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154 Cards in this Set
- Front
- Back
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What is the governing law for Constitutional law?
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The federal Constitution provides the baseline for the protection of citizens' rights. Pursuant to Gunwall, Washington courts interpret cases first by the Washington Constitution, then by the federal constitution.
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What standing is required to bring a constitutional law case?
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A person must have a concrete stake in the outcome of a case. He must show that he has been or will be dirctly and personally injured by teh unlawful government action, which affects his rights under the Constitution or federal law. There must be a CAUSAL CONNECTION between the injury and hte conduct complained of, and a decision in the litigant's favor must be capable of eliminating his grievance.
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What are the two things that are required to bring a constitutional claim?
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(1) standing
(2) state action |
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What is the state action requirement?
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A claim for constitutional deprivation is valid only against government actors, or private actors who are substantially intertwined with the government.
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What is the Substantive Due Process clause?
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Under the 5th and 14th Amendments, the government may not intentionally interfere with an individual's right to engage in lawful conduct. Fundamental rights are treated under strict scrutiny (compelling state interest narrowly tailored).
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What is strict scrutiny?
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compelling state interest narrowly tailored
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What is the standard for fundamental rights?
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strict scrutiny
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Fundamental rights include:
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privacy, voting, interstate travel, and those granted by the Bill of Rights
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How are economic activities characterized? What is the level of review?
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nonfundamental rights - subject only to rational basis review.
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What is Procedural Due Process?
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The federal constitution prohibits the deprivation of life, liberty, or property without due process of law. (Prohibits government from INTENTIONALLY DEPRIVING)
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What does "property" include?
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Property includes government entitlement that a party has a legitimate expectation of continuing.
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What does "liberty" include?
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Freedom from bodily injury or restraint and freedom to exercise fundamental rights that have been impaired by intentional government action
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What is a party entitled to, at a minimum, under procedural due process? Put another way, what process is due?
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At a minimum, a party is entitled to notice, a hearing, and an unbiased decisionmaker.
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What is the test for the level of process required for Procedural due process? What are the factors?
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Mathews balancing test which considers (i) the importance of the right to the plaintiff; (i) the risk of erroneous deprivation and the liklihood more process will help; and (iii) the government's interest in efficiency and cost.
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What is required under Equal Protection?
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The government may not intentionally discriminate against similarly situated parties unless it meets strict scrutiny review.
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What does discrimination include? Against what?
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cognizable classes (e.g., race) or based on fundmanetal rights, including the 1st Amendemnt
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What is gender/sex tested under under Equal Protection?
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Under WA's Equal Rights Amendment, gender/sex is tested under strict scrutiny.
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What are expressive freedoms?
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The constitution protects expressive freedom; political speech may almost never be regulated
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What is the freedom of speech under the WA constitution? What is protected?
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The WA Constitution provides that persons may speak, write, and publish on all subjects.
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What are the two types of regulations/threshold issues for expressive freedoms?
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(1) content-based regulations
(2) content-neutral regulations |
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What are content-based regulations? Under what test must they be analyzed?
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The government may implement content-based regulations only under strict scrutiny.
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What are content-neutral regulations?
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The government may implement content-neutral regulations [on traditional public forums(street, sidewalk, or park)]
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What is the "due process issue trio"?
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(1) overbreadth
(2) vagueness (3) unduly discriminatory |
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What is meant by "overbreadth"?
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A regulation of speech may not be overbroad
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What is meant by "vagueness"?
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A regulation is void if a reasonable personal cannot tell what is prohibited
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What is "unduly discretionary"?
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A regulation may not given inadequate standards for officials to apply the law.
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What is the rule for prior restraints?
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The WA Constitution forbids prior restraints on constitutionally protected speech.
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What are the 1st Amendment Limitations? e.g., 1st Amendment protections may not apply to what kinds of speech? 6 categories
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The 1st Amendment protections may not apply to less-protected speech, including___ (obscenity, fighting words, threats, child porn, incitement of illegal activity, commercial speech)
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How is "obscenity" defined? Under what test?
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Under th Miller test, obscentiy is defined as speech that appeals ot a prurient interest in sex or is offensive (base don community standards)
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What does the privileges and immunities clause say?
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A state may not discriminate against persons from another state
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What does the Dormant Commerce Clause (DCC) say?
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Where Congress has not regulated on a matter of interstate commerce, a state may regulate if not unduly burdensome or discriminatory
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What is a taking? What must they prove in Washington
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The government may not take private property for public use without just compensation. In WA, government must prove necessity.
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What is the Contract Clause of the constitution?
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State and local regulations cannot substantially interfere with existing contracts (applies to statutes and regulations ONLY, not judicial decisions)
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What is freedom of religion?
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Under the 1st Amendment, government cannot discriminate against religion and WA's Constitution protects the "absolute freedom of conscience" under strict scrutiny.
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What is the Establishment Clause?
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The government is forbidden from discriminating or granting a preference to a particular religion.
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Under the Establishment Clause, what test must a non-discriminatory regulation pass?
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A non-discriminatory regulation ust pass the Lemon test: (1) serving a secular purpose; (2) it must not advance or inhibit religion, and (3) must not create excessive government entanglement with religious administration
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What does the free exercise clause say?
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The government cannot specifically punish/interfere with religious beliefs, but can incidentally burden them by general regulations (Except for religious based denial of unemployment benefits/education outside of public school)
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What is the 11th Amendment?
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Prohibits an action a state government for damages, injunctive or declaratory relief where the state is named as a party; however, actions against a state officer for injunctive relief or damages to be paid out of own pocket are permitted
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What governs administrative procedures in WA?
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The APA applies to almost all WA state agencies
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What is required for standing under the APA?
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To have standing under the APA, a person needs to be aggrieved by the agency action
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What are the requirements for enabling statutes under the APA?
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Enabling statutes applicable to APA agencies must provide clear standards and not permit undue discretion
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What is "ultra vires"?
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A rule that is beyond the scope of the agency's authority is void as ultra vires.
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What are the rulemaking procedures in Washington?
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Assuming APA similar to WA, agency rulemaking must follow statutory procedures including notice and opportunity to comment before publishing of rule. An agency is required to 30 days prenotice of rule inquiry, 20 days notice of proposed rule, provide for public participation, and publish the final rule 30 days before effective
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What are significant legislative rules?
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These rules are substantive provisions creating subject penalty or revoke/grant licenses; thus, an agency must justify the need for the rule AND do a cost-benefit analysis
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What is the rule for emergency rules?
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No advanced notice is required for emergency rules dealing with the public health, safety, and welfare-- but such rules are only valid for 120 days
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What is the rule for constitutionality?
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The rule must not violate the Constitution
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What is the rule of irrationality as it relates to administrative law?
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If the rule is arbitrary and capricious it violates substantive due process
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What are agency defenses?
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If in noncompliance, an agency can defend based on substantial conformity with procedures OR there was an emergency OR the statute of limitations has run
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What is statutory due process under the APA?
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The WA APA requires notice, 20 days to request hearing, 7 days notice of hearing, right to testify, give evidence, cross-examine, and an unbiased decisionmaker and receipt of decision
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What is the "appearance of fairness" doctrine?
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Under the Appearance of Fairness Doctrine, a reasonably prudent observer must find that a party did receive a fair, unbiased, and neutral hearing
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What is procedural due process under the federal constitution?
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Governed by the 5th and 14th Amendment due process at a minimum requires notice, a hearing, and an unbiased decisionmaker. The level of process required is tested by the Mathews balancing test which considers (i) the importance of the right to the plaintiff; (ii) the risk of erroneous deprivation and the likelihood more process will help; and (iii) the government's interest in efficiency and cost
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When is review available?
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Judicial review is available when there is (1) standing; (2) the statute of limitations has run; (3) there is a final decision; (4) remedies have been exhausted; and (5) the case is ripe for review
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What is "exhaustion of remedies"?
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Generally, a party must exhaust all remedies before bringing suit in court -- this may be excused if it would be fruitless or result in irreparable harm
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What is the statute of limitations under the APA?
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Under the APA, 2 years for procedural error (rulemaking) and 30 days for adjudication
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What is required for finality review?
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There must be a final decision.
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Is the Washington standing requirement more or less liberal than the federal constitutional requirements?
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More liberal re: claim involving serious public interest immediately affecting substantial portion of population
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What is "mootness"?
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a real and live controversy must exist throughout the lawsuit unless "capable of repitition but evading review"
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How does "mootness" relate to class actions?
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as long as one member has a live claim, representative can continue suit
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When can WA state appellate courts hear a moot case?
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state appellate court may retain a moot appeal involving issues of substantial public interest
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What is the requirement of "ripeness"?
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An existing dispute that threatens immediate and substantial hardship to plaintiff can be resolved by a final and conclusive judgment
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What is the state action requirement?
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The Constitution generally applies to government action. This includes official government conduct, private conduct where there is significant government conduct with private party, private performance of traditional government function
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What are the exceptions to takings law?
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damage during lawful police search, emergencies with prevention of public harm
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In WA, what is the balancing test for a taking?
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Weigh the economic loss to the landowner versus the public interest
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Once it is determined that a substantial government interest is involved, then what does the court weigh?
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economic impact on the property, interference with investment-backed expectations, character of the government action
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what are the remedies of just compensation?
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fair market value at the time of the taking, measured by LOSS to the owner, terminate the regulation and pay temporary takings/interim damages
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For the Contracts clause, what two types of contracts are considered?
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private and public contracts
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Under the Contracts clause, what standard are private contracts analyzed?
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reviewed under INTERMEDIATE SCRUTINY, but government almost always wins
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Under the Contracts Clause, what standard are public contracts analyzed?
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STRICT SCRUTINY
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When are pre-termination hearings required?
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frequently required where interest relates to livelihood, continued employment, or life necessities; PROVIDED the government cannot establish an immediate public danger to justify post-term hearing.
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What is required before termination of welfare benefits?
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These are life necessities so need notice and a hearing BEFORE termination
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What is required for termination of disability benefits?
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Notice and a hearing AFTER termination ok
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What is required for school benefits? what process is due?
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notice and opportunity to explain EXCEPT in case of public safety (then hearing after expulsion)
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What are the rules for abortion in Washington?
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Abortion is a fundamental right in WA. Before viability, there cannot be an undue burden on the right of the woman to obtain an abortion. After viability, government may prohibit UNLESS necessary to life/health of woman.
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What do you look for for interference with interestate travel?
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residency waiting periods to receive government benefits
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when looking at deprivation of waiting periods to receive state benefits, what two categories do you divide them into?
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(1) life necessities
(2) non-life necessities |
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To deprive an individual of basic life necessities when moving to a new state, the state must have
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compelling state interest/strict scrutiny
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What is the constitutional requirement for zoning?
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Objective must be legitimate police power concern (health, safety, morals, welfare) AND means must be substantially related to objective
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What are the 3 types of intentional discrimination? (relates to equal protection)
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(1) facially discriminatory
(2) patently discriminatory application of a facially neutral law (3) discriminatory motive behind the law |
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What is the level of review required when the federal government discriminates against any any alien?
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rational basis review
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What is the level of review required when the state government discriminates against resident aliens?
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strict scrutiny
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what level of review is required when the state government discriminates against illegal aliens?
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rational basis
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What is the general rule for content based regulations on speech?
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must meet STRICT SCRUTINY
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What is the exception to the rule that content based regulations on speech must meet strict scrutiny? what must it be?
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for government restrictions on speech activities that it funds (which must be viewpoint neutral)
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A content neutral law that burdens expressive conduct must meet...
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intermediate scrutiny
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If there is a prior restraint on speech, the face of the statute must:
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(1) Provide clear and narrowly draw standards that leave no discretion to administrator
(2) Provide prompt judicial review for a denial of permit/activity |
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What is the rule of prior restraints in Washington?
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Washington forbids prior restraints on constitutionally protected speech under any circumstances
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How may symbolic speech be regulated?
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Expressive conduct may be regulated by content-neutral TIME, PLACE, and MANNER restrictions
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What is the rule for anonymous speech?
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You cannot force people to identify what expressive activities they associate with
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What is the rule for regulation on expressive conduct?
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(1) an important purpose
(2) unrelated to suppression of the message (3) Burden on communication is no greater than necessary to achieve that purpose |
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What level of review does unprotected or less protected speech receive?
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Rational Basis Review
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What are the categories of unprotected speech?
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(1) Incitement of Illegal Conduct
(2) Fighting Words (3) True Threat (4) Obscenity/Sexually Oriented Speech (5) Commercial Speech (6) Defamation |
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What is required for speech to be punished as "incitement"?
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The illegal conduct must be likely, imminent, and intended by the speaker
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What are fighting words?
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abusive words, directed personally to the hearer, that are likely to product, immediate and physically violent reactions in the average person (usually fails for vagueness)
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What is a "true threat"?
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Statement that a reasonable person would interpret, under the circumstances as defendant's serious declaration of intent to murder or inflict bodily harm (extortion threats to obtain money or property are also included)
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Material is unprotected because it is obscene or sexually oriented if it:
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describes/depicts sexual conduct that, taken as a whole by the average person:
(1) appeals to the prudent interest in sex (community standards) (2) patently offensive (community standards) (3) lacks serious artistic, literary, political, or scientific value (national reasonable person standard) |
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What is the level of review for commercial speech?
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intermediate scrutiny. Can be FORBIDDEN if:
(1) solicits for an illegal activity OR (2) is false or misleading (3) truthful advertising that has an inherent risk of deceiving or misleading the public. |
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What is the 3-part test for the time, place, and manner restrictions on free speech?
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(1) content neutral as to both subject matter and viewpoint
(2) narrowly tailored to serve an important government interest (mixed intermediate and ss) (3) leaves open alternative channels of communication |
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What is the rule for time, place,and manner restrictions for non-pubic forums?
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content-neutral regulations that burden expressive conduct in a non-public forum are valid T/P/M restrictions if they are viewpoint neutral and reasonably related to a legitimate government interest
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What is Washington's rule for T/P/M regulations on political speech in public formus?
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T/P/M restrictions on political speech in traditional public forums must meet strict scrutiny
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Media may publish unlawfully obtained materials IF (what 3 things)
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(1) information is truthful and a matter of public concern; (2) media didn't obtain it unlawfully or know who did (3) original speaker of truthful information had reduced expectation of privacy
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What is freedom of association?
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core of right is gathering for purposes of politically or socially significant speech
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Association for political speech is a ___. right
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fundamental
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When may the government punish association for an illegal purpose? what must the government prove?
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Defendant
(1) actively participated in the group (2) knowing of its illegal activities (3) specificallly intending to further those illegal activiites |
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What does the law of anonymous association say?
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A law requiring disclosure of group members that may chill association requires STRICT SCRUTINY
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What is the rule of freedom of association as it relates to government employees?
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Public employee or independent government contractor cannot be
(1) fired or disciplined (2) for expressing opinions on matters of public interest (3) UNLESS speech or association undermines the employer's authority or disrupts the employer's policy |
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Can loyalty oaths be required?
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Yes if not vague or overbroad
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What is the establishment clause/what does it say?
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Prohibits government from taking action which either advances or inhibits religion
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What is the Lemon test?
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A non-discriminatory regulation is constitutional if
(1) secular purpose (2) primary effect must not advance or inhibit religion (3) no excesive government entanglement with religious establishment |
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What is the general rule of the free exercise clause?
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Government can't punish or interfere with religious beliefs, but CAN burden religious practices by general regulations of conduct
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What are the exceptions to the general rule of the free exercise clause?
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(1) religious based denial of unemployment benefits is NOT allowed (quit for religious reasons)
(2) religious education outside of public school systems |
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What is WA Constitution Article 1 Section 1?
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guarantees ABSOLUTE FREEDOM OF CONSCIENCE which is STRONGER than 1st amendment. ANY government action that has coercive effect must meet strict scrutiny.
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What does the Dormant Commerce Clause say?
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absent federal regulation, state/local government may regulate interestate commercial activities, provided that the regulation does not discriminate against or unduly burden interstate commerce
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When is a non-discriminatory regulation valid under the dormant commerce clause?
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state reg valid if:
(1) furthers a legitimate state interest (2) burdens on interesate commerce not outweigh the benefits to the state (3) furthers legitimate state interest |
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What is the standard for discriminatory taxes on an out of state business?
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must pass strict scrutiny
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When are non-discriminatory taxes valid?
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if
(1) taxed activity has a substantial nexus to the state (2) burdens on interstaet commerce not outweigh the benefits to the state (3) furthers legitimate state interest |
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What is the main exception to the DCC?
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Market Participant Doctrine -- if state/local government acts as a market partcipant, may prefer state/local businesses, but no illegal downstream regs
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What does the Privileges and Immunities clause say?
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State and local government can't explicitly discriminate against out of state citizens as to "fundamental rights"
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What is the issue trio for statutory interpretation?
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(1) vague; (2) overbroad; (3) unduly discretionary
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When is something void for overbreadth?
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overbroad if it affects substantially more speech than is neccesary to serve the government's legitimate purpose
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To what kinds of issues does the state APA apply to?
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(1) WA state agencies
(2) local agency performing a state function/apply state law (3) Boards of STate Universities with respect ot personnel matters only |
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What does the state APA NOT apply to?
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(1) AG
(2) Dept of Corrections (3) Legislature (4) Judiciary (5) WSBA (6) Local agency w/local funcitons |
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What law applies to local government performing local function?
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Con Law ONLY
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What is a "rule"?
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Any agency order, directive, or regulation of general applicability that
(1) subjects a person to penalty (2) effects procedures in an agency hearing (3) relates to public benefits/privileges conferred by law (4) related to issuance or suspension of commercial/professional licneses, OR (5) relates to any mandatory standards for products or materials which must be met before distribution |
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What are EXCLUDED from rulemaking procedures?
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(1) internal policy statements
(2) interpretive and policy statements (3) traffic restrictions (4) rules of state institutions of higher education |
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What are teh steps to state rulemaking procedure?
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(1) Pre-notice inquiry
(2) Notice of Proposed Rulemaking (3) Public Comment (4) Concise Explanatory Statement & RM File (5) Publish Final Rule (6) Significant Legislative Rules |
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What is the rule for "pre-notice inquiry"?
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(1) notice that rule is being considered; (2) published in the state register; (3) at lest 30 days before Notice of Proposed Rulemaking
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What 4 things should the pre-notice inquiry include?
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(1) statutory authority; (2) reasons needed; (3) goals; (4) consider alternative procedures
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What are the exceptions for the pre-notice inquiry?
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(1) emergency
(2) statute required rule (incorp by reference) (3) rule is procedural only |
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What is required for notice of proposed rulemaking?
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(1) notice of content of proposed rule
(2) published in State Register (3) at least 20 days before RM hearing |
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What should the notice of proposed rulemaking include?
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(1) statutory authority
(2) rule summary (3) rule explanation (4) time, place, manner for public comment |
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What is the main exception to giving notice of proposed rulemaking
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Emergency rules - "necessary to preserve the public, health, safety, or welfare, and following the requirements would be contrary to the public interest" - must phase out in 120 days
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What is required in the rulemaking file?
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(1) reasons for adopted rule
(2) changes made to rule (3) summary of comments (4) agency responses to comments |
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How many days before it becomes effective must a rule be published?
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30 days
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What must be included when publishing the final rule?
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(1) text
(2) description: (i) reason for adopting; (ii) differences between proposed and final rule; (iii) summary of comments (3) in the state register (4) at least 30 days before effective [unless emergency] |
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What is the SOL in Washington for attacking a rule for improper promulgation?
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2 years
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What is a significant legislative rule?
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rules that adopt substsantive provisions of law (not procedural or interpretive) that if violated, subject person to penalty or sanction or involves granting/revocation of license or creates new policy/program
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What must also be included when publish a significant legislative rule/
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(1) justification/ned for the rule
(2) cost-benefit analysis |
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What is the standard of "arbitrary and capricious"?
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rule makes no sense OR agency has unbridled discretion
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Under APA, what do you need to have a hearing?
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Must be "aggrieved"
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What is required for statutory due process under APA?
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(1) written notice of action adverse to parties
(2) right to present evidence (3) testimony under oath (4) right to cross-examine witnesses (5) right to an impartial decision-maker (6) no ex-part communications (7) relaxed rules of evidence (8) Written Order - Findings of fact and conclusions of law |
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what are the evidence rules like in a statutory hearing under the APA?
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relaxed rules of evidence - admissible if "reasonably prudent person would rely upon the testimony in the conduct of their affairs"
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What is the "appearance of fairness" doctrine as it applies to APA hearings?
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violated if reasonably prudent disinterested observer would conclude that the parties did not obtain a fair, impartial, or neutral hearing
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what does the appearance of fairness doctrine apply to?
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quasi-judicial hearings required by law
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Government cannot require business to keep records when
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(1) no statute requires them
(2) no "public aspects" to the information demanded (3) agency is only requiring this select group inherently suspected of crime |
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What are the exceptions to the records requriement?
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where government regulated businesses keep records because they are "quasi-public"
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A warrant is required to search...
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"private areas" of businesses, but lower probable cause standard
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What are the exceptions to the warrant requirement?
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(1) heavily regulated businesses
(2) search is in public area (3) non-intrusive inspection |
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What is the finality requirement?
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must have "final" agency decision which arose during adjudication
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What is the exhaustion requirement?
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must have exhausted all administrative remedies, UNLESS inadequate/futile OR will result in IRREPARABLE HARM
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What are the challenges of which courts will reviewing rulemaking?
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(1) constitutional challenges
(2) exceeds the statutory authority of the agency (3) failure to substantially comply with rulemaking procedure (4) rule is arbitrary or capricious |
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What is the standard of review if rule is void because of error of law?
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de novo review
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What is the standard of review if rule is void as not a product of a rational decision maker?
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arbitrary and capricious
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Courts grant relief from an order when:
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(1) law upon which order is based is unconstitutional
(2) order is ultra vires (3) failed ot show decision-making process (4) erroneous interpretation of law (5) order not supported by substantial evidence (6) agency didn't decide all of the issues necessary to resolve (7) order is inconsistent with agency rules (8) order is arbitrary and capricious |
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What is required for "standing" under the APA?
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A person needs to be "aggrieved" by the agency action.
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