WEALTH, EQUAL PROTECTION, AND DUE PROCESS.

• Author: Garrett, Brandon L.

TABLE OF CONTENTS INTRODUCTION 400 I. WEALTH AND SECTION 1 OF THE FOURTEENTH AMENDMENT 406 A. Procedural Due Process 408 B. Wealth and Equal Protection 411 C. Equal Protection and Due Process 416 1. The Bearden Ruling 417 2. Access to Justice and Other Equal Process Cases 420 3. Equal Protection and Substantive Due Process 422 II. FINES, FEES, AND EQUAL PROCESS 424 A. Litigation Challenging Pretrial Detention 424 B. Litigation Challenging Fines and Fees 428 1. Due Process Reasoning and Driver's License Suspensions 431 2. Equal Process Reasoning and Driver's License Suspensions 432 3. Fines and Fees Litigation 434 4. Fines, Fees, and Voting Rights 437 C. DOJ Pattern and Practice Litigation 438 III. TOWARDS A NEW EQUAL PROCESS 440 A. Supreme Court Failures to Apply Equal Process 440 1. Same-Sex Marriage and Equal Process 441 2. Lack of Process and Trump v. Hawaii 443 3. Equal Process and Abortion Rights 444 B. Challenging Status and Inequality 445 1. Equal Process and Process Theory 446 2. Access to Justice 447 CONCLUSION 450 INTRODUCTION

Increasingly, constitutional litigation challenging wealth inequality focuses on the intersection of the Equal Protection and Due Process Clauses. Most prominent, perhaps, was the discussion in Obergefell v. Hodges in Justice Anthony Kennedy's majority opinion of the "profound" connection between equality and due process. (1) The Court relied on prior cases in making such a connection explicit. Those included fundamental rights equal protection cases, such as Zablocki v. Redhail, involving the right to marry, as well as cases such as Lawrence v. Texas, involving findings of animus, in which rational basis review has had "teeth." (2) Few noticed, however, that the Obergefell Court began its discussion of equality and due process by citing to a seemingly inapposite line of cases that includes Bearden v. Georgia. (3) In Bearden, in an opinion by Justice Sandra Day O'Connor, the Court held that the trial judge could not revoke a defendant's probation for failure to pay a fine and victim restitution without making findings that either he had the ability to pay or that alternative forms of punishment would not satisfy state interests. (4) The Bearden Court explained that where the state judge both used inadequate process, and, as a result, disparately subjected the poor to imprisonment, "[d]ue process and equal protection principles converge in the Court's analysis." (5) What does a ruling about probation and criminal fines have to do with marriage equality? In this Article, I describe how the reliance on the neglected Bearden ruling in Obergefell was no accident. The approach in Bearden, long considered marginal and relevant only to certain access-to-courts issues, now lies at the center of the jurisprudence of wealth inequality under the Constitution. (6)

This Article explores the constitutional intersection between equality and procedural due process. The Equal Protection Clause provides that no state shall deny to a person "the equal protection of the laws." (7) The Supreme Court has held that this prohibition on discrimination bars a state from "punishing a person for his poverty," (8) and it has condemned the "evil" of "discrimination against the indigent." (9) However, in the well-known school funding case of San Antonio Independent School District v. Rodriguez, the Court ruled that wealth disparities leading to funding inequities do not receive strict scrutiny under the Equal Protection Clause. (10) Many scholars have observed that the Rodriguez ruling, and related rulings, pose an obstacle to a class-conscious Equal Protection Clause. (11) The Court has suggested economic class is not a suspect class. (12) Yet wealth disparities do still receive careful equal protection scrutiny, just not based on equal protection alone. (13)

Instead, due process also plays a role. Mirroring the language of the Fifth Amendment, the Due Process Clause of the Fourteenth Amendment provides that a state shall not "deprive any person of life, liberty, or property, without due process of law." (14) The focus of procedural due process case law is on assuring that a person receives meaningful notice and an opportunity to be heard--to prevent arbitrary and unfair process. (15) Such cases develop procedures to ensure that actors such as judges do not deny benefits or take action against a person without fairly considering a person's ability to pay. (16) What I call "equal process" claims arise from the line of Supreme Court and lower court cases in which wealth inequality is the central concern. In cases such as Bearden, the Supreme Court does not apply equal protection strict scrutiny. (17) However, the combined concern with wealth inequality and unfair process results in a constitutional violation. (18) In still other cases, equal protection and substantive due process play a role where fundamental rights are implicated by government action. (19)

That "equal process" connection between wealth, equality, and due process is at the forefront of a wave of national litigation concerning the constitutionality of fines, fees, cash bail, and other ways in which the indigent lose important rights. (20) Almost every state increased the cost of fines and fees in recent years. (21) In response, litigation is pending in Alabama, California, Georgia, Louisiana, Michigan, Missouri, Montana, North Carolina, Pennsylvania, Virginia, and many more localities. (22) Take, for example, a ruling regarding bail-setting in Dallas, Texas. (23) A federal judge ordered Dallas County courts to provide meaningful hearings before jailing people. (24) The lead plaintiff in the lawsuit was charged with misdemeanor shoplifting, and she could not pay bail set at $500. (25) Her hearing lasted about twenty seconds, and, as a transgender person, she was sent to twenty-four-hour solitary confinement in a men's facility. (26) The judge found such hearings unconstitutional, in part based on videos showing the hearings typically lasted under thirty seconds but resulted in detention lasting for days, weeks, or even months. (27)

In this Article, I argue that Section 1 of the Fourteenth Amendment should be understood holistically as part of a structure designed to ensure citizenship (and the rights thereof) and government's duties to persons. Courts should not divorce equality concerns from concerns regarding procedural and substantive fairness, particularly when powerful liberty, property, and life interests are at stake. This understanding fits with an approach the U.S. Supreme Court has adopted in a range of doctrines. Kerry Abrams and I have developed how the Court engages in what we term "cumulative" constitutional analysis of several different types, including intersectional analysis, in which two constitutional rights bolster and inform each other. (28)

Equal process claims are an important, but little-noticed, example of that intersectional analysis. Part II develops how equal protection process claims are prominent in litigation that challenges pretrial bail decision-making, driver's license revocation, costs and fees, and Department of Justice government consent decrees that concern fines and fees, such as the one negotiated in Ferguson, Missouri. (29) Lower and appellate courts are split over whether to treat practices that disproportionately burden the poor as due process or equal protection claims. Some federal courts have already misunderstood the constitutional claims to be solely procedural due process in nature, and, as a result, judges have neglected the class-based equality dimension. Other judges have misunderstood the claims as solely equal protection claims, receiving only rational basis scrutiny, and have not considered the procedural fairness dimension. Treating these claims as equal protection claims, judges correctly note that heightened scrutiny does not currently apply to wealth-discrimination claims. Treating these claims as procedural due process claims, judges may find a minimal hearing adequate in some circumstances. But when judges have properly understood these as equal process claims, courts have followed the reasoning of cases such as Bearden correctly and understood unfair process to raise far greater constitutional concerns when it centers on wealth inequality. Getting the equal process connection right will be crucial as these access-to-justice questions are litigated.

Part III describes how a series of important constitutional doctrines and rulings have neglected the connection between process and inequality in outcomes. Fundamental rights equal protection cases provide another important type of intersectional cumulative analysis. The Court's decision in Obergefell could have also benefitted from equal process reasoning. (30) The absence of discussion of procedural rights and wealth-based concerns made the ruling's significance uncertain outside of categorical same-sex marriage bans. Others, such as Cary Franklin, have focused on how the Court has neglected wealth-based concerns in the fundamental rights cases concerning abortion, or how the Court, more broadly, has neglected equality concerns in abortion cases. (31) The Supreme Court's Trump v. Hawaii travel ban ruling did not address procedural due process claims raised in the litigation. Although it was not wealth, but rather religion- and nationality-based discrimination at issue, an equal process approach could have impacted the analysis in the case.

More broadly, equal process theory can help to address the longstanding concern that the Fourteenth Amendment does not sufficiently address class-based discrimination. There is cause for more optimism than is often expressed. (33) The connection between procedural due process and equality is increasingly prominent in litigation. (34) However, the Supreme Court is not eager to develop substantive due process law and is unlikely to expand fundamental rights protection. (35) The equal...