NO SUPREME COURT OF THE UNITED STATES OCTOBER TERM 2017 JAMES T. OLIVER, STATE OF CLINTONIA,

Transcription

1 NO IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM 2017 JAMES T. OLIVER, v. Petitioner, STATE OF CLINTONIA, On Writ of Certiorari to the Supreme Court of Clintonia BRIEF FOR RESPONDENT Respondent. TEAM S Attorneys for Respondent

2 QUESTIONS PRESENTED I. Whether states have the authority to grant licensed funeral directors the exclusive right to sell caskets based on the legitimate interest of consumer protection, health and safety of its citizens, and economic protectionism. II. Whether government agents act in compliance with the private search doctrine under the Fourth Amendment when they conduct a more thorough search of a digital container previously opened by a private individual. i

3 TABLE OF CONTENTS Page QUESTIONS PRESENTED... i TABLE OF AUTHORITIES... iv OPINIONS BELOW...1 STATEMENT OF JURISDICTION...1 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED...1 STATEMENT OF THE CASE...2 SUMMARY OF THE ARGUMENT...3 STANDARD OF REVIEW...5 ARGUMENT AND AUTHORITIES...6 I. REGARDLESS OF THE POINT IN TIME THE RATIONAL BASIS TEST IS PERFORMED, IS RATIONALLY RELATED TO A LEGITIMATE GOVERNMENT INTEREST...6 A. Section Is Rationally Related to the State s Interests at the Time of Enactment Limiting casket sales to only funeral directors ensures consumer protection/health and safety of citizens Economic protectionism is a legitimate State interest and, in this case, gives further credence to the legitimacy of the health and safety of the State s citizens...12 B. Section Is Rationally Related to the State s Interests at the Time of the Challenge Because Even Though Circumstances Have Changed, Rational Reasons for the Law Still Exist The Court should now reject the changed circumstances doctrine because it is impractical to require legislatures to be aware of all statutes and all changed circumstances that might apply Even if the Court adopts the changed circumstances doctrine, the Murillo exception applies to , allowing the Clintonia legislature a reasonable amount of time to modify the statute...24 ii

4 II. OFFICER JONES REEXAMINATION OF THE JPEGS ON THE FLASH DRIVE WAS WITHIN THE SCOPE OF THE INITIAL PRIVATE SEARCH AND THUS DID NOT IMPLICATE THE FOURTH AMENDMENT...27 A. Officer Jones s Actions of Opening the Files in the One Folder Opened by Mr. Walker Are Permissible Under the Private Party Doctrine...27 B. Officer Jones s Actions of Opening the Files in the One Folder Opened by Mr. Walker Are Within the Scope of Mr. Walker s Private Search and Do Not Constitute a Search Under the Closed Container Standard A computer folder is a single unit similar to a physical closed container, and once opened by a private party, no longer carries a reasonable expectation of privacy Officer Jones more thorough search of the one subfolder does not exceed the scope of Mr. Walker s private search...31 C. The Sixth Circuit Court of Appeals Limit on the Scope of Re- Examinations When It Adopted a File-by-File Approach Is Not Analogous to This Case, and the District Court Was Wrong to Follow That Approach...32 CONCLUSION...35 iii

5 TABLE OF AUTHORITIES Page(s) UNITED STATES SUPREME COURT CASES: Burdeau v. McDowell, 256 U.S. 465 (1921)...28, 29 California v. Ciraolo, 476 U.S. 207 (1986)...27 Chastleton Corp. v. Sinclair, 264 U.S. 543 (1924)...20 City of Philadelphia v. New Jersey, 437 U.S. 617 (1978)...16 Coolidge v. New Hampshire, 403 U.S. 443 (1971)...28 Energy Reserves Grp., Inc. v. Kan. Power & Light Co., 459 U.S. 400 (1983)...16 FCC v. Beach Commc ns, 508 U.S. 307 (1993)...8, 14, 16, 17 Ferguson v. Skrupa, 372 U.S. 726 (1963)...14 Fitzgerald v. Racing Ass n of Cent. Iowa, 539 U.S. 103 (2003)...8, 12, 13, 14 Heller v. Doe by Doe, 509 U.S. 312 (1993)...8 Katz v. United States, 389 U.S. 347 (1967)...27 Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356 (1973)...8, 9, 19 Lindsley v. Nat. Carbonic Gas Co., 220 U.S. 61 (1911)...22 iv

6 Lustig v. United States, 338 U.S. 74 (1949)...29 McDonald v. Bd. of Election Comm rs, 394 U.S. 802 (1969)...19 Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456 (1981)...16, 22 Mitchell v. Forsyth, 472 U.S. 511 (1985)...5 New Orleans v. Dukes, 427 U.S. 297 (1976)...13 Nordlinger v. Hahn, 505 U.S. 1 (1992)...13 Pierce v. Underwood, 487 U.S. 552 (1988)...5 Riley v. California, 134 S. Ct (2014)...33, 34 Seagram & Sons, Inc. v. Hostetter, 384 U.S. 35 (1966)...15 United States v. Carolene Prods. Co., 304 U.S. 144 (1938)...7, 20 United States v. Jacobsen, 466 U.S. 109 (1984)...27, 28, 32, 33 Walter v. United States, 447 U.S. 649 (1980)...29 Whole Woman s Health v. Hellerstedt, 136 S. Ct (2016), as revised (June 27, 2016)...21 Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483 (1955)...9, 10, 13, 17, 18 v

7 UNITED STATES COURTS OF APPEALS CASES: Bartell v. Aurora Pub. Sch., 263 F.3d 1143 (10th Cir. 2001)...7 Burlington N. R.R. Co. v. Dep t of Pub. Serv. Regulation, 763 F.2d 1106 (9th Cir. 1985)...22, 23 Craigmiles v. Giles, 312 F.3d 220 (6th Cir. 2002)...12, 15 Dias v. City of Denver, 567 F.3d 1169 (10th Cir. 2009)...23 Merrifield v. Lockyer, 547 F.3d 978 (9th Cir. 2008)...12 Murillo v. Bambrick, 681 F.2d 898 (3d Cir. 1982)...22, 24, 25, 26 Powers v. Harris, 379 F.3d 1208 (10th Cir. 2004)... passim Quill v. Vacco, 80 F.3d 716 (2d Cir. 1996), rev d, 521 U.S. 793 (1997)...23 Rann v. Atchison, 689 F.3d 832 (7th Cir. 2012)...29, 30, 31 Sensational Smiles, LLC v. Mullen, 793 F.3d 281 (2d Cir. 2015)...7, 10, 12, 17, 19 St. Joseph Abbey v. Castille, 712 F.3d 215 (5th Cir. 2013)...12, 16, 18, 19 Starlight Sugar, Inc. v. Soto, 253 F.3d 137 (1st Cir. 2001)...8 United States v. Bowers, 594 F.3d 522 (6th Cir. 2010)...33 United States v. Lichtenberger, 786 F.3d 478 (6th Cir. 2015)...32, 33, 34 vi

8 United States v. Runyan, 275 F.3d 449 (5th Cir. 2001)...29, 30 UNITED STATES DISTRICT COURT CASES: Jones v. Schneiderman, 888 F. Supp. 2d 421 (S.D.N.Y. 2012)...23 CONSTITUTIONAL PROVISIONS: U.S. Const. amend. IV...1, 27 U.S. Const. amend. XIV...1 FEDERAL STATUTORY PROVISIONS: 28 U.S.C. 1254(1) (2012)...1 STATE STATUTORY PROVISIONS: Clint. Stat passim Clint. Stat Clint. Stat SECONDARY AUTHORITIES: Black s Law Dictionary (10th ed. 2014)...32 vii

9 Gerald S. Kerska, Economic Protectionism and Occupational Licensing Reform, 101 Minn. L. Rev (2017)...6, 7 Johanna Talcott, Aging Disgracefully: Do Economic Laws Remain Rational in Spite of Changed Circumstances?, 11 FIU L. Rev. 495 (2016)...21 viii

10 OPINIONS BELOW The opinion of the Circuit Court of the Fifteenth Judicial Circuit, in and for Bill County, Clintonia is unreported but appears in the record at pages The opinion of the Supreme Court of Clintonia is unreported but appears in the record at pages STATEMENT OF JURISDICTION The judgment of the Supreme Court of Clintonia was entered on October 29, The petition for the writ of certiorari was granted by this Court. This Court has jurisdiction pursuant to 28 U.S.C. 1254(1) (2012). CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED This case involves both the Fourteenth and Fourth Amendments to the United States Constitution. The Fourteenth Amendment extends the rights of due process and equal protection to citizens related to state government actions, just as the Fifth Amendment provides equal protection and due process related to federal government action. The Fourth Amendment provides, in pertinent part, that people have the right to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. The Fourteenth Amendment also applies this right to the states. This case involves , Clint. Stat. regarding the selling of a casket without a Funeral Director s License. This statute required: No resident of Clintonia may, without a proper license under the FDEA, sell a timeof-need casket for use in a funeral within the state of Clintonia. A violation of this section is a first-degree misdemeanor and punishable by up to one year in prison and a $1,000 fine. This section only applies to wholly intrastate transactions , Clint. Stat. 1

11 STATEMENT OF THE CASE I. STATEMENT OF THE FACTS Petitioner Oliver began selling caskets in 2012 after he saw a public interest in simple wooden caskets. R. at 5. He began advertising his caskets on a website, R. at 5. He knew a license was required to sell caskets intrastate, but did not have one. R. at 6. Defendant admitted he knew a criminal statute required a license, and he kept a fake license just in case, although he thought the statute was never enforced. R. at 7. Oliver knowingly made an intrastate sale of a casket to Mr. Walker in his time-of-need in violation of , Clint. Stat. R. at 6. Walker went to Oliver s home to confront Oliver about his illegal activities. R. at 6. When Mr. Walker knocked, the door swung open. R. at 6. Mr. Walker called out for Oliver and upon no response, he proceeded to look through Oliver s house where he found a flash drive labeled Dup. License/Fun! R. at 6. Mr. Walker took the flash drive with him and found approximately 100 subfolders on it. R. at 7. Mr. Walker opened one sub-file and viewed one of the files, witnessing the child pornography. R. at 7. Mr. Walker then took the flash drive to the Sanderson Police Department and explained to Officer Jones what he found on the flash drive. R. at 7. Officer Jones asked whether Walker was a cop and Walker answered that he was not. R. at 7. Walker showed Officer Jones the subfolder he had opened and stated that the pornography was one of those files. R. at 7. Officer Jones found pornography on the first ten (10) files and the duplicate license on the eleventh. R. at 7. Oliver conceded in the trial court that Mr. Walker is not a state actor. R. at 12. II. PROCEDURAL HISTORY The District Court. The State of Clintonia indicted James T. Oliver for violating , Clint. Stat. which makes selling a casket without a Funeral Director s License a criminal offense; 2

12 for forging a Funeral Director s License, which is a violation of Clint. Stat ; and nine counts for possession of child pornography, a violation of Clint. Stat , the Clintonia Child Protection Act. R. at 2. The State announced a nolle prosequi on the charge of forging a Funeral Director s license. R. at 2 & n.1. Oliver moved to dismiss all other charges under Clintonia Rule of Criminal Procedure 3.190(c)(4). R. at 3. The Circuit Court of the Fifteenth Judicial Circuit in and for Bill County, Clintonia granted the motion to dismiss on all counts. R. at 11, 14. The court found that was not rationally related to the State s legitimate interest in health, public safety, or consumer protection, and also that economic protectionism is not a legitimate state interest. R. at 11. The court dismissed the child pornography charges on Fourth Amendment grounds. R. at 14. The Supreme Court of Clintonia. The State of Clintonia appealed the judgment to the Supreme Court of Clintonia. R. at 17. The Supreme Court of Clintonia reversed the lower court regarding count one, finding that the statute passes rational basis scrutiny. R. at 18. Regarding the child pornography charges, the court reversed, agreeing with the State that the actions of Officer Jones did not implicate the Fourth Amendment. R. at 18. Oliver Jones filed a petition for writ of certiorari, which this Court granted. R. at 26. SUMMARY OF THE ARGUMENT I. A finding by this Court that consumer protection, health and safety, or economic protectionism meets the rational basis review requires , Clint. Stat. be found valid. In this case, is rationally related to the State s interest of protecting consumers. The legislature stated this statute would help protect consumers from unethical casket sellers. The statute is also rationally related to the health and safety of the communities within Clintonia. If 3

13 funeral directors do not exist in some communities because they cannot afford the overhead costs if unlicensed casket sales occur, then some communities may end up without a funeral director to take care of the necessary sanitation issues that are involved within the funeral director industry. This is a legitimate and rational health and safety issue that the legislature of Clintonia may have considered. Additionally, the empirical evidence given to the legislatures indicated unlicensed casket sellers were taking advantage of consumers in time-of-need sales. Whether the study was valid is irrelevant to the legislature s actions. Economic protectionism, often through licensure requirements, is commonplace. To forbid a state from regulating or protecting an industry that it believes rationally relates to a state interest will upset numerous laws and statutes currently recorded. This case is not about mere economic protectionism, but economic protectionism that exists in conjunction with another legitimate State interest. That is, the economic protectionism that exists in this statute serves to ensure consumer protection or the health and safety of the citizens of Clintonia. Some courts have considered a changed circumstances doctrine, but that would mandate legislatures to reevaluate statutes and regulations continually, which is not feasible or practical. This Court has been ambivalent in applying the changed circumstances doctrine. The circuit courts have decided against or simply refused to adopt such a changed circumstances doctrine for evaluating state laws. Even if this Court finds changed circumstances applies, the Murillo exception allows legislatures time to modify any outdated statute. Courts have not issued a bright-line test to determine how much is an acceptable passage of time before the legislature must act. The Murillo exception allows a legislature to recognize there is an issue and then legislatively remedy it. 4

14 II. The Fourth Amendment protects persons from unreasonable searches conducted by government actors. The Fourth Amendment does not protect against private searches performed by private individuals. When a person s expectation of privacy has been breached by a private searcher, there is no longer a privacy interest for the government to invade. Without an unreasonable search by a government actor, the Fourth Amendment is not implicated. This principle has historically applied to containers. Once a private party searches a container, the government is free to open that same container, even if the government searches its contents more thoroughly. The closed container analogy is easily applicable to digital media devices. When a private actor searches the contents of a computer folder, the government may search that folder, an intangible container, just as it would any tangible container. Officer Jones actions fall squarely within this well-established jurisprudence. The Fourth Amendment was not implicated simply because he conducted a more thorough search of a digital folder. He acted with substantial certainty that all documents found within the folder would reveal the same subject matter. This Court should affirm the judgment of the Supreme Court of Clintonia. STANDARD OF REVIEW This is a review of an order denying a motion to dismiss. Although an order of this type is not ordinarily a final judgment, this Court has jurisdiction to review an order to the extent that the issues presented are ones of law. See Mitchell v. Forsyth, 472 U.S. 511, 525 (1985). This Court reviews questions of law de novo. Pierce v. Underwood, 487 U.S. 552, 558 (1988). 5

15 ARGUMENT AND AUTHORITIES The Supreme Court of Clintonia appropriately held that , Clint. Stat. passes rational basis scrutiny that economic protectionism is a legitimate government interest, and that there was no violation of Petitioner s Fourth Amendment rights. R. at 25. I. REGARDLESS OF THE POINT IN TIME THE RATIONAL BASIS TEST IS PERFORMED, IS RATIONALLY RELATED TO A LEGITIMATE GOVERNMENT INTEREST. The rational basis test for the legitimacy of a State s interest, as Petitioner concedes, is the correct level of scrutiny. R. at 8. It is only logical to apply the rational basis test at the time of the statute s enactment. To do otherwise would employ the impossible requirement that the legislature see into the future with certainty. Even if this Court finds the changed circumstances doctrine applies, a court begins by looking at the circumstances at the time of enactment. It is crucial that this Court give deference to the state legislatures to perform their duty and make any needed statutory modifications as courts have repeatedly done in the past. This can be done by applying the Murillo exception, which give legislatures the necessary time to make needed changes. A. Section Is Rationally Related to the State s Interests at the Time of Enactment. Petitioner argues that the Clintonia Funeral Directors and Embalmers Act ( FDEA ) violated his equal protection and due process rights under the Fourteenth Amendment. These rights protect two distinctly separate interests. The Due Process Clause protects against government interference with fundamental civil rights or along suspect lines. Powers v. Harris, 379 F.3d 1208, 1215 (10th Cir. 2004). Fundamental rights include rights such as the right to marry, a woman s right to an abortion, and the right to vote. Gerald S. Kerska, Economic Protectionism and Occupational Licensing Reform, 101 Minn. L. Rev. 1703, 1708 (2017). 6

16 Government action along suspect lines or suspect classifications include divisions made on the basis of race or gender. Id. at Whereas, the Equal Protection Clause requires the government to treat all who are similarly situated the same. Id. (quoting Bartell v. Aurora Pub. Sch., 263 F.3d 1143, 1149 (10th Cir. 2001)). Because there is no classification involving fundamental rights or actions proceeding along suspect lines, both the Due Process and Equal Protection Clauses are subject to rational basis review. See Sensational Smiles, LLC v. Mullen, 793 F.3d 281, 284 (2d Cir. 2015). Consistent with case law, Petitioner concedes that the regulation at issue in this case is only subject to rational review. R. at 8. Rational review requires only that the statute be rationally related to at least one legitimate governmental interest. Rational review is a two-step analysis. First, a court must ask whether the statute the government is seeking has an allowable objective. Kerska, supra, at Next, the court must ask whether the statute has any rational relationship to achieving that goal. Id. In both of these steps, there is a strong presumption of constitutionality. Because the statute at issue in this case is rationally related to the State s interest, this Court should affirm the Supreme Court of Clintonia s decision. 1. Limiting casket sales to only funeral directors ensures consumer protection/health and safety of citizens. Because Petitioner conceded that consumer protection is a legitimate government interest, the only inquiry left is whether the statute is rationally related to this legitimate end. R. at 9. The relevant test was set forth in United States v. Carolene Products Co., where the Court held pursuant to rational basis review that when legislative judgment is called into question on equal protection grounds and the issue is debatable, the decision of the legislature must be upheld if any state of facts either known or which could reasonably be assumed affords support for it. 304 U.S. 144, 154 (1938). Rational basis review places no affirmative evidentiary burden on the 7

17 government. Those attacking the rationality of the legislative classification have the burden to negate every conceivable basis which might support it. Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364 (1973). Legislative decisions are not subject to judicial fact-finding and may be solely based on rational speculation unsupported by evidence or empirical data. FCC v. Beach Commc ns, 508 U.S. 307, 315 (1993). The court is not bound by the parties arguments as to what legitimate state interests the statute seeks to further. Reviewing courts are obligated to seek out other conceivable reasons for validating a statute. Starlight Sugar, Inc. v. Soto, 253 F.3d 137, 146 (1st Cir. 2001). In the present case, at the time was enacted, the Clintonia legislature relied on a study that showed at least ten percent (10%) of unlicensed casket sellers took advantage of purchasers of caskets. R. at 5. These caskets from unlicensed retail casket sellers often did not meet the standards set out by the FDEA. R. at 5. The study the legislature had before it indicated consumers were being taken advantage of in their time-of-need and the legislature rationally believed the study to be true. Id. Based on this evidence, the statute was rationally related to deal with this concern by assuring consumers protection from such unscrupulous casket sellers. This satisfies the rational basis test at the time of its enactment. The consumer protection the State desired to ensure was rationally related regardless of the study s validity because precedent makes clear that empirical data is not required. See Fitzgerald v. Racing Ass n of Cent. Iowa, 539 U.S. 103, 107 (2003). Rather, the Court is required to uphold the statute if there is any reasonably conceivable state of facts that could provide a rational basis for the classification. Heller v. Doe by Doe, 509 U.S. 312, 319 (1993). Accordingly, consumer protection is still a conceivable interest at the time of the challenge. To illustrate, it is conceivable that encouraging delicate customers to seek out services from a 8

18 licensed funeral director could benefit them in regard to affording them greater access to complete funeral services. Seeing how precedent requires the challenger to negate every conceivable basis that could possibly support the regulations, this reason has not been negated by Petitioner. Lehnhausen, 410 U.S. at 364. In Williamson v. Lee Optical of Oklahoma, Inc., this Court upheld a regulation making it unlawful for any person who is not a licensed optometrist or ophthalmologist to fit lenses to a face or duplicate or replace into frames, lenses, or other optical appliances, except upon written prescriptive authority of an Oklahoma-licensed ophthalmologist or optometrist. 348 U.S. 483 (1955). In effect, it meant that no optician could fit old glasses to new frames or supply lenses without a prescription. Id. at 486. The challenger in that case was an optician for whom the court held such a regulation was not reasonably and rationally related to the health and welfare of the people, because an optician was perfectly qualified to grind lenses, fill prescriptions, and fit frames. Id. This Court disagreed, holding the Oklahoma law may exact a needless, wasteful requirement in many cases, but it is for the legislature, not the courts, to balance the advantages and disadvantages of the new requirement. Id. at 487. The Court reasoned that the legislature might have concluded that eye examinations were important not only for correction of vision but also to detect latent ailments or diseases. Id. By requiring every change in frames and every duplication of a lens be accompanied by a prescription from a medical expert, the statute reached that end. Id. Citing to the dissenting opinion from the lower court, this Court stated: An eyeglass frame, considered in isolation, is only a piece of merchandise. But an eyeglass frame is not used in isolation, it is used with lenses; and lenses pertaining as they do to the human eye, enter the field of health. Therefore, the legislature might conclude that to regulate one effectively it would have to regulate the other. 9

19 Id. at 490. However, it found that every respect of a law need not be logically consistent to be constitutional. Id. at 488. When a legislature believes that a statute is a rational way to correct an evil, that is enough to ensure the statute s constitutionality. Id. Similar to eyeglass frames and lenses, a casket is a piece of merchandise not typically used in isolation. It is but one piece needed in times of the difficult process of arranging a funeral service. While not always necessary for casket sales, the knowledge and other services offered by a licensed funeral director that would accompany such a sale may offer knowledgeable assistance to a vulnerable customer in taking on the rest of the task. This very well might have been one of the legislature s aims in enacting This affords a consumer protection beyond that of mere intrastate economic protectionism. The Second Circuit Court found support similar to Williamson to uphold a dental regulation, which allowed only a licensed dentist to perform a teeth-whitening procedure utilizing a light emitting diode ( LED ) lamp. Sensational Smiles, 793 F.3d 281. Sensational Smiles argued that there was no rational basis for restricting the operation of LED lights to licensed dentists, contending dentists were not trained to use LED lights or practice teeth whitening and are not required to have any knowledge of LED lights to obtain a dental license. Id. at 285. However, the Second Circuit Court speculated that the Commission might have rationally concluded in view of the health risks posed by LED lights, customers seeking to use them in a teeth-whitening procedure should first receive an individualized assessment of their oral health by a dentist. Id. This evidences rational grounds for the restriction to trained dentists. Sensational Smiles further argued the rule was irrational because consumers could shine the LED light into their own mouths. Id. The court responded that people could do to their own mouths whatever they choose. Id. However, a license may be required if they are going to be paid for 10

20 doing the same thing to others. Id. This does not make the licensure requirement irrational. Id. Just as in a legal setting, a litigant may represent himself pro se, but without a law license that same person may not represent others. Id. From this, the court found at least some evidence existed showing LED lights could cause harm to some consumers. Given some relationship between the rule and the harm it sought to protect, the court concluded the rule did not violate either due process or equal protection. Id. Likewise, in the State of Clintonia there is no regulation against buying a casket from an unlicensed individual online from another state, and customers are free to even construct their own caskets if they wish, but a failure to ban such choice does not render a ban purchasing a casket from an unlicensed intrastate sales person irrational. The legislature may have sought to grant Clintonia s citizens a level of assurance on the quality of caskets, as well as afford them the added resources provided by licensed funeral directors during a sensitive time, should they need it. The fact that customers can opt out of such protections does not make the protection guaranteed to those who take advantage of it any less rational. As discussed in Powers, purchasers of caskets are likely mourning and particularly vulnerable. It may be inferred from using common sense that purchasing a casket requires a certain level of capacity. One needs to not only get the proper size, but one may wish to preserve a loved one in a more substantial casket than one that may break down over time or even look a certain way, which is only accomplished by seeing it in person. It logically follows that customers experiencing a loss feel stressed, rushed and distraught, diminishing their ability to decipher the longevity or other differences by choosing one type of casket over another. More importantly, by purchasing a casket online, a consumer may miss out on other information needed to fulfill duties to a loved 11

21 one who has passed away. Thence, at least some evidence exists, that purchasing a casket from an unlicensed individual poses some risk to consumers, which passes rational basis review. 2. Economic protectionism is a legitimate State interest and, in this case, gives further credence to the legitimacy of the health and safety of the State s citizens. Economic protectionism is the legislative favoring of one economic class over another. Fitzgerald, 539 U.S. at 107. At the trial court level, Petitioner alleged the licensure requirement and criminalization of violators was enacted for the sole purpose of protecting licensed funeral directors from unlicensed competition. R. at 4. This potentially creates a monopoly in the funeral services industry. The trial court held that mere intrastate economic protectionism is an illegitimate interest in and of itself. R. at 11. However, the Supreme Court of Clintonia reversed, finding that mere or bare intrastate economic protectionism is a legitimate interest. R. at 11. Even if this Court finds that bare economic protectionism is not a legitimate state interest, the rational reasons in support of consumer protection as already discussed are enough to uphold the statute. A split among federal circuit courts exists as to whether mere economic protectionism constitutes a legitimate governmental interest and provides a rational basis for a deprivation of constitutional rights. The Second and Tenth Circuit Courts have explicitly held that economic protectionism is a legitimate state interest, while the Fifth, Sixth, and Ninth Circuit Courts all hold economic protectionism to be an illegitimate interest. See Sensational Smiles, 793 F.3d 281; Powers, 379 F.3d 1208; St. Joseph Abbey v. Castille, 712 F.3d 215 (5th Cir. 2013); Craigmiles v. Giles, 312 F.3d 220 (6th Cir. 2002); Merrifield v. Lockyer, 547 F.3d 978 (9th Cir. 2008). This Court should adopt the Second and Tenth Circuit Courts reasoning and find that economic protectionism, absent a violation of a specific federal statutory or constitutional provision, is a legitimate interest. 12

22 The Tenth Circuit upheld a provision of the Oklahoma Funeral Services Licensing Act ( FSLA ) that prohibited intrastate sales of funeral merchandise without a license against a Fourteenth Amendment challenge in a case nearly indistinguishable from the present case. Powers, 379 F.3d In Powers, the legislation at issue limited intrastate time-of-need casket sales to licensed funeral directors. Id. at Acquiring a license was an extensive process, and the relevant skills gained from obtaining a license did little training on selling caskets. Id. at Caskets sold by licensed funeral directors were significantly more expensive while being of the same quality as those sold by unlicensed casket salespersons. Id. The Tenth Circuit explicitly held that intrastate economic protectionism is a legitimate government interest. Id. at This Court has consistently held that protecting or favoring one particular intrastate activity, absent a specific federal constitutional or statutory violation, is a legitimate state interest. In Fitzgerald, this Court held the hypothetical goal of fostering intrastate riverboat gambling provided a rational basis to support legislation taxing riverboat slot machine revenues at a more favorable rate than those from racetrack slot machines. 539 U.S. at 109. In Nordlinger v. Hahn, this Court upheld a state property tax scheme that favored long-term owners over new owners. 505 U.S. 1, 12 (1992). In New Orleans v. Dukes, this Court upheld an ordinance in New Orleans that banned street vendors, with an exception made for vendors who had been in operation more than eight (8) years. 427 U.S. 297 (1976). Finally, this Court held in an even earlier case that a state may set a legitimate goal of freeing a profession as much as possible from all taints of commercialism. Williamson, 348 U.S. at 491. The Tenth Circuit Court stated, while baseball may be the national pastime of the citizenry, dishing out special economic benefits to certain in-state industries remains the favored 13

23 pastime of state and local governments. Powers, 379 F.3d at This principle has been applied to numerous state subsidization and licensing equal protection cases. In Fitzgerald, the state enacted legislation to save racetracks from economic distress by allowing slot machines at racetracks. 539 U.S. at 106. However, the tax rate on these revenues would begin at 20 percent and incrementally increase to 36 percent. Id. at 105. Because riverboats were taxed at a flat rate of 20 percent, the racetrack owners argued that the legislation authorizing the increased, incremental tax on racetracks violated the Equal Protection Clause. Id. In rejecting the racetrack owners argument, this Court reasoned that the legislature had a plausible reason for the statute that was rationally based on what the legislature believed to have been true at its enactment. Id. This Court held that whether the provision was harmful to the racetrack and helpful to the riverboats, or vice versa, it was a rational way for legislature to view the matter. Id. Thus, favoring one intrastate industry over another is a legitimate government interest. Id. at 109. This same principle, which guided the decision in Powers, is applicable to the present case. In this case, Petitioner argues the legislature sought to protect licensed funeral directors from competition against unlicensed funeral directors. 1 R. at 4. The reasons why the Clintonia legislature chose to favor one over the other is irrelevant. Beach Commc ns, 508 U.S. at 315. The legislature is permitted to do so, as long as it does not violate some other federal or constitutional right. Ferguson v. Skrupa, 372 U.S. 726, (1963). Also similar to Powers, the legislature in this case was careful to avoid violating a federal statutory or constitutional provision by narrowing the requirement to solely intrastate activities so as to avoid a Dormant Commerce Clause Violation. Therefore, under the Tenth Circuit Court s reasoning, the intrastate economic 1 The record reflects that the chief senator who sponsored the bill was clear that the bill was created to protect funeral directors from competition. However, the legislature was also presented with a study showing unlicensed casket sellers were taking advantage of consumers. 14

24 protection afforded to licensed funeral directors, in this case, is a valid legitimate government interest. It logically follows that is rationally related to achieving the legitimate end of protecting against unscrupulous casket sellers, but also provides economic protection to funeral directors. Even though the court in Craigmiles disagreed on whether intrastate economic protection was legitimate, it conceded that it was very well tailored to this interest. 312 F.3d at 228. The court found that Tennessee s version of FSLA imposed a significant obstacle to unlicensed competition in casket sales. Id. It cannot be denied that criminalizing FDEA violators in this case likewise discourages unlicensed competition. A perfect example of s effect was illustrated in Powers, where the plaintiffs refrained from selling in-state, time-of-need caskets, because they had a reasonable and genuine fear of being prosecuted for violating the FSLA. 379 U.S. at In Powers, the plaintiffs sold caskets online and admitted they would not sell within the state for fear of criminal prosecution. Id. In that case, the plaintiffs brought an action for declaratory judgment in an effort to change the law. Id. at The fact that Oliver lacked such hesitancy in violating the law is of no consequence. Additionally, it is not necessary for the statute to actually achieve the goal it desired to accomplish. Even if the law did not protect consumers from unscrupulous unlicensed casket sellers, that is irrelevant to how this Court should find. This Court has stated it will not hold a law irrational simply because the statute did not achieve the desired goal. Seagram & Sons, Inc. v. Hostetter, 384 U.S. 35, 50 (1966). Therefore, this Court should likewise have little trouble finding that is rationally related to a legitimate government interest. The Sixth Circuit Court, however, was the first to hold statutes that achieve no objective except sole economic protectionism fails rational basis review. See Craigmiles, 312 F.3d

25 There, the court struck down the Tennessee Funeral Directors and Embalmers Act, which made it a violation of law for anyone other than a licensed funeral director to sell a casket. Id. at 222. However, that court focused heavily on the legislature s motivations in creating the statute, an inquiry that is not necessary. Beach Commc ns, 508 U.S. at 307. It is important to note that the cases cited in Craigmiles to support its conclusion that intrastate economic protectionism is not a legitimate state interest were limited to the regulation of interstate commerce. Powers, 379 F.3d at In Energy Reserves Group, Inc. v. Kansas Power & Light Co., the court considered an interstate commerce question related to denying outof-state facilities the ability to acquire and ship milk in an effort to protect local economic interest and addressed a contract specific clause. 459 U.S. 400 (1983). Minnesota v. Clover Leaf Creamery Co. was another case Craigmiles cited; however, that case addressed the dormant Commerce Clause. 449 U.S. 456, 471 (1981). City of Philadelphia v. New Jersey addressed whether a statute related to prohibiting the importation of waste into its state violated the Commerce Clause. 437 U.S. 617, 618 (1978). Thus, the Sixth Circuit court incorrectly applied this Court s precedent without which it lacks valid reasoning to support its conclusion. The Fifth Circuit Court decided St. Joseph Abbey after both Powers and Craigmiles had been decided, and sided with the latter. 712 F.3d 215. That case again dealt with very similar issues as in the present case. There, the court found a statute limiting intrastate sales of caskets by a licensed funeral director violated the Equal Protection Clause of the Fourteenth Amendment. Id. at 217. The Fifth Circuit Court criticized the Powers decision, asserting the Tenth Circuit Court applied this Court s precedent too broadly. Id. at 222. Instead, the Fifth Circuit court found the cases relied on in Powers were legitimate because they were not mere economic protection, but also protected the public interest and general welfare. Id. The cited 16

26 authority was similar to this case the economic protection that comes from is not bare, but also linked to consumer protection as well as health and safety. A common thread between similar cases is that for protection against abuses by legislatures the people must resort to the polls, not to the courts. Williamson, 348 U.S. at 488; see Powers, 379 F.3d 1218; see also Sensational Smiles, LLC, 793 F.3d at 287. The court in Powers noted that to hold that a state cannot adopt laws providing intrastate economic protectionism would have wide-ranging consequences. 379 F.3d at An example of such consequences would be that in addition to the threat to all licensed professions such as doctors, accountants, etc., every piece of legislation that protects or favors one industry over another in hopes of luring jobs to that state would be in danger. Explaining that when it comes to regulatory schemes, there will inevitably be some persons who if the line were to be drawn just slightly different, those persons would be on the other side of the line. Beach Commc ns, 508 U.S. at The person just across the line may have an almost equally strong claim to the favored treatment. Id. However, where the line is drawn is a legislative decision, not judicial decision. Id. It would paralyze state governments if the court undertook a probing review of each of their actions, constantly asking them to try again. Powers, 379 F.3d at Even if the court assumed such a role, it would be nothing more than substituting its view for that chosen by the states. Id. The protection of state powers is necessary, while resulting in virtually unreviewable legislation, the legislature must be allowed leeway to approach a perceived problem incrementally. Beach Commc ns, 508 U.S. at In Sensational Smiles, the court reasoned that it is simple politics, much of what states do is favor certain groups over others on economic grounds. 793 F.3d at 287. Whether results are wise or terrible is not for us to say.... Id. To hold otherwise would be to interpret the 17

27 Fourteenth Amendment in a way that is destructive to federalism and to the power of the sovereign states to regulate their internal economic affairs. Id. The Williamson Court reiterated, stating [t]he day is gone when this Court uses the Due Process Clause of the Fourteenth Amendment to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought. 348 U.S. at 488. Even the diverging Sixth Court agreed, albeit not explicitly, when the final decision in that case was deferred to the state Supreme Court to rule on whether Louisiana law furnished the Board with authority to regulate casket sales. St. Joseph Abbey, 712 F.3d at 220. While the Louisiana Supreme Court denied certification, the take away from this is that, on first impression, the Fifth Circuit wanted to leave it to the state. Id. The effect of holding intrastate economic protectionism is legitimate interest would avoid this result and also promote judicial efficiency by encouraging those who disagree with a state regulation, to bring a challenge directly to the state court. The consequence of holding otherwise is that it opens the door to this issue being re-litigated every time someone wishes to avoid conviction for violating such statutes. A perfect example is in this case, where Oliver was aware of the law and had he challenged the law to the state legislature, it would have been changed because that is exactly what happened when it was challenged. R. at 5. Instead, Oliver disregarded the law and is now dragging the issue through federal courts in an effort to blatantly escape responsibility for his actions. While the Sixth Circuit Court expressed concern on a per se rule of validity, this concern was based on the irrational presumption that this would result in self-serving abuse of the system by rule makers. St. Joseph Abbey, 712 F.3d at 226. But this directly contradicts the presumption that state legislatures will act rationally and likewise doubts 18

28 our democratic system as a whole. McDonald v. Bd. of Election Comm rs, 394 U.S. 802, 809 (1969) (standing for the presumption that legislatures will act constitutionally). Nor would such a holding for intrastate economic protectionism result in judicial blindness as suggested in St. Joseph Abbey. 712 F.3d at 226. With regard to economic protectionism, the states are limited where it violates federal law. Powers, 379 F.3d at Another limitation, discussed in Powers, is where bare desire to harm is the only conceivable interest. Id. But as the court in Sensational Smiles pointed out, this is not likely to be the case since a protectionist purpose and a more legitimate purpose, often co-exists. 793 F.3d at 287. In sum, adopting the holding in Powers will cure confusion by drawing the line at finding intrastate economic protectionism is a legitimate State interest. This result is already the practical result given the deference afforded by courts to legislative enactments. It respects state sovereignty and promotes judicial efficiency by narrowing the issues before the court in similar cases only to the second inquiry, whether it is rationally related to intrastate protectionism, and not a bare desire to harm. B. Section Is Rationally Related to the State s Interests at the Time of the Challenge Because Even Though Circumstances Have Changed, Rational Reasons for the Law Still Exist. Petitioner argues that should have the rational basis test applied at the time of the challenge. To apply the rational basis test at the time of the challenge is misguided. Here, Petitioner seeks to avoid responsibility even though he knowingly violated the law. R. at 6. Even if the Court looks at the time of the challenge, should still be found rational to a state interest. The court should uphold the decision of the legislature if there are any facts known, or that could reasonably be assumed, that are rational to the State s interest. See Lehnhausen, 410 U.S. at 364. Even though the legislature determined to repeal this statute after the trial court 19

29 issued a stay for the purpose of a legislative review, it does not mean that the statute was irrational at the time of the challenge. A rationally related reason may exist, but the State may simply have chosen another path. Whether rational reasons related to a government interest have changed and whether those changes mean a statute should be modified or repealed is a question for the legislature. In this case, the State may still be concerned about the availability of funeral directors in some communities to take care of embalming or other necessary things before placing a body in the ground, regardless of what type of casket is used. Looking at the time of the challenge for rational basis will create chaos in relation to many laws that are currently in place. Additionally, it requires the legislature to be all-knowing regarding all the changing circumstances to all the statutes. That is an unreasonable expectation. The question the Court should answer now is whether a court should even consider the changed circumstances that brought about the challenge to the law. This Court should reject the change circumstances doctrine. 1. The Court should now reject the changed circumstances doctrine because it is impractical to require legislatures to be aware of all statutes and all changed circumstances that might apply. In arguing the statute is not rationally related, Petitioner relies on the dicta found in Carolene Products where the Court expressed that the constitutionality of a statute predicated upon the existence of a particular state of facts may be challenged by showing to the court that those facts have ceased to exist. 304 U.S. at 153. The Court in Carolene reasoned this idea based on the case of Chastleton Corp. v. Sinclair that involved a bill in equity brought to cut down the price of rent on apartments during the time of an emergency, which came to an end while the lowered rent restrictions remained. 264 U.S. 543, 546 (1924). Chastleton recognized that when an event, such as a state of emergency, comes to an end, those changed circumstances 20

30 may lead to the invalidation of a statute because the very purpose for that statute has come and gone. Id. In the present case, the changed circumstances are not the sole purpose of the enactment, as in Chastleton. Section is not so narrowly tailored as to be irrelevant because the findings of a study relied on by the legislature were inaccurate. There was still a reasonable, legitimate concern that casket sellers might exploit grieving citizens for economic gain if not for some sort of legislative intervention. The invalidation of the study does not invalidate the purpose of protecting against and preventing improper commercial practices. In the trial court s opinion, it also relied on this Court s holding in Whole Woman s Health v. Hellerstedt, where Justice Breyer held that changed circumstances showing that a challenged law has an unconstitutional effect, can give rise to a new claim. 136 S. Ct. 2292, 2306 (2016), as revised (June 27, 2016). The issue in Hellerstedt was one of claim preclusion, asking whether the petitioner s post enforcement asapplied challenge was the very same claim as the pre enforcement facial challenge. Id. at This case involves a single facial challenge raised by Petitioner, with no prior challenges that could raise the issue of claim preclusion under the res judicata principle. Therefore, Hellerstedt is not on point with the determination of the changed circumstances doctrine s applicability in this case. Because the cases upon which the trial court relied were not on point with this case, there are numerous circuit court applications of the changed circumstances doctrine that should be considered. Johanna Talcott, Aging Disgracefully: Do Economic Laws Remain Rational in Spite of Changed Circumstances?, 11 FIU L. Rev. 495, 513 (2016). The Third Circuit Court held in Murillo v. Bambrick that when determining whether a statute is rationally related to a legitimate government interest, the court must analyze the statute under the circumstances at the time of the 21

31 enactment. 681 F.2d 898, 906 (3d Cir. 1982). Murillo involved a New Jersey statute that imposed additional trial fees on individuals undergoing divorces, while not imposing these fees on other civil litigants. Id. at 898. Murillo held the fees did not violate the Equal Protection Clause, and in doing so, refused to adopt a changed circumstances analysis, reasoning that this Court appears not to have determined definitively whether changed conditions are a relevant consideration. Id. at 912 n.27. Murillo came to this conclusion by comparing Carolene Products with the two other Supreme Court decisions of Minnesota v. Clover Leaf Creamery and Lindsley v. Natural Carbonic Gas Co. In Clover Leaf, the Court held that where there was evidence that reasonably supported the enactment, the legislation cannot be invalidated merely by tendering evidence that the legislature was mistaken. 449 U.S. 456, 464 (1981). Murillo additionally relied on Lindsley, where the Court stated if any state of facts reasonably can be conceived that would sustain [a statute], the existence of that state of facts at the time the law was enacted must be assumed. Lindsley v. Nat. Carbonic Gas Co., 220 U.S. 61, 78 (1911). Murillo relied on Clover Leaf and Lindsley in reaching its decision of not following the changed circumstances doctrine, though Murillo did acknowledge the changed circumstances might apply in situations where a statute, rendered manifestly unreasonable by changed conditions, remains in effect for many years without legislative actions. 681 F.2d at 912. However, the changed conditions have not reached this level. The Ninth Circuit Court in Burlington Northern Railroad Co. v. Department of Public Service Regulation also examined Carolene, Lindsley, and Clover Leaf, finding the Court to be ambivalent on the changed circumstances doctrine s ability to invalidate law once deemed rational. 763 F.2d 1106, 1109 (9th Cir. 1985). Burlington involved a statutory challenge that 22