001 01Conlaw 1St Am/due Process/equal Protection

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substantive due process

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Due Process clause of 5th amendment applies to fed govt.

If a law limits liberty of ALL persons to engage in some activity

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Bill of Rights

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1st 10 amendments of CT. not applicable to states but most of its safeguards have been held applicable to the states through 14th amendment due process clause.

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13th amendment

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abolishes slavery

applicable to PRIVATE ACTION

-supreme court will uphold legislation proscribing almost any private racially discriminatory act that can be characterized as a "BADGE or INCIDENT of SLAVERY"

e.g.'s
legislation:
1. prohibiting private parties from refusing to rent or sell housing to a person b/c of race

2. prohibiting private parties, nonsectarian schools from refusing to admit nonwhite children

3. prohibiting a private employer from discriminating in hiring on the basis of race

these activities would not necessarily violate the 13th amendment absent legislation

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14th amendment applicability to states

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prohibits states (not fed govt or private persons) from depriving any person of life, liberty, or property without due process and equal protection of the law.

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14th--state action requirement/ exceptions

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to find action unconstitutional must be attributable to the state, which includes:
1. government agencies and
2. officials acting under color of state law.

-act does not have to be directly by a govt actor

a state actor can be found in actions of seemingly private individuals who:

1. perform exclusively public functions OR
2. have significant state involvement in their activities

3. state authorization or encouragement

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14th-req. of state action--civil rights cases

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arise out of denying accommodations to blacks at a hotel and denying blacks a seat in theater.

-until some state law is passed, adverse to rights of citizens to be protected by 14th, no legislation of the U.S. under 14th, nor any proceeding under such legislation can be called into activity, because the prohibitions of the amendment are against state laws and acts done under state authority.

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Public Functions Exception

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certain activities are so traditionally the exclusive prerogative of the state that they constitute state action even when undertaken by a private individual or organization.

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Public Functions Exception--Examples

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-owner of a "company town" with ALL attributes of a public town (e.g. homes, sidewalks, streets, police and fire protection, etc.) cannot deny a person's 1st AM right to distribute literature in the town, since the company town is equivalent to a town. Marsh v. Alabama BUT owner of a shopping mall can deny people 1st AM right to picket, since a mall does not have al of the attributes of a town

-Running elections is exclusively a public function, so if a private org. runs a preprimary that has a substantial effect on who is ultimately elected, its actions will be state action. Terry v. Adams


-running state lotteries not a public function

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Significant State involvement exception

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state action also exists whenever a state AFFIRMATIVELY facilitates, encourages, or authorizes acts of discrimination by its citizens.

private party has a "close nexus" to state activity that injured π, e.g use of courts to enforce private action, or use of state funds

there must be some sort of affirmative act by state--not enough that state permits conduct to occur

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Examples of Significant State involvement exception--official encouragement

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State court enforcement of restrictive covenants prohibiting sale or lease of property to blacks is state action in civil proceedings bt private parties. Shelley v. Karemer

use of peremptory challenges constitutes state action because (1) jury selection is a traditional public function and (2) there is overt, significant participation by the govt (judge) in the jury selection process. Edmonson v. Leesville

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Examples of Significant State involvement exception--state as lessor for racially discriminating lease

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state responsible under 14 AM EPC for exclusion of blacks from a coffee shop which was located in a public building.
-shop was constructed by and leased from the state.
-maitenance of facility was paid for with public funds and state was able to charge higher rent because it allowed restaurant owner to cater to prejudices of its white customers (symbiotic relationship) Burton

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Examples of Significant State involvement exception--administration of private trust by public officials

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state action exists where city personnel maintain a park open to all except blacks under a private trust. Evans v. Newton

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Examples of Significant State involvement exception--conduct fairly attributable to state

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fair attribution:
1. deprivation must be caused by exercise of some right or privilege created by the state or by a rule of conduct imposed by it or by a person for whom it is responsible
2. party charged with deprivation must be a person who may be fairly said to be a state actor: (i) bc he is a state official; (ii) because he ahs acted together with or has obtained significant aid from the state;or (iii) because his conduct is otherwise chargeable to the state.

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Examples of Significant State involvement exception--entwinement of state and private entities

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TSSAA is so entwined with state because regulates high school sports within a single state:
1. to which most public high schools belong
2. whose governing body is made up mostly of public school officials
3. whose meetings are held during regular school hours
4. whose employees may join the state retirement system; and
5. which is funded by gate receipts from regulated sports

BA v. TSSAA

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Examples of [IN]significant State involvement exception

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-granting license and providing essential services to a club
-granting a monopoly to a utility company
-heavily regulating an industry
-granting a corp. its charter and exclusive name.

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Public Functions Exception--Examples of conduct that is not state action

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running a shopping mall that does not have all attributes of a town.

holding a warehouseman's lien sale

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Impairment of Contracts Clause

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no STATE may pass a law which substantially impairs obligations of an outstanding contract.

UNLESS

1. law serves an important and legitimate public interest

AND

2. law is reasonable and narrowly tailored means of promoting that interest.

-obligations include terms implied into the K by law. i.e. State SOL is diminished from 3 yrs to 1, then an impairment has occurred.

--No "substantial modification
" if K is only indirectly affect by state legislation.
--no substantial impairment if increases health-care services by 10% thus altering ks between insurers and healthcare providers
e.g. K for distribution of honey, but possession of bees that make the honey is outlawed, no impairment.

-only applies to STATES, but FED laws altering contracts can be attacked under Due Process cl. of 5th am.

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Ex Post facto

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1. punishes, in a criminal or penal manner, an individual for conduct that was legal when undertaken

OR
2. enhances the criminal or penal punishment for a prior act

OR 3. decreases the amount of evidence needed to convict.

applies to both FED and STATE governments but ONLY in a CRIMINAL context.

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Bill of Attainder

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legislative punishment without notice or a hearing.

-appies to both FED and STATE laws

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circumstances where a state can tax instrumentalities of IC

i.e. equipment typically used in IC e.g. airplanes, railroad cars, ships, trucks, etc.

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Generally GOODS in transit are totally exempt from taxation, but when interstate shipment ends, they are subject to local tax by the destination state.

Personal property used in IC is subject to an ad valorem tax by

1. jurisdiction which is taxpayer's principal place of biz.

and

2. the state in which the item has acquired taxable status.

-entitled to a reduction.

-Property oacquires a taxable interest in a state outside the princ. place of biz where it is either 1. habitualy employed or 2. permanently located in that state.

-sometimes when there is a "break in transit" a state may tax.

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Limitations on Eminent Domain

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ED--privat property may be apportioned for a public purpose by a govt entity if just compensation is paid.

-if gov't regulation simply decreases the value of a person's property. there is no taking.

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What constitutes a taking

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depends on weighing:

1. significance of the public purpose involved and
2. investment-backed expectations of the owner.

-permanent physical encroachment (even if relatively minor in nature) upon private land constitutes a taking
e.g. city authorizing running power lines through apt building walls.

-state-ordered destruction of diseased trees does not constitute a taking.

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Procedural DP

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if a person is deprived of life, liberty or property, then procedures govt must supply depends on:
1. importance of the interest to the individual

2. ability of additional procedures to increase accuracy of the fact finding

And

3. the government's interest

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Procedural DP examples

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1. welfare benefits terminated--notice and hearing

2. soc. security benefits--only post-termination hearing

3. student disciplined by a public school--notice of the charges and an opportunity to explain corporal punishment without hearing OK

4. Termination of right to custody of a child--notice and hearing

5. Punitive damages--instructions to the jury & judicial review

6. U.S. citizen detained as an enemy combatant--notice and hearing

7. Except in EXIGENT CIRCUMSTANCES pre-judgment attachment for govt seizure of assets must be preceded by notice and hearing.

Exigent circs--Reason to believe that person will get rid of property if notice, before hearing BUT

gov't CAN seize property used in illegal activity EVEN IF property owner has an innocent OWNER

(case where husband was bangin' hooker in wife's car and cops took her car.)

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Procedural DP--govt employee that cannot be fired unless "for cause"

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generally, notice of charges and pre-determination hearing to respond to those charges.

UNLESS

govt has significant reason for removing the employee from the job and providing him with only a post-termination hearing.

e.g. campus police officer suspended after being arrested and charged with felony drug offense.

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Procedural DP--govt employee that cannot be fired "at will"

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Generally can be fired for any reason at any time

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Right to Privacy

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-marry/divorce
BUT right to enter into marital agreements i.e. gay marriage is not a fundamental right; rational basis is used.
-procreate
-child custody
-keep family together
-purchase and use contraceptives
-abortion
-gay sex
-refuse medical treatment

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Right to Abortion

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-prior to viability states may NOT prohibit abortions, but may regulate abortions so long as they do not create an "UNDUE BURDEN" on the ability to obtain abortions.

-24 hour waiting period--not an undue burden
-req. that aborts be performed by a licensed physician--no undue burden
-prohibition of "partial birth abortions no undue burden

After viability, states may prohibit abortions UNLESS necessary to protect woman's life or health.

Government has no duty to subsidize abortions

Spousal consent laws --not OK

Parental notice and consent OK so long as alternative procedure where minor goes before a judge.

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Substantive DP distinguished from equal proection

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term used to classify the source from which fundamental rights derive.

Fundamental rights are protected by both EP and Sub DP.

DP analysis is used where a law affect ALL persons

EP is used where a law affects some persons i.e. persons similarly situated yet treated differently

MBE--When USSC is confronted with a law that appears to violate both EP and DP, they resolve the case on EP basis

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Types of Judicial Review

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To determine whether state legislation affecting certain rights is constitutional, crt must examine state's goals and means used to achieve its goal.
1. Rational Basis
2. Intermediate Review(heightened scrutiny)
3. Strict Scrutiny

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Strict Scrutiny (Maximum Scrutiny)-generally and BOP

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regulations affecting FUNDAMENTAL RIGHTS (i.e., interstate travel, privacy, voting and 1st amendment rights) or involving SUSPECT CLASSIFICATIONS(race, national origin, alienage) are reviewed under strict scrutiny standard:

the law is upheld if it is NECESSARY to achieve a COMPELLING governmental purpose.

-difficult test to meet so law examined under strict scrutiny is often invalidated--especially if there is a LESS BURDENSOME alternative to achieve the govt's goal.

BOP--govt.

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intermediate Scrutiny--generally and BOP

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used for regulations involving QUASI-SUSPECT classifications(i.e., gender, undocumented alien children, alienage and illegitimacy)

-Intermediate Scrutiny: law is upheld if it is SUBSTANTIALLY RELATED to an IMPORTANT government purpose.

-BOP unclear. probably the govt.

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Rational Basis-generally

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-Regulations that do NOT affect fundamental rights or involve suspect or quasi-suspect classifications (most laws) are reviewed under rational basis standard:

Law is upheld if it is RATIONALLY RELATED to a LEGITIMATE government purpose.

-easy standard to meet;
-therefore law is usually valid unless it is ARBITRARY or IRRATIONAL

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Rational Basis--burden of proof

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person challenging the law has the burden of proof

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Rational Basis-classifications that are not suspect or quasi-suspect

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rational basis standard is used to review regulations involving classifications that are not suspect or quasi-suspect such as age, disability and poverty

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Fundamental rights

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right to vote
right to travel
right to privacy
1st amendment rights

Strict scrutiny applies

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Discrimination of a Suspect Class

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NORA
Discrimination occurs in 3 ways:

1. law discriminates on its face
2. neutral law has been administered in a discriminatory way
3. legislative history indicates a discriminatory purpose.
national origin, race, alienage

-apply strict scrutiny

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When Affirmative action is not Violative of EP

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1. aimed at remedying the defects of past, PURPOSEFUL DISCRIMINATION against a particular group

2. narrowly tailored to accomplish a compelling government objective

AND

3. does not unduly deprive innocent persons who might be disadvantaged by the law or judicial decree.

--race-based affirmative action plans subject to strict scrutiny

**IF EP requires a remedy for past racial discrimination, then Congress cannot constitutionally interfere with USSC's fashioning a judicial remedy to achieve constitutionally required conduct.

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STATE legislation wrt alienage

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where legal aliens are participating in activities that involve the "functioning of the government" i.e. self-governing and the democratic process , then rational basis test is applied.

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Facial Attacks--Vagueness Doctrine

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statute is facially vague when person of ordinary intelligence would, even with knowledge of the law, be uncertain as to whether certain conduct was prohibited.

statute is void for vagueness unless:

1. it is subsequently interpreted in a constitutionally proper manner AND

2. party affected by the law had reason to anticipate the curative interpretation.

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Facial Attacks--Overbreadth

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statute punishes protected as well as unprotected speech

it is void UNLESS:

1. constitutionally curative interpretation is made prior to ∆'s trial and
2. such construction was reasonably foreseeable.

If statute is not FACIALLY overbroad it can still be overbroad as APPLIED if the ∆;s conduct was protected by the 1st amendment.

-if statute gives virtually unlimited discretion in determining if it should be enforced or not, it is "substantially overbroad"

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Facial Attacks--Prior Restraint

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restriction on free speech in advance of publication (except where nation security is involved)

--prohibiting "true threats" is not a prior restraint

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Facial Attacks--Unfettered Discretion

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licensing official can confer or deny a permit based solely on the viewpoint of the speaker.

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Judaical order/injunction

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must be obeyed unless:

1. patently void on its face i.e issued by a court lacking subject matter jurisdiction

OR

2. it was impossible for the defendant to obtain prompt judicial review

If a previously scheduled march or speech is enjoined in a manner which makes it difficult for demonstrators to obtain effective judicial review, (i.e. order served just before the march) then it should probably be disobeyed.

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Defamation--Public Official or figure

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Liability standard--Actual Malice

(i.e. with knowledge that the publication was inaccurate or under circs in which ∆ should have entertained serious doubt as to its accuracy)

Damages--compensatory AND punitives are PRESUMED

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Defamation--Private figure re matter of public concern

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π must prove that defamatory statement was 1. False
AND 2. at least made in a negligent manner.

Damages: compensatory (for ACTUAL INJURY) Punitive (if ACTUAL MALICE)

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Defamation--Private figure re matter of private concern

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π need only prove that statement was made.

Damages: compensatory (for ACTUAL INJURY) Punitive (if ACTUAL MALICE)

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Obscene Material

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material is obscene when:

1. taken as a whole, to the average person, it appeals to the prurient interest of sex

2. it portrays sexual conduct in a patently offensive way

AND

3. lacks literary, artistic or scientific value (LAPS)

1 and 2 determined by ordinary COMMUNITY standards

third prong determined by reasonable person standard.

possession of obscene materials is not criminal but distribution can be made criminal (even if for personal use)

-child porn unprotected

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Fighting Words/advocating illegal conduct

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language which, by its very utterance would have a tendency to incite an immediate, violent response by the person to whom addressed, can be made criminal.

advocating illegal conduct for political/social reasons can be made criminal if:

1. intended to cause IMMINENT, unlawful conduct

AND

2. likely to produce that result

-mere fact that persons to whom expressive activity may be vehemently opposed to its content is NOT a constitutionally valid basis for restricting it.

--laws criminalizing fighting words are often overbroad or too vague

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Traditional Public Forum Doctrine

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Traditional Public Forums must be made available to persons wishing to communicate their views.

Access may be be subject to reasonable restrictions upon the time, place and manner.

Govt regulation must be:
1. content neutral,
2. narrowly tailored to serve a significant govt interest
and
3. the regulation must leave open alternative channels of communication

-jailhouse grounds, pubic utility poles not public forums

-courthouse (while trial in process) or public school (while in session) may be closed to expressive conduct where the conduct could have a disruptive effect on the public functions being undertaken.

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Limited or semi-public forum doctrine

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if a non-tradional public forum is made available to a certain type of expressive activity, similar forms of public expression may not be foreclosed UNLESS

1. VIEWPOINT neutral
2. reasonably related to a legitimate govt purpose

govt entities may decide who speaks to directly to its employees
e.g. govt may decide that 1 union or particular charities may utilize an internal mail system.

-"reasonable" government regulations are permitted for private forums i.e. residential homes to protect privacy and limit access

e.g. prohibiting unstamped items to be placed in mailboxes, door-to-door solicitation without homeowner's permission.

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Govt's limiting commercial speech

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commercial speech can be regulated if it:

1. serve a substantial government interest

2. narrowly tailored to accomplish that interest

AND

3. directly advances that interest
--Where private expression 1. contains indecent language and 2. is likely to be overheard or seen by children, it will probably receive a lesser degree of constitutional protection.

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Free speech at a privately-owned shopping center

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no 1st am. right to engage in free speech at private party's premises.

BUT

state may authorize free speech activity at a privately owned shopping center, so long as it does not unreasonably interfere with the normal operation of the premises.

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Establishment Clause (contravention by govt action)

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govt action affecting religion contravenes the establishment clause unless:

1. it has a secular purpose
2. primary effect neither advance nor inhibits religion
AND
3. it will not result in excessive entanglement with religion.

--where an intent to prefer one religious view over another is detected, govt action contravenes EC unless:

narrowly tailored to promote a compelling interest.

e.g. -statutes that 1. prohibit teaching evolution or 2. require teaching creationism are INVALID

-city sponsoring nativity scene--UPHELD

-tax exemptions available only for religious organizations or religious activities ad not for other organizations engaged in the same activity is NOT OK

-Broad exemption for property used exclusively for religious, educational, or charitable purposes-->OK

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Establishment Clause (contravention by govt financial assistance)

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where govt aid benefits private religious schools in an INDIRECT manner, it will ordinarily be upheld.

examples:

-reimbursing parents of public and private religous schools for bus fare, text books is OK

-construction grants to private, religious colleges are OK if only secular classes are taught in buildings for which the funds are allocated.

-allowing all state taxpayers to deduct expenses for tuition, textbooks, expenses ok even though 90% of private school students were enrolled in religious schools.

-state reimbursement of standardized testing OK

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Free Exercise Clause

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person's religious beliefs are totally protected while the person's actions in furtherance of their beliefs can be regulated.

BUT government action burdening free exercise rights must not be religiously motivated.

If a law purposefully interferes with religion practices, strict scrutiny is applied. BUT where govt regs place an INCIDENTAL BURDEN on free exercise rights, rational basis test is used.

-law intended to banish a religous sect by banning ALL animal sacrifice struck down

-law banning all use of peyote to facilitate narcotics enforcement upheld even though indian tribe was then prevented from using peyote in religious rituals

-mandatory closure of business on sundays does not contravene jewish free exercise rights even though they are then obligated to accept a 5-day work week

--Courts cannot inquire into reasonableness of religious beliefs, but can inquire into whether the belief is 1. a tenet of the religion and 2. the belief is genuine.

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EP--Right to Vote--apportionment et al.

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--voting residency requirements of 30 days have been upheld.

-"one person one vote": EP prohibits STATE dilution of the right to vote so that when a govt body establishes voting districts for election of representatives, number of persons in each district may not vary significantly . (--usually not applicable when officials are elected "at large")

BUT

for the purpose of electing reps to a state or local govt body, the variance in the # of persons included in each district can be greater than that permitted for congressional districts.

If the deviation from mathematical equality b/t districts is reasonable and tailored to promote a legitimate state interest, the law establishing the districts will be upheld.

-e.g. maintaining the integrity of local political subdivisions lines when establishing legislative districts is a legitimate state interest., so long as final apportionment is based on population. **double check this against MPQ1 p. 140.

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Intergovernmental Immunity

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State and local govts cannot tax or regulate the fed govt without Congress's consent

-instrumentalities and agents of the fed govt are immune from state regs that interfere with their federal functions.
-applies to fed employees on the job

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DP Free Speech--government employee

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if govt employer want to fire an employee for speech-related conduct involving a matter of public concern, courts balance 1. employee's rights as a citizen to comment on a matter of public concern against 2. govt's interest as an employer in the efficient performance of public service.


Government employer may punish a government employee's speech whenever speech is made pursuant to employee's official duties, and this is true even if the speech touches on a matter of public concern.

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DP Free Speech--generally

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under DP cl. of 5th am. person has a liberty interest in the exercise of specific rights provided by the constitution, including freedom of speech.

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Free Speech--Closure

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In criminal cases, trials and pretrial proceedings can be closed only if:

1. closure is necessary to preserve an overriding interest

AND

2. the closure order is narrowly tailored to serve the overriding interest.

-MAY also apply to CIVIL cases

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Free Speech--Adult theaters

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A municipality may use a zoning ordinance to limit the location of adult theaters and nude dancing establishments as long as the ordinance:

1. is designed to promote IMPORTANT government interests (e.g. eliminate secondary effects of such biz--lowering of property values, increased traffic, etc.)

AND

2. does not prohibit all such entertainment in the community.

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Free Speech--Symbolic Sppech

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nude dancing, erotica

only marginally protected speech and thus can be regulated to serve IMPORTANT government interests UNRELATED to the suppression of speech.

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Free Speech--taxes

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Press and Broadcasting companies can be subject to general business taxes, but a tax applicable only to the press or based on the content of a publication will not be upheld absent a COMPELLING justification

-mere need for revenue is not a sufficiently compelling interest.

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First Amendment--Campaign contributions

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govt can limit amount of contributions an individual can contribute to a candidate's campaign, but not to a political committee that supports or opposes a ballot referendum.

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Free Speech--charitable solicitation for funds in residential areas

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are protected.