Thomas R. Curry, #50348
Attorneys for Respondents
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
In the Opposition to the Demurrer of the City of Livermore to First Amended Complaint for Injunctive Relief ("Opposition"), Plaintiff appears to make three main arguments: (1) that constitutional review of the Library's Internet Policy should be governed by the "compelling interest" test rather than the "rational relationship" test because ". . . this case involves the fundamental right and liberty interest of personal security and freedom from infliction of pain . . . ." (Opposition, p. 3.); (2) that, because it is easy for a child to access offensive material over the Internet, the City placed Plaintiff in danger (Id. at pp. 3-6); and (3) that the executive actions alleged by Plaintiff show a level of culpability sufficient to state a constitutional violation (Id. at pp. 6-8).
These arguments reflect a fundamental misunderstanding of the law. The First Amended Complaint should be dismissed without leave to amend.
Plaintiff suggests that judicial review of the Library's Internet Policy should be governed by the "strict scrutiny" test because ". . . this case involves the fundamental right and liberty interest of personal security and freedom from infliction of pain . . . ." (Id. at p. 3.)1
Ordinarily, judicial review of legislative action is governed by the "rational relationship" test: "[i]f the laws passed are seen to have a reasonable relation to a proper legislative purpose, and are neither arbitrary nor discriminatory, the requirements of due process are satisfied . . . ." (Nebbia v. New York (1934) 291 U.S. 502, 537, 54 S.Ct. 505, 516, 78 L.Ed. 940; see also Memorandum of Points and Authorities in Support of Demurrer of the City of Livermore to First Amended Complaint for Injunctive Relief ("Initial Memorandum"), pp. 9-10.)
However, where the legislative action limits a fundamental constitutional right, the Due Process Clause provides for heightened judicial scrutiny. In such cases, judicial review is governed by the "strict scrutiny" test: "'. . . the State may prevail only upon showing a subordinating interest which is compelling,' (citation). The law must be shown 'necessary, and not merely rationally related to, the accomplishment of a permissible state policy.' (Citations.)" (Griswold v. Connecticut (1965) 381 U.S. 479, 497, 85 S.Ct. 1678, 1689, 14 L.Ed.2d 519 (conc. opn. of Goldberg, J.).)
In addition to those rights specifically enumerated in the Constitution, the United States Supreme Court has found other rights to be so essential to individual liberty in our society that they are deemed fundamental and worthy of strict judicial scrutiny. The list of rights protected under the Due Process Clause and deemed fundamental by the Supreme Court was recently outlined in Washington v. Glucksberg (1997) 521 U.S. 702, 117 S.Ct. 2258, 138 L.Ed.2d 772:
(Id. at 117 S.Ct. 2258, 2267.) In Glucksberg, the Supreme Court refused to expand this list to include the right to assistance in committing suicide. (Id. at p. 2271.)
The Library's Internet Policy does not even remotely implicate or interfere with any fundamental rights or liberties protected by the Due Process Clause. Therefore, judicial review of the Policy is governed by the "rational relationship" test. This test is easily satisfied here. (See Initial Memorandum, pp. 9-10.)
In the Opposition, Plaintiff spends several pages focusing on how easy it is for a child to access offensive material over the Internet. (Opposition, pp. 3-6.) While this discussion may form the basis of an interesting public policy debate, it is irrelevant to the legal analysis at issue here.
As was pointed out in the City's Initial Memorandum, this case is governed by the holding in DeShaney v. Winnebago County Department of Social Services (1989) 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249. Based on DeShaney and its progeny, in order to base a claim on a "danger created duty," there must be direct affirmative conduct on the part of the state in placing the plaintiff in danger. (See Initial Memorandum, pp. 3-8.) Providing Internet access to the general public is not sufficient to trigger a "danger created duty." (See id.) It makes no difference in this case how easy it is for a minor to access offensive material over the Internet.
Plaintiff claims that the executive actions alleged by her show ". . . that the level of culpability of the library officials is more than sufficient to set forth a claim even under the more stringent 'executive malfeasance' tests." (Opposition, p. 8.)
The test that applies in this case is not the "executive malfeasance" test, whatever that may be. The test that applies here is the "shocks the conscience" test, as discussed by the United States Supreme Court in County of Sacramento v. Lewis (1998) ___ U.S. ___, 118 S.Ct. 1708, 140 L.Ed.2d 1043. (See Initial Memorandum, pp. 10-13.)
It is not surprising that Plaintiff avoids any discussion of how the conduct she alleges rises to the level of conscience-shocking as described in Lewis. The conscience-shocking standard is impossible for Plaintiff to meet with the facts she alleges.
Plaintiff cannot state a claim based on the Due Process Clause or any other constitutional protection. The First Amended Complaint should be dismissed without leave to amend.