Gale Encyclopedia Of American Law 3Rd Edition Volume 5 P36 doc

implement pieces of his liberal agenda. He secured the passage of the first municipal fair employment act in the United States and gained additional funds for public housing and welfare. Humphrey galvanized liberal Democrats in 1948 at the Democratic Nation al Convention. Southern Democrats on the platform commit- tee had rejected President Harry S. Truman’s CIVIL RIGHTS proposals. Humphrey, a delegate to the convention and a candidate for the U.S. Senate, led a fight from the convention floor to restore the civil rights plank. His passionate oratory helped bring back the proposals and fixed in the public mind the image of Hum- phrey as a fiery liberal, an image he would evoke the rest of his public career. He was elected to the Senate in 1948, and found that his aggressive style clashed with the gentleman’s-club atmosphere of that institu- tion. A quick learner, he sought the mentorship of LYNDON JOHNSON, soon to be Senate majority leader. Humphrey was reelected to the Senat e in 1954 and 1960. In 1960, along with Senator JOHN F. KENNEDY and Johnson, he sought the Democratic presidential nomination. Following victories by Kennedy in the Wisconsin and West Virginia primaries, Humphrey droppe d out of the race and stood for reelection to the Senate. During the Kennedy administration, Hum- phrey displayed his command of parliamentary procedure and political persuasion. He became assistant majority leader and helped pass the LIMITED TEST BAN TREATY of 1963. Following Kennedy’s ASSASSINATION in November 1963, Humphrey worked closely with President John- son to pass the many pieces of social welfare legislation that Johnson dubbed his GREAT SOCIETY program. Humphrey’s plan for provid- ing federal medical insurance to older people, called Medicare, was enacted. Most important, Humphrey played a critical role in securing the passage of the Civil Rights Act of 1964 (42 U.S.C.A. § 2000a et seq.). In 1964 Johnson selected Humphrey as his vice presidential running mate. Johnson’s landslide victory over conservative Republican BARRY M. GOLDWATER promised more liberal legislation. Humphrey worked to enhance civil rights for minorities and increase economic opportunities. But the political climate turned sour with rising protests over Johnson’s escala- tion of U.S. involvement in Vietnam. Humphrey, who initially doubted the wisdom of U.S. military intervention, became an energetic and unrepentant advocate of John- son’s policies. Humphrey had always dreamed of becom- ing president. When President Johnson an- nounced in March 1968 that he would no t seek reelection, Humphrey entered the race against Senator EUGENE MCCARTHY, of Minnesota, and Senator ROBERT F. KENNEDY, of New York. McCarthy, a longtime friend and ally of Humphrey’s, opposed the Vietnam War, as did Kennedy. Humphrey continued to support it. By May Humphrey had secured enough delegates to win the nomination. In June Kennedy was assassinated. The Democratic National Convention, in Chicago, was a debacle. Confrontations between antiwar demonstrators and Chicago police officers led to a series of violent outbursts by the police. Though Humphrey won the nomi- nation, he remained staunchly loyal to Johnson and refused to make a clean break on Vietnam policy, which would have won votes from disaffected Democrats. In November Republi- can RICHARD M . NIXON won the election with 301 electoral votes to Humphrey’s 191. Humphrey lost the popular vote by less than one percent. Following his defeat Humphrey returned to Minnesota and taught again at Macalester College. In 1970 he was reelected to the Senate. In 1972 he campaigned unsuccessfully for the Democratic presiden tial nomination. Reelected to the Senate again in 1976, Humphrey soon was engaged in a personal battle with cancer. He died at his home in Waverly, Minnesota, on January 13, 1978. FURTHER READINGS Halberstam, David. 1993. The Best and the Brightest. New York: Ballantine. Humphrey, Hubert H. 1991. The Education of a Public Man: My Life and Politics. Minneapolis: Univ. of Minnesota Press. Mann, Robert. 1997. The Walls of Jericho: Lyndon Johnson, Hubert Humphrey, Richard Russell, and the Struggle for Civil Rights. Boston: Mariner. O’Neill, William L. 2005. Coming Apart: An Informal History of America in the 1960s. Chicago: Dee. HUNDRED A political subdivision in old England. Under the Saxons, each shire or county in England was divided into a number of THERE ARE NOT ENOUGH JAILS , NOT ENOUGH POLICEMEN , NOT ENOUGH COURTS TO ENFORCE A LAW NOT SUPPORTED BY THE PEOPLE . —HUBERT H. H UMPHREY GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 338 HUNDRED hundreds, which were made up of ten tithings each. The tithings were groups of ten families of freeholders. The hundred was governed by a high constable and had its own local court called the Hundred Court. The most remark- able feature of the hundred was the collectiv e responsibility of all the inhabitants for the crimes or defaults of any individual member. HUNG JURY A trial jury duly selected to make a decision in a criminal case regarding a defendant’s guilt or innocence, but who are unable to reach a verdict due to a complete division in opinion. When a jury has been given an adequate opportunity to deliberate and is unable to reach a VERDICT, a retrial takes place at the discretion of the prosecution. The subsequent trial does not constitute a violation of the constitu tional prohibition of DOUBLE JEOPARDY. v HUNT, WARD The legal career of WARD HUNT peaked when he was appointed to the U.S. Supreme Court by President ULYSSES S. GRANT in 1873. Hunt held a seat on the High Court for nine years, until January 1882. Although he was well liked and respected as a diligent lawyer and jurist, Ward’s tenure on the Court was unspectacular and marked by a forced retirement. Hunt was born June 14, 1810, in Utica, New York, to Montgomery Hunt and Elizabeth Stringham Hunt. He studied at the Oxford Academy, in England and the Geneva Academy, in Switzerland. In 1828 he graduated with honors from Union College, in Schenectady, New York. He attended law school in Litchfield, Connecticut. He returned to Utica to work in a local law office, and was admitted to the bar in 1831. Hunt married Mary Ann Savage in 1837, and they raised three children until her death in 1845. Eight years later h e married Maria Taylor. With his partner, Hiram Denio, Hunt ran a successf ul law practice in Utica for 31 years. While practicing law Hunt became active in politics. He su pported the policies of ANDREW JACKSON, who defended the interests of themiddleclassandservedtwotermsas Ward Hunt. PHOTOGRAPH BY MATHEW BRADY. COLLECTION OF THE SUPREME COURT OF THE UNITED STATES. Ward Hunt 1810–1886 ❖ ❖ 1810 Born, Utica, N.Y. ◆ 1828 Graduated from Union College ◆ 1831 Admitted to New York bar 1861–65 U.S. Civil War ▼▼ ▼▼ 18001800 18501850 18751875 19001900 18251825 1838 Elected to New York legislature 1865–69 Served on the New York Court of Appeals 1886 Died, Washington, D.C. 1882 Congress passed bill giving Hunt early retirement with full benefits; Hunt retired 1812–14 War of 1812 ◆◆ ◆ 1844 Elected mayor of Utica, N.Y. 1855 Helped form Republican Party in New York State 1879 Suffered a stroke, which left him unable to participate in Court sessions, but did not resign from bench 1873–82 Served as associate justice of the U.S. Supreme Court 1870 15th Amendment ratified 1869–73 Served on New York Commission of Appeals ◆ ◆◆ ◆ 1875 Wrote dissenting opinion in United States v. Reese GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION HUNT, WARD 339 president. In 1838 Hunt was elected to the New York legislature, where he served one term, and in 1844 h e was elected mayor of Utica. In the 1840s Hunt came to differ with the DEMOCRATIC PARTY when he opposed the expan- sion of SLAVERY and the annexation of Texas. In 1848 Hunt supported the Free-Soil presidential candidacy of ex-Democrat and ex-president MARTIN VAN BUREN, who was defeated. Hunt ran for a spot on the New York Supreme Court in 1853, but he lost the election, a result that observers attributed to his defection from the Democratic party. In 1855 Hunt helped to form the REPUBLICAN PARTY in the state of New York. As a Republican he was elected to the New York Court of Appeals in 1865. After three years on the New York Court of Appeals, Hunt was promoted to chief justice. A year later, in 1869, the New York court system was reorganized by an amendment to the state constitution, and Hunt was named commis- sioner of appeals. He held that position for three years, until January 1873, when he replaced fellow New Yorker SAMUEL NELSON as an associate justice on the U.S. Supreme Court. Hunt had strong ties to the Republican party, and he had risen in the judicial ranks along with the party. At that time the Republi- can party promoted expansive federal powers. These powers were critical to the abolition of slavery and the defeat of the Confederate forces in the Civil War. However, by the mid-1870s, the nation’s appreciation of federal power had waned, and the judiciary began to emphasize the rights of the states. Perhaps as a result of this shift, Hunt, with his Republican views, authored few major opinions. Hunt delivered his most memorable opin- ion in United States v. Reese, 92 U.S. (2 Otto) 214, 23 L. Ed. 563 (1875). In Reese the High Court struck down parts of the Enforcement Act of 1870, a federal act passed to ensure that African Americans would be allowed to vote. The act had been passed by Congress pursuant to the FIFTEENTH AMENDMENT, which provides, “The right of citizens of the United States to vote shall not be den ied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” Reese was brought by the U.S. government against two inspectors at a municipal election in Kentucky, alleging that they had refused to receive and count the vote of William Garner, an African American. According to the majority in Reese, the Fifteenth Amendment did not confer on all adult citizens the right to vote. Rather, it merely prevented the state and federal governments from denying the right to vote based on race, color, or previous condition of servitude. Therefore, it was not within the power of the federal government to require that states give the vote to all adult citizens. Because parts of the Enforcement Act did not limit the application of criminal penalties to wrongful refusals based on race, the Court ruled that those parts unconstitutionally infringed on the powers of the states. Hunt was the only dissenting justice. He argued that the Fifteenth Amendment was intended to confer on all persons the same political rights given to white persons. The guarantee of the right to vote, according to Hunt, was one of those rights. He declared that the persons affected in the case “were citizens of the United States” and that the subject of the case “was the right of these persons to vote, not at specified elections or for specified officers, not for federal officers or for state officers, but the right to vote in its broadest terms.” Hunt mournfully concluded that the majority’s holding brought “to an impotent conclus ion the vigorous amendments on the subject of slavery.” Hunt’s defense of African American rights appeared to be short-lived. In another case dealing with the Enforcement Act and decided the same month as Reese, he sided with the majority in refusing to enforce the rights of African Americans. In United States v. Cruik- shank, 92 U.S. (2 Otto) 542, 23 L. Ed. 588 (1875), approximately 100 defendants were alleged to have assaulted two African American men in an attempt to keep the men from voting in a Louisiana state election. This ASSAULT violated provisions of the Enforcement Act that made it a federal offense for persons to band together to prevent a person from exercising any right guaranteed by the Constitution or federal law. The defendants were charged with viola- tions of the Enforcement Act and convicted at trial, but their convictions were overturned by a U.S. circuit court. On appeal by the United States, the Supreme Court held that legislation THE CITIZEN OF THIS COUNTRY WHERE NEARLY EVERYTHING IS SUBMITTED TO THE POPULAR TEST AND WHERE OFFICE IS EAGERLY SOUGHT , WHO POSSESSES THE RIGHT TO VOTE , HOLDS A POWERFUL INSTRUMENT FOR HIS OWN ADVANTAGE . —WARD HUNT GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 340 HUNT, WARD concerning the right to free assembly under the FIRST AMENDMENT was a matter reserved to the states, not to the federal government, and that Congress did not have the right to pass legislation on the matter. In response to the federal government’s argument that in this case the mob had intended to prevent the two men from voting on account of their race, the Court declared, “[W]e may suspect that race was the cause of the hostility; but it is not so averred.” Hunt could have dissented based on the same reasoning he used in his dissent in Reese, but he did not. Hunt’s failure to dissent in the Cruikshank case can be explained, in part, by his devotion to precedent. Hunt firmly believed that cases should be decided in accordance with the reasoning employed in previous cases. Because the Court in Reese had already struck down portions of the Enforcement Act, further attempts to prosecute under the act would meet a similar fate. Hunt fell ill with gout in 1877 and missed many Court sessions. In January 1879 he suf- fered a paralytic stroke that left him temporarily speechless and permanently disabled on one side of his body. Hunt became too sick to function as a justice, but he refused to resign because he had not served long enough to qualify for a pension. In addition, Hunt’s sponsor, Senator ROSCOE CONKLING, of New York, was quarreling with President RUTHERFORD B. HAYES, and Hunt did not want to let Hayes appoint Hunt’s successor to the Court. Finally, three years after his stroke, Congress passed a special retirement bill that gave Hunt a pension if he agreed to resign within 30 days. Hunt resigned in January 1882, on the day the bill became law. He died March 24, 1886, in Washington, D.C. FURTHER READINGS Friedman, Leon, and Fred L. Israel, eds. 1995. The Justices of the United States Supreme Court: Their Lives and Major Opinions, Volumes I–V. New York: Chelsea House. “Horace Gray.” 1992. The Supreme Court of the United States: Its Beginnings and Its Justices, 1790–1991. Washington, D.C.: Commission of the Bicentennial of the U.S. Constitution, Library of Congress. Lurie, Jonathan. 2004. The Chase Court: Justices, Rulings, and Legacy. Denver, CO: ABC-CLIO. v HUNTER, ELMO BOLTON Elmo Bolton Hunter, a federal judge, was a leader in national efforts to take party politics out of the state courts through the adoption of judicial merit selection programs. (Under most merit selection systems, a nonpartisan commis- sion of lawyers and nonlawyers evaluates candidates for judicial vacancies and sends recommendations to, usually, a governor, who makes appointments.) In 1990 the American Judicature Society (AJS) funded the first national clearinghouse for information on merit selection; located at AJS headquarters in Chi- cago, it is known as the ELMO B. HUNTER Center for Judicial Selection. The AJS also gives the Elmo B. Hunter Award annually to a person who has made significant improvement in the judicial selection process. Hunter was born in St. Louis on October 23, 1915. He attended the University of Missouri, at Columbia, receiving a ba chelor of arts degree in 1936 and a bachelor of laws degree in 1938. Elected to Phi Beta Kappa as an undergraduate, ▼▼ ▼▼ Elmo Bolton Hunter 1915–2003 1950 1975 2000 1925 ❖ ❖ ◆ ◆ ◆ ◆ ◆◆ ◆◆ ◆ 1915 Born, St. Louis, Mo. 1914–18 World War I 1939–45 World War II 1938 Earned LL.B. from University of Missouri–Columbia 1938–39 Clerked for Judge Kimbrough Stone Sr. 1942–45 Served in U.S. Army as an intelligence officer 1951 Appointed to Mo. state circuit court 1957 Appointed to Kansas City (Mo.) Court of Appeals 1965 Appointed to U.S. District Court for the Western District of Missouri 1969 Joined U.S. Judicial Conference's Committee on Court Administration ◆ 1978 Named chair of Court Administration committee 1987 Received Devitt Distinguished Service to Justice Award 2003 Died, Lee’s Summit, Mo. 2000 Received AJS Distinguished Service Award 1980 Wrote ruling in State of Missouri v. National Organization for Women, Inc.; took senior (semiretired) status 1966 Joined American Judicature Society (AJS) board 1950–53 Korean War 1961–73 Vietnam War GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION HUNTER, ELMO BOLTON 341 he continued his academic excellence in law school. Hunter graduated first in his class and was elected to the ORDER OF THE COIF. He was also a member of the LAW REVIEW and author of numerous articles. In his final year of law school, Hunter was chosen by the Board of Curators of the University of Missouri to receive the Judge Shepard Barclay Award for “the greatest contri- bution in moral leadership to the school.” Also in 1938, Hunter was selected by the board to represent the University of Missouri—and the state of Missouri—in the Rhodes Scholarship selection competition. Hunter was admitted to the Missouri bar in 1938 and to the federal bar in 1939. He served as a law clerk to Judge Kimbrough Stone Sr. from 1938 to 1939. Following his ADMISSION TO THE BAR and clerkship, he accepted a position as senior assistant city counselor for Kansas City, Missouri. He left the position in 1940 to pursue graduate work in law, under a Cook Fellowship, at the University of Michigan. In 1941 Hunter took a job as special assistant to the U.S. district attorney for the Western District of Missouri and Kansas, where he pro- secuted war FRAUD cases. After a year he joined theU.S.Army,andheservedinmilitary intelligence at the rank of first lieutenant from 1942 to 1945. After WORLD WAR II he joined the firm of Sebree, Shook, Hardy, and Hunter, and began the PRACTICE OF LAW. He also married Shirley Arnold during these years and fathered his only child, Nancy A. Hunter. Hunter gave up the practice of law w hen he was appointed to the state circuit court by Governor Forrest Smith on December 12, 1951. Along with his new judicial duties, Hunter began a ten-year stint as a law instructor at the University of Missouri in 1952. For his work he received the university’s Outstanding Alumni Service Award in 1955. In 1957 he was appointed to the Kansas City Court of Appeals. Following his appoint- ment, Hunter served, by special order, as special judge to the Missouri Supreme Court, and he often sat with the Springfield Court of Appeals and the St. Louis Court of Appeals—and therefore served on every appellate court in the state of Missouri. He also saw every type and variation of political influence brought to bear on the judges and courts in Missouri. During his years of service in the Missouri courts, he developed an interest in both the judicial selection process and the improved administra- tion of justice. In August 1965 President LYNDON B. JOHNSON appointed Hunter U.S. district judge for the Western District of Missouri. It was as a federal judge that Hunter began his distinguished commitment to the AJS. He served on the board of the AJS in 1966 and was elected vice president in 1967. He went on to serve as president, and he is the only person in the history of the AJS to have served as both president and chairman of the board, which he did simultaneously in 1969 and 1970. As an AJS leader, Hunter spearheaded the organization ’s national efforts to promote merit selection systems for judges. He traveled across the United States to promote the concept and practice of merit selection, and he participated in hundreds of citizen conferences to discuss the issue. In conjunction with his efforts to promote merit selection, he was largely respon- sible for Who Shall Judge (1974), the film narrated by E. G. Marshall. In recognition of the role he played in citizen education on this important issue, Hunter received the AJS Herbert Harley Award in 1975. As a federal judge, Hunter made his pre- sence felt within the U.S. Judicial Conference, which establishes the standards and shapes the policies governing the federal judiciary. Hunter became a member of the Judicial Conference’s Committee on Court Administration in 1969 and was named committee chairman in 1978. His appointment as chairman followed his term as chairman of the Subcommittee on Judicial Improvements from 1976 to 1978. Former chief justice WARREN E. BURGER said Hunter was “a credit to all judges who recognize that the delivery of our product is at least as important as the quality of it.” Hunter took senior (or semi-retired) status in 1980, shortly after handing down his noteworthy ruling that the NATIONAL ORGANIZA- TION FOR WOMEN was within its rights in promoting an economic boycott of Missouri because the state had not approved the proposed EQUAL RIGHTS AMENDMENT (State of Missouri v. National Organization for Women, Inc., 620 F.2d 1301 [8th Cir. 1980]). As a senior judge, Hunter heard the case of a Los Angeles drug dealer IT IS APPARENT THAT THERE MUST BE A DRAMATIC CHANGE IN PROCEDURE RELATING TO THE PREPARATION OF CASES FOR TRIAL IN ORDER TO EFFECT A SAVING IN COURT TIME , JURY EXPENSE, LAST-MINUTE SETTLEMENT , EXPENSES OF EXPERT WITNESSES , AND MANY OTHER FACTORS . —ELMO BOLTON HUNTER GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 342 HUNTER, ELMO BOLTON caught with PCP at the Kansas City Airport. He sentenced the DEFENDANT to life in prison without parole, marking the first time a federal judge applied the mandatory penalty under the U.S. three-strikes drug law (21 U.S.C.A. § 841 [2000]). Though many said the law violated constitutional protection against CRUEL AND UNUSUAL PUNISHMENT , Hunter disagreed. “I thought about the constitutional aspects,” said Hunter. “I am satisfied that the statute is lawful.” In 1987 Hunter received the Devitt Distin- guished Service to Justice Award. This award— named for Edward J. Devitt, former chief U.S. district judge for Minnesota—acknowledges the dedication and contributions to justice made by all federal judges, by recognizing the specific achievements of one judge who has contributed significantly to the profession. Hunter was acknowledged for his devotion to public education and to the administration of justic e. Devitt said, “[Hunter] has been the mainstay in the judiciary’s self-improvement efforts for more than 20 years.” In 1991 the AJS established the Elmo B. Hunter Citizens Center for Judicial Selection. The center conducts and distributes empirical research on a wide range of issues related to judicial selection. In 2000 the AJS honored Hunter with its Distinguished Service Award, given for significant contrib utions to the AJS and the nation in promoting the effective administration of justice. Hunter died on December 27, 2003, in Lee’s Summit, Missouri. He continued to serve as a judge until the time of his death. FURTHER READINGS “AJS Honors Two Who Serve the Judiciary.” The Third Branch. Available online at http://www.uscourts.gov/ ttb/april00ttb/ajshonor.html; website home page: http:// www.uscourts.gov (accessed July 31, 2009). American Judicature Society. “About the Elmo B. Hunter Citizens Center for Judicial Selection.” Available online at http://www.ajs.org/selection/sel_about.asp; website home page: http://www.ajs.org (accessed December 29, 2009). Morris, Mark. 2003. “Judge Elmo Hunter Dies at the Age of 88.” Kansas City Star. December 29. CROSS REFERENCE Judicial Conference of the United States. HUNTING The regulation of hunting is a matter reserved to the states as part of their POLICE POWER under the TENTH AMENDMENT to the U.S. Constitution (Totemoff v. Alaska, 905 P .2d 954 [Alaska 1995]). Congress maintains statutes that regulate hunting on federal land. States may further regulate the federal lands located within their boundaries so long as their laws do not conflict with federal laws. South Dakota and Georgia illustrate the sort of hunting laws typically maintained by a state. In South Dakota hunting is regulated by Title 41 of the South Dakota Codified Laws Annotated, Section 41-1-1 et seq. Under Title 41 hunters must obtain from the game, fish, and parks commission a license for the privilege of hunting in South Dakota. Other states maintain similar commissions or boards to implement licensing procedures and policies. Licensing parameters vary from state to state. Most states have minimum age require- ments. In South Dakota, for example, no person under the age of 12 may obtain a license, but an 11-year-old may obtain a license to hunt between September 1 and December 31 if he or she will turn 12 in that period. A child under the age of 16 may obtain a basic game and fish license without cost, but only if he or she has completed a firearms safety course. A parent of the child must apply for the license, and the child may A young hunter with a brace of pheasants. Many states have minimum age requirements for hunting licenses and require completion of a firearm safety course for young applicants. CORBIS. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION HUNTING 343 hunt only with a parent, guardian, or responsible adult (§ 41-6-13). In Georgia any person over the age of 12 may hunt on his or her own land. If a person between the ages of 12 and 15 seeks to hunt, he or she must complete a hunter education course, and then may hunt only with a parent or guardian. This is true even for children between the ages of 12 and 15 who are hunting on the land of their parents or guardians. A person between the ages of 16 and 25 must also complete a hunter education course before obtaining a hunting license. States may make licensing exceptions for certain persons. In Georgia, for example, persons over the age of 65 may receive a hunting license without paying a fee. Further- more, persons who are permanently and totally disabled may obtain a hunting or fishing license for free (Ga. Code Ann. § 27-2-4 [1996]). In some states an additional license must be obtained to hunt certain animals whose popula- tions are of concern to the state. In South Dakota these animals are small game, big game, fur-bearing animals, and migratory waterfowl. An additional license is required for these animals so that the commission can keep track of the number of persons hunting them and conserve their populations. To control animal populations, state licens- ing commissions also allow the hunting of certain animals only at certain times of the year. These time periods are called open seasons, and they are set each year by the state regulatory commission. Open seasons limitations some- times come with special exceptions. In South Dakota, for example, residents do not need a license to hunt game birds on their own land during an open season. Most states place separate restrictions on resident versus nonresident licensing and hunt- ing for certain animals. In South Dakota, for example, nonresidents may hunt only if they have obtained a special nonresident license. A nonresident may hunt small and big game, waterfowl, and wild turkey. A nonresident must obtain a nonresident predator license to hunt predators, but if the nonresident has a nonresi- dent small-game, big-game, waterfowl, or wild turkey license, the nonresident may hunt predators in the animal group authorized by that license without a separate nonresident predator license (S.D. Codified Laws Ann. § 41-6-30). Predators include jackrabbits, prairie dogs, gophers, ground squirrels, coyotes, red foxes, gray foxes, skunks, crows, and porcupines. States may place additional restrictions on the hunting of certain animals. In Georgia, for example, feral hogs may be hunted only in certain situations. For instance, a hunter may not shoot a feral hog during deer seas on unless the hunter and all persons accompanying the hunter are each wearing a total of at least 500 square inches of daylight florescent orange material as an outer garment above the waistline. In South Dakota fur-bearing animals are completely off-limits to nonresidents. No person may apply for a license to take protected fur-bearing animals unless he or she has lived in the state for 90 days prior to the application date (§ 41-6-24). State hunting statutes also specify standards for firearm power. In South Dakota, for example, no one may hunt big game with a muzzle loading rifle that discharges a projectile less than forty-four hundredths of an inch in diameter. No one may hunt big game with buckshot, or with a single ball or rifled slug weighing less than one-half ounce. No self- loading or autoloading firearm that holds more than six cartridges may be used to hunt big game, and no fully automatic weapons may be used to hunt big or small game (§ 41-8-10, -13). States may enact a variety of other restric- tions on hunting. In Georgia, at night, no person may hunt any game bird or game animal except for raccoon, opossums, foxes, and bobcats. Those animals may be hunted at night, but only with a lantern or a light that does not exceed six volts (Ga. Code Ann. § 27-3-24). In South Dakota no dogs may be used in the hunting of big game, no person may use salt to entice big game, and no person may use artificial light in hunting (S.D. Codified Laws Ann. § 41-8-15, -16). However, an animal damage control officer may use an artificial light to take a nuisance animal from land, with the landowner’s written permission (§ 41-8-17(3)). Most states consider hunting a right of residents and a valuab le promotional tool for tourism. Many states even have hunter harass- ment statutes, which punish persons for intentionally distracting hunters. Under such statutes a person may be arrested and prosecut- ed for attempting to discourage hunters or drive away game. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 344 HUNTING FURTHER READINGS Cottriel, Darren K. 1996. “The Right to Hunt in the Twenty- First Century: Can the Public Trust Doctrine Save an American Tradition?” Pacific Law Journal 27 (spring). “Ruling Sought on Indian Hunting, Fishing Rules.” September 17, 2003. CNN.com: U.S. News. Ugalde, Aileen M. 1996. “The Right to Arm Bears: Activists’ Protests against Hunting.” Univ. of Miami Law Review 45. CROSS REFERENCE Fish and Fishing. HUNTLEY HEARING In New York state, a separate proceedin g in a criminal action conducted solely for the purpose of determining the admissibility of the extrajudicial statements made by the defendant. The name Huntley hearing is derived from the case of People v. Huntley, 15 N.Y. 2d 72, 255 N.Y.S. 2d 838, 204 N.E. 2d 179 (1965), which set forth the hearing requirement. HURTADO V. CALIFORNIA An 1884 decision of the Supreme Court, Hurtado v. California, 110 U.S. 516, 4 S. Ct. 111, 28 L. Ed. 232, held that states are not required to comply with the FIFTH AMENDMENT provision that a criminal prosecution be initiated by an indictment by a GRAND JURY. The constitution of California and various penal statutes provided for the prosecution of a person charged with an offense by information after a PRELIMINARY HEARING before a magistrate with rights to counsel and to cross-examine witnesses, or by indictment with or without a preliminary hearing. In February 1882, the district attorney of Sacramento County filed an information against Joseph Hurtado, charg- ing him with the MURDER of Jose Stuardo. Hurtado was arraigned, tried, convicted of the crime, and sentenced to death. He unsuccess- fully appealed his conviction throughout state appellate courts and brought a writ of error before the SUPREME COURT OF THE UNITED STATES. Hurtado alleged that his conviction and sentence were void because they were obtained in violation of his rights to DUE PROCESS OF LAW as guaranteed by the FOURTEENTH AMENDMENT.He was convicted and sentenced on the basis of an information, not an indictment or presentment by a grand jury as required by the Fifth Amendment and, therefore, was depriv ed by the state of his liberty without due process. After reviewing English treatises and nu- merous cases construing the term due process of law, the Court affirmed Hurtado’s conviction. Only persons accused of federal crimes are entitled to a presentment or indictment of a grand jury. The Court refused to decla re the proceedings that led to Hurtado’s conviction under state law as violative of due process of law. Like an indictment, the information was “merely a preliminary proceeding,” which would bring about a final judgment only as a consequence of a regular trial. Since it served the substantial interest of the prisoner and protected the principles of liberty and justice in a manner comparable to an indictment or presentment by a grand jury, an information satisfied the requirements of due process as guaranteed by the Constitution. The effect of this decision—that the Four- teenth Amendment guarantee of due process of law does not mandate that an indictmen t or presentment to a grand jury is necessary for a conviction under state criminal laws to be upheld as legally valid—is still the law after more than 100 years. HUSBAND AND WIFE A man and woman who are legally married to one another and are thereby given by law specific rights and duties resulting from that relationship. The U.S. legal concept of MARRIAGE is founded in English common law. Under common law, when a man and woman married, they became a single person in the eyes of the law—that person being the husband. The duties and benefits afforded a married woman, as well as the restrictions on her freedom, reflected this view. Even in the early twenty-first century, although the EQUAL PROTECTION Clause provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws” (U.S. Const. amend. 14, § 1), the U.S. Supreme Court has never interpreted this to mean that states must treat husbands and wives the same. There is a strong public policy in favor of marriage. Because of this, a husband and wife are not always able t o determine their duties and privile ges toward one ano ther; instead, these rights and responsibilities are set forth by special legal principles that define the para- meters within which husbands and wives must act. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION HUSBAND AND WIFE 345 However, the very concept of the terms husband and wife became nebulous as four states passed laws granting marriages to same- sex couples (Massachusetts in 2004, Conn ecti- cut in 2008, Iowa in 2009, and Vermont in 2009). California voters reversed a court ruling in favor of same-sex marriages in November 2008 (see below). Support Under common law, because it was unusual for a wife to have a job and earn her own money, a husband was obliged to provide his wife with “necessaries”—which included food, clothing, and shelter—but only those he deemed appro- priate. In the early 2000s, judges have taken the support obligation further and construed the term “necessary” to include any item in furtherance of an established standard of living. Most jurisdictions make it a criminal offense for a spouse to fail to meet a support obligation. Criminal nonsupport statutes are created to prevent men and women from becoming public charges and are most fre- quently applied upon the dissolution of a marriage when a spouse does no t meet alimony and child-support obligations. Actions for support are rarely initiated by men, although an equal obligation of support applies. Property Historically wives were at a disadvantage as property owners. At common law, when a woman married, her personal posse ssions were considered to be the property of her husband. In addition, the husband was entitled to use the land she owned or subsequently inherited, and to retain rents and profits obtained from it. A married woman’s right to own property was not incorporated into U.S. law until the mid- nineteenth century, with the Married Women’s Property Acts. These laws allowed husbands to permit their spouses to own separate property. Women were also granted the right to enter contracts, sell land, write wills, sue and be sued, work without their husband’s permission and keep their earnings, and, in certain jurisdictions, sue for injuries caused by their husbands. Ordinarily, questions of who owns what property are brought to court only when a couple is obtaining a divorce. Courts are otherwise reluctant to become involved in property disputes between a husband and wife. Various systems exist in the United States to determine who owns property in a marriage: a majority of states recognize separate property, whereas some ad- here to COMMUNITY PROPERTY or equitable distribu- tion doctrines. The rule in separate-property states is that each person owns whatever items are in his or her name. In these states, various types of joint spousal ownership are recognized. A TENANCY BY THE ENTIRETY is a form of joint ownership whereby the husband and wife own all the property together. This type of arrangement ordinarily applies to real estate. In a tenancy by the entirety, neither spouse can sell the property or his or her interest in it independently. If the husband or wife dies, the remaining spouse has full survivorship rights. In states that adhere to community property laws (as of 2009, Arizona, California, Idaho, Nevada, New Mexico, Texas, Washington, and Wisconsin), the husband and wife are each given an equal interest in everything they own with the exception of the separate property of either individual. A majority of the property obtained by a husband and wife during a marriage is considered community property. State law defines precisely what is considered separate property. In general, separate property includes whatever each party brought to the marriage and anything either spouse individu- ally inherits during the marriage. Equitable distribution is a method of property distribution that considers both the economic and noneconomic contributions of each spouse to the marital relationship, as well as each spouse’s needs. It is based on the theory that a marriage should be regarded as a partnership of equal individuals. Disputes over property ownership may arise when one spouse dies. A majority of jurisdic- tions have eliminated the common-law rights of dower and curtesy, which require that a spouse receive a specific portion of an estate. As an alternative, when one party leaves a will that disinherits her or his spouse, the survivor ordinarily has the ri ght to acquire an ELECTIVE SHARE of the estate, which typically amounts to approximately one-third of its value. In some jurisdictions, this right is given only to a surviving wife. Elective shares do not prevent the dissipation of an estate prior to death. In separate-property states, if a husband or wife dies intestate (without leaving a will), statutes provide for the surviving spouse to GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 346 HUSBAND AND WIFE acquire a specified portion of the decedent’s property. A statute might, for example, pre- scribe that the surviving spouse can acquire a one-half interest in the estate. The size of the portion depends on whether there are surviving children. The distribution of property between a husband and wife might also be affected by a PREMARITAL AGREEMENT, also called an “ante- nuptial” or “prenuptial agreement.” Premarital agreements are typically entered into by a man and woman before they are married, to arrange for the distribution or preservation of property owned by each spouse in the event of divorce or death. Sexual Relationship The most unique aspects of the relationship between a husband and wife are the legal sanctions attached to their sexual relationship. A number of states will grant a divorce based on the ground that a husband or wife was denied sex by his or her spouse. Similarly, an individual is ordinarily able to obtain an annulment if his or her spouse is unable to engage in sexual relations. The right of the state to interfere with the marital sexual relationship is limited by the U.S. Constitution as interpreted by the Supreme Court. In the landmark case of Griswold v. Con- necticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965), the Court held that state statutes cannot unreasonably intrude into the marital sexual relationship. In this case, Connecticut was not allowed to enforce a statute that made it a crime for a physician to counsel married people on birth control. This w as viewed as an unreasonable intrusion into the marital sexual relationship, since the sanctity of the marital relationship would be invaded if the statute were enforced. The Court emphasized the significance and constitutional considerations of privacy in marriage. It was once thought that the degree of privacy to which a married couple is entitled could be restricted. Although some state statutes have used this reasoning to attempt to prohibit certain sex acts between a husband and wife, such as anal and oral sex, most courts have maintained that married couples have a consti- tutional privacy right over their marital sexual activities (Lovisi v. Zahradnick, 429 U.S. 977, 97 S. Ct. 485, 50 L. Ed. 2d 585) (1976). A husband and wife have the right to pur- chase and use birth control devices—although when an individual uses contraceptives or becomes sterilized contrary to his or her spouse’s wishes, this might provide grounds for annulment or divorce. ABORTION has been viewed as an additional restriction on the sexual rights of a husband and wife. A wife’s right to choose abortion takes precedence over the husband-and-wife relation- ship. A husband may not preclude his wife from having a legal abortion, nor may he compel her to have one. The Supreme Court struck down statutory requirement s that a husband must be notified of his wife’s abortion, in Planned Parenthood v. Casey, 505 U.S. 833, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992). At one time, a husband was allowed to have sexual relations with his wife with or without her consent, and for many years courts supported a marital exception to laws against RAPE. Under current law, the fact that the accused party and the victim were husband and wife can no longer be used as a defense to criminal charges. A rape by a husband of his wife might be subject to prosecution as an ASSAULT or, in some cases, as an attempted MURDER. Although all 50 states now criminalize spousal rape, many states still categorize spousal rape as lesser offenses than those ostensibly committed by strangers. Crimes Common law put many restrictions on a husband and wife when crimes occurred between them or against the marriage relation- ship itself. At one time, the courts recognized lawsuits based on “heart balm” acts. In such an action, a husband asserted that a monetary recovery would salve the “broken heart” caused by a third party’s intrusion into his marriage. The basis for many of these causes of action was that a husband was being denied his rights to the affections and services of his wife; these lawsuits did not extend to a wife. A husband once had an actionable injury if anyone induced his wife to leave him, under the theory that he was entitled to sue for damages any person who divested him of a servant. Similarly, a husband was able to bring an action for CRIMINAL CONVERSATION if his wife voluntarily engaged in adultery. The theory was that criminal conversation interferes with a GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION HUSBAND AND WIFE 347 . Union College ◆ 1831 Admitted to New York bar 1861– 65 U.S. Civil War ▼▼ ▼▼ 18001800 1 850 1 850 18 751 8 75 19001900 18 251 8 25 1838 Elected to New York legislature 18 65 69 Served on the New York Court of Appeals 1886 Died, Washington,. wives must act. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION HUSBAND AND WIFE 3 45 However, the very concept of the terms husband and wife became nebulous as four states passed laws granting. associate justice of the U.S. Supreme Court 1870 15th Amendment ratified 1869–73 Served on New York Commission of Appeals ◆ ◆◆ ◆ 18 75 Wrote dissenting opinion in United States v. Reese GALE ENCYCLOPEDIA OF AMERICAN