in this 2701; Examiners, v. Board of Schware Bar category; wholly some are suited to have 1 L.Ed.2d 796 custody of their children. much the This addition, (1957). In defendant’s contention concedes, readily and nothing State rejected by this decision implicitly Court’s record indicates that Stanley is or Freitag, supra. father neglectful has been who has not plaintiff’s “irrebuttable Consideration his children.” 405 cared at 654- re- argument requires a brief presumption” 92 S.Ct. at instances, and in leading, some view Stanley rejected argu- Illinois’ law in this inconsistent case apparently it un- required ment that should not Burson, 535, 91 Bell area. dergo hearing the inconvenience be- the Court unwed are so fit and cause fathers seldom Georgia statute unconstitutional held parents. proper that an motorist’s provided uninsured prompt if he suspended license would “The establishment efficacious driver’s resulting procedures legitimate to achieve state involved in accident became *10 proper worthy is a state interest agreed ends with the District Court’s con- adjudication. cognizance in constitutional clusion that the Act created “an irrebutta- recognizes higher But the Constitution presumption ble contrary to fact.” efficiency speed values than Consistent with the aforementioned deci by presumption always Procedure sions, the Court subsequently decided easier than cheaper and individualized de- Cleveland Board of LaFleur, Education v. when, here, termination. But the pro- 632, 791, 414 U.S. 94 S.Ct. 39 L.Ed.2d 52 forecloses the cedure determinative issues (1974). LaFIeur, In the Court held uncon care, competence explicit- when it a maternity, stitutional leave requiring rule present ly disdains realities in deference pregnant teacher to commence maternity past formalities, it needlessly risks run- leave five prior months to the expected ning roughshod important over the inter- child, birth her and precluding re-em parent ests of both and child. It there- prior ployment to three months following 656-657, fore cannot stand.” 405 U.S. at birth. The Court held that the principles at 1215. enunciated in Stanley and Vlandis were controlling, and that “the pre conclusive yearA the Court later decided Vlandis v. sumption embodied in rules, these like that Kline, 412 U.S. Vlandis, is neither ‘necessarily uni [nor] (1973) L.Ed.2d 63 and United De- States true,’ versally and is violative of the Due partment Agriculture v. Murry, 413 U.S. Process Clause.” 414 U.S. at (1973). 37 L.Ed.2d 767 at 799. Vlandis, the Court In held unconstitutional More recently, the Court which, again Connecticut applied statute in determining the “irrebuttable presumption” rule, hold the tuition to paid students enrolled ing unconstitutional a Utah statute which university, perma- at a state classified as pregnant rendered ineligible women for un non-residents all nent unmarried students employment benefits a period for extending legally who had resided outside of Connecti- from twelve weeks before the expected within prior cut twelve months to applying date of childbirth until six weeks following Relying admission. on Stanley, for childbirth: presumption “The of incapacity Court held that: unavailability created interest in administrative “The State’s challenged provision is virtually cannot, certainty ease and in and of it- identical the presumption found uncon self, save the conclusive stitutional in” Thus, LaFIeur. the Court invalidity from under the Process Due concluded “that the Utah unemployment there are Clause where other reasonable compensation statute’s incorporation of a establishing practicable means of conclusive of incapacity during pertinent facts on which the State’s ob- period long so before and after childbirth jective premised. In the situation be- is constitutionally invalid princi under the us, reasonable alternative means for fore ples of the LaFleur case.” Turner v. Dept. determining bona fide residence are Employment Security, 423 U.S. 93 S.Ct. at available.” (1975). L.Ed.2d 181 Balanced the foregoing authori Murry, the Court held unconstitutional ties are cases mandatory retire 5(b) Act, Stamp Food Section ment and the Supreme statutes Court’s de 2014(b) which, effect, U.S.C. Section Weinberger Salfi, de- cision in stamp eligibility nied food household containing person eighteen years or older v. Pennsylvania, McIlvaine “dependent” had been who claimed as a the Court purposes income tax pre- dismissed, federal within the for want of a substantial federal ceding by person twelve months eligi- not question, appeal Pennsylvania from the for food stamp Supreme ble relief. The Supreme upheld Court which a state law *11 in age sixty. at Massachusetts Board of police of Retirement v. retirement requiring interpreted up as Murgia, respect quickly Supreme to the was Mcllvaine mandatory recently of constitutionality probable jurisdic- had noted the Court holding against equal protection 421 statutes tion. 44 retirement (1975). 466 hope, Thus the Second The obviously, claims. L.Ed.2d due Ghezzi, Supreme v. F.2d 431 Murgia 512 was that the Court in in Rubino Circuit District the Cir., 1975) process question the resolve affirmed (2nd judge by plaintiff e., a three presented to convene Gault —i. refusal whether Court’s challenging mandatory a an action retirement statute court in creates district judges requiring presumption retirement unconstitutional irrebuttable statute state that, age, held because of employee The Rubino Court the seventy. unable age equal protection adequately perform and due to to the issues of continue serv- that “the were which he presumption] be ices for has been hired. process [irrebuttable Mcllvaine, : Court in the fore Gault, panel As did the in we also await- those did not consider Supreme Court the Supreme ed the Court’s Murgia, decision in ques a substantial federal present to issues hoping light might further be shed on at 433. 512 F.2d tion.” constitutionality creating the of statutes ir- in particularly Tal- in presumptions, followed Rubino The Circuit rebuttable Sixth (1976) affirming F.2d 331 view of Court’s decision in Pyke, Weinberger 533 bot v. Salfi, 95 in favor in judgment defendant’s v. summary infra, (1975), uphold- re- discussed challenging an Ohio statute L.Ed.2d an action ing age seventy. constitutionality statute which retirement quiring quite obviously pre- creates an irrebuttable circuit, was presented the issue In this and forever certain sumption per- excludes Garrison, (1975) F.2d 205 v. Gault receiving certain sons from benefits under teacher was forced tenured school which a Security Act. Social age sixty-five pursuant retire 25, 1976, the policy. challenged Supreme Plaintiff June Court board On school protection Murgia, discussing without equal grounds on decided con- policy stitutionality mandatory in violation statutes under as an irrebuttable Gault, Clause, Process Clause. Due and without char- the Due Process statute, Supreme acterizing requiring of the Court’s retirement took note Court age fifty, Police at “for want a substantial federal of Massachusetts State dismissal creating an appeal in Mcllvaine. It question” age fifty physi- over the are judge noted that a three dis- that officers was further adequately perform unable Lynn, F.Supp. cally v. court Weisbrod trict police of Massachusetts state offi- (D.D.C.1974), had held that the dismiss- duties Murgia upheld question Court the constitu- want of a substantial federal cer. al question tionality solely of the statute required dismissal of consti- in Mcllvaine grounds by plaintiff equal protection holding Weis- challenge made tutional scrutiny rule was not brod, attorney, applicable, Federal law strict a HUD seventy. designed legiti- was age the statute achieve mandating retirement purpose and that the classi- summarily affirmed. Weis- mate Supreme Court rationally related fication Lynn, brod that purpose. achievement interim, the Court recognized if Weis- In the decided Wein- The Gault Salfi, berger considered and Mcllvaine were brod upholding consti- precedents, they would not dis- binding tutionality provision of the Social Se- the Gault case. How- tinguishable from “widow” and the mer- Act which defined curity declined to resolve ever, the Court “child”, purpose of survivor’s bene- case, proceed- stayed further its of step-child to exclude widow or Supreme decision fits Court’s ings pending ground that, wage earner who had been unlike any deceased the claims asserted in cases, step-father of those Salfi husband or the claimant involved: period of less than nine months at for a “a noncontractual claim to receive funds purpose The stated death. from the treasury time enjoys [which] marriages de- discourage constitutionally protected sham no status, rule was Dan dridge Williams, spouse supra, to claim bene- signed though to enable one Congress may course not upon anticipated early invidiously death of the dis fits *12 among criminate such claimants on Court held that: wage earner. Salfi of a basis ‘bare congressional desire to Congress, its question “The whether politically harm unpopular group,’ Unit having reasonably aroused concern Dept. ed States of Agriculture Moreno, v. abuse it possibility of an [534, 528 2821, 413 U.S. 93 2826, S.Ct. 37 avoid, legitimately desired to could ra- (1973), L.Ed.2d or on the 782] basis of tionally par- have concluded both that a criteria which bear no rational relation to qualification limitation or ticular legitimate legislative goal. Jimenez v. occurrence, its protect against and that Weinberger, 417 [636, U.S. 628 94 S.Ct. expense and other difficulties of indi- 2501, 2496, 41 (1974); L.Ed.2d Unit 363] justified vidual determinations the inher- Dept. Agriculture ed States Murry, v. imprecision prophylactic ent rule. [513-514, 413 U.S. 508 2832, 2835, 93 S.Ct. that We conclude duration-of-rela- (1973).” 37 L.Ed.2d 772, 422 767] U.S. at tionship test meets this constitutional 95 S.Ct. at 2470. 777, 422 at standard.” U.S. 95 at distinguished The Court Vlandis on the 2472. ground that “the Security Social Act does conclusion, reaching the Court purport speak not to in terms of the bona heavy emphasis on the placed fact that parties fides of the marriage, to a but then legislation” involved, “social welfare was plainly make relevant evidence of such bona requiring broader discretion in the use of fides inadmissible.” 422 U.S. at 95 legislative classifications in to order maxim 5.Ct. 2470. ize the use of available funds and resources. I difficulty find some easily in so distin- Thus, the quoted extensively from its guishing Weinberger, Jimenez v. 417 U.S. Nester, prior Flemming decisions in 363 628, 41 603, 611, 4 L.Ed.2d wherein Court declared unconstitutional Williams, Dandridge (I960).4 a provision of the Social Security Act 471, 485, L.Ed.2d which, effect, precluded illegitimate Belcher, (1970).5 Richardson v. child after born the onset parent’s of the 254, 30 (1971)6 [92 231] disability, obtaining from disability bene- Geduldig Aiello, fits, unless child were eligible under Consistent provisions the Act regarding legi- emphasis its that the claim in Salfi timization, inheritance or defective mar- distinguishable was because social welfare riage ceremonies. The Jimenez Court con- involved, legislation was the Court declined purpose that cluded of the statutory Stanley to follow and LaFleur on the to prevent scheme was spurious claims and “Particularly when we deal with withhold- imperfect.” its laws are ing of a noncontractual benefit under a social S.Ct. at 1161. program Security], welfare such as [Social we recognize must that the Due Process Clause statutory 6. “A classification in the area of so- thought interpose only can be a bar if the Equal cial welfare is consistent with the Protec- patently arbitrary statute manifests a classifi- of the Fourteenth tion Clause if Amendment it cation, utterly lacking justification.” in rational ‘rationally based and free from invidious dis- 80 S.Ct. at 1373. crimination’ .” 404 U.S. at welfare, 5. “In the area of economics and social at 257. Equal a State does not violate the Protection merely Clause because the classifications made parties”, terms of the fides of the actually entitled bona but those only that insure Vlandis, payments. residency rule received such unlike disability benefits Dandridge challenged provision does not Court, Salfi distinguishing plainly relevant evidence of such purpose “make concern the did not fides inadmissible.” U.S. at in Jimenez bona provision resources, clearly, gave statutory consider- at 2470. But of finite allocation the classifica- under consideration in did provision to the fact Salfi weight able widow, less presumption, nothing than preclude who created an tion noneligible wage ille- deceased earner less than married noting the dilemma prior death, by the to his compounded months from children “is nine gitimate any op- marriage evidence that presenting them denies the statute fact designed spouse a sham to enable one in order to prove dependency not portunity and, hence, upon the benefits death of other. support claim ‘claim’ their establish eligibility.” 417 U.S. right their The extent which the foregoing cases *13 respect, the Court 2501. this another, with one and the extent to conflict that: noted the irrebuttable presumption has which rule however, follow, that the not “It does criticized, majority leads the to con- appel- exclusion and conclusive blanket that clude illegitimates is reason- subclass lants’ say “we cannot whether the irrebuttable prevention spurious ably related doctrine or the substitute Assuming appellants are that the claims. followed Salfi analysis would be claimants, it dependent on the fact case appropriate by for this thought of the Act purposes serve the not Supreme the majority of Court. Inas- conclusively deny opportunity them to equal-protection holding de- much our dependency and their their establish to case, it is unnecessary to reach cides . benefits right to insurance process due question.” difficult the more at 2501. indicated, previously As I it is believe conclusively “to that concluded The Court issue, process resolve the necessary to due favor, presumptively benefits deny one subclass plaintiffs’ so in do and would denies former to the other available reading of the Salfi decision A careful guaranteed laws protection equal suggests present in that case were provision of the Fifth might of factors which render combination Amendment.” irrebuttable application 2502.7 already First is the dis- inappropriate. rule ef- notwithstanding the Court’s Similarly, challenged provision fact cussed them, decision the Salfi distinguish to part comprehensive fort social was but Vlandis Stanley, with square Secondly, difficult scheme. is welfare provision challenged ap- the “prophylactic noted that and LaFleur. Court pre- expend an irrebuttable obviates the limited clearly creates need proach” Salfi deci- purpose of the Court’s welfare resources for the sumption, in view and social Jimenez, fact that considering “large numbers of individual- and Murry sions in rec- involved would The Court also Security is ized determinations”. Act the Social duration-of-relationship wholly dispositive ognized factor. seem to be not ' Vlandis, claimants, relationship whose protects respect rule Particularly months, deceased exceeded nine compre- with the difficult for distinction basis ad- delays and “uncertainties saying be from the seems hend. The Court the circumstances inquiry into ministrative in Vlandis residency rule both Further, marriages.” “speak of their in Salfi challenged provision reasons, Dept. Murry, Agriculture Salfi decision U. S. For the same applica distinguish, basis of difficult principles, decision in legal the Court’s from ble very existence of the rule noted that the tive scheme. Such might instances well be discourage marriages. Finally, sham could large limited to comprehensive social importantly, the Court perhaps most programs, welfare such as those encom recognized is not “at that it all clear that passed under the Security Act, Social in effectively determinations could individual volving distribution benefits to millions arrangements, filter out sham since neither claimants requiring promulga intent, nor expectancy life knowl- marital of prophylactic tion concerning eligi rules edge illness has been shown terminal bility. reliable appellees determinable.” 422 Finally, the Salfi Court emphasized that 782-783, 95 at 2475. U.S. at individual might determinations not effec- already recognized Court has This tively filter out sham arrange- marital special status afforded social legis welfare I ments. think it is safe to say that in most context of a lation in the classification instances, adequate hearing proce- might otherwise viewed as creat advance, dures will retard, rather than ing pre an unconstitutional fact-finding process. sumption. Secretary Fisher v. of U. S. Turning to the ordinance challenged by Health, Welfare, Ed. and Dept. of 522 F.2d Miller, plaintiff none of foregoing con Cir., 1975). (7th siderations are applicable. I therefore be addition, some consideration must be guided we lieve should be by the Court’s given to the extent to which individualized in Stanley, decisions Vlandis and LaFleur. determinations of eligibility would so bur- *14 significance particular Of that, the fact system substantially den the as to interfere subsequent Salfi, decision in with achievement of the goal. applied Court irrebuttable Vlandis, example, for the Court specifi- holding rule in a statutory provision uncon that, cally noted alternatives the con- stitutional. Turner v. Dept. Employ clusive in that case “there are Security, ment practical other reasonable and means es- (1975). tablishing pertinent facts on which the objective premised.” Vlandis, State’s at As the hearing procedure 451, 93 at Similarly, 2236. La- which Court required in Freitag offers Fleur Court observed that “school boards a “reasonable practical and means of estab- have available to them reasonable alterna- lishing pertinent facts on which the keeping physically tive methods of unfit objective is [City’s] premised.” 412 at out of teachers the classroom.” 414 U.S. at 451, 93 S.Ct. at Moreover, 2236. the use of n. at 800. irrebuttable presumptions of ineligibility is repugnant particularly where they preclude Thus, while “an interest in devising applicant an from ever obtaining the cre- prompt and efficient procedures to achieve necessary engage dentials particular in a objectives legitimate .” will not field of endeavor. The right justify engage in a suffice classifications which con type particular stitute LaFleur, may not be a presumptions, right” 799,8 “fundamental supra, purposes it neverthe scrutiny test, appear less would strict but it is classification will nevertheless a very important not be held right, unconstitutional where individu and one which should alized eligibility summarily determinations of not be will nec denied through the use of essarily significantly and interfere with the irrebuttable presumptions ineligibility. satisfactory operation legisla of an See, Berger overall of Psychologist Board Exam- Stanley emphasized, 8. As the citizenry the “Con- able overbearing from the concern for recognizes higher speed stitution values efficiency efficacy than may characterize Indeed, efficiency. might fairly say one praiseworthy less, government officials no Rights general, the Bill of and the Due Proc- more, perhaps than mediocre ones.” 405 U.S. particular, they ess Clause in de- were 1215. protect fragile signed to values a vulner- U.S.App.D.C. 521 F.2d 1056 iners, 172 STERN, Plaintiff-Appellee, Sherwin S. contention, Contrary to defendant’s upon pres- arguments based process GYPSUM, al., INC., UNITED STATES et presumption are not of an irrebuttable ence Defendants-Appellants. to attack a statute efforts indirect simply grounds. Under the No. 76-1070. equal protection Clause, an unconstitution- Protection Equal Appeals, United States Court of not considered in may

al classification Circuit. Seventh supra, eligibility. indicated determining As applicant criminal record of past Sept. Argued license is a valid consid- public chauffeur’s 12, 1977. Jan. Decided determining applicant’s char- eration Due considera- and fitness. acter applicant require only that

tions meaningful opportunity present

given and fitness in good character

evidence contrary inference

contravention prior conduct. upon his

based fully recognize majority, I does the

As least, the law

that, this area of say hand, one deci- evolve. On the

continues Bell, Vlandis, Stanley, LaFleur such as

sions disdain for irrebutta- reflect a Turner ineligibility. On presumptions

ble opinions in each of

other, dissenting in Salfi decision cases and Court’s

those forbid- unworkability of a rule

suggest *15 classifications. And

ding all conclusive decision, the area by Murgia

evidenced of con- the clearest use perhaps presumptions mandatory retire-

clusive — solely be tested on tra- ment—continues On the equal protection grounds.

ditional I understand to be the what

basis law, the ordinance in

present state pre- instant case creates an irrebuttable deprives plaintiff of

sumption which

meaningful hearing in violation of the Due Clause of the

Process Fourteenth Amend- I Accordingly, would reverse the

ment. District Court both on the

judgment upon by

ground majority, relied deprives that the ordinance law.

plaintiff of