LAW
GPO-CONAN-2017-10-15.pdf

Entirely clear from the courts opinion what it was

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entirely clear from the Court’s opinion what it was that made the privately owned town one to which the Constitution applied. In es- sence, it appears to have been that the town “had all the character- istics of any other American town” and that it was “like” a state. “The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circum- scribed by the statutory and constitutional rights of those who use it.” 1396 A subsequent attempt to extend Marsh to privately owned shopping centers was at first successful, but was soon turned back, resulting in a sharp curtailment of the “public function” doc- trine. 1397 1391 436 U.S. at 164–66. If, however, a state officer acts with the private party in securing the property in dispute, that is sufficient to create the requisite state action and the private party may be subjected to suit if the seizure does not com- port with due process. Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982). 1392 American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40 (1999). 1393 Blum v. Yaretsky, 457 U.S. 991 (1982). 1394 This rationale is one of those that emerges from various opinions in Terry v. Adams, 345 U.S. 461 (1953) (holding that a political association limited to white voters that held internal elections to designate which of its member would run in the Texas Democratic primaries was acting as part of the state-established electoral system). 1395 326 U.S. 501 (1946). 1396 326 U.S. at 506. 1397 See Amalgamated Food Employees Union v. Logan Valley Plaza, 391 U.S. 308 (1968), limited in Lloyd Corp. v. Tanner, 407 U.S. 551 (1972), and overruled in Hudgens v. NLRB, 424 U.S. 507 (1976). The Marsh principle is good only when pri- vate property has taken on all the attributes of a municipality. Id. at 516–17. 2089 AMENDMENT 14—RIGHTS GUARANTEED
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Attempts to apply this theory to other kinds of private conduct, such as operation of private utilities, 1398 use of permissive state laws to secure property claimed to belong to creditors, 1399 maintaining schools for “problem” children referred by public institutions, 1400 pro- vision of workers’ compensation coverage by private insurance com- panies, 1401 and operation of nursing homes in which patient care is almost all funded by public resources, 1402 proved unavailing. The question is not “whether a private group is serving a ‘public func- tion.’ . . . That a private entity performs a function which serves the public does not make its acts state action.” 1403 The “public func- tion” doctrine is to be limited to a delegation of “a power ‘tradition- ally exclusively reserved to the State.’ ” 1404 Public function did play an important part, however, in the Court’s finding state action in the exercise of peremptory challenges in jury selection by non-governmental parties. Using tests developed in an earlier case involving garnishment and attachment, 1405 the Court found state action in the racially discriminatory use of such chal- lenges during voir dire in a civil case.
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