No IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, JAMES T. OLIVER, Petitioner, THE STATE OF CLINTONIA, Respondent.

Transcription

1 No IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 2017 JAMES T. OLIVER, Petitioner, v. THE STATE OF CLINTONIA, Respondent. ON WRIT OF CERTIORARI TO THE SUPREME COURT OF CLINTONIA BRIEF FOR RESPONDENT TEAM W

2 Table of Contents TABLE OF AUTHORITIES..iii STATEMENT OF JURISDICTION...1 STATEMENT OF THE ISSUES...1 STATEMENT OF THE CASE 2 STATEMENT OF FACTS...3 SUMMARY OF ARGUMENT...5 ARGUMENT...7 I. THE SUPREME COURT SHOULD AFFIRM THE CIRCUIT COURT S DECISION AND FIND THAT 1) THE RATIONAL BASIS TEST IS PREMISED ON THE LEGITIMACY OF THE GOVERNMENT INTEREST AT THE TIME THE LAW WAS ENACTED BECAUSE THIS APPROACH IS MOST CONSISTENT WITH SUPREME COURT PRECEDENT AND ENSURES THAT THE COURT DOES NOT ENCROACH ON THE INHERENT FUNCTIONS RESERVED FOR STATE LEGISLATURES AND 2) WAS RATIONALLY RELATED TO THE GOVERNMENT INTERESTS OF CONSUMER PROTECTION, HEALTH AND SAFETY, AND INTRASTATE ECONOMIC PROTECTIONISM.7 A. The Court Should Affirm The Supreme Court Of Clintonia s Finding That The Rational Basis Test Is Based On The Legitimacy Of The Governmental Interest At The Time Of The Enactment Of A State Law (The Original Context Approach ) For Two Reasons: First, The Supreme Court s Precedent Best Supports The Original Context Approach; Second, The Court Does Not Have The Proper Expertise Or Resources To Weigh A States Changed Economic Circumstances, and It Would Constitute Inappropriate Judicial Activism And Undermine The Democratic Process To Allow A Court To Invalidate A States Nondiscriminatory Economic Laws...8 B. The Court Must Affirm The Lower Court s Holding That Is Constitutional Because It Is Rationally Related To The State s Legitimate Interests Of Public Health, Consumer Protection, And Economic Protectionism, ii

3 II. And Even If The Court Applies Only Changed Context Approach And Finds That The Law Is Antiquated Based On Charged Circumstances, It Must Still Affirm Because A Law s Outdatedness Is Not A Constitutional Defect When The Law Does Not Target A Suspect Class Or Impinge On Fundamental Rights OLIVER S COLLECTION OF NINE IMAGES OF CHILD PORNOGRAPHY SHOULD NOT BE SUPPRESSED BECAUSE PRIVATE JONES EXAMINATION OF THE IMAGES WAS NOT AN UNLAWFUL SEARCH UNDER THE REASONABLE EXPECTATION OF PRIVACY TEST APPLIED IN UNITED STATES V. JACOBSEN, WHICH WAS MERELY SUPPLEMENTED BY, NOT ABROGATED BY, UNITED STATES V. JONES WHICH REVIVES A TRESPASS TEST. EVEN IF THE JONES TRESPASS TEST IS EMPLOYED, OLIVER S CHILD PORNOGRAPHY IS STILL ADMISSIBLE BECAUSE PRIVATE JONES WAS ACTING WITH GOOD FAITH IN AN OBJECTIVELY REASONABLE MANNER IN RELYING ON RECENTLY OVERTURNED BINDING PRECEDENT A. Oliver s Anthology Of Nine Images Of Child Pornography Should Not Be Suppressed Under The Exclusionary Rule Because The Jacobsen Reasonable Expectation Of Privacy Test Should Be Employed Instead Of The Trespass Test,Which Merely Supplements The Jacobsen Test To Determine Whether Or Not Private Jones Conducted An Unlawful Search And Because Oliver Does Not Have A Reasonable Expectation Of Privately Possessing The Child Pornography...25 B. If This Court Finds That Private Jones Examination Of The File Containing Oliver s Child Pornography Violated The Fourth Amendment, Oliver s Child Pornography Collection May Still Be Admitted Because Private Jones Acted Both In Good Faith Reliance Upon Previously Binding Judicial Precedent And In An Objectively Reasonable Manner CONCLUSION..35 Table of Authorities CASES Burlington N. R. Co. v. Dep t of Pub. Serv. Regulation, 763 F.2d 1106 (9th Cir. 1985)... Buss. for a Better NY v. Angello, 341 Fed. Appx. 701 (2d Cir. 2009)... Chastelton Corp. v. Sinclair, 264 U.S. 543 (1924)... iii

4 City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432 (1985)... City of New Orleans v. Dukes, 427 U.S. 297 (1976)... Craigmiles v. Giles, 312 F.3d 220 (6th Cir. 2002)... Davis v. United States, 564 U.S. 229 (2011)... Engquist v. Or. Dep t Agric., 553 U.S. 591 (2008)... F.C.C. v. Beach Commc ns, Inc., 508 U.S. 307 (1993)... Fitzgerald v. Racing Assn n of Cert. Iowa, 537 U.S. 103 (2003)... Goldman v. United States, 316 U.S. 129 (1942)... Guardian Plans Inc. v. Teague, 870 F.2d 123 (4th Cir. 1989)... Heffner v. Murphy, 745 F.3d 56 (3d Cir. 2014)... Herring v. United States, 555 U.S. 135 (2009)... Kadrmas v. Dickinson Pub. Schs., 487 U.S. 450 (1988)... Katz v. United States, 389 U.S. 347 (1967)... Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356 (1973)... Massachusetts Bd. of Ret. v. Murgia, 427 U.S. 307 (1976)... Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456 (1981)... Munn v. People of State of Illinois, 94 U.S. 113 (1876)... Murillo v. Bambrick, 681 F.2d 898 (3d Cir. 1982)... Nebbia v. People of New York, 291 U.S. 502 (1934)... New York City Transit v. Beazer, 440 U.S. 568 (1979)... Olmstead v. United States, 277 U.S. 438 (1928)... Powers v. Harris, 379 F.3d 1208 (10th Cir. 2004)... Sensational Smiles, LLC v. Mullen, 793 F.3d 281 (2015)... iv

5 Starlight Sugar Inc. v. Soto, 253 F.3d 137 (1st Cir. 2001)... St. Joseph Abbey v. Castille, 712 F.3d 215 (5th Cir. 2013)... State ex rel. State Bd. of Embalmers & Funeral Directors v. Stone Casket Co. of Oklahoma City, 976 P.2d 1074 (Okla. Civ. App.1998)... United States v. Aguilar, 737 F.3d 251 (2d 2013)... United States v. Carolene Prod. Co. 304 U.S. 144 (1938)... United States v. Jacobsen, 466 U.S. 109 (1984)... United States v. Jones, 565 U.S. 400 (2012)... United States v. Katzin, 769 F.3d 163 (3d Cir. 2014)... United States v. Leon, 468 U.S. 897 (1984)... United States v. Sparks, Fd 58 (1st Cir. 2013)... United States v. Then, 56 F.3d 464 (2d Cir. 1995)... Vance v. Bradley, 440 U.S. 93 (1979)... W. & S. Life Ins. Co. v. State Bd. of Equalization of California, 451 U.S. 648 (1981)... Whole Woman s Health v. Hellerstedt, 136 S.Ct (2016)... Williamson v. Lee Optical of Oklahoma Inc., 348 U.S. 483 (1955)... STATUTES & RULES U.S. Const. amend. XIV U.S. Const. amend. IV... MISCELLANEOUS Kevin Emas & Tamara Pallas, United States v. Jones: Does Katz Still Have Nine Lives?, 24 St. Thomas L. Rev. 116 (2012)... v

6 Jace C. Gatewood, It s Raining Katz and Jones: The Implications of United States v. Jones A Case of Sound and Fury, 33 Pace L. Rev. 683 (2013)... Johanna Talcott, Aging Disgracefully: Do Economic Laws Remain Rational in Spite of Changed Circumstances?, 11 FIU L. Rev. 495 (2016)... Michael L. Snyder, Katz-ing Up and (Not) Losing Place: Tracking the Fourth Amendment Implications of United States v. Jones and Prolonged GPS Monitoring, 58 S.D. L. Rev. 158 (2013)... Will Stancil, Warrantless Searches as All the Same, 97 Minn. L. Rev. 337(2012)... vi

7 STATEMENT OF JURISDICTION The judgment of the Circuit Court of the Fifteenth Judicial Circuit was entered on April 4, The Court s jurisdiction was based on 28 U.S.C (2012). The State of Clintonia gave timely notice of appeal on April 11, The Supreme Court of Clintonia s jurisdiction to hear the case was based on 28 U.S.C (2012). The petition for a Writ of Certiorari was timely filed on November 10, 2016, following the Clintonia Supreme Court s opinion dated October 28, The Supreme Court granted Certiorari on June 30, 2017 and ordered that the cause be set down for argument in the October Term of The Supreme Court has jurisdiction over this matter pursuant to 28 U.S. Code 1254 (2012). STATEMENT OF THE ISSUES I. When the Court applies the rational basis test, should it consider the legitimacy of the governmental interest at the time the statute was enacted (the Original Context Approach), or should it look to the legitimacy of the interest (the Changed Context Approach), and is , Clint. Stat. rationally related to the legitimate state interests of consumer protection, health and safety, and economic protectionism? II. Is the child pornography stored by Petitioner on his USB drive admissible under the Fourth Amendment or, has the reasonable expectation of privacy test for Fourth Amendment violations from United States v. Jacobsen, 466 U.S. 109 (1984), been abrogated by the trespass test from United States v. Jones, 565 U.S. 400 (2012), and if so, is the collection of child pornography admissible under the good faith exception to the exclusionary rule? 1

8 STATEMENT OF THE CASE This case arose when Oliver, without a valid Funeral Director s license, sold a casket to Bruce Walker for his mother s funeral. R. at 6. Following this sale, Walker acquired Oliver s USB drive which he knew to contain Oliver s false Funeral Director s License and delivered it to Private Jones of the Sandersburg Police Department. R. at 6-7. Private Jones uncovered Oliver s collection of child pornography and false Funeral Director s license that he had stored on his USB drive. R. at 6-7. Oliver was indicted for selling a casket without a Funeral Director s License in violation of , Clint. Stat., for forging a Funeral Director s License in violation of , Clint. Stat., and for nine counts of possessing child pornography in violation of the Clintonia Child Protection Act, , Clint. Stat. R. at 2. The Court granted the parties joint motion to stay the proceedings so that the Clintonia legislature could review the Funeral Directors and Embalmers Act ( FDEA ) and enforcement provisions in R. at 3. The Clintonia legislature, on November 6, 2014, repealed both the FDEA s license requirements as applied to time-of-need casket sellers and Id. On February 4, 2015, the Circuit Court of the Fifteenth Judicial Circuit dismissed Count One and Counts Three through Eleven. R. at 14. On April 4, 2015 the State of Clintonia filed a timely appeal to the Supreme Court of Clintonia. R. at 17. On October 29, 2016 the Supreme Court of Clintonia reversed the Circuit Court and found for the State of Clintonia on all eleven counts. R. at 25. Oliver filed a timely notice of appeal from the Supreme Court of Clintonia s final judgement and verdict on November 10, 2016 and the appeal is now before this Court. R. at 26. 2

9 STATEMENT OF FACTS Former F.B.I. Agent Bruce Walker exhibited bravery and citizenship when he uncovered the abusive practices of the appellant, a man who has repeatedly betrayed his communities and expressed complete disregard for simple rules. Many would be surprised to learn that the appellant had formerly pledged to live a life of solitude and simplicity as a monk at St. Michael s Abbey in Sandersburg. R at 5. However, it was within these Abbey walls that the appellant began his corrupt practices. Id. In Clintonia, it is a crime to sell a time-of-need casket without being licensed as a funeral director. Id. at 3. This law was codified in the Clintonia Funeral Directors and Embalmers Act ( FDEA ). Id. at 3. Aspiring funeral directors are not required to attend a fouryear college program or graduate school, as many professions require. Id. Rather, the prospective licensee may either take mortuary school classes for one year and then complete a two-year apprenticeship, or complete three years of apprenticeship. Id. at 4. In fact, there is even an accredited school in Clintonia that prospective licensees may attend. Id. Part of the curriculum is focused on casket and urn issues. Id. After the FDEA was enacted, the Clintonia legislature amended the law to prohibit intrastate casket transactions without a license. Leading up to the appellant s removal from St. Michael s Abbey, he developed a fondness for a rather morbid item: caskets. Id. at 5. Immediately following the death of the appellant s Abbot, the appellant was quick to notice that the deceased s simple wooden casket drew sparked interest from others. Id. at 5. The appellant yearned to construct these simple caskets with his own hands, despite explicit orders from the new Abbot not do so. Id. Irrespective of the Abbot s strict forbiddance, the appellant began his secret business of manufacturing caskets. Id. at 5. 3

10 A few months later, the appellant abandoned St. Michael s and created a website called where he would lure innocent, and usually grieving, civilians into buying his prohibited product. Id. at 5. One of these customers was Special Agent Bruce Walker, who had stumbled upon the appellant s website after suffering the loss of his mother. Id. at 6. Impressed by the simplicity of appellant s caskets and their low price, Walker bought one. However, Walker soon uncovered the appellant s unlawful scheme. Id. at 6. Following the funeral for Walker s mother, Walker called Oliver to express his gratitude for the casket. R. at 6. During the conversation Oliver stated that he keeps a USB drive on his nightstand containing a printable version of a fake license that enables him to unlawfully sell caskets. Id. The following day Walker went to Oliver s home to discuss his disapproval of Oliver s fake license and lack of regard for the law. Id. Walker approached the house and knocked on the door. Id. Before anyone could answer the door, the unlocked door swung open. Id. Walker entered the home and called out to see if anyone was home and no one responded. Id. Walker went upstairs to the bedroom and found the USB Oliver had described on his nightstand where he said it would be. Id. The drive was labelled Dup. License/Fun! Id. Walker plugged the drive into his computer and found two folders entitled DL and F. Id. Walker opened one folder and found 100 randomly numbered subfolders. R. at 6-7. He opened the first folder in the sequence which contained files numbered R. at 7. Walker opened one of the files and an image of a young minor engaged in a sexual act popped up on the screen. Id. Upon seeing this offensive image Walker rushed to the bathroom where he immediately vomited over and over again. Id. Walker found this image particularly disturbing because the child in the photo engaging in the sex act with an adult looked to be around the same age as his daughter. Id. 4

11 Additionally, Walker s daughter was a victim of sexual molestation which prompted him to leave the F.B.I. Id. Walker was so thoroughly disturbed by what he had found that he immediately rushed to the Sandersburg Police Department to report the criminal activity he had stumbled upon. Id. At the police station Walker spoke with Private Jones about what he had found on the USB drive but not where he had found it. Id. Private Jones asked Walker if he was a cop and Walker replied that he was not. Id. Jones plugged the USB drive into his computer and Walker showed him through the folders and subfolders he had seen earlier. Id. Walker told Private Jones it s one of those after Jones opened the final subfolder Walker knew contained the photo of a child performing a sexual act on an adult but could not bear to look at the images and walked away. Id. Private Jones clicked through the images in order finding nine images that appeared to contain child pornography. Id. The last file in the folder was a printable version of Oliver s fake license. Id. After finding the fake license, Private Jones ceased his review of the content of the USB drive and brought it to his superiors. Id. He informed his superiors that the drive had been brought to him by a private citizen after seeing that it contained child pornography. Id. SUMMARY OF ARGUMENT The Supreme Court of Clintonia appropriately found that when reviewing the context of non-discriminatory intrastate economic regulations, the rational basis test is premised on the legitimacy of the state interest at the time of enactment of the law (the Original Context Approach ), rather than the legitimacy of the interest at the time the law is challenged in court (the Changed Context Approach ). This Court should uphold the court s application of the Original Context Approach for two main reasons: first, the approach is more consistent with Supreme Court precedent and second, the Court does not have the proper expertise to apply the 5

12 Changed Context Approach, because it would require the Court to weigh a states changed economic circumstances, and then potentially strike down a law based on its findings. This exercise would constitute inappropriate judicial activism and would strip the states elected representatives of a primary function, thus undermining the democratic process. In addition, the Court should uphold the Supreme Court of Clintonia s finding that withstands the rational basis test. The record shows that the regulation, although now repealed, was originally enacted to further the legitimate state interests of consumer protection, public health and safety, as well as economic protectionism. Even if the Court declines to adopt the Original Context Approach, it can still affirm by applying the Changed Context Approach because at the time the law was challenged, the state still had the legitimate interests of consumer protection and economic protectionism. The Supreme Court of Clintonia properly admitted all the images of child pornography found on Oliver s flash drive. Oliver s collection of child pornography should not be suppressed because Private Jones, in discovering the images, engaged in a lawful search. The images were brought to him by a private citizen and are unlawful to possess. Private Jones did not violate Oliver s reasonable expectation of privacy. This Court should find that the reasonable expectation of privacy privacy test applied in Jacobsen should also apply here because that test was never explicitly overruled. If the Court chooses to determine whether or not Private Jones engaged in a search under a trespass theory, then the Court should find that the child pornography is still admissible under the good faith exception. Private Jones was acting reasonably and in good faith when he examined the contents of Oliver s USB drive. Private Jones was relying on recently amended Supreme Court precedent and not engaging in a pattern 6

13 of impermissible police conduct and therefore should not be punished by having the child pornography suppressed as evidence. For these reasons, the Court should uphold the lower court s finding that the rational basis test is premised on the legitimacy of the governmental interest at the time the law was enacted and that is rationally related to legitimate governmental interests. Additionally, this Court should uphold the lower court s ruling and admit Oliver s collection of child pornography. ARGUMENT I. THE SUPREME COURT SHOULD AFFIRM THE CIRCUIT COURT S DECISION AND FIND THAT 1) THE RATIONAL BASIS TEST IS PREMISED ON THE LEGITIMACY OF THE GOVERNMENT INTEREST AT THE TIME THE LAW WAS ENACTED BECAUSE THIS APPROACH IS MOST CONSISTENT WITH SUPREME COURT PRECEDENT AND ENSURES THAT THE COURT DOES NOT ENCROACH ON THE INHERENT FUNCTIONS RESERVED FOR STATE LEGISLATURES AND 2) WAS RATIONALLY RELATED TO THE GOVERNMENT INTERESTS OF CONSUMER PROTECTION, HEALTH AND SAFETY, AND INTRASTATE ECONOMIC PROTECTIONISM. Under the Equal Protection Clause of the Fourteenth Amendment, no state may deny to any person within its jurisdiction the equal protection of the laws. U.S. Const. amend. XIV. In the realm of state legislation targeting economic regulations, this provision of the Constitution allows the States wide latitude... and [it] presumes that even improvident decisions will eventually be rectified by the democratic processes. City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985). The Court applies different levels of judicial scrutiny depending on the type of interest at stake; it will apply more exacting scrutiny to regulations that trammel[s] fundamental personal rights or is drawn upon inherently suspect distinctions such as race, religion, or alienage. City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976). On the 7

14 other hand, if a regulation does not target those types of rights, the Court will presume the constitutionality of the statutory discriminations and require only that the classification challenged be rationally related to a legitimate state interest. Id. A state s economic regulation will almost always pass constitutional muster under the rational basis test, as long as the regulation is neither arbitrary nor discriminatory. Nebbia v. People of New York, 291 U.S. 502, 537 (1934). Once there is a legitimate state interest identified and there is a rational relation between the regulation and that interest, judicial determination to that effect renders a court functus officio. Id. This relatively relaxed standard, Massachusetts Bd. of Ret. v. Murgia, 427 U.S. 307, 314 (1976), commands that a law must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification, F.C.C. v. Beach Commc'ns, Inc., 508 U.S. 307, 313 (1993) (emphasis added). A. The Court Should Affirm The Supreme Court Of Clintonia s Finding That The Rational Basis Test Is Based On The Legitimacy Of The Governmental Interest At The Time Of The Enactment Of A State Law (The Original Context Approach ) For Two Reasons: First, The Supreme Court s Precedent Best Supports The Original Context Approach; Second, The Court Does Not Have The Proper Expertise Or Resources To Weigh A States Changed Economic Circumstances, And It Would Constitute Inappropriate Judicial Activism And Undermine The Democratic Process To Allow A Court To Invalidate A States Nondiscriminatory Economic Laws. The Supreme Court of Clintonia was correct in finding that the rational basis test looks to the legitimacy of the state interest at the time of enactment and this Court should affirm this holding because 1) the Court s precedent best supports the Original Context Approach 1 and 2) the Court does not have the level of expertise necessary to determine whether changed 1 The Original Context Approach looks at the legitimacy of the governmental interest at the time the law was enacted, whereas the Changed Context Approach considers the legitimacy of 8

15 circumstances render a law inappropriate for a state, nor should it exercise this degree of judicial activism when it comes to intrastate and nondiscriminatory economic regulations. There is some disagreement among the Circuits about whether the rational basis test requires courts to look at the legitimacy of the governmental interest at the time of the enactment of a state law or at the time of the challenge to the state law. See St. Joseph Abbey v. Castille, 712 F.3d 215, 223 (5th Cir. 2013) ( we will examine the State Board's rationale informed by the setting and history of the challenged rule. ); Heffner v. Murphy, 745 F.3d 56, 86 (3d Cir. 2014) (finding that a Pennsylvania statute, which required funeral homes to have preparation rooms prohibited the serving of drinks and food in the funeral home, still withstood rational basis review because [t]his restriction, though perhaps antiquated was not a constitutional flaw and was reasonable enough to withstand rational basis review); Murillo v. Bambrick, 681 F.2d 898, 912 n.27 (3d Cir. 1982) ( the Supreme Court appears not to have determined definitively whether changed conditions are a relevant consideration in equal protection analysis. ); Buss. for a Better N.Y. v. Angello, 341 Fed.Appx. 701, 704 (2d Cir. 2009) ( [W]hether in fact the [challenged statute] will accomplish its objectives is not the question: the Equal Protection Clause is satisfied if we conclude that the [state] Legislature rationally could have believed that the [action] would promote its objective. ) (quoting W. & S. Life Ins. Co. v. State Bd. of Equalization of California, 451 U.S. 648, (1981)); Burlington N. R. Co. v. Dep't of Pub. Serv. Regulation, 763 F.2d 1106, 1110 (9th Cir. 1985) (noting how the Supreme Court has never approved the application of the changed circumstances doctrine to economic regulations and declining strike down the law on changed circumstances grounds because petitioner did not provide sufficient evidence to persuade the court that the circumstances changed so drastically that the need for the law had ceased to exist). 9

16 Should the Court determine whether to frame the legitimate state interest within the original or changed context (i.e., whether to decide if there was a legitimate basis for the law at the time of the law s enactment or if the law is legitimate given the current or changed state of affairs), the Court should look at the original context. The following section will demonstrate that the Original Context Approach is the correct approach for rational basis review because: 1) it is consistent with the Court s previous treatment of cases including economic regulations and changed circumstances; and 2) it reinforces the autonomy of states, fulfills the spirit of the Tenth Amendment, and promotes America s democratic values because it leaves the task of (re)addressing economic regulations to the state legislators, who are closest to their constituents and thus more knowledgeable about the potentially changed circumstances and citizens needs. i. The Court Should Use the Original Context Approach Because it is Most Consistent with the Court s Precedent The Court should affirm the Supreme Court of Clintonia s application of the Original Context Approach because it is consistent with Supreme Court precedent. The explicit language of many Supreme Court decisions, as well as numerous Circuit Court of Appeals, support the Original Context Approach. See Fitzgerald v. Racing Ass'n of Cent. Iowa, 539 U.S. 103, 107 (2003) (articulating how rational basis is satisfied when there is a legitimate governmental interest and when the legislative facts on which the classification is apparently based rationally may have been considered to be true by the governmental decisionmaker.... ) (emphasis added) (citing Nordlinger v. Hahn, 505 U.S. 1, (1992); W. & S. Life Ins. Co. v. State Bd. of Equalization of California, 451 U.S. 648, 668 (1981) (part of the rational basis test includes asking, [w]as it reasonable for the lawmakers to believe that use of the challenged classification would promote that purpose? ) (emphasis added); Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 464 (1981) ( [w]here there was evidence before the legislature reasonably supporting 10

17 the classification, litigants may not procure invalidation of the legislation merely by tendering evidence in court that the legislature was mistaken. ). In United States v. Carolene Products, the Court articulated modern day rational basis review for economic regulations. See United States v. Carolene Prod. Co., 304 U.S. 144, 153 (1938) (holding that a federal law forbidding the shipment of certain milk products withstood rational basis review because it was at least debatable whether commerce in filled milk should be left unregulated, or in some measure restricted, or wholly prohibited, and that judgement call was exclusively reserved for the legislative branch). However, the cases concerning state economic policies that have come before the Supreme Court since Carolene all included challenges to contemporary legislation, so the Court has not been required to explicitly address whether changed circumstances could invalidate these laws. See Johanna Talcott, Aging Disgracefully: Do Economic Laws Remain Rational in Spite of Changed Circumstances?, 11 FIU L. Rev. 495, 506 (2016). In seeking out a rational basis to uphold the law, the Court has looked to what a rational legislator thought when enacting the law. Fitzgerald v. Racing Ass'n of Cent. Iowa, 539 U.S. 103, 108 (2003). Despite Justice Stone s broad articulations in Carolene of the deferential nature of rational basis review, it is likely that an opponent to the Original Context Approach would cite the part of Stone s opinion where he wrote, 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. Carolene Prod. Co., 304 U.S. at 53 (citing Chastleton Corp. v. Sinclair, 264 U.S. 543 (1924)). This sentence, taken out of context, could cast doubt on the Original Context Approach. However, it is evident that Justice Stone did not refute the Original Context Approach, at least in the non-emergent economic regulation realm, for three reasons. 11

18 First, as the Circuit Court pointed out, this language is clearly dictum because neither party argued that the statute should be invalidated based on changed circumstances. R. at 20. Second, the case citation attached to that sentence was a case that considered a statute passed during a state of emergency, and once the emergency had ceased to exist, the court found that the law was superfluous. See Chastleto, 264 U.S. at 547 ( A law depending upon the existence of an emergency or other certain state of facts to uphold it may cease to operate if the emergency ceases or the facts change even though valid when passed. ). Third, in his famous fourth footnote of the opinion, Justice Stone enumerated the specific circumstances where it may be inappropriate to defer to a state s legislature to fix a potentially problematic law, such as when the law infringes on the enumerated rights listed in the Bill of Rights, undermine the political process (topics like voting or free speech), or discriminate against discrete and insular minorities. Carolene Prod. Co., 304 U.S. at 153 n.4. This list made no mention of changed circumstances and economic regulations, and had Justice Stone intended to include this issue, he would have added it to the list. 2 When a litigant challenges a state law, it is possible that a court will stay the proceedings before considering the merits of the regulation so that the state legislature can have time to reconsider the rule. 3 See, e.g., Murillo v. Bambrick, 681 F.2d 898 (3d Cir. 1982). This is 2 The Clintonia Circuit Court cited to Whole Woman s Health v. Hellerstedt to support its decision to weigh changed circumstances in applying the changed context approach. See R. at 9; Whole Woman s Health v. Hellerstedt, 136 S. Ct. 2292, 2306 (2016). However, this reliance is misplaced. The Texas law that the Supreme Court ultimately struck down in Hellerstedt involved restrictions on gaining access to pre-viability abortions, which triggered a level of judicial scrutiny called the undue burden test, a far more exacting standard than rational basis review. Hellerstedt cited to Carolene s proposition about changed circumstances, likely because this case affected fundamental rights such as personal health and privacy. Regulations affecting fundamental rights may be subject to judicial disapproval, unlike economic regulations. 3 Indeed, that is what occurred in the present case. See R. at 3 ( The state and defense jointly moved to stay the proceedings in order to provide the Clintonia legislature with an opportunity to 12

19 especially appropriate in the realm of non-discriminatory economic regulations, where the wisdom of the state law should not be second guessed by a court. See id. Rather, the democratic process dictates that the legislature should reconsider the economic law at issue, given its expertise about the economic climate of the state. See id. at 912 (holding that a state s economic regulation, a matrimonial litigation fee, that was repealed (with prospective application) by the legislature right after the court stayed the proceedings to allow the legislature to reconsider the law, withstood rational basis review for the purpose of determining whether or not to grant relief to those negatively affected by the law prior to its repeal because where... the Legislature has proceeded with promptness [in repealing the law], judicial intervention is neither necessary nor appropriate. ). In this case, the Court should apply the Original Context Approach because it is most consistent with the Supreme Court s precedent. Similar to Murillo, where the court found that the economic regulation at issue withstood rational basis review, thus precluding those who were affected by the law pre-repeal from recovering, see Murillo, 681 F.2d at 912, here, the Court should similarly find that even though was repealed by the state, it still meets the rational basis test, thus precluding the relief petitioner seeks. If the Court is not persuaded by the Original Context Approach and instead adopts the Changed Context Approach, it should make an explicit carve out for economic regulations. As the Court indirectly articulated (in dictum) in Carolene, changed circumstances could potentially render a regulation invalid if that law was aimed, for example, at discrete and insular minorities, Carolene Prod. Co., 304 U.S. at 153 n.4., but within the parameters of economic regulation jurisprudence, where there is no suspect class being targeted, the changed circumstances doctrine has no place. Furthermore, the Court review the Funeral Directors and Embalmers Act ( FDEA ) and enforcement provisions in ). 13

20 should be persuaded by the Circuit Court s assertion that [t]he language in Carolene relating to changed circumstances is clearly dictum because neither party argued that the statute should be invalidated based on changed circumstances. R. at 20. ii. The Court should also adopt the Original Context Approach because it does not have the proper expertise to weigh a states changed economic or social circumstances and it would violate separation of powers principles for a Court to strike down a states nondiscriminatory economic laws rather than leaving it to the state s elected legislators to update, repeal, or leave in place. Because legislatures are the states elected representatives and have greater means than the judiciary to gather information about the propriety of regulations given the context of their state s economic or social climate, it reiterates America s democratic values to leave the process of amending or keeping economic regulations to the state s legislature rather than enabling unelected judges to engage in judicial activism by weighing changed circumstances about economic regulations that do not impinge on a citizen's fundamental rights. The Supreme Court unambiguously declared that states are empowered to enact their own compliant economic regulations, and that courts should not be allowed to rule on those laws in the absence of a due process violation. Nebbia, 291 U.S. at 537 ( a state is free to adopt whatever economic policy may reasonably be deemed to promote public welfare, and to enforce that policy by legislation adapted to its purpose. The courts are without authority either to declare such policy, or, when it is declared by the legislature, to override it. ); see also Burlington N. R. Co., 763 F.2d at 1110 ( [q]uestions of economic policy are appropriate issues for the political arena which spill over into the judiciary only when they implicate constitutional rights. ). The Court has been equally clear that even when a regulation of trade or businesses was passed in an imperfect manner or with questionable wisdom, these abuses by legislatures the people must 14

21 resort to the polls, not to the courts. Munn v. People of State of Illinois, 94 U.S. 113, 134 (1876); see also Williamson v. Lee Optical of Oklahoma Inc., 348 U.S. 483, 488 (1955) ( The 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. ). The Court itself is the first to admit that it is unprepared and incompetent to make judgment calls about the wisdom or adequacy of economic regulations. Nebbia, 291 U.S. at 537; see also Powers v. Harris, 379 F.3d 1208, 1218 (10th Cir. 2004) (making a similar comment by noting [t]here simply is no constitutional or Platonic form against which we can (or could) judge the wisdom of economic regulation... these admonitions ring especially true when we are reviewing the regulatory actions of states, who, in our federal system, merit great respect as separate sovereigns. ). Judge Calabresi recently cautioned judges about the hazardous consequences of judicial line drawing while attempting to determine what was rational in the past has been made irrational by the passage of time. See United States v. Then, 56 F.3d 464, 468 (2d Cir. 1995) (Calabresi, J. concurring) (further noting how the difficulties of this line drawing counsel restraint, and do so powerfully. ). In this case, the Court should refrain from applying the Current Context Approach because the approach could allow it to strike down laws based on changed circumstances, even though the Court has neither the expertise nor right to do so. The Court should stay true to previous pronouncement of how courts are not at liberty to declare or override state policy concerning non-discriminatory economic regulations. See Nebbia, 291 U.S. at 537. As Judge Calabresi articulated, a court s attempt to line draw about what constitutes sufficient changed circumstances (or even changed circumstances, at all) could lead to hazardous consequences. 15

22 Then, 56 F.3d at 468. Determining what qualifies as a changed circumstance could be an incredibly subjective task, and it is likely that Circuit Courts of Appeals and lower courts would struggle to draw the line between what counts as changed or unchanged, or even changed enough to render the law invalid. Moreover, a court of unelected representatives is inept to judge the potentially changed circumstances of a state s economic system or situation. It would simply undermine America s democratic values to snatch the task of evaluating the economic goals and needs of a state from its elected legislature and it would lead to widely inconsistent results, which would in turn diminish public trust in the judiciary. Because courts do not have the proper expertise to weigh a state s changed economic situation, and because it would violate separation of powers principles for a Court to invalidate states nondiscriminatory economic laws rather than leaving it elected state legislators to handle, the Court should rely on the Original Context Approach rather than the Changed Context Approach. B. The Court Must Affirm The Lower Court s Holding That Is Constitutional Because It Is Rationally Related To The State s Legitimate Interests Of Public Health, Consumer Protection, And Economic Protectionism, And Even If The Court Applies Only Changed Context Approach And Finds That The Law Is Antiquated Based On Charged Circumstances, It Must Still Affirm Because A Law s Outdatedness Is Not A Constitutional Defect When The Law Does Not Target A Suspect Class Or Impinge On Fundamental Rights. Because was rationally related to the legitimate state interests of public health, consumer protection, and economic protectionism at the time the statute was enacted, the Court should uphold the Circuit Court of Appeals finding, and even if it applies the Changed Context Approach, it can still affirm because when the action was brought in 2015, the law was still rationally related to legitimate state interests of consumer protection and economic protectionism, among other interests. 16

23 In Nebbia, the Court reiterated the fundamental principle that even if an economic regulation seems unwise, a court may not invalidate it unless [it is] palpably in excess of legislative power, because state legislators are in the best position to determine what economic policies are best for its constituents. Nebbia, 291 U.S. at 538; see also Vance v. Bradley, 440 U.S. 93, 97 (1979) ( The Constitution presumes that, absent some reason to infer antipathy, even improvident decisions will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted. ). As long as the statute is rationally related to a legitimate state interest, the economic regulation must be upheld. Id. Indeed, showing that a law is somewhat related to a legitimate state interest is an easy hurdle for states to jump; the Supreme Court has not struck down a states economic regulation in over 75 years. See Johanna Talcott, Aging Disgracefully: Do Economic Laws Remain Rational in Spite of Changed Circumstances?, 11 FIU L. Rev. 495, 506 (2016). Regulations that are under inclusive, over inclusive, or both can still withstand rational basis review. See New York City Transit v. Beazer, 440 U.S. 568 (1979) (holding that a New York Transit law, which prohibited the public transportation system from hiring people to operate busses who were receiving methadone treatments for heroin addiction was constitutional because preventing drug users from operating busses is a legitimate government interest even though (1) it was over inclusive in that it prohibited employment for people who aren t at risk of relapsing to a heroin addiction, and (2) it was under inclusive in that it did not regulate other types of addicts, such as a person struggling with alcohol abuse). In applying the rational basis test to modern day, non-discriminatory economic regulations, the Supreme Court has been clear that a legislative choice is not subject to 17

24 courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data. F.C.C. v. Beach Commc'ns, Inc., 508 U.S. at 315. Furthermore, the Court has articulated how the judiciary is not even required to rely on the explanations by litigants or other courts about the rationality of a state law. See Kadrmas v. Dickinson Pub. Schs., 487 U.S. 450, 463 (1988) ( we are not bound by explanations of the statute s rationality that may be offered by litigants or other courts. ); see also Engquist v. Or. Dep t of Agric., 553 U.S. 591, 612 n.2 (2008) (Stevens, J., dissenting) (writing that courts can dismiss claims brought by litigants arguing the irrationality of a state law if the court can discern[] any reasonably conceivable state of facts that could prove a rational basis for the [State s actions], even one not put forth by the State. ) (quoting Beach Commc'ns, Inc., 508 U.S. at 315). Following the Supreme Court s command, the Circuits have also sought out alternative rationales to enable them to uphold a states economic regulations. See, e.g., Powers, 379 F.3d at 1218 (discussing how the Court was obliged to consider every plausible legitimate state interest in support of the law); Starlight Sugar, Inc. v. Soto, 253 F.3d 137, 146 (1st Cir. 2001) (similarly noting how rational basis review required it to seek out other conceivable reasons for validating a state law). On the other hand, the rational basis test imposes a burden on a litigant bringing the action to negative every conceivable basis which might support [the regulation]. Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364 (1973). Courts have considered state regulations that impose licensing requirements on individuals who wish to sell caskets. See Powers, 379 F.3d at 1212 (finding that a state law that requires time-of-need casket salespersons have both a funeral director's license and operate out of a licensed funeral establishment withstood rational basis review); cf. St. Joseph Abbey, 712 F.3d at 218 (holding that a law which required that all caskets may only be sold by a state- 18

25 licensed funeral director and only at a state-licensed funeral home did not pass rational basis review); Craigmiles v. Giles, 312 F.3d 220, 222 (6th Cir. 2002) (holding that a law which required that all casket salespersons, including pre-need casket sellers, to obtain a funeral director's license did not pass rational basis review). The following analysis will consider judicial treatment of state interests such as consumer protection, public health and safety, and economic protectionism, and will demonstrate how was rationally related to promoting all of these interests at the time of enactment. i. Consumer Protection Consumer protection is a legitimate state interest. See Guardian Plans Inc. v. Teague, 870 F.2d 123 (4th Cir. 1989). Both the overall public and private individuals are benefitted from a system that values the protection of grieving, vulnerable citizens who could fall victim to unfair, coercive, or fraudulent selling tactics in times of stress. See id. at 126 (upholding a Virginia regulatory scheme that imposed extensive licensing and qualification requirements on individuals wishing to participate in the funeral industry, including those who merely arrange funerals or sold funeral related products, because the state could have rationally determined that keeping the arrangement of funerals in the hands of licensed funeral professionals would benefit the public by ensuring competence in funeral arrangement ). Individuals grieving the loss of a family member or friend are often under great stress and time constraints when planning a funeral, and are thus need heightened protection. In this case, the Court should adopt the Original Context Approach and uphold the Circuit Court s holding that it is abundantly clear that the FDEA s license provisions and the criminal enforcement of those provisions served a legitimate government interest when passed by the legislature in 1956, and that the law was rationally related to that purpose R. at 21 19

26 (emphasis added). There is explicit evidence in the record that shows that legislatures looked to a study conducted in 1955 that showed at least 10% of unlicensed retail casket sellers took advantage of consumers by selling caskets which did not meet the standards prescribed by the FDEA. 4 R. at 5. Like the Guardian Plans Inc. case, where the Fourth Circuit upheld a law that imposed extensive licensing requirements on those who wanted to participate in the funeral business because Virginia s legislature could have determined that the public would be benefitted by competent and dependable funeral professionals, see Guardian Plans Inc, 870 F.2d at 126, here, the Court should find that there was evidence that consumers were being taken advantage of by unlicensed sellers when the Clintonia legislature passed the law. See R. at 5. It is unambiguous that the law was rationally related to this interest; if a study showed that consumers were being exploited by unlicensed sellers, imposing a licensing requirement helps remedy that concern. Furthermore, the schooling required to obtain a license even featured coursework on casket and urn issues, which would also help further the goal of providing consumers with appropriate caskets. R. at 4 n.7. Unlike the regulation in Craigmiles, which required that casket salespersons, including both pre-need and time-of-need casket sellers, obtain a funeral director s license, see Craigmiles, 312 F.3d at 222, or the law in St. Joseph Abbey, which required that all caskets, also including both pre-need and time-of-need caskets, to only be sold by a state-licensed funeral director and only at a state-licensed funeral home, see St. Joseph Abbey, 712 F.3d at 218, in this case, only applied to time-of-need caskets, rather than a blanket prohibition on all caskets. The legislature s choice to limit the regulation to time-of-need caskets rather than all caskets is demonstrative of the legitimate interest of consumer protectionism that the state was attempting 4 The record states that this study met doubt in 2011, but there is no additional information about whether the 1955 study was accurately debunked. 20

27 to advance. If an individual is purchasing a time-of-need casket, the chances that she is in a vulnerable emotional state is much higher than if she is making casket arrangements in advance of any deaths or funerals. Thus, the simple fact that is limited the sale of time-of-need caskets further confirms the consumer protection interest that the legislature was concerned about when enacting the law. Furthermore, the trial court incorrectly found that the repeal of the standards requirement in 2012 (the standards requirement used to require that caskets meet certain specifications in light of the danger the decomposing body could pose ) indicated that there was no longer the consumer protection issue. R. at 10. This finding is misguided, because standards requiring that caskets are well sealed or constructions for health or environmental reasons have nothing to do with consumer protection. Even the petitioner conceded that Clintonia has a legitimate interest in protecting consumers from deceptive sales tactics, and by arguing that the circumstances allowing the legislature to protect citizens in this way have ceased to exist, he impliedly acknowledges that those circumstances did exist in the statute s original context. R. at 9. Even if the court declines to adopt the Original Context Approach and applies the Changed Context Approach instead, the Court can still find that the law s interest in consumer protection withstood rational basis review when the petitioner violated it in Especially with the rise of e-commerce in the last decade, consumers are even more at risk of criminal or fraudulent sellers on the internet. This case provides the Court with direct evidence that these types of transactions occur: the petitioner, an ex-monk who collects child pornography, admitted to his customer that he knowingly breaks this law, and so does everyone else. R. at 6. And even if the Court is not persuaded by this direct evidence, the rational basis test does not require 21

28 precision, and the court can find a legitimate reason based on rational speculation unsupported by evidence or empirical data. Beach Commc'ns, Inc., 508 U.S. at 315 (emphasis added). ii. Public Health and Safety Preserving the health and safety of citizens is also a legitimate governmental concern that withstands rational basis review. In particular, states undoubtedly have a legitimate interest in regulating the funeral industry to meet public health and safety goals, and regulating who can sell caskets falls under this umbrella because the manufacture and sale of caskets is part and parcel of the funeral service business. State ex rel. State Bd. of Embalmers & Funeral Directors v. Stone Casket Co. of Oklahoma City, 976 P.2d 1074, 1076 (Okla. Civ. App.1998) (Holding a state law that required a license to sell caskets easily withstood rational basis review because it was conceivably aimed at mitigating both environmental and public health and safety concerns). Here, when looking at the original context underlying the enactment of , it is also clear that the state was concerned about public health and safety, another legitimate state interest. The Circuit Court of Appeals was correct in noting that the casket standards, which have since been repealed, were imposed because of fear that the decomposing body might spread bacteria or communicable diseases. R. at 21. Although those standards are no longer in place, the imposition of them signals that the legislature originally intended on protecting the state from these health concerns, and the standards required by the law were thus rationally related to that purpose. iii. Economic Protectionism Finally, even when it appears that a state legislature enacted a law to further the economic interests of a certain group, the Court can still find that the law withstands rational basis scrutiny by hypothesizing different rationales that could have supported the enactment of the regulation. 22