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A Rare Circuit Case Allowing a "Rational Basis" Challenge To Go Forward:

Dias v. City & County of Denver (paragraph break added):

[T]he plaintiffs have alleged a substantive due process violation sufficient to survive a motion to dismiss for failure to state a claim. Viewing the factual allegations in the light most favorable to the plaintiffs, as we must, the complaint plausibly alleges that the [pit bull ban] Ordinance is not rationally related to a legitimate government interest. Although the plaintiffs may be unable to demonstrate through evidence that the Ordinance is irrational, the complaint makes out a claim for relief.

It is uncontested that Denver has a legitimate interest in animal control -- the protection of health and safety of the public. Even so, the plaintiffs have alleged that the means by which Denver has chosen to pursue that interest are irrational. In particular, the plaintiffs contend that there is a lack of evidence that pit bulls as a breed pose a threat to public safety or constitute a public nuisance, and thus, that it is irrational for Denver to enact a breed-specific prohibition.

Pointing to the cases where courts across the country have rejected substantive due process challenges to pit bull bans, Denver argues that the Ordinance is rational as a matter of law. This argument misconceives the nature of the plaintiffs' challenge. Specifically, the plaintiffs contend that although pit bull bans sustained twenty years ago may have been justified by the then-existing body of knowledge, the state of science in 2009 is such that the bans are no longer rational. [Footnote: Moreover, in the majority of cases where courts have sustained a pit bull ban as reasonable, they have done so based on a developed evidentiary record. No such record was developed in this case because the district court dismissed pursuant to Rule 12(b)(6).]

This claim finds some support in the AKC and UKC standards themselves, to which the plaintiffs direct us. The official UKC breed standard for the American Pit Bull Terrier, for instance, states that "[American Pit Bull Terriers] make excellent family companions and have always been noted for their love of children." American Pit Bull Terriers are an "extremely friendly" breed "even with strangers. Aggressive behavior toward humans is uncharacteristic of the breed ...." Similarly, the AKC breed standard for Staffordshire Bull Terriers states that, "with its affection for its friends, and children in particular, its off-duty quietness and trustworthy stability, [the Staffordshire Bull Terrier is] a foremost all-purpose dog." Without drawing factual inferences against the plaintiffs, the district court could not conclude at this early stage in the case that the Ordinance was rational as a matter of law.

We have no occasion to pass upon the ultimate merit of plaintiffs' substantive due process challenge; that is not our role at this juncture. We are constrained to deciding if the complaint alleges facts sufficient to state a claim for relief. Whether the plaintiffs can marshal enough evidence to prevail on the merits of their claim that the Ordinance is irrational is a different matter entirely. But at the 12(b)(6) stage, we must assume that they can, even if it strikes us "that a recovery is very remote and unlikely." Crediting the allegations in the complaint, and drawing all inferences therefrom in the light most favorable to the plaintiffs, we conclude that they have stated a plausible substantive due process violation.

Not a huge victory for the plaintiffs, for reasons the quote makes clear -- but still something of a victory, and one that in my experience has been pretty rare, given the Court's view that "In areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge [and substantive due process challenge -EV] if there is any reasonably conceivable state of facts that could provide a rational basis for the classification."

Thanks to How Appealing for the pointer.

Asher (mail):
This question is probably a little dense, but how exactly does substantive due process include a right to own a dog of the breed of your choice?
5.28.2009 2:29pm
sk (mail):
Asher-
Pay no attention to the man behind the curtain....

sk
5.28.2009 2:45pm
AJK:

This question is probably a little dense, but how exactly does substantive due process include a right to own a dog of the breed of your choice?



I think they answer that pretty clearly in the first quoted paragraph?
5.28.2009 2:52pm
Asher (mail):
Like I said, AJK, dense question. They say, in the first quoted paragraph, that the plaintiffs allege that the ordinance is irrational. But does every allegedly irrational statute that doesn't raise equal protection issues just get shoehorned into substantive due process? I'm just having a little trouble getting from liberty interests to owning a pit bull.
5.28.2009 2:55pm
zuch (mail) (www):
This is weird. If there is any animal for which evidence shows a dangerous predisposition, it's pit bulls. While aggressiveness may not be more than that of other dog breeds (and such is to a great extent dependent on training regardless of breed), the size and musculature make them more dangerous.

This is far more "rational basis" than laws such as the "moment of silence", "furthering proper child development", putting "under God" in the Pledge of Allegiance, etc....

Cheers,
5.28.2009 3:00pm
Steve:
It's a 12(b)(6) motion, Zuch. Wouldn't it be a bit much for the appellate court to take judicial notice of pit bulls' "dangerous predisposition," with absolutely no facts in the record to go by?
5.28.2009 3:05pm
ShelbyC:

This is far more "rational basis" than laws such as the "moment of silence", "furthering proper child development", putting "under God" in the Pledge of Allegiance, etc....


Maybe. But stating a claim and proving a claim are two different things.
5.28.2009 3:19pm
martinned (mail) (www):
@Asher: That's the idea of substantive due process: That laws that affect one's liberty, which is most of them, should have at least a vaguely rational purpose, i.e. that the legislature can't enact laws that are wholly irrational.
5.28.2009 3:20pm
DiverDan (mail):
Zuch, size &musculature alone don't make an animal dangerous; this is a bit like adopting a legal presumption that anyone big enough to play on the line (offensive or defensive) in the NFL is a dangerous person. And, as a long-time owner and lover of dogs, I can tell you from experience that how a dog is raised is much more important than breed in determining temperament. I had a Rottweiler for 14 years, and even though she was 145 pounds of muscle, with a jaw strong enough to pick up &do serious damage to a bowling ball, she was extremely sweet and gentle with everyone within the family, and everyone that she knew "belonged." I've also been around Pit Bulls that I'd let small children play with without any concern for their safety, and even knew a family in Wisconsin that had a breeding pair of Timber Wolves that, although very protective if any "outsider" showed up, would play with wild abandon with the kids in the family &never leave a scratch on any of them. If I were asked about a truly "dangerous" breed, I'd be more likely to pick dachshund - they are stubborn, hard to train, and will snap at anyone, even their long-time owner, if they don't get their own way; and I've owned and loved dachshunds. Breed specific bans just don't make sense; a City could accomplish a lot more for safety by regulating the way dogs are raised and trained.
5.28.2009 3:21pm
Steve H (mail):
Good luck with this. At best, the plaintiffs would be able to present evidence that pit bulls bite less than certain other breeds.

But it is really, really hard to succeed on an argument that a ban is irrational because it is underinclusive.

I would think that to win on a rational basis argument, they would have to present evidence that pit bulls don't bite at all.
5.28.2009 3:21pm
ShelbyC:
@martinned


That's the idea of substantive due process: That laws that affect one's liberty, which is most of them, should have at least a vaguely rational purpose, i.e. that the legislature can't enact laws that are wholly irrational.


Do you have a cite for that? I'd like to read a little more. I always thought the "rational basis" test was more an equal protection thing.
5.28.2009 3:31pm
Asher (mail):

That's the idea of substantive due process: That laws that affect one's liberty, which is most of them,

I'll say! I just wasn't aware that liberty interests extended so broadly, and to such seemingly inconsequential liberties. I mean, people still can't agree on whether abortion bans implicate liberty interests.
5.28.2009 3:37pm
dmv (www):

Viewing the factual allegations in the light most favorable to the plaintiffs, as we must. . . .

Didn't the Supreme Court kill this notion in Iqbal?
5.28.2009 3:39pm
einhverfr (mail) (www):
DiverDan:

If you were bread to go down rabbit holes and fight in small, enclosed environments with ferocious rodents twice your size, you'd be dangerous to ;-)
5.28.2009 3:48pm
Oren:

This question is probably a little dense, but how exactly does substantive due process include a right to own a dog of the breed of your choice?

Because history has long recognized the right of free men to keep pets of their own choosing without government interference. Quoting the grand daddy of all SDP cases:


'No state ... shall deprive any person of life, liberty or property without due process of law.'

While this court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.

The way I see it, the 14A protects everything that has historically been free from government intrusion -- in effect, it t creates the presumption that we don't need more meddlesome law in what used to be private decisions.

Yes, I realize that no one else actually see it that way. Just my $0.02 (actual value not guaranteed).
5.28.2009 4:02pm
NowMDJD (mail):

I'll say! I just wasn't aware that liberty interests extended so broadly, and to such seemingly inconsequential liberties. I mean, people still can't agree on whether abortion bans implicate liberty interests.

Some liberty interests are more important than others, and the degree of scrutiny (relationship of government action to the government purpose) varies according to the seriousness of the impingement on liberty.

This is not much of an infringement, so the basis is "rational basis." This is a term of art which means that there must be some sort of understandable nexus (not necessarily backed up by a shred of evidence) between the stated purpose of the law (which must be legitimate) and the means used by the government.

If the government purpose is to prevent dog bites, then:

1. Leash laws probably would survive rational basis scrutiny;

2. Laws requiring dog owners to plant marigold on thier lawn would not survive rational basis scrutiny.

The only relevant questions are whether the government purpose is related and whether the proposed action can rationally be understood to to further that purpose. Not whether there is data, or whether experts agree. Ignore the everyday meaning of "rational." The term has a legal meaning that is shorthand for the way the court looks at these cases.

this being my understanding, I'm surprised the court ruled the way it did. Courts generally don't ask legislatures to provide evidence that their measures are effective. And dogs aren't people. Laws that disfavor breeds are not analogous to Jim Crow laws, in that dogs aren't protected by the equal protection clause.
5.28.2009 4:12pm
Dave N (mail):
dmv,

I don't think so. Iqbal seems to address the specificity required in pleadings, pursuant to FRCP 9.

The court in this case was addressing an FRCP 12(b)(6) motion--which I assume was pleaded with sufficient specificity pursuant to FRCP 9.
5.28.2009 4:23pm
Calderon:
I think Asher's question is a good one, though maybe I think that only because the last time I learned anything about substantive due process was over a decade ago in law school and I remember very little of it. But I vaguely recall some S Ct opinions hold that for a right to be protected under substantive due process it either had to be "implicit in the concept of ordered liberty" or "deeply rooted in the nation's history." The opinion at issue doesn't discuss whether the right to own dogs (or a particular breed of dog, I recall other S Ct opinions and dissents arguing how specifically or generally the right had to be defined) satisfies these criteria.

On the flip side, a court need only address the arguments that are made to it. Possibly the County of Denver here did not argue about whether dog ownership was either part of ordered liberty or deeply rooted in our history, and so the 10th Circuit had no reason to address the issue.
5.28.2009 4:27pm
Butters:
Asher, yes: you can state a SDP violation pretty much anytime state action is so totally unrelated to any legitimate government purpose as to constitute an arbitrary exercise of power. (Of course that's a difficult standard to meet in practice.) I missed that in Con Law class; it was a former White House legal type who pointed it out to me.


We have emphasized time and again that '[t]he touchstone of due process is protection of the individual against arbitrary action of government,' Wolff v. McDonnell, 418 U.S. 539, 558 (1974), whether the fault lies in a denial of fundamental procedural fairness, see, e.g., Fuentes v. Shevin, 407 U.S. 67, 82 (1972) (the procedural due process guarantee protects against 'arbitrary takings'), or in the exercise of power without any reasonable justification in the service of a legitimate governmental objective, see, e.g., Daniels v. Williams, 474 U.S., at 331 (the substantive due process guarantee protects against government power arbitrarily and oppressively exercised).


County of Sacramento v. Lewis, 523 U.S. 833, 845-46 (1998).
5.28.2009 4:30pm
Cheburashka (mail):
Seems wrongly decided to me...

Plaintiffs' allegations, if true, would demonstrate only that the legislature erred in concluding that pit bulls are a more dangerous breed than others, not that the legislature was irrational in reaching that conclusion.

The effect of the rational basis test cannot be to shift onto legislatures a burden of establishing an evidentiary basis before passing a law.
5.28.2009 4:31pm
Laura Victoria (mail):
LOL. It figures that a rare case to put forth a rational basis challenge would come out of Colorado. This is my old jurisdiction, and the entire state is one irrational basis. The Colorado Supreme court website shows a new brand of legal realism by showing a photo of the scales of justice out of balance. The COSCT has to spend time trying to discern legislative intent in the face of ungrammatical "missing subjects and objects" in the laws under scrutiny.

They brought the first transgender hate crime case based on a man being surprised to discover the woman he went to bed with had male anatomy (plain old homicide was apparently insufficient.) Then, the other day the infamous idiotic Boulder DA filed charges against a 53-year old woman for "rape" of a 50-year old male acquaintance who claimed "unwanted penetration." (While having failed to prosecute CU football player traditional rapists). Finally, the poor parochial politicians urged Obama to nominate Ken Salazar to the Supreme Court. That place deserves Gitmo detainees and its stand out blue-state status that scars the map of the Rockies.
5.28.2009 4:31pm
Guest101:

But I vaguely recall some S Ct opinions hold that for a right to be protected under substantive due process it either had to be "implicit in the concept of ordered liberty" or "deeply rooted in the nation's history."

Those are fundamental rights to which strict scrutiny applies. Pretty much any infringement on liberty is subject to substantive due process analysis at least under the rational basis test, which as Prof. Volokh notes is highly deferential and almost always results in upholding the enactment at issue.
5.28.2009 4:35pm
Steve:
The effect of the rational basis test cannot be to shift onto legislatures a burden of establishing an evidentiary basis before passing a law.

There absolutely does need to be a factual basis; it's not much of an argument to say "okay, maybe our basis was completely wrong, but we at least had a basis!" However, you are correct that the legislature does not have to establish an evidentiary basis in advance. You can wait until a legal challenge is filed and come up with a completely post hoc justification if you like.
5.28.2009 4:35pm
Butters:
The "ordered liberty" and "deeply rooted in history and traditions" tests have to do with standard of review, IIRC. If you can state an infringement of of some fundamental right, the state has to satisfy a higher burden. But even non-fundamental liberty interests can't be infringed for truly arbitrary reasons (as I understand the cases).
5.28.2009 4:42pm
Butters:

There absolutely does need to be a factual basis; it's not much of an argument to say "okay, maybe our basis was completely wrong, but we at least had a basis!"


Well, actually, no. Under rational basis scrutiny a wrong decision by the legislature will be upheld. Only irrational -- i.e., crazy -- decisions don't meet the test. Even if the large weight of the evidence is against the legislature, as long as there's some evidence that a non-crazy legislature could have accepted, it's good to go.
5.28.2009 4:45pm
troll_dc2 (mail):
Reading the comments has caused me to question whether the very existence of the concept of substantive due process represents a misreading of the Due Process Clause. SDP limits the ability of a legislature to enact laws--following proper procedures--that contain clear directives and provide adequate notice of what is required or forbidden.

SDP is a judicially created gloss on the Constitution. It cannot be derived from the plain meaning of the words, which allow the government to deprive someone of life, liberty, or property so long as proper procedures are followed. I daresay that SDP was not within the original intent of the writers of either the Fifth Amendment nor the Fourteenth Amendment. If I am wrong, I would want to see documentary evidence of this.

SDP was created so that judges could impose their own values on society and limit the power of legislatures.
5.28.2009 5:14pm
ReaderY:
It's a rediculous misreading of rational basis that threatens to turn legislatures into nothing more than administrative agencies under judges' tight control.

The opinion reaks of the intrusion of administrative law. Legislatures don't need evidence to exercise sovereign power. They just need a plausible belief. That's why rational basis decisions are questions of law, not fact.

The judiciary exists to address disputes over problems which have actually occurred. But most of the rest of government exists to prevent contingencies which hopefully will never happen. The difference in role is critical. Requiring evidence of the sort the judiciary is used to would absolutely cripple government's ability to achieve its main goal, as there can be no sure or reliable evidence about things that have never actually happened.

The juriciary's narrow-minded intrusion of ideas rooted in it problem reaction role into the completely different realm of problem prevention would do nothing less than turn the Consitution into a suicide pact.

If banning pit bulls can be struck down on grounds there's no hard evidence of the danger, what will the courts due to our military? There's no hard evidence that virtually any of the dangers the military is designed to prevent are actually real or present dangers. We haven't been invaded in nearly two centuries, we've never been attacked with a nuclear weapon, and so on. There's no hard evidence any of these dangers are real or justify government action either. The evidence is just as soft as for pit bulls.

Dare I point out there's no evidence we need a judiciary either? We've never not had one, so there's no actual evidence of what we'd be like without one. We'd need to actually try not having judges for a period of time in order for reliable evidence to develop. Otherwise we're acting on the same sort of speculation this judge is dissallowing in the case of the pit bull law (In my view, most of our laws are based on essentially unprovable speculation of this sort). By this standard, there's no more rational basis for having judges than there is for this pit bull law.
5.28.2009 5:21pm
Debauched Sloth (mail):
Two points. First, the rational basis is a fraud, so any case involving its application is by definition not a serious case.

Second, where in the Constitution is the right to travel? Or work? Or go to the dentist? Or wear clothing, get married, have kids, eat a sandwich, or brush your teeth? The if-not-written-then-not-enforceable fallacy was is old hat -- in fact, it is precisely why Madison initially resisted adding a Bill of Rights to the Constitution. Absent a radical break with two centuries of constitutional law, the question isn't whether American courts should enforce unenumerated rights (they have always done so), but which ones. No matter how cleverly adorned in rhetoric ("ordered liberty," "active liberty," maybe "empathetic liberty"), most approaches are really nothing more than a pick-and-choose jurisprudence of personal preference. as Randy Barnett and others have noted, one way to avoid that is to employ a presumption of liberty. Then the question isn't, "Do I have a right to own this particular sort of dog (or any dog, or any pet for that matter)?" but rather "Upon what basis do you presume to tell me that I cannot own this dog?" If you don't have a good reason, then you have to mind your own business because nowhere in our founding documents will you find support for the notion that one of the reasons people abandoned the state of nature is so that we can dictate, on the basis of nothing more than personal whim, how others may live their lives.
5.28.2009 5:22pm
Butters:

First, the rational basis is a fraud, so any case involving its application is by definition not a serious case.



So you don't think that there are any social issues on which legislatures might be better positioned to make decisions than than are judges, and thus on which courts should be highly deferential to legislative judgments?
5.28.2009 5:56pm
Steve:
Even if the large weight of the evidence is against the legislature, as long as there's some evidence that a non-crazy legislature could have accepted, it's good to go.

But you're contradicting yourself. If there's some evidence that a non-crazy legislature could have accepted, then a court can't conclude the legislature was wrong, and thus there's no rational basis problem. But they need to have at least some sort of evidence they can point to; if all the evidence is in the other direction, they can't say "oops, we misread the evidence, but a misreading isn't irrational."
5.28.2009 6:17pm
Eugene Volokh (www):
Cheburashka: But surely the right to live with a crocodile would have to be protected, no?
5.28.2009 6:25pm
ShelbyC:

It cannot be derived from the plain meaning of the words, which allow the government to deprive someone of life, liberty, or property so long as proper procedures are followed.


Well, the words are due process of law. Both the definitions of "due" and "law" are subject to interpretion I believe that the theory is that the "of law" part has some substantive constraints, that some things substantively aren't within the proper scope of the law.

There was a good 100-page book on "Due Process" around a couple of years ago.
5.28.2009 6:25pm
martinned (mail) (www):

Do you have a cite for that? I'd like to read a little more. I always thought the "rational basis" test was more an equal protection thing.

That's why I wrote "rational purpose". I deliberately tried to avoid the equal protection terms of art. I think officially the question is one of irrationality. Whether the absence of irrationality implies rationality, and whether that rationality is the same as "rational basis", I'll leave to the philosophers and other assorted experts.


I'll say! I just wasn't aware that liberty interests extended so broadly, and to such seemingly inconsequential liberties. I mean, people still can't agree on whether abortion bans implicate liberty interests.

I meant liberty in the philosophical - as opposed to legal - sense, as in: plain old freedom. Any ban on anything reduces one's freedom. A ban on abortion reduces womens' freedom to have abortions.
5.28.2009 6:27pm
einhverfr (mail) (www):
Buttler wrote:

Well, actually, no. Under rational basis scrutiny a wrong decision by the legislature will be upheld. Only irrational -- i.e., crazy -- decisions don't meet the test. Even if the large weight of the evidence is against the legislature, as long as there's some evidence that a non-crazy legislature could have accepted, it's good to go.


If that were the case, this would have been dismissed so that can't be right. IANAL, but my reading of rational basis cases is that:

Rational basis review requires that the government enact laws in a way which reasonably furthers public policy without unreasonably causing collateral loss of liberty. In these cases, the burden of proof rests upon those who would invalidate the statute to prove that it does not do so.

This is different from intermediate scrutiny where the statute is neither presumed valid or invalid, and strict scrutiny where the state must prove that the statute is both valid and that it is sufficiently narrow as to be acceptable.
5.28.2009 6:28pm
einhverfr (mail) (www):
ReaderY:

If banning pit bulls can be struck down on grounds there's no hard evidence of the danger, what will the courts due to our military?


Ummm..... You misunderstand SDP. Under SDP, the plaintiffs have to prove that pit bulls are no more a danger than other breeds of dogs. The legislature gets all benefit of the doubt. No evidence means the court upholds the statute as Constitutional.
5.28.2009 6:34pm
ShelbyC:

If that were the case, this would have been dismissed so that can't be right. IANAL, but my reading of rational basis cases is that:



Well, this only survived a motion for failure to state a claim. It might not survive summary judgement. Is that right Proffesor Chaos?
5.28.2009 6:35pm
einhverfr (mail) (www):

Well, this only survived a motion for failure to state a claim. It might not survive summary judgement. Is that right Proffesor Chaos?


Correct, but Butters originally said that the law would survive if there was any evidence that a non-crazy legislature would adopt the law. Given the fact that such bans are not that unheard of, it seems that either non-crazy legislatures adopt the law reasonably frequently or else that there are a lot of crazy legislatures.

I think the standard of SDP review is different and seems to allow a challenge to the factual basis (i.e. proving the city wrong as a matter of fact, but with all benefit of doubt going to the city).
5.28.2009 7:13pm
Matthew Carberry (mail):
I just wish legislators had the intellectual honesty to require more than simple anecdote and unfounded opinions before allowing themselves to go about restricting freedoms with something as imprecise and broad as a blanket prohibition. But we the people are partly to blame, at least those who accept "but we have to DO something" as a justification for intruding on their fellow citizens rights and freedoms.

It usually takes weeks or months to pass a bill, there is always time to at least look at some data, if not perform a proper analysis.
5.28.2009 7:16pm
Asher (mail):
If banning pit bulls can be struck down on grounds there's no hard evidence of the danger, what will the courts due to our military? There's no hard evidence that virtually any of the dangers the military is designed to prevent are actually real or present dangers. We haven't been invaded in nearly two centuries, we've never been attacked with a nuclear weapon, and so on.

Pretty sure the rational basis test is a great deal more forgiving than that.
5.28.2009 7:18pm
troll_dc2 (mail):
I earlier wrote:

"It [SDP] cannot be derived from the plain meaning of the words, which allow the government to deprive someone of life, liberty, or property so long as proper procedures are followed."



ShelbyC replied:


Well, the words are due process of law. Both the definitions of "due" and "law" are subject to interpretion[.] I believe that the theory is that the "of law" part has some substantive constraints, that some things substantively aren't within the proper scope of the law.


I guess I will have to get ahold of that book on Due Process to see whether what you posted makes any sense. I have trouble understanding how "due" can take on a life of its own without regard to "process," which it modifies. Furthermore, if there are substantive-constraint aspects that are inherent in the word "law," I would like to know whether the people who wrote and adopted the phrase "due process of law" understood that they were embracing a concept that not everything that was duly enacted was a legal "law."

Does anybody know the name of the book to which ShelbyC referred?
5.28.2009 7:43pm
Butters:

But you're contradicting yourself. If there's some evidence that a non-crazy legislature could have accepted, then a court can't conclude the legislature was wrong, and thus there's no rational basis problem.



No, I'm not contradicting myself. I simply said that the fact that a legislative judgment is wrong -- even against the great weight of the evidence -- does not make it irrational. You seemed to be suggesting that erroneous legislative judgments are necessarily irrational, and that's clearly not what the standard means. In fact this "evidence" needn't be social science or anything of the sort. It can simply be reasoning -- even rather unpersuasive, post hoc reasoning that the legislature never claimed to have actually engaged in.
5.28.2009 9:11pm
Butters:
@einhverfr :

"If that were the case, this would have been dismissed so that can't be right."

This is where not being a lawyer hurts you. On a FRCP 12(b)(6) motion, such as the court is considering here, the court must assume that the plaintiffs eventually will be able to prove the "well-pleaded" facts alleged in their complaint. For purposes of such a motion the court is not in the business of determining how likely that actually is, or of weighing those facts against countervailing evidence (such as whatever the court thinks it knows about pitbulls, or the fact that other such courts have previously upheld such bans). In this case the plaintiffs are alleging that they can prove that these bans are irrational, and that the science no longer supports beliefs that previous legislatures held about pit bulls. They've even cited some documentary support for their claim in their brief. Now, like you, I very much doubt that they're going to be prove that so conclusively as to render the the legislative judgment irrational. But for purposes of a 12(b)(6) motion the plaintiffs get all the benefit of the doubt, and under that standard they've done enough to squeak by.
5.28.2009 9:40pm
martinned (mail) (www):
@Butters: Well, that's not entirely true post-Twombly and Iqbal. Cf. the recent Prawfs posts of Iqbal I and Iqbal II. The full title of the posts is "Iqbal and the death of notice pleading", and they contain some useful references to key (SSRN) articles on pleading standards under rule 12(b)(6).
5.28.2009 10:20pm
Butters:
Thanks for pointing those out, martinned. I don't litigate for a living, so I don't follow civ pro very closely -- but Twombly and Iqbal look very much worth reading, even for guys like me.
5.29.2009 12:57am
ShelbyC:

Does anybody know the name of the book to which ShelbyC referred?


It's Due Process of Law, a Brief History by John V. Orth.

But my kinda ham-handed description came more from Laurence Tribe's treatise.
5.29.2009 2:29pm
Cheburashka (mail):
Eugene:


Cheburashka: But surely the right to live with a crocodile would have to be protected, no?


Let's not get personal...
5.29.2009 4:32pm
Cheburashka (mail):
Regarding:


my reading of rational basis cases is that:

Rational basis review requires that the government enact laws in a way which reasonably furthers public policy without unreasonably causing collateral loss of liberty. In these cases, the burden of proof rests upon those who would invalidate the statute to prove that it does not do so.


That's plainly wrong -- on the standard you've set forth, a law is unconstitutional if a Court finds that its costs outweigh its benefits. The underlying concept of the rational basis standard is deference to the legislatures.

Regarding:


Under rational basis scrutiny a wrong decision by the legislature will be upheld. Only irrational -- i.e., crazy -- decisions don't meet the test. Even if the large weight of the evidence is against the legislature, as long as there's some evidence that a non-crazy legislature could have accepted, it's good to go.


Yes, that's my understanding of one-half of the test (the "rational relationship"). But the test is whether the classification at issue has a "rational relationship" to an interest that is "legitimate."

A law would still (I think) fail the rational-relation test if the classification at issue, for example, motivated by personal animus. In either case, the aim of the statute would (perhaps arguably) not be legitimate.

The last time I looked at this law (this hasn't been my area for years) there was an open question as to how one would go about pleading facts demonstrating that, for example, a legislature acted or failed to act because it didn't like a plaintiff, because it personally favored someone else, or for want of campaign contributions, etc.

The fact pattern tends to come up most often in zoning disputes ("the board wouldn't let me do 7 stories because they like the developer across the street better"), but (again, last time I checked) had never been properly presented to a court of sufficient jurisdiction for procedural and practical reasons.

At the same time, though, I thought it was established law that a Court could not invalidate a legislative or executive act based on a finding that the act was procured by corruption, even though the interest would certainly not be "legitimate."
5.29.2009 4:44pm
troll_dc2 (mail):
ShelbyC, I have just ordered the book. Thank you.
5.29.2009 5:50pm
pit bull:
Usually rational basis means the government wins, but when a court uses rational basis and invalidates a law, it's often called "rational basis with teeth." Apt here, no?
6.1.2009 3:27pm
troll_dc2 (mail):
The Supreme Court once found a violation using the rational-basis standard, but it was an equal-protection case. City of Cleburne, Texas v. Cleburne Living Center, Inc., 473 U.S. 432 (1985) ("A Texas city denied a special use permit for the operation of a group home for the mentally retarded, acting pursuant to a municipal zoning ordinance requiring permits for such homes. The Court of Appeals for the Fifth Circuit held that mental retardation is a 'quasi-suspect' classification, and that the ordinance violated the Equal Protection Clause because it did not substantially further an important governmental purpose. We hold that a lesser standard of scrutiny is appropriate, but conclude that, under that standard, the ordinance is invalid as applied in this case.").
6.2.2009 2:00pm

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