EQUAL PROTECTION AND THE LAW OF THE LAND

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1 EQUAL PROTECTION AND THE LAW OF THE LAND IN NORTH CAROLINA Jeanette K. Doran Senior Staff Attorney, North Carolina Institute for Constitutional Law SEPTEMBER 15, 2010 INTRODUCTION On July 4, 1776, fifty-six delegates to the Continental Congress unabashedly signed the Declaration of Independence which proclaimed that in the land of the free and home of the brave, We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. This statement is embodied in N.C. Const. Art. I, 19, which provides: No person shall be taken, imprisoned, or disseized of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner deprived of his life, liberty, or property, but by the law of the land. No person shall be denied the equal protection of laws; nor shall any person be subjected to discrimination by the State because of race, color, religion, or national origin. In general, as the Supreme Court explained more than half a century ago, The equal protection clause and law of the land clause of the North Carolina Constitution imposes upon law-making bodies the requirement that any legislation classification provide a reasonable means to a legitimate state objective. Powe v. Odell, 312 N.C. 410, 412, 322 S.E.2d 762, 763 (1984). The purpose of this memo is to outline the doctrine surrounding this general statement, beginning with equal protection and ending with the law of the land. EQUAL PROTECTION When an Equal Protection claim is asserted, the basic allegation involved is that a statute or government action violates either a fundamental right or arbitrarily and capriciously discriminates between two like classes or against a protected class. When presented with such a

2 challenge, the Court must first determine the appropriate level of scrutiny to apply to the challenged enactment. Dept. of Transp. v. Rowe, 353 N.C. 671, 675, 549 S.E.2d 203, 207 (2001). Texfi Indus. indicates that there are two possible levels of scrutiny, namely strict scrutiny and rational basis review. Texfi Indus., Inc. v. City of Fayetteville, 301 N.C. 1, 11, 269 S.E.2d 142, 149 (1980). Because the North Carolina Supreme Court expressly incorporated the equal protection law made explicit in U.S. CONST. Amend. XIV into N.C. CONST. Art. I 19 nearly four decades ago, there should also be an intermediate level of scrutiny, S.S. Kresge Co. v. Davis, 277 N.C. 654, 178 S.E.2d 382 (1971); however, it is unclear whether North Carolina would apply such review since research reveals no cases on point. In any case, it is possible, and therefore its doctrine, too, shall be discussed below after the two which are definitely used by North Carolina courts. A. Strict Scrutiny If a government enactment stands to impact a citizen s ability to exercise a fundamental right or if a governmental classification distinguishes between persons on a suspect basis, a strict scrutiny analysis is applied. Texfi Indus., 301 N.C. at 11, 269 S.E.2d at 149; see United States v. Carolene Products, 304 U.S. 144, 152 n.4 (1938). 1 Under strict scrutiny, the government must demonstrate that the challenged classification is narrowly tailored to promote a compelling governmental interest. Id. What is a fundamental right or suspect class? Fundamental rights are those enumerated in the Bill of Rights, Carolene Products, 304 U.S. at 152 n.4, and those penumbral ones 1 According to Carolene Products, heightened scrutiny is appropriate when: (1) legislation appears on its face to be within a specific prohibition of the Constitution, (2) the legislation restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, and (3) legislation prejudice[s] against discrete and insular minorities. 304 U.S. 144, 152 n.4 (1938).

3 determined by the United States Supreme Court. Griswold v. Connecticut, 381 U.S. 479 (1965). Examples of fundamental rights include the right to privacy, U.S. CONST. Amend. IV, the right to vote, Hill v. Stone, 421 U.S. 289 (1975), the right of a mother to abort her fetal child, Roe v. Wade, 410 U.S. 113 (1973), and the interest of parents in the care, custody, and control of their children, Troxel v. Granville 530 U.S. 57 (2000). A class is suspect when it is saddled with disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command particular consideration from the judiciary. Texfi Indus., 301 N.C. at 11, 269 S.E.2d at 149. An example of strict scrutiny analysis can be found in Parents Involved in Comty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007). In that case, two school districts voluntarily adopted student assignment plans to avoid re-segregation of the schools and maintain racial balance. Since this government action was based upon racial discrimination, the court applied strict scrutiny because of the long history of racial discrimination. The government advanced two interests in its defense, alleging it was trying to maintain diversity and remedy the past effects of discrimination. Even though these interests were held sufficiently compelling when a place of higher education was involved, Grutter v. Bollinger, 539 U.S. 306 (2003), they did not apply to lower-level schools. Parents Involved memorably stated, Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality. (citing Adarand Constructors, Inc. v. PenaI, 515 U.S. 200 (1995)). B. Rational Basis Review

4 When a law does not involve a suspect class or a fundamental right, a rational basis analysis is employed. Texfi Indus., 301 N.C. at 11, 269 S.E.2d at 149. Under the rational basis test, the challenged enactment is presumed constitutional; it need bear only some rational relationship to a legitimate governmental interest; and the challenging party bears the burden of proof. Id. Furthermore, any legislative classification must be based on differences that are reasonably related to the purposes of the Act in which it is found. Morey v. Doud, 354 U.S. 457 (1957); see also In re Appeal of Martin, 286 N.C. 66, 76, 209 S.E.2d 766, 773 (1974) (citing Ohio Oil Co. v. Conway, 281 U.S. 146 (1930)) ( [w]hile the General Assembly may not establish a classification that is arbitrary or capricious, a classification [under equal protection] is constitutional if founded upon a reasonable distinction or difference and bears a substantial relation to the object of the legislation. ) This does not mean that the regulation must reach every class to which the purpose might be applicable; the legislature may use its discretion to root out those evils it perceives without tackling all abuses. Raleigh Mobile Home Sales, Inc. v. Tomlinson, 276 N.C. 661, 174 S.E.2d 542 (1970). Still, it cannot regulate arbitrarily either as between similarly situated persons, or groups of persons, or as between activities which are prohibited and those which are permitted. State v. Greenwood, 280 N.C. 651, 657, 187 S.E.2d 8, (1972) (quoting Raleigh Mobile Homes Sales, Inc. v. Tomlinson, 276 N.C. 661, , 174 S.E.2d 542, 546 (1970)). Several cases help elucidate application of these principles. In State v. Greenwood, the court invalidated an ordinance that banned operation of billiard halls on Sundays, but allowed the operation of all other facilities for recreation, amusement, and sports on Sundays. The court concluded that there was no rational basis for singling out billiard halls in light of the apparent purpose of promoting Sunday as a day of rest and tranquility. 280 N.C. at , 187 S.E.2d at

5 In State v. Smith, 265 N.C. 173, 143 S.E.2d 293 (1965), an enactment closing clubs located within 300 yards of churches or schools between 2:00 a.m. and midnight on Sunday, was held to deny equal protection of the laws, the court noting that schools were not in session and churches were not meeting during the hours the clubs operated, and the court finding no reasonable basis for the 300 yard distance requirement. In Cheek v. City of Charlotte, the court struck down an ordinance creating detailed regulations for the operation of massage parlors, health salons and physical culture studios, but excepted barber shops, beauty parlors, and YMCA and YWCA health clubs. Cheek v. City of Charlotte, 273 N.C. 293, 160 S.E.2d 18 (1968). Another matter to remember is that statutes are void as class legislation when persons who are engaged in the same business are subject to different restrictions or are treated differently under the same conditions. Poor Richard s v. Stone, 322 N.C. 61, 67, 366 S.E.2d 697, 700 (1988) (citing Cheek, 273 N.C. 293, 160 S.E.2d 18). The law must operate[] alike on all members of the class which includes all persons and property similarly situated. State v. Glidden Co., 228 N.C. 664, 667, 46 S.E.2d 860, 862 (1948). Classification is permitted only when (1) it is based on differences between the business to be regulated and other businesses and (2) when these differences are rationally related to the purpose of the legislation. Poor Richard s, 322 N.C. at 67, 366 S.E.2d at 700 (citing State v. Harris, 216 NC 746, 6 S.E.2d 854 (1940)). State v. Glidden illustrates these principles. That case concerned a statute prohibiting the disposal of deleterious substances into the waters of state but exempted from its application corporations chartered before the year In striking down the statute on equal protection grounds, our Supreme Court stated, [a]ny classification or discrimination must not be arbitrary or unreasonable; and the legislation must not be discriminatory in the sense of applying

6 unequally to persons pursuing or engaged in the same calling, profession, or business under the same or like conditions or circumstances. Id. at 667, 46 S.E.2d at 862 (quoting C.J.S., Constitutional Law, 510, p. 1014). The court finally held that the statute at issue had no reasonable relation to the purpose of the law, only serving to mechanically split into two groups persons in like situation with regard to the subject matter dealt with....and that the attempted classification [was] not based upon a justifiable distinction." Id. at 668, 46 S.E.2d at 862. C. Intermediate Scrutiny As stated above, research reveals no North Carolina cases that have applied intermediate scrutiny. Texfi Co. indicates that there are only two standards, though it cites federal precedent when explaining the levels of scrutiny. In federal courts, when gender discrimination is alleged, intermediate scrutiny is applied. Under this standard, in order for a statute to survive an equal protection challenge, it must serve important governmental objectives and must be substantially related to those objectives. Craig v. Boren, 429 U.S. 190, 197 (1976) (emphasis added). The government has the burden to present an exceedingly persuasive justification for its [discriminatory] action. United State v. Virginia, 518 U.S. 515, 530 (1996). Under this doctrine, if the legislation is based upon antiquated notions on gender placement or overbroad generalization instead of real differences between a man and woman, it will be struck down. For example, in Kirchber v. Feenstra, the Court struck down a Louisiana statute which gave the husband unilateral ability to alienate property he jointly held with his wife as head and master of the property. 450 U.S. 455, 459 (1981). But in Rostker v. Goldberg, the Court upheld a federal law requiring men but not women for register for the draft since women were excluded from combat. 453 U.S. 57, (1981).

7 LAW OF THE LAND The term law of the land [hereinafter due process] is synonymous with due process under the Fourteenth Amendment of the U.S. Constitution. And as it is synonymous, decisions by federal courts regarding the Fifth and Fourteenth Amendments due process provisions serve as persuasive authority for North Carolina law of the land challenges. And just as there is procedural and substantive due process under the U.S. Constitution so does North Carolina s equivalent doctrine provide both and more. A. Procedural Due Process Procedural due process, in its most basic form, demands both notice and an opportunity to be heard before a competent tribunal before a person shall be taken, imprisoned, or disseized of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner deprived of his life, liberty, or property. Parker v. Stewart, 29 N.C. App. 747, 225 S.E.2d 632 (1976); Utica Mut. Ins. Co. v. Johnson, 41 N.C. App. 299, 254 S.E.2d 643 (1979). In Parker v. Stewart, the Court struck down a Harnett County ordinance which allowed the sheriff to revoke licenses of massage parlors. 29 N.C. App. at 748, 225 S.E.2d at 633. The court reasoned that revoking a license was a deprivation of property and that a hearing before the county sheriff did not provide sufficient due process for the circumstances. Id. There is a plethora of cases and statutes that govern what the appropriate process is given particular circumstances 2, and to cover them all would protract this memo into a thesis. Suffice 2 A few examples of procedural due process cases include: Peace v. Employ. Sec. Com n of North Carolina, 349 N.C. 315, 507 S.E.2d 272 (1998); Griffin v. Griffin, 348 N.C. 278, 500 S.E.2d 437 (1998); Matter of Alamance County Court Facilities, 329 N.C. 84, 405 S.E.2d 125 (1991); Randaleman v. Hinshaw, 267 N.C. 136, 147 S.E.2d 902 (1966); Browning v. North Carolina State Highway Com., 263 N.C. 130, 139 S.E.2d 227 (1964); McMillan v. Robeson County, 262 N.C. 413, 137 S.E.2d 105 (1964); State v. Parrish, 254 N.C. 301, 118 S.E.2d 786 (1961); Kirkpatrick v. Currie, 250 N.C. 213, 108 S.E.2d 209 (1959); Pruitt v. Taylor, 247 N.C. 380, 100 S.E.2d 841 (1957); Re Gupton, 238 N.C. 303, 77 S.E.2d 716 (1953); Re Edwards Estate, 234 N.C. 202, 66 S.E.2d 675 (1951); McLean

8 it to say that, as the Supreme Court noted in Matthews v. Eldridge, due process... is not a technical conceptions with a fixed content unrelated to time, place, and circumstances,... [but rather] is flexible and calls for such procedural protection as the particular situation demands. 424 U.S. 319, 334 (1976) (citations omitted) The issues common to them all is (1) whether there has been a deprivation, (2) whether the deprivation was to a constitutionally protected area such as life, liberty, or property, and (3) whether sufficient due process was provided? ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 548 (Aspen Publishers 2006). If a statute or regulation deprives one of a right protected by due process of law and fails to provide sufficient notice and hearing, it will be struck down as unconstitutional, even if in administration notice and hearing are provided. Bowie v. West Jefferson, 231 N.C. 408, 57 S.E.2d 369 (1950). B. Substantive Due Process Substantive due process imposes limitations on the exercise of the State s police power so that no act done by it can be unreasonable, arbitrary or capricious, and the means selected have a substantial relation to the ends sought. State v. Whitaker, 228 N.C. 352, 45 S.E.2d 860 (1947), aff d, 335 U.S. 525 (1949). Essentially, it can be characterized as a standard of reasonableness in relation to the public good likely to come from it. Lowe v. Tarble, 313 N.C. 460, 465, 329 S.E.2d 648, 652 (1985); In re Certificate of Need for Aston Park Hosp., Inc., 282 N.C. 542, 550, 192 S.E.2d 729, 735 (1973); State v. Smith, 265 N.C. 173, 180, 142 S.E.2d 293, 299 (1965). This amounts to a rational basis review equivalent to that presented under the equal protection section. Lowe v. Tarble, 313 N.C. at 465, 329 S.E.2d at 652. The only difference is v. McLean, 233 N.C. 139, 63 S.E.2d 138 (1951); Lexington v. Lopp, 210 N.C. 196, 185 S.E. 766 (1936); Swanson v. Herschel, 174 N.C. App. 803, 622 S.E.2d 159 (2005); First Union Nat l Bank v. Rolfe, 83 N.C. App. 625, 351 S.E.2d 117 (1986).

9 that due process looks to the overall fairness of the challenge government action of statute instead of considering classifications. Id. But this is not the end of what North Carolina due process has to offer. While the law of the land clause is generally considered the functional equivalent of the due process clause of the United State Constitution, it has its own jurisprudence and exacting standards. For cases in which the law of the land clause arises outside the context of traditional due process, the Supreme Court has articulated a two-part test for determining the constitutionality of legislation: Although this Court often considers the law of the land synonymous with due process of law, we have reserved the right to grant Section 19 relief against unreasonable and arbitrary state statutes in circumstances where relief might not be obtainable under the Fourteenth Amendment to the United States Constitution. Nonetheless, the two-fold constitutional inquiry under both the North Carolina and United States Constitutions is the same: (1) Does the regulation have a legitimate objective; and (2) if so, are the means chosen to implement that objective reasonable? In re North Carolina Pesticide Bd. File Nos. IR94-128, IR94-151, IR94-155, 349 N.C. 656, 671, 509 S.E.2d 165, 175 (1998) (internal citations omitted). In In re N.C. Pesticide Board, the court looked at the language of the challenged regulation, and from that it determined that the Board intended to protect people and the environment by creating buffer zones via the pesticide law. Id. This was a legitimate objective. Id. As to the connection between the means and end, the plaintiff was unable to prove that no reasonable conception could justify it. Id. at 672,509 S.E.2d at 176. Therefore, the regulation was upheld. In re N.C. Pesticide Board. CONCLUSION N.C. CONST. Art. I 19 ensures that all people are treated equal under the law and that the law of the land treats people reasonably through sufficient procedure and fair laws. When challenging a statute or other government action under this Constitutional provision, one can

10 draw upon both Federal and State jurisprudence in its arguments, remembering that while the Court has expressly incorporated Federal Equal Protection law into its Equal Protection Clause, it only recognizes federal due process as persuasive. Also, with substantive due process, the State courts can sometimes grant relief when the Fourteenth Amendment of the United State Constitution would not since the law of the land is not wholly the same as due process.