Also known as: balancing of interests · interest balancing · balances of interests · balancing test
Written by attorneys — see sources below.
A method of legal analysis in which a court weighs competing private and governmental interests, including the risk of erroneous deprivation, to determine whether a legal protection or right is satisfied.
Blake Butler received Social Security disability payments for several years. The agency sent written notice of proposed termination based on new medical reports and invited a written response. Butler submitted documents but received no oral hearing until after payments stopped. The court upheld the procedures because the written exchange plus later retroactive hearing adequately addressed the risk of error while serving the agency's fiscal needs.
Boulder Construction obtained a building permit and spent substantial sums grading land for a housing project. The city then rezoned the area to prohibit the use. The court applied a balancing test and held that the owner's good-faith expenditures created a vested right that equity protected against the new restriction.
Blue Horizon Industries owned a mid-century office tower slated for major renovation. The city designated the building a historic landmark, blocking the planned changes and forcing costly retrofits. The court weighed the economic impact and interference with investment expectations against the character of the preservation action and upheld the designation.
Barbara Bennett sought production of internal legal memos from Barclay Financial in a securities dispute. The company asserted privilege. The court balanced the four factors governing recognition of privileges and concluded that the injury from disclosure outweighed any benefit to the litigation, so the documents remained protected.
Stockholders of First American Life Insurance Company of Alabama brought, in the Northern District of Alabama, a class action against the company and its directors, officers, and controlling persons. They alleged violations of the Securities Act of 1933, the Securities Exchange Act of 1934, SEC Rule 10(b)(5), the Investment Company Act of 1940, the Alabama Securities Act and common law fraud, seeking to recover the purchase price which they and others similarly situated paid for their stock in FAL. They also asserted a derivative action claiming that FAL was itself damaged by alleged fraud in the purchase and sale of securities. FAL filed a cross-claim against all other defendants, asserting in its own behalf the rights the plaintiff shareholders had claimed in the derivative aspect of their complaint. R. Richard Schweitzer served as attorney for the corporation in connection with the issuance of the FAL stock here involved. After the transactions sued upon were complete he became its president. On deposition Schweitzer was asked numerous questions concerning advice given by him to the corporation about various aspects of the issuance and sale of the stock and related matters. Other questions went into the content of discussions at meetings attended by him and company officials and information furnished to him by the corporation. All questions related to times at which Schweitzer acted solely as attorney, before he became an officer of the company and before the filing of suit. The plaintiffs had served a subpoena duces tecum on Schweitzer to bring various documents to the taking of his deposition. Both he and the corporation claimed the privilege with respect to some of the documents. The District Court treated the subpoena as though it were a motion to produce under Rule 34. The District Judge held that the privilege is not available to the corporation as against these plaintiff stockholders. Contemporaneously the District Judge ordered the case transferred to the Southern District of Alabama under 28 U.S.C. § 1404(a). With respect to both orders he entered appropriate findings pursuant to 28 U.S.C. § 1292(b), the interlocutory appeal statute. This court granted applications to allow both interlocutory appeals — the plaintiffs from the transfer order, docketed as No. 26168, and the defendants from the order denying the claim of privilege, docketed as No. 26266 — but provided that ultimate disposition of the appropriateness of interlocutory appeal would be taken with the case on the merits. Also the plaintiffs filed with this court a petition for a writ of mandamus directing the District Judge to retain jurisdiction of the case in the Northern District. The court has concluded that the consolidation of the two interlocutory appeals should be vacated. In this opinion we decide No. 26266, the interlocutory appeal of FAL on the privilege issue.
Bernard Bass challenged a city zoning rule that prevented expansion of his church under a state religious freedom statute. The court applied a balancing test to determine whether the burden on religious exercise was justified by a compelling interest and held that the ordinance exceeded legislative power.
St. Peter Catholic Church was built in 1923 in Boerne, Texas. Its structure replicates the mission style of the region's earlier history. The church seats about 230 worshippers, a number too small for its growing parish. Some 40 to 60 parishioners cannot be accommodated at some Sunday masses. To meet the needs of the congregation, the Archbishop of San Antonio gave permission to the parish to plan alterations to enlarge the building. A few months later, the Boerne City Council passed an ordinance authorizing the city's Historic Landmark Commission to prepare a preservation plan with proposed historic landmarks and districts. Under the ordinance, the commission must preapprove construction affecting historic landmarks or buildings in a historic district. Soon afterwards, the Archbishop applied for a building permit so construction to enlarge the church could proceed. City authorities, relying on the ordinance and the designation of a historic district which they argued included the church, denied the application. The Archbishop brought this suit challenging the permit denial in the United States District Court for the Western District of Texas. The complaint contained multiple claims, but to this point the litigation has centered on RFRA and the question of its constitutionality. The District Court concluded that by enacting RFRA Congress exceeded the scope of its enforcement power under section 5 of the Fourteenth Amendment. The court certified its order for interlocutory appeal and the Fifth Circuit reversed, finding RFRA to be constitutional. The Supreme Court granted certiorari and now reverses. Congress enacted RFRA in direct response to the Court's decision in Employment Div., Dept. of Human Resources of Ore. v. Smith. RFRA prohibits government from substantially burdening a person's exercise of religion even if the burden results from a rule of general applicability. Unless the government can demonstrate that the burden is in furtherance of a compelling governmental interest, it must also show that the burden is the least restrictive means of furthering that interest. The Act applies to all federal and state law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after the enactment of RFRA.
Bella Barnes, a terminally ill patient, sought to invalidate a state statute prohibiting physician-assisted suicide. The court declined to recognize a fundamental right and instead weighed the individual's liberty interest against the state's interests in preserving life and preventing abuse, upholding the ban.
Washington has prohibited assisting suicide since its territorial days. In 1854, the first Territorial Legislature outlawed assisting another in the commission of self-murder. The current statute, Wash. Rev. Code § 9A.36.060, provides that a person is guilty of promoting a suicide attempt when he knowingly causes or aids another person to attempt suicide, and classifies it as a class C felony punishable by up to five years imprisonment and a $10,000 fine. Washington's Natural Death Act, enacted in 1979, states that the withholding or withdrawal of life-sustaining treatment at a patient's direction shall not constitute a suicide, but the state has consistently rejected efforts to legalize physician-assisted suicide, including a 1991 ballot initiative defeated by voters. The respondents in this case are four physicians who practice in Washington and treat terminally ill patients, three terminally ill patients who sought to end their lives with physician assistance and have since died, and Compassion in Dying, a nonprofit organization that counsels people considering physician-assisted suicide. The physicians declared that they would assist their patients in ending their lives if not for the assisted-suicide ban. Petitioners are the State of Washington and its Attorney General. In January 1994, the respondents filed this action in the United States District Court for the Western District of Washington. They sought a declaration that Wash. Rev. Code § 9A.36.060 is unconstitutional on its face and an injunction against its enforcement. The District Court held that the statute was unconstitutional. A panel of the Court of Appeals for the Ninth Circuit reversed that decision, but the full court sitting en banc reversed the panel and affirmed the District Court. The Supreme Court granted certiorari to review the case.
The test weighs the private interest affected, the risk of erroneous deprivation and value of additional safeguards, and the government's administrative and fiscal interests. Courts apply these factors to decide whether pre-deprivation process is required or whether post-deprivation remedies suffice.
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…Souter Justice Souter, concurring in the judgment but writing separately to express his view that the Court should use a balancing test rather than the fundamental-rights analysis employed by the majority. Footnotes : The statute at issue is Wash. Rev. Code § 9A.36.060 (1994). : See Cruzan v.…
…governmental interest and be narrowly tailored to advance that interest. In so holding, Smith declined to apply the balancing test
…442 U. S. 200 (1979), the Court stated that "[t]he narrow intrusions involved in [ Terry and its progeny] were judged by a balancing test rather than by the general principle that Fourth Amendment seizures must be supported by the long-prevailing standards' of probable cause, . . . only because these intrusions fell far…
…the stockholders of a corporation, which is an important factor in our decision. : Due regard must be paid to the interests of nonparty stockholders, which may be affected by impinging on the privilege, sometimes injuriously (though not necessarily so — in some situations shareholders who are not plaintiffs may…
…J., dissenting). This central feature of the Constitution must be anchored in rules, not set adrift in some multifactored "balancing test" — and especially not in a
Severe burdens on voting or associational rights trigger strict scrutiny requiring narrow tailoring to a compelling interest. Reasonable nondiscriminatory restrictions receive a lighter balancing that upholds them if supported by important state regulatory interests.
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Some jurisdictions use the test to decide whether substantial expenditures in reliance on a permit create a vested right that equity protects against later rezoning. Other jurisdictions require a valid permit plus substantial construction before protection attaches.
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Courts weigh the length of delay, reasons for delay, the defendant's assertion of the right, and resulting prejudice. No single factor is necessary or sufficient. The court evaluates all together to determine whether the constitutional right has been violated.
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When a regulation reduces value but leaves economically viable uses, courts weigh the economic impact on the claimant, interference with investment-backed expectations, and the character of the government action such as historic preservation.
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