Also known as: governmental functions · government function · public function
Written by attorneys — see sources below.
A government agency's conduct that is expressly or impliedly mandated or authorized by constitution, statute, or other law and that is carried out for the benefit of the general public. Traditional examples include police and fire protection as well as jury selection and waste management when performed by public entities.
The city of Riverton enacted an ordinance requiring all construction debris to be taken to its municipally owned recovery center. Gable Construction attempted to haul debris to a private out-of-state recycler instead. The ordinance survived Dormant Commerce Clause challenge because it directed waste to a public facility performing a traditional governmental function rather than favoring private operators.
In a civil contract dispute between Gabriel Gonzalez and Griffin Industries, Gonzalez used peremptory challenges to strike all prospective jurors of one race. The court held that the strikes constituted state action because jury selection is a traditional public function performed with significant judicial participation, so the challenges could not be exercised in a racially discriminatory manner.
The city operated its own public bus system. City transit workers sued for overtime under the Fair Labor Standards Act. The court upheld application of the federal statute because the traditional governmental functions test had been rejected as unworkable and Congress may regulate states and private entities alike under the Commerce Clause.
After Greta Goldstein was assaulted on a state university campus, she sued the attacker under a federal statute creating a civil remedy for gender-motivated violence. The court struck down the statute because the underlying conduct did not involve a governmental function traditionally performed by states and therefore fell outside Congress's enforcement power under the Fourteenth Amendment.
In September 1994 Christy Brzonkala enrolled as a student at Virginia Polytechnic Institute and State University. Within thirty minutes of meeting fellow students Antonio Morrison and James Crawford, both members of the varsity football team, Brzonkala alleges that the two men assaulted and repeatedly raped her. Morrison allegedly told Brzonkala after the attack that she had better not have any diseases. He later announced in a dormitory dining room that he liked to get girls drunk and made other vulgar remarks about women. Brzonkala became severely emotionally disturbed and depressed after the incident. She sought assistance from a university psychiatrist who prescribed antidepressant medication. She stopped attending classes and withdrew from the university. In early 1995 she filed a complaint against Morrison and Crawford under the university's Sexual Assault Policy. Virginia Tech conducted a hearing under its Sexual Assault Policy and a second hearing under its Abusive Conduct Policy. The first found Morrison guilty of sexual assault and suspended him for two semesters. The second hearing again found him guilty but changed the offense description to using abusive language. University officials later set aside the punishment. In December 1995 Brzonkala sued Morrison, Crawford, and Virginia Tech in the United States District Court for the Western District of Virginia. Her complaint alleged that the attack violated 42 U.S.C. §13981, the civil remedy provision of the Violence Against Women Act of 1994, which creates a federal cause of action for compensatory and punitive damages against persons who commit crimes of violence motivated by gender. She also asserted Title IX claims against the university. The district court dismissed the Title IX claims for failure to state a claim. It also dismissed the §13981 claim on the ground that Congress lacked authority to enact the provision under either the Commerce Clause or Section 5 of the Fourteenth Amendment. A divided panel of the Fourth Circuit reversed in part, but the en banc Fourth Circuit affirmed the district court's conclusion that Congress lacked constitutional authority to enact §13981. The Supreme Court granted certiorari to determine the constitutionality of the civil remedy provision.
View caseHawaii's housing authority condemned large tracts of land owned by a few private landowners to redistribute fee simple titles to residents. The landowners challenged the takings as lacking public use. The court upheld the condemnations because determining whether redistribution serves a public purpose is a legislative judgment about governmental functions that courts will not second-guess.
The Hawaiian Islands were originally settled by Polynesian immigrants from the western Pacific. These settlers developed an economy around a feudal land tenure system in which one island high chief, the ali’i nui, controlled the land and assigned it for development to certain subchiefs. The subchiefs would then reassign the land to other lower ranking chiefs. All land was held at the will of the ali’i nui and eventually had to be returned to his trust. There was no private ownership of land. Beginning in the early 1800s, Hawaiian leaders and American settlers repeatedly attempted to divide the lands of the kingdom among the crown, the chiefs, and the common people. These efforts proved largely unsuccessful, however, and the land remained in the hands of a few. In the mid-1960s, after extensive hearings, the Hawaii Legislature discovered that the State and Federal Governments owned almost 49 percent of the State’s land while another 47 percent was in the hands of only 72 private landowners. The legislature further found that 18 landholders with tracts of 21,000 acres or more owned more than 40 percent of this land. The legislature concluded that concentrated land ownership was responsible for skewing the State’s residential fee simple market, inflating land prices, and injuring the public tranquility and welfare. To redress these problems, the legislature enacted the Land Reform Act of 1967. The Act created a mechanism for condemning residential tracts and transferring ownership of the condemned fees simple to existing lessees. In April 1977, the Hawaii Housing Authority held a public hearing concerning the proposed acquisition of some of appellees’ lands. It made the statutorily required finding that acquisition would effectuate the public purposes of the Act. In October 1978, it directed appellees to negotiate with lessees. When negotiations failed, the Authority ordered appellees to submit to compulsory arbitration. Rather than comply with the compulsory arbitration order, appellees filed suit in February 1979 in United States District Court. They asked that the Act be declared unconstitutional and that its enforcement be enjoined. The District Court temporarily restrained the State from proceeding against appellees’ estates. Three months later, while declaring the compulsory arbitration and compensation formulae provisions of the Act unconstitutional, the District Court refused preliminarily to enjoin appellants from conducting the statutory designation and condemnation proceedings. Finally, in December 1979, it granted partial summary judgment to appellants, holding the remaining portion of the Act constitutional under the Public Use Clause. The Court of Appeals for the Ninth Circuit reversed. On applications of HHA and private appellants, the Supreme Court noted probable jurisdiction.
View caseThe City of New London condemned waterfront property owned by private residents to assemble land for a mixed-use development project expected to increase tax revenue. The owners argued the takings served no public use. The court upheld the condemnations because legislative judgments about what constitutes a governmental function in promoting economic development receive substantial deference.
In the late 1990s the city of New London, Connecticut, confronted severe economic decline after the 1996 closure of the Naval Undersea Warfare Center, which had employed more than 1,500 people. The city's unemployment rate stood nearly double the state average and its population had dropped below 24,000 residents from a 1970 high of 30,000. State and local officials therefore designated the Fort Trumbull peninsula for targeted economic revitalization. In 1998 the New London Development Corporation, a private nonprofit entity, was reactivated to prepare a redevelopment plan covering roughly 90 acres. The plan divided the area into seven parcels designated for a waterfront conference hotel and marinas, retail and entertainment space, research and office facilities, parking and park support, residential units, a Coast Guard museum, and additional office and retail uses. The city council formally approved the plan in January 2000 and authorized the NLDC to acquire needed parcels by purchase or, if necessary, by eminent domain. Petitioners Susette Kelo, Wilhelmina Dery, and seven other owners held fifteen properties within parcels 3 and 4A; ten of those parcels were occupied by the owners or their family members and none was alleged to be blighted. After negotiations with the NLDC failed, the corporation initiated condemnation proceedings against the remaining properties in November 2000. In December 2000 the petitioners filed suit in New London Superior Court asserting that the proposed takings violated the public-use limitation of the Fifth Amendment. Following a seven-day bench trial the Superior Court entered a permanent restraining order barring condemnation of the parcel 4A properties but denied relief as to the parcel 3 properties. Both sides appealed to the Connecticut Supreme Court, which upheld the validity of all challenged takings. The United States Supreme Court granted certiorari to review the federal constitutional question.
View caseA flow-control ordinance directing waste exclusively to a government-owned facility performing a traditional governmental function receives lenient review because the favoritism is presumed to serve legitimate public objectives rather than economic protectionism.
Yes. Jury selection is a traditional public function conducted with significant court participation, so private litigants exercising peremptory challenges in civil cases engage in state action and may not discriminate on the basis of race.
No. The test was rejected as unworkable. States are protected from federal overreach primarily through the political process rather than judicially defined spheres of traditional governmental functions.