Prof. Robert Sheridan
Conlaw, SFLS
DECEMBER, 2003
THIS IS AN OLD EXAM QUESTION, FOR STUDENTS WHO THINK THAT LAST YEAR'S QUESTIONS MIGHT BEAR SOME RESEMBLANCE TO THIS YEARS, WHICH I HAVE NOT AS YET INVENTED.
SO FAR, AT LEAST, I'VE SHOWN AN AMAZING ABILITY TO CHANGE THE EXAMS AROUND FROM SEMESTER TO SEMESTER AND YEAR TO YEAR TO "IMPROVE" THEM ON ONE COUNT OR ANOTHER.
THIS YEAR I'M THINKING OF HAVING ONE ESSAY QUESTION DESIGNED TO HAVE THE STUDENT SHOW FAMILIARITY WITH THE WORK I'VE DONE TO EXPLAIN AND MAKE CONSTITUTIONAL LAW AVAILABLE ON THIS BLOG.
Essay Question #1
TOBACCO
The proponents of clean air, better health, and lower medical costs, costs that are often ultimately borne by the state, have organized a political action group called Better Health Through Less Tobacco (BHTLT or BH for short). BH has been successful in attracting large donations from supporters, enough to lobby the California state legislature strongly enough not only to compete with the tobacco lobby but in some cases to outweigh it.
As a result the California Legislature has passed a law that becomes effective the following January 1st, forbidding the growing, importation, sale, possession for sale, or possession in California of all tobacco and products made of tobacco, i.e. cigarettes, cigars, loose tobacco for rolling-your-own, pipe tobacco, chewing tobacco, snuff, etc. in any appreciable amount, i.e., capable of being weighed, measured, or used.
Violation of this new California Anti-Tobacco statute is declared to be a misdemeanor for possessing, etc., up to certain adequately defined quantity limits, and a felony for greater amounts. The penalty for violations may include jail and prison time as well as substantial fines.
As a result, legal tobacco sales in California will end. Tobacco dealers ranging from the large grocery chains to the local mom-and-pop corner stores are protesting the substantial loss of profits they will suffer by forming the Tobacco Dealers Association (TDA or TD for short).
TD has brought a suit in federal court seeking to enjoin California’s Anti-Tobacco Statute to prevent it from taking effect next year on the ground that it is unconstitutional under the U.S. Constitution because it deprives tobacco sellers of their substantive due process right to make a living and of their customers’ liberty to enjoy the pleasure of smoking.
Plaintiffs are Safeway, Albertsons and Von’s Supermarkets, and other large chains, along with several mom-and-pop tobacco dealers. In addition to their own interests, the tobacco dealers have argued that their customers have been deprived of their rights to buy and use tobacco products.
While the case was pending, the chief lobbyist for the Better Health group, the Speaker of the California Assembly and six legislators who voted in favor of the bill, were all accused criminally together and convicted of giving and accepting bribes, respectively, to ensure passage of this closely decided Anti-Tobacco bill. In fact the bill would not have passed but for the votes of the corrupted legislators, and this fact has been widely publicized during the scandal that followed.
The TD lawsuit has now reached the U.S. Supreme Court, which first must examine the question whether the plaintiffs have standing to bring the action, and if so, then to decide the case on the merits.
Question #1
Discuss whether or not there is standing to maintain this lawsuit. State your reasoning and conclusion.
Question #2
Regardless whether or not you thought there was standing to sue in answer to Question #1, for the purpose of discussing the merits assume that the Court has jurisdiction to entertain the lawsuit, and then:
Discuss whether or not the U.S. Supreme Court should declare the California statute unconstitutional and state the reasoning.
ANSWERS SHOULD RECOGNIZE, DISCUSS, AND ELABORATE ON THE FOLLOWING THEMES, RELATING TO CASES, IF NOT BY NAME, THEN BY FACTS, SUCH THAT A PRINCIPLE OF LAW IS DESCRIBED AS APPLYING. ARGUE WHICH WAY THE CASE SHOULD BE DECIDED: STANDING FOUND? YES OR NO, MERITS: CONSTITUTIONAL OR UN-CONSTITUTIONAL.
STANDING
The dealers clearly have standing to sue because of the concrete injury they suffer by this legislation by being put out of the tobacco business, just as the butchers of New Orleans did in the Slaughterhouse cases.
Do the dealers have the right to assert the right to buy of their customers? Yes under Craig v. Boren as the analogy is to the bar-owners’ right to sue on behalf of customers. Jus Tertii, 3rd party standing.
MERITS
On the merits, the issue is whether the court should take over from a corrupt legislature and declare legislation unconstitutional either because it was corruptly passed or as a violation of economic substantive due process.
The answer is no, it should not. Legislative corruption is a red-herring. See Fletcher v. Peck, Marshall, C.J., and the Yazoo land scandal, Georgia.
This is ordinary economic and social legislation a la Lochner. The Court is out of the business of Lochnerizing. Williamson v. Lee Optical and progeny. It is up to the voters to resort to the political process to undo bad legislation or remove legislators by voting them out or sending them to prison as the result of criminal prosecution.
Tobacco dealers are not likely to be viewed as a ‘discrete and insular minority’ under Fn. 4, Carolene. Nor are textual or 'access to political process' rights involved, also Fn. 4. Thus no heightened scrutiny.
Commerce clause issue? Not really. A state can prohibit drugs and weapons without violating commerce power, so ought to be able to prohibit possession and use, although not transit, say in a bonded sealed container.
[Note to Prof. from Prof. :
Subject: Demise of the Lochner Era; refusal of the Court to use Due Process grounds to declare unconstitutional ordinary economic or social legislation; refusal to act as super-legislature, override wisdom and policy judgments of legislatures; allowing corrections to be made by the political process, not the court acting as superlegislature using power of judicial review.
Problem: Construct a fact situation presenting facts and circumstances involving legislation on a subject of ordinary social and economic legislation, but with an obvious unfairness such that it is appealing to want the Court to overturn the legislation, i.e., to return to the age of Lochner, perhaps with some legislative chicanery involved undermining the legitimacy of the law.]