Are Hot Firefighters a Protected Class?

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:00 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

0:00:08 Clip: I just know that you were going to kick that bar's butt out of here, you know? Come in here with a skull full of mush and you leave thinking like a lawyer.

0:00:31 Clip: My staff has flunked the bar exams six times.

0:00:36 Clip: You graduated from law school six years ago. What have you been doing since? Studying for the bar.

0:00:47 Thomas: And welcome to Opening Arguments. This is Thomas Takes the Bar Exam number 43, where each week, bar Heather Veronini asks us a bar question and answers the previous week's bar question, and then we get winners from Reddit and from Patreon. On and fun is had by all. Got a special treat this week because I finally done enough planning ahead to allow Heather to be there during the winners, which is it's, it's felt lonely when the winners are picked. And, I think it'll be much more fun to have Heather on. And so starting this episode and hopefully in perpetuity throughout the universe forever, Heather's going to be a part of that declaring the winner section. And maybe we'll even go into some added detail. Could be really cool. So, so glad Heather was down for that. That's something to look forward to in this episode and going forward. Any other announcements? Well, still the Weird Al bonus, which again was a, was a tremendous amount of work and love. So hope people check that out on patreon .com slash law. And I can't think of any other, other announcements for now. I better do some more things that lead to announcements. How So without further ado, why don't we get to the answer from Last Question, which was 42 a couple of weeks ago now, and see how I did.

0:01:57 Thomas: Right, Heather, how are you doing this week?

0:02:00 Heather: I'm pretty good and I have not had any drunken driving debauchery in my life. How are you?

0:02:04 Thomas: That's good. Me neither. That's a solid, solid thing to not, don't do that. That's not good. Don't like it, especially as a hockey fan with recent news. Do that, everyone. Also, don't drive incredibly dangerously for very very bad reasons, I guess, is another part of that. But anyway, I am incredibly on pins and needles. I haven't slept. I hasn't slept for a week, Heather, because I can't wait to find out what's going on with this question. Why don't we first remind people what happened to another member of the defendant crime family?

0:02:29 Heather: Well our friend and Dasha. She was drunkenly driving in Fort Mason in San Francisco when got in some trouble, she was charged with two crimes. They were punishable by a maximum of six months and a $4 ,500 fine. So she wanted a jury trial, but she didn't get it, and she was convicted of both charges. So then she appealed her conviction, saying that she she was entitled to a jury trial. So we're trying to figure out whether or not the appeals court will overturn her conviction. You were saying when you were reviewing the question that you were thinking that it was a criminal law and procedure question. Did I remember that correctly?

0:03:12 Thomas: Yeah, with a hint with notes of possibly constitutional law, it's like you're guaranteed the right to a jury trial by the Constitution. So I was kind of 50 -50 there, but I, it was so crimey that I sort of erred on the side of criminal law.

0:03:26 Heather: Yeah, and it's not uncommon for a lot of these questions to feel when there's a criminal procedure question, for it to feel like a constitutional law question, especially because because they kind of arise out of the same stuff. They're kind of talking a lot of times of the same stuff, so when you're feeling that way, you're definitely on the right track. It was a criminal procedure question, and it did exactly talk about the thing that you were thinking that it was talking about, which was the right to a jury trial. So that was exactly the subtopic that this question was testing. So you nailed it exactly.

0:03:56 Heather: Yeah. Let's talk a little bit about the right to a jury trial for we're talking about the Sixth Amendment here that says that in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crimes shall have been committed. Is where the Supreme Court interprets things like laws and the Constitution, because I don't know about you, but I didn't read anywhere were in that, about exactly when or how the criminal defendant would get their jury trial. Did you?

0:04:25 Thomas: No, no. It's almost like originalism isn't the way to do things. And there's probably some history, you know, like procedural history we can look through and see what this means. Yeah,

0:04:33 Heather: Yeah, exactly. Well, there's a case from 1970 called Baldwin versus New York. Happened was a New York City man was convicted and sentenced to a year in prison by a judge after being arrested for jostling. I don't know about you.

0:04:47 Thomas: Jocelyn. Wow. Jeez. I got, my kids are in trouble. Wow, that's so, uh, Phoebe and Arlo are, are wanted felons right now they're criminals jeez a lot of jostling I

0:04:56 Heather: Mean, right? I think we all would probably be in trouble for that as well. I've had some days of josting myself.

0:05:03 Thomas: Jostled in a good while myself I tend to be my jostle days are behind me so not

0:05:08 Heather: That's fair. Some important things to note here was that the gentleman was convicted and sentenced by a judge and not a jury, because at that time, all trials in the particular court that the gentleman was sentenced in. It was called the New York City Criminal Court. The cases there, all the trials, they were all held without a jury, no matter kind of what. So he appealed, and he argued that he had a right to a jury under the Sixth Amendment. And the United States Supreme Court agreed with him.

0:05:35 Thomas: A good sign for me okay

0:05:38 Heather: I also think I kind of look at this, and I go, well, 1970. To me, I think I look back, and I think that's a little bit closer in time than I was expecting. What that leaves us is that the criminal defendants are entitled to jury trials for all serious offenses. When you were looking through the answer choices, you were recognizing that serious offense was exactly the terminology that the court uses. So as we go through some of the answer chooses, we're going to talk a little bit about what exactly serious offense means versus petty offense. So real petty.

0:06:08 Thomas: Offense is like talking trash behind someone's back you know in the passive -aggressive way yeah be

0:06:14 Heather: Yeah. That's exactly the originalism that we're talking about.

0:06:17 Thomas: I heard that person did some josteling last week if you know Oh, petty offense.

0:06:23 Heather: We'll start with D. yes, It's because the combined maximum sentence for the offenses was eight months. And you were, if I recall correctly, you were a hard no. Is that that right?

0:06:32 Thomas: Yeah. At first, when I read it too fast, I was kind of like, yeah, that might be right because I'm looking for the combined maximum was what I thought it should be. But that said, it's eight months. So unless I'm really missing something, the combined minimum seemed to me to be a year. Well

0:06:46 Heather: Well, there's two ways to look at this. We've got the combined maximum what might be, it doesn't exactly say this, but maybe the statute, right? The maximum that our friend Dasha could have received, And right? Then there's also was actually imposed. And I think that's kind of the big difference here. That maybe what you're referring to?

0:07:05 Thomas: She got sentenced okay the combined maximum has to be different then than like your actual sentence is possibly maximum which is just all right the judge is going to decide but you could be facing as much as this and I would think that number would be 12 months not eight months okay there There we go. All right.

0:07:21 Heather: So this, this is factually incorrect. So this

0:07:27 Thomas: Caught that. It's off to a slightly good start, even though I'm very, very nervous about this.

0:07:28 Heather: Is, no, that was good. And also, I think this is a good time to mention that the Sixth Amendment nowhere in the rule, does it allow us to basically add together when we've got multiple offenses?

0:07:43 Thomas: Really?

0:07:43 Heather: You had made a point about, well, what happened if get we a a bunch bunch, of stuff stacked against us. We add it together to try to hit the threshold?

0:07:52 Thomas: Worries me.

0:07:52 Heather: Don't worry, we'll get there.

0:07:53 Thomas: We'll We'll see. Okay.

0:07:54 Heather: So our D is out and you identified a good reason for why it was out. Factually incorrect. It's done.

0:07:59 Thomas: Nothing else, I got that. And the category of the question correct. I've got two good positive marks here.

0:08:06 Heather: Then that bring us to see because the sizable fine makes each crime a serious offense. If I recall correctly, also, you started to talk about the year and the day. Does that sound about right?

0:08:15 Thomas: Yeah, that was in there somewhere. Yeah, but I didn't really have any concept of what the fine, what the dollar amount would need to be.

0:08:23 Heather: Well, you a good job here kind of talking about that because nowhere in the rule for the Sixth Amendment does it really talk about a fine. So you also did a good job talking as you worked through the question, really kind of focusing on the time as opposed to the fine itself, because the rule doesn't hinge on the fine as much as it hinges the time period. So the thing that we're really concerned about here is that time period and not on the fine itself.

0:08:48 Thomas: Oh, just like flat out. Even if it was like a hundred thousand dollars oh so I kind of lucked out that I didn't like the language there seems to be possibly either lucky or I know but like yeah fine didn't matter okay well

0:08:52 Heather: Yes, it's not the fine that makes it a serious offense. It's the time period. Exactly. That's not the thing that's going to convert it.

0:09:10 Thomas: My second chance is out don't love that oh

0:09:12 Heather: Well, I also mentioned because you did talk about the year and a day, I just wanted to clear that up because it does come up, but the way in which it comes up is that it's the difference between a federal felony and a federal misdemeanor.

0:09:27 Thomas: Yeah I knew there was something I was like I remember that from something I don'T know what okay

0:09:31 Heather: Yeah. So good memory there. It just happens to not apply in this particular...

0:09:35 Thomas: I did eventually think like wait I think that's not this so I got that far wow the old noggin I got a lot churning around in there, but sometimes I pull it out with a ladle, a soup ladle and it sort of helps me.

0:09:49 Heather: Well, now we know that C and D are out. So this means is that our friend Dasha, she's going to lose. The appeals court will not overturn her conviction, but we're trying to figure out why not. Is it going to be because the maximum sentence for each offense was six months or because her actual sentence was for less than in six months. So can you remind me why it was that you, because you had a reason for why you thought it was not B, what their problem was with the actual sentence.

0:09:57 Thomas: Interesting. I think the problem is I really think you would have to know this before knowing what you're sentenced to. I mean, you make the whole decision about a jury trial versus a bench trial has to happen before you know what the sentence is. Now, could the Supreme Court be so dastardly that they're like, oh yeah, that's true. But if it it turns out that you were only sentenced to less than blah, blah, blah, then we're not going to like give you a new trial or overturn the conviction because of it. I guess that's possible. But short of that thing, I would think that it would not, this calculation could not be made on the basis of what your actual sentence is because you don't know what your actually sentence is when this decision needs to be made.

0:10:52 Heather: Exactly. Because an important thing about laws in our country is that you have to have notice, right? And that's exactly what you're talking about.

0:10:58 Thomas: There you go. Notice.

0:11:00 Heather: Yeah. And that is the reason, that is, that's the main difference between A and B. And part of what I think makes this question really difficult is it's because it's it's about close reading. It's about seeing that A is about the maximum sentence versus B being about the actual sentence. And you did a great job identifying that difference.

0:11:18 Thomas: Man, this is incredible. So are you saying, that sounds like I got it right, which I'm incredibly excited about, But are you saying that what the calculation actually is, is not the combined amount you're facing, but is truly just the maximum among any of the individual charges? And the amount is a year?

0:11:36 Heather: For each. So the rule here is that the Sixth Amendment right attaches any time the criminal defendant is tried for an offense for which the maximum authorized sentence exceeds six months yeah

0:11:48 Thomas: Exceeds. Oh, it's six months. Okay. It's not a year. Okay. So it exceeds. Oh, wow. Oh, boy. Holy moly.

0:11:54 Heather: So that means that you were correct and the a is the right answer

0:11:58 Thomas: I was right for the wrong reasons, but I also feel like it was important. Like I was also right for a few right reasons or rather I eliminated things for right reasons, which helped, but I did ultimately luck out because I, I, I was trying to make this more fair than it is because I really do think that it should be based on the total amount you're facing. Like, I just think like, cause they can try, think about Trump. He was charged with 32 things or whatever. Like, I feel like if each of those is five months and you could theoretically serve it all to get, you know, combined, meaning that's you don't get a jury trial when honestly you probably should. So that seems unfair to me. But all that aside, it doesn't matter because I got it right. And that's the most important thing of all.

0:12:43 Thomas: I am very excited about this one. That was a journey. Holy moly. Out with some of the stuff I was fighting some phantoms there. There. I was, I was swinging. Look, kicked a few people's butts, but they were coming. I also swung at the air. I think there's, there's sometimes where I thought someone was coming at me, you I just, just whiffed, but it doesn't matter because ultimately I got there. So it's for each thing and it has to exceed six months. So, it's, it really is the six months in a day kind of thing.

0:13:08 Heather: It is really is especially because that's the thing that makes it a serious versus a petty offense because the petty is six six months or less and Sirius is six months and a day.

0:13:16 Thomas: Well, that was was a journey I am wow what that had everything what a question I love that and I'm now 25 to 38 65 .79 so happy about that oh well I can't wait to read over your answers everyone and pick the winners and I am going to do that instantaneously because it is coming right now uh talk about some winners for question 42? All right, well, this was my favorite question I've ever gotten right. I feel great about it. Our first winner maybe characterized it a little differently than I maybe feel about it, Let's see. So from reddit .com slash r slash open args, I'm going to give the prize here to Stephen X. Davis. They say, answer A is correct. I love how beautifully Thomas bumbled into the correct answer here. It's not how I characterize it, but okay. The year and a day rule applies to the right to an indictment by a grand jury under the Fifth Amendment. The test for the right of a jury is whether a sentence of six authorized for for each offense, but without aggregating all the offenses, even if they can be served consecutively. Despite Thomas's common sense, if the defendant here had been charged with four offenses and sentenced to an aggregate of 16 months, she would still have had no right to a jury trial. This right also applies if the offense is otherwise serious, which generally means it is labeled a felony or has a very high fine attached, but I don't think this fine qualifies. So yeah, what do you think? I think that pretty much nailed it. What do you think of that winning answer?

0:14:52 Heather: Like this answer. We liked that it was well thought out, except for the fact that they criticized you. We don't like a criticism.

0:14:57 Thomas: No, I feel like it

0:14:59 Heather: I'm just kidding.

0:14:59 Thomas: Was, yeah, Bumbled is, yeah. Thank you for having my back, Heather. I feel like Bumbled was a little harsh. I think it is true that like the was very lucky because I did think it was common sense that there's no way that you could be charged with like 50 offenses that are all five months and then that's no jury trial and then get sentenced to 240 240 million years. That's stupid. And so in that sense, I did have to overcome that with a bit of luck. But like, in terms of like how I did that, it was some very fine textual analysis. I thought this was very, very, I felt great. I, this was one of those questions where I, I got it right, I Was like, bragging I, to Lydia. I was like, Hey, I just did the best T3B ever. I'm so happy about this. And then, you know, Steven's like, hey, Bumbledon, the correct answer. That is fine. It is fine I know that's yeah, I get it. It's fine to I'm curious because Stephen X. Davis seems to think that there is a level of high fine money wise that can get you there. But I thought you had said there maybe wasn't.

0:15:03 Heather: Anytime. Yeah. Yeah. It's my understanding, at least for purposes of the bar exam, that's looking kind of at federal law. Rule is not based on the fine. It's really based around the time period. So like I've said before, bar the exam kind of is its own land. And I always tell my students, listen, when you are studying for the bar, remember that you're in bar exam land, whereas sometimes when you're out in practice, that might be a little bit different. So it might be the case that in some jurisdictions, it might быть different, and it might być based around a fine. That is entirely possible. I don't practice in this area, but I will say for purposes for the bar exam, it really does revolve around that timeframe and not hinge on the amount of money or the fine. In bar exam land, that's where we're at.

0:16:35 Thomas: All right. Well we'll have to go over now to Patreon land, patreon.com/law. And we've got some folks on Patreon who I think are are justifiably pretty mad about the state of the law here then maybe you can help them uh go with alex the apologetic parentheses that his name is too long I'm going with a and frankly I need an emotional support lawyer to well you're barking up the wrong tree the last thing lawyers provide they you need emotional support after talking talking to lawyers.

0:17:05 Heather: To a lawyer.

0:17:06 Thomas: Yeah, this is, that is not, but

0:17:07 Heather: Like a lawyer and a a therapist together.

0:17:09 Thomas: Maybe Heather is the one exception there. I need an emotional support lawyer to talk to about this. Thomas, Heather, Matt, help. Looking this up, I found this line, quote, the court has always excluded petty offenses from the guarantee to a jury trial in federal courts. Excuse me, but what? A quick peek at the bill of rights says, quote in all criminal prosecutions, the accused shall enjoy joy the right to public trial by an impartial jury. Going to stop reading already because that is all we need. The Sixth Amendment is exceptionally clear about this. There is no question at all in the text that you are always entitled to a jury trial when criminally prosecuted. Can I have a constitutional law nerd help me feel better about this? What is the point of even having a constitution or amendments if the text need not be taken neither seriously nor nor literally. How is this not the single most egregious thing to ever be called textualist in our courts? Would our nation be better served without a constitution? Considering that our large and powerful constitution can be selectively picked from to justify whatever stupid idea a politicized judge might have, I'm starting to lose faith in the very idea of constitutionalism itself. Ooh, I've got answers. I don't know. What do you think? Do you have emotional support for them?

0:18:19 Heather: Well, I have a couple of books that I can recommend to you that will help make you feel better. Before I do that, can I kind of answer from perspective why it is that it feels like there's a gap between... Listen, I'll give you the lawyer answer and then I'm going to give you a human answer, okay? So the lawyer answer is the reason that there's difference between the text and the rule is because the Supreme Court often is is interpreting the or the constitution. And that's exactly what they did here. So when heard Baldwin versus New York in 1970, what they read into it is the rule that we're getting from and using in this question. So although it's feeling like the text is very clear, the Supreme Court here was trying to clarify the rule, and that's what they they did in Baldwin versus New York to say here that some and not all get a by a jury. So that's how we get that. That's a Supreme Court interpreting. And that's really the lawyer answer.

0:19:11 Thomas: Love the lawyer answer because it didn't actually say anything other than yes, that's what what they did that's perfect so well done heather that is the lawyer answer now the human answer

0:19:19 Heather: I do have some. The answer is listen. I think the reason that a lot of people are very frustrated with the Supreme Court, especially especially recently in recent years is exactly for the reason that this particular person has identified. That I've read recently is, a book by Elie Missell, who has his J .D. who's a very prominent writer about the law, the legal profession. He wrote a book called Allow Me to Retort. And she writes this book about the Constitution from the perspective of a Black man. And it's a really important book, I think, to read. And you also have to be okay with bad words and cussing. So if you're not, don't read the book, but it's a very important book to read. I think if you're feeling this way, would I highly recommend Ellie Mistel's book. Dean and Professor of Law and Constitutional Scholar Erwin Chemerinsky, who's the Dean of UC Berkeley School of Law, writes in this area as well and has written a number of books about the Constitution and the problems with it and the United States Supreme Court. You'll find books of that as well. So if you want to read a little little bit more in with this vein, you can definitely do that. But if you're feeling a little bit ragey, I definitely start with Ellie Mistel's book. It's excellent.

0:20:28 Thomas: Yeah agree that all makes sense um think it really the problem is the other way in my opinion the problem is the selectively deciding that the text is the end all be all end all whatever when you hear hear Clarence Thomas say, shall not be infringed. And that means you can own a tank, a nuke or whatever, you know, like, cause they've decided the word say shall not being infringed, what part of shall not been infringed? Do you not understand? And then you see this one, there isn't the same thing. Shall be to a jury trial. No one says that with this because they haven't politicized it into that kind of issue. So but I actually agree with this. I mentioned in the question and And maybe I could be wrong. I'm not an expert or anything, but in the question, I actually thought, okay, well, it makes sense that you don't, it would be really impractical and impossible to assemble a jury for every parking ticket. Like that's just not, that's not going to happen. I don't think that's practical. It's not gonna happen. So I actually think that is the correct thing. Now, I don'T know that I agree with the rule they came up with. Don't get me wrong. But I think the that these words aren't just these words and you can't just exactly take everything 100 % literally all time and detriment of society, you okay, well, we got to set some sort of threshold and we can argue about what the threshold is. I think they kind of got it wrong. I do think, I still think if you're facing a million counts that that ought to, it ought to be the total time you could face. Like like that makes so much more sense. Like it doesn't make sense that if you, if you're charged with one crime that could get a seven month sentence, you get a jury. If you'recharged with 10 crimes that couldget a five month sentence. You don't, it doesn' doesn'tmake any sense. It's stupid, but having some limit on it makes sense. And then they like to pretend they, they just go by the text. It's just the kind of just balls and strikes with the Constitution. And then you get the case like the Colorado case with the ballot. They're like, well, no, we'll just amend the Constitution, we will just decide that there wasn't an amendment that said, people you who commit treason, basically, essentially, like people who try to do a coup against the government. There amendment about that, among things, that said they couldn't hold office anymore or whatever it said. They they're like, well, no, we can't do that because because reasons. And it's the selectively deciding that sometimes the text is the text and there's nothing you can do. No ifs, ands, or buts. Our hands are tied. And then sometimes they're, like, no. We'll just write whatever we want and not acknowledging that that's happening and pretending otherwise. It's the selective thing. And I almost think more things should be like this, probably more things should be, like, yes, we're going to have some sort of reasonable put on this, despite the fact that these magical words say what they say.

0:22:57 Heather: And And I don't think it's unreasonable for people to want an explanation that's a little bit More straightforward to say, we understand that the Supreme Court has to draw draw lines, right? You have to draw lines. We have to draw limits. The courts don't have an unlimited amount of resources. And not everyone's going to be happy with those lines. But we'd like a little bit more transparency, from the court as to why that they're doing what they'redoing. Why are they drawing certain lines? Right.

0:23:18 Thomas: I can help you with that. It's because they want to accomplish certain ideological goals. I don't I don'T need any more transparency on that. That's that's yeah. No, think we should congratulate Alex the apologetic that his name is way too long. And also our winner on Reddit, StevenXDavid, which congrats. You are the winners of T3B. And I think we are all the winners that we got to have Heather here for the winner section. And we're going to make that happen going forward. It's a lot of fun. So thanks, Heather.

0:23:41 Heather: Thank you. And congratulations, everybody. Work.

0:23:44 Thomas: We'll have to have another question. See if I can possibly recreate what was my all -time best. I think I should retire. I'm going out on top. That was my favorite performance I've ever had on a t3b and now it's all downhill from here after this break all episode is brought to you by quince. Love Quince clothing. Here's the fun thing about global warming. Still summer in October here in California. Tell you at least I have the wardrobe for it. For real, it's from Quince. Quince has all the seasonal must -haves like 100 % European linen shirts from $30, performance polos, and versatile activewear. The best part? All Quince items are priced 50 -80 % less than similar brands. Cuts out the cost of the middleman and passes the savings on to us. Quince only works with factories that use safe, ethical, and responsible manufacturing practices, along with premium fabric and finishes, like I said, I bought a bunch of shorts from Quince for the summer, and the summer's still happening, it seems like it's October, I'm pretty sure that's what the calendar says, but the weather says otherwise, it was over 100 today, this thing I bought all these shorts from quince, and they're they're super comfortable. Your closet with Timeless Pieces you'll be wearing for summers to come with Quince. Go to quince.com/OA for free shipping on your order and 365-day returns. That's Q-U-I-N-C-E dot com slash OA to get free shipping and 365 day returns, quince dot com, slash OA.

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0:26:46 Thomas: Heather while I'm on a high that I just can't it's I don'T even want to continue because I retired on such a good high, but like, I'm going to, you one talks about Michael Jordan's career with like the Charlotte Hornets or whatever, the end of his career. I think he played, maybe he owned them, but anyway, forgettable, very forgettable. Hey, I's going to enter that period of my T3B career. What's question 43. Let's, uh, let's take it on here.

0:27:08 Heather: City council of Oceania passed an ordinance prohibiting all first responders, like firefighters and paramedics, from working a second job. City Council stated that the purpose was to have its first responders available in the face of an emergency, such as a wildfire, earthquake, pandemic, or other similar reason. Of Oceana's City Council and other city employees did not have the same restriction prohibiting secondary employment. Beloved and longtime firefighter in Oceania, Mike, was upset because the ordinance meant that he would have to to give up his well -paying second job as a calendar model.

0:27:45 Heather: The calendar company sells many calendars, donates money to lots of local organizations in Oceania, and complies with all city ordinances. The firefighter challenged the constitutionality of the ordinance as a violation of the 14th Amendment's Equal Protection Clause. Mike likely to prevail?

0:27:44 Thomas: That's awesome. Ooh, that's interesting. Okay.

0:28:03 Heather: Yes, because the ordinance is not the least restrictive means of achieving Oceana's legitimate interest. Yes yes, because the ordinance unreasonably discriminates against firefighters. C, no, because the ordinance is rationally related to Oceana's legitimate interests in health and public safety. D, no, porque Mike is an at -will employee of the calendar company and does not have a property interest in his second job.

0:28:27 Thomas: Wow. I actually really love this one, But but I'm worried because it's it's got it's going a lot of different directions. I think this has got to be constitutional law. I can't imagine it not being you're suing based on the 14th Amendment. So right away, equal protection is seeming weird to me because I don't see like equal protection. I associated associate with protected classes, which is like, you know, age, race, gender, all that kind of stuff. I don'T think firefighter unless it's just like sexy person, you KNOW, maybe that'S a hey, that SHOULD be a protected class. Class you you think they already have it pretty good so so maybe not but but in our unjust world maybe it is maybe those founding fathers were like you know what also sexy people they get too much of a hard time make sure they're protected uh off the bat before even going into it equal protection seems weird to me remember it the question it's saying something about like other employees not But I don't think that's what equal protection means. I think that, like, you can have different kinds of jobs that have different requirements. Just definitely true. Pretty You sure there's like a garbage man example where it's like, hey, working as a garbage person, like it can have a reasonable requirement that you're able to lift X pounds as long it's applied equally. So think that's somewhere in the case law. Like it's it's a legitimate interest and there's a there's enforced kind of rule across the board, I think it's OK. That's that's my vague memory. So this is this is weird to me. Like, strikes me that this is a weird thing that feels like Like Sexy be able to sue over maybe, but not this way is my first instinct. But okay, I'm going to go through it again. It's prohibiting first responders like firefighters and from paramedics working a second job. That's a because I really feel like it should have made it more about availability and less about technically. Like what if your second job is just completely on your terms? Like whenever like you could pause it at any time. What if you what if your second job is as like, I don't assistant or online thing or something where you make your own hours. don'T know if this is going to matter, but I guess it could because that would strike me as not the least restrictive means maybe. But but Iím worried that the leased restrictive means is going be a distraction because the equal protection doesnít make any sense. But okay. Council stated the purpose was to have the first responders available in the face of an emergency such as a wild blah, blah, bah. Okay. So that, I mean, that has a justification says, hey, you got to be available. So there is at least a government interest. Now, members of the city council and other city employees did not have the same restriction prohibiting secondary employment. See, I just don't think that matters. Like I've worked for the state. There's different kinds of jobs. There is the, when I worked in budgets of corrections, Corrections. Did not have the same requirements on me as the actual corrections officers did that work in the prisons like that. That's a different thing. They have to have coverage 24 -7. They got a different. So like me. That's I don't really understand why that would matter. But anyway, a beloved and longtime very sexy firefighter, Mike, was upset because this would impinge on his right to be sexy and do calendar modeling. It you a bunch of irrelevant stuff that the calendar company follows the laws and is like a good calendar. That's funny. That's just trying to slow me down when I'm already way too slow to take this exam in real life. Mike, the sexy firefighter, challenged the constitutionality of the ordinance as a violation of the 14th Amendment's Equal Protection Clause. Doesn't make sense to me. Unless the I don't think there's anything in there about, like... are the same thing, even if they're doing a totally different job. Just don't Think this is going to work. So, like this has got to be a no. Is Mike likely to prevail? Bail? Yes, because the ordinance is not the least restrictive means of achieving Oceania's legitimate interest. Okay. I think there's a lot to love in that answer, so I'm not going to eliminate it, but I still think that we're not dealing with an equal protection issue here. So going to keep A alive just in case. Go to B. B, yes, because the ordinance unreasonably discriminates against firefighters. Okay, firefighters are not a protected class. That's nothing. That doesn't exist. Eliminating B. C, no, because the ordinance is rationally related to Oceania's legitimate interest in health and public safety. So rationally -related. Looking good because there is no answer that says no because you sued for the wrong thing or that doesn't work. Because of that, what I'm going to need to find, if I'm right, is an answer that basically just states what's going on. Like that's often what it is. It's like, no, because obvious facts. And I think that this one could be it because you're challenging the ordinance and you're not dealing with any protected classes. I think that's the key. You're not dealing, once you're dealing with protected characteristics or whatever, protected classes, then you're on strict scrutiny alert, I think. And more than a rational basis. Rational basis, I think, is incredibly easy. Then a least restrictive means I least restrictive might be more on the strict scrutiny side of things. C is very much alive and is front runner because it's no because the audience is rationally related to their legitimate interest in health and public safety so it's like yeah that's just saying yeah no they're doing this thing and this passes rational basis test or whatever because it's that's all you have to do do you know because mike is an at -will employee of the calendar company and does not have a property interest in a second job now that's a weird one that think if this question had said mike sues under the 14th amendment I think I'd have a problem because a I will never remember what's in any amendment by number except for like the first one and maybe like the fifth but I just my brain doesn't do that it's meaningless there's there's nothing that logically ties a number to a concept so I can't do that uh I also think the 14 amendment it could be going for like the property property interest feels more like unlawful search and seizure kind of thing. Like, do you have a, or process, actually. It's due process for being, you of your property. Government has to, you now, do the due process thing. But if you don't actually have a property interest in your second job, then that would be, this can't be right. I mean, one, it specifically says 14th Amendment's Equal Protection Clause. Now, maybe I'm an idiot and also some sort of due process thing is in there. Well, shit, it comes to due process, I feel like they usually cite two amendments. There's one where it's always two amendments, oh, my due process rights in the 8th and 14th Amendment, something like that, usually. I swear there's two of them. Don't see why being an at -will employee would not give you a property interest anyway. So I think D is just wrong for pretty much every reason. If it's so batshit insane that it's actually right? You're challenging the constitutionality of an ordinance as a violation of specifically the equal protection clause, I feel like the answer would be no, because firefighter is not a protected class. C is close because it's like, it's that fact and it's doing the test based on, hey, we're not dealing with a protected glass here. We're dealing with not a protective glass. So therefore, what's the test? It's rational basis. Would be weird to answer, oh, yeah, except the ordinance is rationally related to the interest in health and public safety because firefighter if were a protected class, that wouldn't work. Firefighter Were a protected Class, you'd need to pass strict scrutiny standard, which is not just rational basis. Like that worries me a little bit about C. It doesn't – it's not language I would really expect. Now, am I worried enough about that to therefore choose D, which is just, that's, I'm highly skeptical that it could be D. The does have, doesn't have something to do with the, ,I I feel like they usually say two amendments and I, one of them, I do think it is the 14th, but is it in the Equal Protection Clause? Clause clause does contain due process rights and does talk about property interests. Okay, let's entertain, the notion that the 14th Amendment's Equal Protection Clause does have some sort of language in there about this. And so therefore, it might be a super sneaky correct answer. Would it really be true that losing your job like you don't have a property interest in your second job I associate the property interest stuff with process due you can't be deprived of your without due process but is this a due process issue because they passed an ordinance maybe an ordinance count as due process? There's an ordinance passed, it's like, hey, now you lose something. Let's say this is unambiguously, you do have a property interest in X, and an ordinance is passed saying, well, no longer are you allowed to have X. would feel like I was due more process, but I also feel like you can kind of just pass laws about stuff and that might occasionally deprive you of something. Is really tricky. So A, yes, because the ordinance is not the least restrictive means of achieving illegitimate interests. So least restrictive. It could be that because I really think that's strict scrutiny and this just doesn't seem like that kind of issue. It is true that this is not the least restrictive means like there there's no way like could just pass something that's like you have to have this number of free hours or something and that would that would allow you to have a secondary job if it made sense which by definition is not The Least Restrictive Means I would think so a at least has that going for it so a would have to assume that couple things so that would have have to assume that the 14th Amendment, we're not just talking about equal protection as in protected classes, because if we're just talking about protective classes, then A is out, I think, protected classes. Unless, rational is basis paired with the least restrictive? I think the least restrictive is, that's part of strict scrutiny. I don't think, I mean, it would almost make sense to be like, yes, it's got to be rationally related and the least restricted means. Means. Thought thought rational basis was just rationally related. I thought that's all it was. Okay. Right. B is out. So B, 100%. B is yes, because the ordinance unreasonably discriminates against firefighters. That's stupid. I imagine that being it. That's out. Am very worried, but I think, think I'm going to stick to my guns on on this one. I'm going to assume that because I think the problem I have is like, even if we're talking about due process, usually it's the due process clause of the something. So that's got to be a different clause. It has to be. Due process cause can't be the same as the equal protection clause, but does it matter? Like if you just challenge it, does it matter if you, if there's another, like, like if I challenge it under the wrong clause of the 14th amendment does that affect what happens or can the judge just be like well I don't care about that clause but here's another clause I don' t know nah I don'' t think that's how the bar would work okay I think the property interest stuff is due process related that's that would be more about this ordinance deprives me of something I have a property interest in which is my job without due process which is plausible but it's that can't be in the equal protection clause. That just can't be. I think I'm between A and C now. I think between A, yes, because the ordinance is not the least restrictive means of achieving the thing. So A would be it if I'm wrong and rational basis test includes that part. Means. How I think I'll be wrong with A, but I'm going to go with C. because the ordinance is rationally related to their legitimate interest in health and public safety. Have strong reservations because I just don't think that's how, I just Don't think it matters. Like, I think it's like, no, you're not a protected class, but. Think it might still make sense because Because it's like, well, when you're not a protected class, you still can do evaluate it like you are being treated differently than like other employees. So you can Still evaluate it based on that and say no, because it's rationally related to the legitimate interest. Yeah, I'm between A and C. I'm choosing C. that's funny. That's the same answers as last question. But I chose A last time and almost did a last minute switch again. But not. I'm going stick to to C. C. So final answer, C. is my second chance answer. And once again, two weeks in a row, I got to wait an entire week on pins and needles because I'm very confused and I hope I got this one right.

0:39:49 Heather: Know, I guess we're going to have to wait another whole week, and I'm really excited to hear what the right answer is.

0:39:54 Thomas: Right. Well, until then, thanks again, Heather.

0:40:01 Clip: Thank you for being, say we started from the bottom, now we're here, girl.

0:40:10 Thomas: And now there's only one thing left to do before we say goodbye, and that is to thank Thank our patrons, the beautiful, amazing people at patreon.com/law that for make this happen. To do this podcast and pay folks like Matt and Heather, who are very deserving to do the podcast as well. Olivia, who's killing it on social media. Sure you check out the Instagram and the TikTok. In the show notes, I'm sure. Are. Anyway, these amazing folks, we start with our new patrons. We've got a few new patrons to thank. Thank you so much to Rick Woodward, Austin, Paul Ritter, dddebz. I hope I did that right. Chris deutscher, robert everett, and Jane Eden Hartle. Thanks so much for pledging, folks. Hope you enjoy the goodies and not having to hear the ads, the terrible ads. Who wants ads? Ads get rid of them go to patreon.com/law all right and now it's time to thank our hall of famers our all -time greats these folks get a shout out each and every week unless I skip t3b which does happen on occasion but not very often and some of them change their name each week so that I can do a different unique shout out and that's really fun and cool and I love it and they are also pledging at that five dollar level and above for at least a month I we begin with scott farah michelle chandler tampon thomas yeah hey it as a badge of honor that's right tampon tim is not an insult I I just am very helpful to anyone who is needing of those products judy hammerhand Again, stare decisis has gone into hospice. Is she talking about me? Logomancer. Sex and gender are different things. I mean, like female clothes as wrong as calling vaginal prophylaxis women's condoms. I'll have to think about that comparison. Apprentice of Adventure, Jesse D. Myers. Cavalri, unfrozen caveman lawyer. Justice is a dish best served with cold hamburgers. Something as simple as a crack pipe.

0:42:00 Thomas: Yeah, that is, that is so good. I, boy, between that, so far, the leaders in the clubhouse for the Thomas Smith Award for Excellence in Patron Name Changing is Tampon Thomas and Something as Simple as a Crack Pipe. Are the leaders right now. No offense to any other brilliant names, but Something as simple a crack by was one of my favorite all -time lines of anything. Nick Fish, A Negative Phenomenon, on. All I know is that I don't know nothing. (You Gotta) Fight For Your Right (To Ex Parte). Jaysank, a string of unpronounceable fart noises. E.T., Oh, great. Now I have to go back to changing my name every month. No, change every week. Thomas Freeman, Cajunkilla. Fraud Fishy hates everything. Chris Simpson, love the extra episodes. Out the Queer and Cryptography Conference at cryptography.lgbt. Zone Guns 2, support root cause mitigation, not ineffective gun control, not a lawyer, but I play one in court. Give up on funny names. I'm just Leo G for now. All right. Stormy's Decisus says, visit sharebandbooks.com. isn't a patron name and I am not reading anything now. I just personally think Legal Eagle is so handsome. Mark Schultz, hors d'oeuvres in the court before we report. Weird. The Cincinnati Kid,

0:43:12 Thomas: Basement Bar is out knocking doors for Harris You Should Too Edgy Veggie Elect Thomas Smith President American Honkytonk Bar Association Paul Ticote Guy Chapman, the Solutions Archaeologist mental health once took a dive When OA was barely alive But you deemed fear in the span of a year I went from one podcast to five Ooh, not bad, okay That's definitely a contender I like it do 501st and Rebel Legion want you cosplayers doing good Meadsong is on to the post -conviction process now that his cert petition was denied a string of unpronounceable characters Malaika Chandler Malcolm the Dragon the precious variant Fred R. Gruthius big easy blasphemy run to the dork .com Chris Waltrip Mitchell and barely I mean barely hanging on by a thread the current champion champion by felicia oof this is getting close the top two here are dueling it out and I frankly I love it but uh by felícia still on top for now well then I guess I have to declare the winner of the thomas smith award for excellence in patron naming and uh main contenders that mental health once took a dive limerick thingy that's good I'm not a huge fan of limericks though that's subjective judgment. You don't need to take offense. A huge fan of them. And I just got to say, something as simple as a crack pipe is my favorite construction of English language ever in the world. It's so good. So I'm going to go ahead and declare something as civil as a cracked pipe as the winner for this week's T3B show. Something as simple is a cracked by.

0:44:46 Thomas: So good. It's such a great show. So good, it's so great. That's the show. Thanks so much to Heather as always, and we'll see if I got this one right. I don't know. Play along. Reddit.com/r/openargs and patreon.com/law, and we'll seen next week, but we'll also see you for Rapid Response Friday. Just mean, we'll se who got it right and who is dead next week.

0:45:05 Clip: This podcast is a production of Opening Arguments Media, LLC, All Rights Reserved. It is produced and edited by Thomas Smith, who also provided the fabulous intro and outro music used with permission.