Appeal from the United States District Court for the Northern District of Illinois, Eastern Division No. 74 C 2886 - Frank J. McGarr, Judge.
Tone and Bauer, Circuit Judges, and Campbell, Senior District Judge.*fn* Campbell
The issue before us is whether a Chicago ordinance which permanently bars persons convicted of certain offenses from obtaining a public chauffeur's license violates the due process and equal protection clauses of the Fourteenth Amendment. The District Court sustained the ordinance. We reverse.
Plaintiff was convicted of armed robbery in 1965, when he was 20 years old, and, after serving seven years in the Illinois State Penitentiary, was paroled in 1972. He satisfactorily completed his parole and was discharged in August 1973. In September 1974 he applied for a public chauffeur's license to qualify for employment as a taxicab driver. His application was refused on the ground of Chicago Municipal Ordinance, Ch. 28.1-3, which provides that such a license may not
"be issued to any person at any time after conviction of a crime involving the use of a deadly weapon, traffic in narcotic drugs, the infamous crime against nature, incest or rape."
Plaintiff thereupon filed this action for injunctive and declaratory relief. The motion of the defendant, the city's Public Vehicle License Commissioner, to dismiss the complaint was granted by the District Court, and judgment was entered in his favor.
Chapter 28.1-2 of the Chicago Municipal Ordinance requires that any person employed in "transporting . . . passengers for hire" have a public chauffeur's license. Applications for the license are made to the commissioner, who submits the name of an applicant to the captain of the police district in which the applicant resides for a "character and reputation" investigation. Ch. 28.1-4. After receiving the police captain's report, the commissioner rules on the application:
"If the commissioner shall be satisfied that the applicant is of good character and reputation and is a suitable person to be entrusted with driving a public passenger vehicle he shall issue the license." Ch. 28.1-4.
The commissioner is prohibited, however, as we have seen, from issuing a license to any person convicted of certain crimes, including the one of which plaintiff was convicted. Persons convicted of felonies not listed in the passage quoted above, and of other crimes involving moral turpitude, are ineligible to apply for licenses for a period of eight years following conviction. Ch. 28.1-3.
In Freitag v. Carter, 489 F.2d 1377 (7th Cir. 1973), this court held unconstitutional the Public Vehicle License Commissioner's denial of an application for a public chauffeur's license under a clause of Ch. 28.1-3 which prevented the issuance of a license to any applicant "subject to . . . infirmity of . . . mind . . . which may render him unfit to drive a public passenger vehicle." We held that the due process clause of the Fourteenth Amendment required that a "governmental licensing body which judges the fitness of an applicant must afford that applicant adequate notice and a hearing." Id., 489 F.2d at 1382. Such a hearing on plaintiff Luther Miller's application, however, would be a mere formality because of the prohibition in Ch. 28.1-3 against granting a license to one who has committed a crime involving the use of a deadly weapon.
In addition to the provisions previously discussed, the ordinance specifies standards of conduct required of licensees and sets penalties for violations of those standards. Ch. 28.1-10 through 28.1-15. Ch. 28.1-10 describes, as conduct which can lead to the revocation of a license, the violation of "any criminal law which, if convicted for such offense, would disqualify any applicant for a chauffeur's license . . .." Engaging in this behavior does not, however, lead to automatic revocation. Rather, "the commissioner may recommend to the mayor that [the] license . . . be revoked and the mayor, in his discretion, may revoke such license." (Emphasis supplied.) Thus, plaintiff Miller is absolutely barred from obtaining a license, although he was convicted of armed robbery over eleven years ago, while someone who already holds a license may be permitted to retain it, although convicted of armed robbery only yesterday.
The city's purported justification for this different treatment of persons who commit one of the listed offenses after receiving a license is that they have a "track record" that the commissioner and mayor can balance against the felony in evaluating fitness. The validity of this distinction is dissipated, however, by the fact that a licensee has an opportunity to obtain a favorable exercise of this discretion regardless of how short a time the license has been held. Thus, one who committed armed robbery within a few days of receiving the license, or one who committed the crime before licensing but was convicted after receiving the license, would, apparently, be eligible to retain the license. Indeed, one who was convicted of armed robbery before applying, but concealed that fact and so obtained a license, would, according to the ordinance, also be eligible to retain the license, for under Ch. 28.1-10 misrepresentation or omission of a material fact in the application, like commission of one of the prohibited offenses while licensed, does not automatically result in revocation.
Such distinctions among those members of the class of ex-offenders are irrational, regardless of the importance of the public safety considerations underlying the statute or the relevance of prior convictions to fitness. In fact, allowing existing licensees who commit felonies to continue to be eligible for licensing undercuts the reasonableness of the basis for the classification, which is that the felony is per se likely to create a serious risk which cannot be sufficiently evaluated to protect the public through individualized hearings. An applicant for a license who has committed one of the described felonies and a licensee who has done the same are similarly situated, and no justification exists for automatically disqualifying one and not the other. Accordingly, insofar as Ch. 28.1-3 and 28.1-10 discriminate irrationally among the class of ex-offenders, they violate the equal protection clause of the Fourteenth Amendment.
Plaintiff has also argued that the challenged ordinance violates the due process clause because it creates an irrebuttable presumption that a person convicted of a specified offense is forever unfit to be entrusted with a public chauffeur's license. Judge Campbell, who files a separate opinion concurring in the result, would decide the case on this ground, because of his concern that the equal-protection deficiency in the ordinance can readily be remedied by the city, and, if it is, we will soon be faced with another case raising the due process issue. We cannot predict whether the city will amend the ordinance to retain an absolute bar to employment as a public chauffeur which it has not seen fit to apply to any other occupation, no matter how sensitive.*fn1 In any event, the equal-protection ground disposes of the case before us, and we are unwilling to plunge unnecessarily into the thicket of irrebuttable presumptions, for reasons which we can summarize as follows.
The irrebuttable presumption doctrine, invoked by the Supreme Court in several recent cases,*fn2 has its roots in the era when substantive due process concepts led the Court to strike down state and federal economic and social legislation it deemed arbitrary or capricious.*fn3 The renaissance of the doctrine has been fatal to state laws regulating residency for purposes of voting rights*fn4 and college tuition,*fn5 driver's license suspension,*fn6 child custody,*fn7 and pregnancy disability.*fn8 Federal regulations concerning food stamp eligibility were also held unconstitutional on the same rationale.*fn9 In all these cases the legislative classifications were judged by balancing the advantages and feasibility of individualized determinations against the inflexibility and consequent harshness of the classification. In each case the Court struck down the classification established, and required an individualized factual determination of the eligibility of the plaintiff for the benefits or penalties attendant upon membership in the class. It did not, however, forbid consideration of the factors behind the classification in making that determination.*fn10
The irrebuttable presumption analysis has been criticized from its inception.*fn11 Mr. Justice Holmes pointed out that the creation of a conclusive presumption is simply an enactment of a rule of substantive law.*fn12 The Court's more recent invocations of the doctrine have been criticized within*fn13 and without*fn14 the Court.
While Weinberger v. Salfi, 422 U.S. 749, 45 L. Ed. 2d 522, 95 S. Ct. 2457 (1975), authored by Mr. Justice Rehnquist, might be viewed as a major step back from the doctrine,*fn15 we cannot say that the doctrine has lost the support of a majority of the Court because it has been invoked subsequent to Salfi to strike down a Utah statute, Turner v. Department of Employment Security, 423 U.S. 44, 46 L. Ed. 2d 181, 96 S. Ct. 249 (1975), and to distinguish in Mathews v. Lucas, 427 U.S. 495, 96 S. Ct. 2755, 2765, 49 L. Ed. 2d 651 (1976), the earlier Jimenez v. Weinberger, 417 U.S. 628, 41 L. Ed. 2d 363, 94 S. Ct. 2496 (1974). Yet in sustaining a state compulsory-retirement-for-age statute in Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 96 S. Ct. 2562, 49 L. Ed. 2d 520 (1976), last June, the Court made no reference to the doctrine.*fn16
In summary, we cannot say whether the irrebuttable presumption doctrine or the substitute analysis followed in Salfi*fn17 would be thought appropriate for this case by a majority of the Supreme Court. Inasmuch as our equal-protection holding decides the case, it is unnecessary to reach the more difficult due process question.
The judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.
Plaintiff's complaint challenged the constitutionality of Ch. 28.1-3 and defendant's conduct pursuant thereto, contending that the ordinance "deprives persons of a right to employment and to earn a living without due process of law", in violation of the Due Process Clause of the Fourteenth Amendment, and that it "singles out a class of persons for denial of access to a governmentally-established prerequisite to employment by denying public chauffeur's ...