Annotation 12 - Fourteenth Amendment

Power of the States to Regulate Procedure

Generally .--The due process clause of the Fourteenth Amendment does not control mere forms of procedure in state courts or regulate practice therein. 11 A State ''is free to regulate procedure of its courts in accordance with it own conception of policy and fairness unless in so doing it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.'' 12 Pursuant to such power, the States have regulated the manner in which rights may be enforced and wrongs remedied, 13 and in connection therewith have created courts and endowed them with such jurisdiction as, in the judgment of their legislatures, seemed appropriate. 14 Whether legislative action in such matters is deemed to be wise or proves efficient, whether it works a particular hardship on a particular litigant, or perpetuates or supplants ancient forms of procedure, are issues which can ordinarily give rise to no conflict with the Fourteenth Amendment, inasmuch as its function is negative rather than affirmative and in no way obligates the States to adopt specific measures of reform. 15 More recent decisions, however, have imposed some restrictions on state procedures that require substantial reorientation of process. 16  

Commencement of Actions .--A state may impose certain conditions on the right to institute litigation. Access to the courts has been denied to persons instituting stockholders' derivative actions unless reasonable security for the costs and fees incurred by the corporation is first tendered. 17 But, at least in those situations in which the State has monopolized the avenues of settlement of disputes between persons by prescribing judicial resolution, and where the dispute involves such a fundamental interest as marriage and its dissolution, no State may deny to those persons unable to pay its fees access to those judicial avenues. 18 It must be considered, then, that foreclosure of all access to the courts, at least through financial barriers and perhaps through other means as well, is subject to federal constitutional scrutiny and must be justified by reference to a state interest of suitable importance. In older cases, not questioned by the more recent ones, it was held that a State, as the price of opening its tribunals to a nonresident plaintiff, may exact the condition that the nonresident stand ready to answer all cross actions filed and accept any in personam judgments obtained by a resident defendant through service of process or appropriate pleading upon the plaintiff's attorney of record. 19 and for similar reasons, a requirement, without excluding other evidence, of a chemical analysis as a condition precedent to a suit to recover for damages resulting to crops from allegedly deficient fertilizers is not deemed to be arbitrary or unreasonable. 20  

Pleas in Abatement .--State legislation which forbids a defendant to come into court and challenge the validity of service upon him in a personal action without thereby surrendering himself to the jurisdiction of the court, but which does not restrain him from protecting his substantive rights against enforcement of a judgment rendered without service of process is constitutional and does not deprive him of property without due process of law. Such a defendant, if he pleases, may ignore the proceedings as wholly ineffective, and set up the invalidity of the judgment if and when an attempt is made to take his property thereunder. However, if he desires to contest the validity of the proceedings in the court in which it is instituted, so as to avoid even a semblance of a judgment against him, it is within the power of a State to declare that he shall do this subject to the risk of being obliged to submit to the jurisdiction of the court to hear and determine the merits, if the objection raised by him as to its jurisdiction over his person shall be overruled. 21  

Defenses .--Just as a State may condition the right to institute litigation, so may it establish terms for the interposition of certain defenses. It may validly provide that one sued in a possessory action cannot bring an action to try title until after judgment is rendered and after he has paid that judgment, if it so provides. 22 A State may limit the defense in an action to evict tenants for nonpayment of rent to the issue of payment and leave the tenants to other remedial actions at law on a claim that the landlord had failed to maintain the premises. 23 A State may also provide that the doctrines of contributory negligence, assumption of risk, and fellow servant do not bar recovery in certain employment-related accidents. No person has a vested right in such defenses. 24  

Similarly, a nonresident defendant in a suit begun by foreign attachment, even though he has no resources or credit other than the property attached, cannot challenge the validity of a statute which requires him to give bail or security for the discharge of the seized property before permitting him an opportunity to appear and defend. 25  

Amendments and Continuances .--Amendment of pleadings is largely within the discretion of the trial court, and unless a gross abuse of discretion is shown, there is no ground for reversal. Accordingly, where the defense sought to be interposed is without merit, a claim that due process would be denied by rendition of a foreclosure decree without leave to file a supplementary answer is utterly without foundation. 26  

Costs, Damages, and Penalties .--What costs are allowed by law is for the court to determine; an erroneous judgment of what the law allows does not deprive a party of his property without due process of law. 27 Nor does a statute providing for the recovery of reasonable attorney's fees in actions on small claims subject unsuccessful defendants to any unconstitutional deprivation. 28 Congress may severely restrict attorney's fees in an effort to keep an administrative claims proceeding informal. 29 Equally consistent with the requirements of due process is a statutory procedure whereby a prosecutor of a case is adjudged liable for costs, and committed to jail in default of payment thereof, whenever the court or jury, after according him an opportunity to present evidence of good faith, finds that he instituted the prosecution without probable cause and from malicious motives. 30 Also, as a reasonable incentive for prompt settlement without suit of just demands of a class receiving special legislative treatment, such as common carriers and insurance companies together with their patrons, a State may permit harassed litigants to recover penalties in the form of attorney's fees or damages. 31 To deter careless destruction of human life, a State by law may allow punitive damages to be assessed in actions against employers for deaths caused by the negligence of their employees, 32 and may also allow punitive damages for fraud perpetrated by employees. 33 Also constitutional is the traditional common law approach for measuring punitive damages, granting the jury wide but not unlimited discretion to consider the gravity of the offense and the need to deter similar offenses. 34 The Court has indicated, however, that the amount of punitive damages is limited to those reasonably necessary to vindicate a state's interest in deterring unlawful conduct. Supp.2 These limits may be discerned by a court by examining the degree of reprehensibility of the act, the ratio between the punitive award and plaintiff's actual or potential harm, and the legislative sanctions provided for comparable misconduct. Supp.3  

By virtue of its plenary power to prescribe the character of the sentence which shall be awarded against those found guilty of crime, a State may provide that a public officer embezzling public money shall, notwithstanding that he has made restitution, suffer not only imprisonment but also pay a fine equal to double the amount embezzled, which shall operate as a judgment for the use of persons whose money was embezzled. Whatever this fine is called, whether a penalty, or punishment, or civil judgment, it comes to the convict as the result of his crime. 35 On the other hand, when appellant, by its refusal to surrender certain assets, was adjudged in contempt for frustrating enforcement of a judgment obtained against it, dismissal of its appeal from the first judgment was not a penalty imposed for the contempt, but merely a reasonable method for sustaining the effectiveness of the State's judicial process. 36  

Statutes of Limitation .--A statute of limitations does not deprive one of property without due process of law, unless, in its application to an existing right of action, it unreasonably limits the opportunity to enforce the right by suit. By the same token, a State may shorten an existing period of limitation, provided a reasonable time is allowed for bringing an action after the passage of the statute and before the bar takes effect. What is a reasonable period, however, is dependent on the nature of the right and particular circumstances. 37  

Thus, an interval of only one year is not so unreasonable as to be wanting in due process when applied to bar actions relative to the property of an absentee in instances when the receiver for such property has not been appointed until 13 years after the former's disappearance. 38 When a State, by law, suddenly prohibits, unless brought within six months after its passage, all actions to contest tax deeds which have been of record for two years, no unconstitutional deprivation is effected. 39 No less valid is a statute, applicable to wild lands, which provides that when a person has been in possession under a recorded deed continuously for 20 years and had paid taxes thereon during the same, the former owner in that interval paying nothing, no action to recover such land shall be entertained unless commenced within 20 years, or before the expiration of five years following enactment of said provi sion. 40 Similarly, an amendment to a workmen's compensation act, limiting to three years the time within which a case may be reopened for readjustment of compensation on account of aggravation of a disability, does not deny due process to one who sustained his injury at a time when the statute contained no limitation. A limitation is deemed to affect the remedy only, and the period of its operation in this instance was viewed as neither arbitrary nor oppressive. 41  

Moreover, as long as no agreement of the parties is violated, a State may extend as well as shorten the time in which suits may be brought in its courts and may even entirely remove a statutory bar to the commencement of litigation. As applied to actions for personal debts, a repeal or extension of a statute of limitations affects no unconstitutional deprivation of property of a debtor-defendant in whose favor such statute had already become a defense. ''A right to defeat a just debt by the statute of limitation . . . [not being] a vested right,'' such as is protected by the Constitution, accordingly no offense against the Fourteenth Amendment is committed by revival, through an extension or repeal, of an action on an implied obligation to pay a child for the use of her property, 42 or a suit to recover the purchase price of securities sold in violation of a Blue Sky Law, 43 or a right of an employee to seek, on account of the aggravation of a former injury, an additional award out of a state-administered fund. 44 However, as respects suits to recover real and personal property, when the right of action has been barred by a statute of limitations and title as well as real ownership have become vested in the defendant, any later act removing or repealing the bar would be void as attempting an arbitrary transfer of title. 45 Also unconstitutional is the application of a statute of limitation to extend a period that parties to a contract have agreed should limit their right to remedies under the contract. ''When the parties to a contract have expressly agreed upon a time limit on their obligation, a statute which invalidates . . . [said] agreement and directs enforcement of the contract after . . . [the agreed] time has expired'' unconstitutionally imposes a burden in excess of that contracted. 46  

Evidence and Presumptions .--The establishment of presumptions and rules respecting the burden of proof is clearly within the domain of the legislative branch of government. 47 Nonetheless, the due process clause does impose limitations upon the power to provide for the deprivation of liberty or property by a standard of proof too lax to make reasonable assurance of accurate factfinding. Thus, ''[t]he function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to 'instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.''' 48 Applying the formula it has worked out for determining what process is due in a particular situation, 49 the Court has held that in a civil proceeding to commit an individual involuntarily to a state mental hospital for an indefinite period, a standard at least as stringent as clear and convincing evidence is required. 50 Because the interest of parents in retaining custody of their children is fundamental, the State may not terminate parental rights through reliance on a standard of preponderance of the evidence-- the proof necessary to award money damages in an ordinary civil action-- but must prove by clear and convincing evidence that the parents are unfit. 51 Unfitness of a parent may not simply be presumed because of some purported assumption about general characteristics, but must be established. 52  

As long as a presumption is not unreasonable and is not conclusive of the rights of the person against whom raised, however, it does not violate the due process clause. Legislative fiat may not take the place of fact, though, in the determination of issues involv ing life, liberty, or property, and a statute creating a presumption which is entirely arbitrary and which operates to deny a fair opportunity to repel it or to present facts pertinent to one's defense is void. 53 On the other hand, if there is a rational connection between what is proved and what is inferred, legislation declaring that the proof of one fact or group of facts shall constitute prima facie evidence of a main or ultimate fact will be sustained. 54  

For a brief period, the Court utilized what it called the ''irrebuttable presumption doctrine'' to curb the legislative tendency to confer a benefit or to impose a detriment, depending for its application upon the establishment of certain characteristics from which the existence of other characteristics are presumed. 55 Thus, as noted, in Stanley v. Illinois, 56 the Court found invalid a construction of the state statute that presumed illegitimate fathers to be unfit parents and that prevented them from objecting to state wardship. Mandatory maternity leave rules of school boards requiring pregnant teachers to take unpaid maternity leave five and four months respectively prior to the date of the expected births of their babies were voided as creating a conclusive presumption that every pregnant teacher who reaches a particular point of pregnancy becomes physically incapable of teaching. 57 Major controversy developed over application of the doctrine in benefits cases. Thus, while a State may require that nonresidents must pay higher tuition charges at state colleges than residents, and while the Court assumed that a durational residency requirement would be permissible as a prerequisite to qualify for the lower tuition, it was held impermissible for the State to presume conclusively that because the legal address of a student was outside the State at the time of application or at some point during the preceding year he was a nonresident as long as he remained a student. The due process clause required that the student be afforded the opportunity to show that he is or has become a bona fide resident entitled to the lower tuition. 58  

Moreover, a food stamp program provision making ineligible any household that contained a member age 18 or over who was claimed as a dependent for federal income tax purposes the prior tax year by a person not himself eligible for stamps was voided on the ground that it created a conclusive presumption that fairly often could be shown to be false if evidence could be presented. 59 The rule which emerged for subjecting persons to detriment or qualifying them for benefits was that the legislature may not presume the existence of the decisive characteristic upon a given set of facts, unless it can be shown that the defined characteristics do in fact encompass all persons and only those persons that it was the purpose of the legislature to reach. The doctrine in effect afforded the Court the opportunity to choose between resort to the equal protection clause or to the due process clause in judging the validity of certain classifications, 60 and it precluded Congress and legislatures from making general classifications that avoided the administrative costs of individualization in many areas.

Utilization of the doctrine was curbed, if not halted, in Weinberger v. Salfi, 61 in which the Court upheld the validity of a Social Security provision requiring as a qualification of receipt of benefits as a spouse of a covered wage earner that one must have been married to the wage earner for at least nine months prior to his death. Purporting to approve but to distinguish the prior cases in the line, 62 the Court rather imported traditional equal protection analysis into considerations of due process challenges to statutory classifications. 63 ''Extensions'' of the prior cases to government entitlement classifications, such as the Social Security Act qualification standard before it, would, said the Court, ''turn the doctrine of those cases into a virtual engine of destruction for countless legislative judgments which have heretofore been thought wholly consistent with the Fifth and Fourteenth Amendments to the Constitution.'' 64 Whether the Court will now limit the doctrine to the detriment area only, exclusive of benefit programs, whether it will limit it to those areas which involve fundamental rights or suspect classifications, in the equal protection sense of those expressions, 65 or whether it will simply permit the doctrine to pass from the scene remains unsettled, but it is noteworthy that it now rarely appears on the Court's docket. 66  

Jury Trials .--Trial by jury in civil trials, unlike the case in criminal trials, has not been deemed essential to due process, and the Fourteenth Amendment has not been held to restrain the States in retaining or abolishing civil juries. 67 Thus, abolition of juries in proceedings to enforce liens, 68 mandamus 69 and quo warranto 70 actions, and in eminent domain 71 and equity 72 proceedings has been approved. States are free to adopt innovations respecting selection and number of jurors. Verdicts rendered by ten out of twelve jurors may be substituted for the requirement of unanimity, 73 and petit juries containing eight rather than the conventional number of twelve members may be established. 74  

Appeals .--If a full and fair trial on the merits is provided, due process does not require a State to provide appellate review. 75 But if an appeal is afforded, the State must not so structure it as to arbitrarily deny to some persons the right or privilege available to others. 76  


[Footnote 11] Holmes v. Conway, 241 U.S. 624, 631 (1916); Louisville & Nashville R.R. v. Schmidt, 177 U.S. 230, 236 (1900).

[Footnote 12] Snyder v. Massachusetts, 291 U.S. 97, 105 (1934); West v. Louisiana, 194 U.S. 258, 263 (1904); Chicago, B. & Q. R.R. v. Chicago, 166 U.S. 226 (1897); Jordan v. Massachusetts, 225 U.S. 167, 176 (1912). See Boddie v. Connecticut, 401 U.S. 371 (1971), for one recent limitation. The power of a State to determine the limits of the jurisdiction of its courts and the character of the controversies which shall be heard in them and to deny access to its courts is also subject to restrictions imposed by the contract, full faith and credit, and privileges and immunities clauses of the Constitution. Angel v. Bullington, 330 U.S. 183 (1947).

[Footnote 13] Insurance Co. v. Glidden Co., 284 U.S. 151, 158 (1931); Iowa Central Ry. v. Iowa, 160 U.S. 389, 393 (1896): Honeyman v. Hanan, 302 U.S. 375 (1937). See also Lindsey v. Normet, 405 U.S. 56 (1972).

[Footnote 14] Cincinnati Street Ry. v. Snell, 193 U.S. 30, 36 (1904).

[Footnote 15] Ownbey v. Morgan, 256 U.S. 94, 112 (1921). Thus the Fourteenth Amendment does not constrain the States to accept modern doctrines of equity, or adopt a combined system of law and equity procedure, or dispense with all necessity for form and method in pleading, or give untrammelled liberty to amend pleadings. Note that the Supreme Court did once grant review to determine whether due process required the States to provide some form of post-conviction remedy to assert federal constitutional violations, a review which was mooted when the State enacted such a process. Case v. Nebraska, 381 U.S. 336 (1965). When a State, however, through its legal system exerts a monopoly over the pacific settlement of private disputes, as with the dissolution of marriage, due process may well impose affirmative obligations on that State. Boddie v. Connecticut, 401 U.S. 371, 374 -77 (1971).

[Footnote 16] While this statement is more generally true in the context of criminal cases, in which the appellate process and post-conviction remedial process have been subject to considerable revision in the treatment of indigents, some requirements have also been imposed in civil cases. Boddie v. Connecticut, 401 U.S. 371 (1971); Lindsey v. Normet, 405 U.S. 56, 74 -79 (1972); Santosky v. Kramer, 455 U.S. 745 (1982). Review has, however, been restrained with regard to details. See, e.g., Lindsey v. Normet, supra, 64-69.

[Footnote 17] Cohen v. Beneficial Loan Corp., 337 U.S. 541 (1949). Nor was the retroactive application of this statutory requirement to actions pending at the time of its adoption violative of due process as long as no new liability for expenses incurred before enactment was imposed thereby and the only effect thereof was to stay such proceedings until the security was furnished.

[Footnote 18] Boddie v. Connecticut, 401 U.S. 371 (1971). See also Little v. Streater, 452 U.S. 1 (1981) (state-mandated paternity suit); Lassiter v. Department of Social Services, 452 U.S. 18 (1981) (parental status termination proceeding); Santosky v. Kramer, 455 U.S. 745 (1982) (permanent termination of parental custody).

[Footnote 19] Young Co. v. McNeal-Edwards Co., 283 U.S. 398 (1931); Adam v. Saenger, 303 U.S. 59 (1938).

[Footnote 20] Jones v. Union Guano Co., 264 U.S. 171 (1924).

[Footnote 21] York v. Texas, 137 U.S. 15 (1890); Kauffman v. Wootters, 138 U.S. 285, 287 (1891).

[Footnote 22] Grant Timber & Mfg. Co. v. Gray, 236 U.S. 133 (1915).

[Footnote 23] Lindsey v. Normet, 405 U.S. 56, 64 -69 (1972). See also Bianchi v. Morales, 262 U.S. 170 (1923) (upholding mortgage law providing for summary foreclosure of a mortgage without allowing any defense except payment).

[Footnote 24] Bowersock v. Smith, 243 U.S. 29, 34 , (1917); Chicago, R.I. & P. Ry. v. Cole, 251 U.S. 54, 55 (1919); Herron v. Southern Pacific Co., 283 U.S. 91 (1931). See also Martinez v. California, 444 U.S. 277, 280 - 83 (1980) (State interest in fashioning its own tort law permits it to provide immunity defenses for its employees and thus defeat recovery).

[Footnote 25] Ownbey v. Morgan, 256 U.S. 94 (1921).

[Footnote 26] Sawyer v. Piper, 189 U.S. 154 (1903).

[Footnote 27] Ballard v. Hunter, 204 U.S. 241, 259 (1907).

[Footnote 28] Missouri, Kansas & Texas Ry. v. Cade, 233 U.S. 642, 650 (1914).

[Footnote 29] Walters v. National Ass'n of Radiation Survivors, 473 U.S. 305 (1985) (limitation of attorneys' fees to $10 in veterans benefit proceedings does not violate claimants' Fifth Amendment due process rights absent a showing of probability of error in the proceedings that presence of attorneys would sharply diminish). See also United States Dep't of Labor v. Triplett, 494 U.S. 715 (1990) (upholding regulations under the Black Lung Benefits Act prohibiting contractual fee arrangements).

[Footnote 30] Lowe v. Kansas, 163 U.S. 81 (1896). Consider, however, the possible bearing of Giaccio v. Pennsylvania, 382 U.S. 399 (1966) (statute allowing jury to impose costs on acquitted defendant, but containing no standards to guide discretion, violates due process).

[Footnote 31] Yazoo & Miss. R.R. v. Jackson Vinegar Co., 226 U.S. 217 (1912); Chicago & Northwestern Ry. v. Nye Schneider Fowler Co., 260 U.S. 35, 43 -44 (1922); Hartford Life Ins. Co. v. Blincoe, 255 U.S. 129, 139 (1921); Life & Casualty Co. v. McCray, 291 U.S. 566 (1934).

[Footnote 32] Pizitz Co. v. Yeldell, 274 U.S. 112, 114 (1927).

[Footnote 33] Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1 (1991).

[Footnote 34] Id. (finding sufficient constraints on jury discretion in jury instructions and in post-verdict review). See also Honda Motor Co. v. Oberg, 512 U.S. 415 (1994) (striking down a provision of the Oregon Constitution limiting judicial review of the amount of punitive damages awarded by a jury).

[Footnote 2 (1996 Supplement)] BMW v. Gore, 116 S. Ct. 1589 (1996) (holding that a $2 million judgement for failing to disclose to a purchaser that a ''new'' car had been repainted was ''grossly excessive'' in relation to the state's interest, as only a few of the 983 similarly repainted cars had been sold in that same state). But see TXO Prod. Corp. v. Alliance Resources, 509 U.S. 443 (1993) (punitive damages of $10 million for slander of title does not violate the Due Process Clause of the Fourteenth Amendment even though the jury awarded actual damages of only $19,000).

[Footnote 3 (1996 Supplement)] BMW v. Gore, 116 S. Ct. at 1589 (1996).

[Footnote 35] Coffey v. Harlan County, 204 U.S. 659, 663 , 665 (1907).

[Footnote 36] National Union v. Arnold, 348 U.S. 37 (1954) (the judgment debtor had refused to post a supersedeas bond or to comply with reasonable orders designed to safeguard the value of the judgment pending decision on appeal).

[Footnote 37] Wheeler v. Jackson, 137 U.S. 245, 258 (1890); Kentucky Union Co. v. Kentucky, 219 U.S. 140, 156 (1911). Cf. Logan v. Zimmerman Brush Co., 455 U.S. 422, 437 (1982) (discussing discretion of States in erecting reasonable procedural requirements for triggering or foreclosing the right to an adjudication).

[Footnote 38] Blinn v. Nelson, 222 U.S. 1 (1911).

[Footnote 39] Turner v. New York, 168 U.S. 90, 94 (1897).

[Footnote 40] Soper v. Lawrence Brothers, 201 U.S. 359 (1906). Nor is a former owner who had not been in possession for five years after and fifteen years before said enactment thereby deprived of any property without due process.

[Footnote 41] Mattson v. Department of Labor, 293 U.S. 151, 154 (1934).

[Footnote 42] Campbell v. Holt, 115 U.S. 620, 623 , 628 (1885).

[Footnote 43] Chase Securities Corp. v. Donaldson, 325 U.S. 304 (1945).

[Footnote 44] Gange Lumber Co. v. Rowley, 326 U.S. 295 (1945).

[Footnote 45] Campbell v. Holt, 115 U.S. 620, 623 (1885). See also Stewart v. Keyes, 295 U.S. 403, 417 (1935).

[Footnote 46] Home Ins. Co. v. Dick, 281 U.S. 397, 398 (1930).

[Footnote 47] Hawkins v. Bleakly, 243 U.S. 210, 214 (1917); James- Dickinson Co. v. Harry, 273 U.S. 119, 124 (1927). Congress' power to provide rules of evidence and standards of proof in the federal courts stems from its power to create such courts. Vance v. Terrazas, 444 U.S. 252, 264 -67 (1980); Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 31 (1976). In the absence of congressional guidance, the Court has determined the evidentiary standard in certain statutory actions. Nishikawa v. Dulles, 356 U.S. 129 (1958); Woodby v. INS, 385 U.S. 276 (1966).

[Footnote 48] Addington v. Texas, 441 U.S. 418, 423 (1979) (quoting In re Winship, 397 U.S. 358, 370 (1970) (Justice Harlan concurring)).

[Footnote 49] Mathews v. Eldridge, 424 U.S. 319 (1976).

[Footnote 50] Addington v. Texas, 441 U.S. 418 (1979).

[Footnote 51] Santosky v. Kramer, 455 U.S. 745 (1982). Four Justices dissented, arguing that considered as a whole the statutory scheme comported with due process. Id. at 770 (Justices Rehnquist, White, O'Connor, and Chief Justice Burger). Application of the traditional preponderance of the evidence standard is permissible in paternity actions. Rivera v. Minnich, 483 U.S. 574 (1987).

[Footnote 52] Stanley v. Illinois, 405 U.S. 645 (1972) (presumption that unwed fathers are unfit parents). But see Michael H. v. Gerald D., 491 U.S. 110 (1989) (statutory presumption of legitimacy accorded to a child born to a married woman living with her husband defeats the right of the child's biological father to establish paternity and visitation rights).

[Footnote 53] Presumptions were voided in Bailey v. Alabama, 219 U.S. 219 (1911) (anyone breaching personal services contract guilty of fraud); Manley v. Georgia, 279 U.S. 1 (1929) (every bank insolvency deemed fraudulent); Western & Atlantic R.R. v. Henderson, 279 U.S. 639 (1929) (collision between train and auto at grade crossing constitutes negligence by railway company); Carella v. California, 491 U.S. 263 (1989) (conclusive presumption of theft and embezzlement upon proof of failure to return a rental vehicle).

[Footnote 54] Presumptions sustained include Hawker v. New York, 170 U.S. 189 (1898) (person convicted of felony unfit to practice medicine); Hawes v. Georgia, 258 U.S. 1 (1922) (person occupying property presumed to have knowledge of still found on property); Bandini Co. v. Superior Court, 284 U.S. 8 (1931) (release of natural gas into the air from well presumed wasteful); Atlantic Coast Line R.R. v. Ford, 287 U.S. 502 (1933) (rebuttable presumption of railroad negligence for accident at grade crossing). See also Morrison v. California, 291 U.S. 82 (1934).

[Footnote 55] The approach was not unprecedented, some older cases having voided tax legislation that presumed conclusively an ultimate fact. Schlesinger v. Wisconsin, 270 U.S. 230 (1926) (deeming any gift made by decedent within six years of death to be a part of estate denies estate's right to prove gift was not made in contemplation of death); Heiner v. Donnan, 285 U.S. 312 (1932); Hoeper v. Tax Comm'n, 284 U.S. 206 (1931).

[Footnote 56]   405 U.S. 645 (1972).

[Footnote 57] Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632 (1974).

[Footnote 58] Vlandis v. Kline, 412 U.S. 441 (1973).

[Footnote 59] Department of Agriculture v. Murry, 413 U.S. 508 (1973).

[Footnote 60] Thus, on the some day Murry was decided, a similar food stamp qualification was struck down on equal protection grounds. Department of Agriculture v. Moreno, 413 U.S. 528 (1973).

[Footnote 61]   422 U.S. 749 (1975).

[Footnote 62] Stanley and LaFleur were distinguished as involving fundamental rights of family and childbearing, id. at 771, and Murry was distinguished as involving an irrational classification. Id. at 772. Vlandis, said Justice Rehnquist for the Court, meant no more than that when a State fixes residency as the qualification it may not deny to one meeting the test of residency the opportunity so to establish it. Id. at 771. But see id. at 802-03 (Justice Brennan dissenting).

[Footnote 63] Id. at 768-70, 775-77, 785 (utilizing Dandridge v. Williams, 397 U.S. 471 (1970), Richardson v. Belcher, 404 U.S. 78 (1971), and similar cases).

[Footnote 64] Weinberger v. Salfi, 422 U.S. 749, 772 (1975).

[Footnote 65] Vlandis, which was approved but distinguished, is only marginally in this doctrinal area, involving as it does a right to travel feature, but it is like Salfi and Murry in its benefit context and order of presumption. The Court has avoided deciding whether to overrule, retain, or further limit Vlandis. Elkins v. Moreno, 435 U.S. 647, 658 -62 (1978).

[Footnote 66] In Turner v. Department of Employment Security, 423 U.S. 44 (1975), decided after Salfi, the Court voided under the doctrine a statute making pregnant women ineligible for unemployment compensation for a period extending from 12 weeks before the expected birth until six weeks after childbirth. But see Usery v. Turner Elkhorn Mining Co., 428 U.S. 1 (1977) (provision granting benefits to miners ''irrebuttably presumed'' to be disabled is merely a way of giving benefits to all those with the condition triggering the presumption); Califano v. Boles, 443 U.S. 282, 284 -85 (1979) (Congress must fix general categorization; case-by-case determination would be prohibitively costly).

[Footnote 67] Walker v. Sauvinet, 92 U.S. 90 (1876); New York Central R.R. v. White, 243 U.S. 188, 208 (1917).

[Footnote 68] Marvin v. Trout, 199 U.S. 212, 226 (1905).

[Footnote 69] In re Delgado, 140 U.S. 586, 588 (1891).

[Footnote 70] Wilson v. North Carolina, 169 U.S. 586 (1898); Foster v. Kansas, 112 U.S. 201, 206 (1884).

[Footnote 71] Long Island Water Supply Co. v. Brooklyn, 166 U.S. 685, 694 (1897).

[Footnote 72] Montana Co. v. St. Louis M. & M. Co., 152 U.S. 160, 171 (1894).

[Footnote 73] See Jordan v. Massachusetts, 225 U.S. 167, 176 (1912).

[Footnote 74] See Maxwell v. Dow, 176 U.S. 581, 602 (1900).

[Footnote 75] Lindsey v. Normet, 405 U.S. 56, 77 (1972) (citing cases).

[Footnote 76] Id. at 74-79 (conditioning appeal in eviction action upon tenant posting bond, with two sureties, in twice the amount of rent expected to accrue pending appeal, is invalid when no similar provision is applied to other cases). Cf. Bankers Life & Casualty Co. v. Crenshaw, 486 U.S. 71 (1988) (assessment of 15% penalty on party who unsuccessfully appeals from money judgment meets rational basis test under equal protection challenge, since it applies to plaintiffs and defendants alike and does not single out one class of appellants).

Copied to clipboard