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122 Cards in this Set
- Front
- Back
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Requirements for Standing
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1) Injury
a) Plaintiffs may only assert injuries that they personally have suffered b) Plaintiffs seeking injunctive or declaratory relief must show a likelihood of future harm 2) Causation and Redressability The plaintiff must allege and prove that the defendant caused the injury so that a favorable court decision is likely to redress the injury. The Supreme Court says core of Article III is that federal court can’t issue advisory opinions. In order for plaintiff to have standing, must demonstrate a favorable court ruling would remedy the harm suffered. Best way to do that is know the defendant causes the harm 3) No third party standing Plaintiff must meet all the standing requirements AND one of these exceptions must be present: a) Exception: Third party standing is allowed if there is a close relationship between the plaintiff and the injured third party b) Exception: Third party is allowed if the injured third party is unlikely to be able to assert his or her own rights c) Exception: an organization may sue for its members, (“associational standing), if the members would have standing to sue, the interests are germane to the organization’s purpose, and neither the claim nor relief requires participation of individual members 4) No generalized grievances The plaintiff must not be suing solely as a citizen or as a taxpayer interested in having the government follow the law. Exception: taxpayers have standing to challenge government expenditures as violating the Establishment Clause. Ex: Taxpayers lack standing to challenge giving federal property to religious institutions |
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Ripeness
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Ripeness is the question of whether a federal court may grant preenforcement review of a statute or regulation
***Usually happens with request for declaratory judgment – whenever you see that on the bar consider whether there’s a con law issue 1) The hardship that will be suffered without preenforcement review – greater hardship more likely hear it 2) The fitness of the issues and the record for judicial review – is there any reason why the federal court should wait before resolving this issue? Is this in the record? |
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Mootness
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If events after the filing of a lawsuit and the plaitniff’s injury, the case must be dismissed as moot
Plaitniff must have live controversy/ongoing injury. If anything happens while case is pending to resolve the injury then the case is dismissed as moot. Exceptions: 1) Wrong capable of repetition but evading review 2) Voluntary cessation 3) Class Action suits |
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Political Question Doctrine
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The political question doctrine refers to allegations of constitutional violations that the federal courts will not adjudicate
Following 4 kinds of cases are dismissed = must be decided by political parties: 1) The “republican form of government clause”. If you see a question where a state or local statute is being challenged based on republican form of government clause then answer is “case dismissed as political question” 2) Challenges to the President’s conduct of foreign policy. Ex: Carter rescind treaty with Taiwan, guy sued saying Prez can’t rescind treaty and Senate has to approve it. Supreme court ordered case dismissed as political question 3) Challenge to the impeachment and removal process. Ex: Nixon case, Senate had committee on Nixon, Nixon objected saying whole Senate had to do it. Supreme court had it dismissed as political question 4) Challenges to partisan gerrymandering |
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When will the Supreme Court review a state court decision?
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For the Supreme Court to review a state court decision, there must not be an independent and adequate state law ground of decision.
If a state court decision rests on 2 grounds, one state law and one federal law, if the Sup Court’s reversal of the federal law ground will not change the result in the case, the Sup Court cannot hear it. |
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Can you sue states?
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1) The 11th Amend bars suits against states in federal court
2) Sovereign immunity bars suits against states in state courts and federal agencies States can be sued when: 1) Waiver is permitted. It must be explicit, the state must say it consents to be sued 2) States may be sued pursuant to federal laws adopted under section 5 of 14th Amendment. Congress cannot authorize suits against state under the constitutional provisions. If law adopted under commerce clause instead of Section 5 then can’t sue the state for that 3) The federal government may sue state governments |
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Can you sue state officers?
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Yes, this is allowed.
1) State officers may be sued for injunctive relief 2) State officers may be sued for money damages to be paid out of their own pockets 3) State officers may be sued if the state treasury will be paying retroactive damages |
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When should the federal courts abstain from hearing a case?
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Where federal courts have jurisdiction but doesn’t exercise it, abstains
Federal courts may not enjoin pending state court proceedings and must abstain |
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Congressional Authority
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There must be express or implied Congressional power
There is no general federal police power State and local governments have “police power” and can do anything not prohibited by the constitution. For Congress to act, it needs to point to express instructions/authority from the constitution. Need to have authority to adopt a certain statute. Congress generally doesn’t have police power, so don’t answer that on the exam, UNLESS it is litigating: 1) For the military 2) For Indian reservations 3) For federal lands and territories 4) For DC MILD – M(military) I(Indian reservations) L(federal lands and territories) D(DC) |
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The Necessary and Proper Clause
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Congress may choose any means not prohibited by the constitution to carry out its authority
Ex: Article 1 Section A says Congress can raise an Army/Navy. If Congress decided to fund it by a national bake sale could it do so? Nothing in the constitution says that it can but Congress still could because its not prohibited by the constitution. |
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Requirements for Standing
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1) Injury
a) Plaintiffs may only assert injuries that they personally have suffered b) Plaintiffs seeking injunctive or declaratory relief must show a likelihood of future harm 2) Causation and Redressability The plaintiff must allege and prove that the defendant caused the injury so that a favorable court decision is likely to redress the injury. The Supreme Court says core of Article III is that federal court can’t issue advisory opinions. In order for plaintiff to have standing, must demonstrate a favorable court ruling would remedy the harm suffered. Best way to do that is know the defendant causes the harm 3) No third party standing Plaintiff must meet all the standing requirements AND one of these exceptions must be present: a) Exception: Third party standing is allowed if there is a close relationship between the plaintiff and the injured third party b) Exception: Third party is allowed if the injured third party is unlikely to be able to assert his or her own rights c) Exception: an organization may sue for its members, (“associational standing), if the members would have standing to sue, the interests are germane to the organization’s purpose, and neither the claim nor relief requires participation of individual members 4) No generalized grievances The plaintiff must not be suing solely as a citizen or as a taxpayer interested in having the government follow the law. Exception: taxpayers have standing to challenge government expenditures as violating the Establishment Clause. Ex: Taxpayers lack standing to challenge giving federal property to religious institutions |
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Ripeness
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Ripeness is the question of whether a federal court may grant preenforcement review of a statute or regulation
***Usually happens with request for declaratory judgment – whenever you see that on the bar consider whether there’s a con law issue 1) The hardship that will be suffered without preenforcement review – greater hardship more likely hear it 2) The fitness of the issues and the record for judicial review – is there any reason why the federal court should wait before resolving this issue? Is this in the record? |
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Mootness
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If events after the filing of a lawsuit and the plaitniff’s injury, the case must be dismissed as moot
Plaitniff must have live controversy/ongoing injury. If anything happens while case is pending to resolve the injury then the case is dismissed as moot. Exceptions: 1) Wrong capable of repetition but evading review 2) Voluntary cessation 3) Class Action suits |
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Political Question Doctrine
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The political question doctrine refers to allegations of constitutional violations that the federal courts will not adjudicate
Following 4 kinds of cases are dismissed = must be decided by political parties: 1) The “republican form of government clause”. If you see a question where a state or local statute is being challenged based on republican form of government clause then answer is “case dismissed as political question” 2) Challenges to the President’s conduct of foreign policy. Ex: Carter rescind treaty with Taiwan, guy sued saying Prez can’t rescind treaty and Senate has to approve it. Supreme court ordered case dismissed as political question 3) Challenge to the impeachment and removal process. Ex: Nixon case, Senate had committee on Nixon, Nixon objected saying whole Senate had to do it. Supreme court had it dismissed as political question 4) Challenges to partisan gerrymandering |
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When will the Supreme Court review a state court decision?
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For the Supreme Court to review a state court decision, there must not be an independent and adequate state law ground of decision.
If a state court decision rests on 2 grounds, one state law and one federal law, if the Sup Court’s reversal of the federal law ground will not change the result in the case, the Sup Court cannot hear it. |
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Congress' Commerce Power
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Commerce power was broadly interpreted at first but then in 1995 the Sup Court in Lopez limited commerce clause power
Lopez: Had federal gun free schools act that the Sup Court said was unconstitutional because it exceeded Congress’ commerce clause power Sup Court said that Congress can regulate commerce in the following situations: 1) Congress may regulate the channels of interstate commerce 2) Congress may regulate the instrumentalities of interstate commerce and persons or things in interstate commerce Instrumentalities facilitate commerce (internet, trains, etc). Persons or things = all forms of intercourse crossing state line, including people/cattle/etc (ex: law prohibiting taking woman across state lines for bad purposes) |
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Congress' Taxing and Spending Power
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Congress may tax and spend for the general welfare
If you have a question about Congress’ power to act and an answer choice that uses the words “general welfare” that can be a right answer only if the question is about Congress taxing or spending or in those few areas where Congress has police power |
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Congress Regulation of Interestate Commerce
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Congress may regulate activities that have a substantial effect on interstate commerce (In this area of non-economic activity, a substantial effect cannot be based on cumulative impact)
Wickard v. Filburn: statute limit amount wheat farmers could grow for own consumption – Sup Court said this was ok because if you looked at the cumulative amount of wheat they grew for their own it would affect the market Marijuana case – economic activity can be looked at with cumulative impact issue Morisson: Violence against women act – Sup Court said federal law unconstitutional because Congress regulating non-economic activities such as sexual assault and in that case substantial effect cannot be based on cumulative impact |
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The 10th Amendment as a limit on Congressional Power
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The 10th Amendment says that all powers not granted to the US nor prohibited to the States are reserved to the State and the power respectively.
1) Congress cannot compel state regulatory or legislative action Ex: NY v. US – waste disposal act required clean up nuclear waste by 1996 and if didn’t would be liable. Sup Court said law unconstitutional because Congress was commandeering/conscripting the states and that violates the 10th Amendment Note: Congress can induce state government action by putting strings on grants so long as the conditions are expressly stated and relate to the purpose of the spending program 2) Congress may prohibit harmful commercial activity by state governments Reno case: involved federal driver protection act protecting certain information at DMV from being sold or given out. State of SC said violates 10th Amendment but Sup Court said this was ok because Congress didn’t put a duty on the states but just prohibited harmful behavior of the states giving out this information |
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Congress' Power under Section 5 of the 14th Amendment
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Congress may not create new rights or expand the scope of rights under Section 5. Congress may act only to prevent or remedy violations of rights recognized by the courts and such laws must be “proportionate” and “congruent” to remedying constitutional violations.
City of Boerne: religious freedom act try to restore religious freedom. Supreme Court said act was unconstitutional because Congress creating new rights/expanding scope of rights and can’t do that under Section 5. Can only act to prevent/remedy rights already recognizes |
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Delegation of Powers
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1) No limit exists on Congress’ ability to delegate legislative power.
Not 1 law has been said to be excessive delegation – don’t answer on the bar that it is an excessive delegation! 2) Legislative vetos and line-item vetos are unconstitutional. For Congress to act, there always must be bicameralism (passage by both House and Senate) and presentment (giving the bill to the President to sign or veto). The President must sign or veto the bill in its entirety. 3) Congress may not delegate executive power to itself or its officers. |
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Treaties
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Treaties are agreements between the US and foreign countries that are negotiated by the President and are effective when ratified by the Senate.
1) Treaties prevail over conflicting state laws. State laws that conflict are invalid 2) If a treaty conflicts with a federal statute, the one adopted last in time controls Remember if there’s a conflict between treaty and fed statute the one adopted last controls and the earlier one is invalid 3) If a treaty conflicts with the US constitution, it is invalid. Constitution is supreme law of the land! |
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Executive Agreements
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1) Definition: An executive agreement is an agreement between the US and a foreign country that is effective when signed by the President and the head of the foreign nation.
Executive agreements do not require Senate approval! 2) Executive agreements can be used for any purpose. Anything that can be done by a treaty can be done by an executive agreement No executive agreements have been found unconstitutional because too extreme of a power 3) Executive agreements prevail over conflicting state laws, but never over conflicting federal laws or the Constitution Look at Chart on p11 for a summary on Treaties and Executive Agreements |
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The President has broad powers as Commander-in-Chief to use American troops in foreign countries
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This has not been found unconstitutional! Don’t say it is on the bar!
Say instead that the case is dismissed as a political question or that the President wins because he has broad powers as commander in chief to use troops in foreign countries |
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President's Appointment and Removal Power
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The appointment power
1) The President appoints ambassadors, federal judges and officers of the US – senate puts up the name, prez approves them 2) Congress may vest the appointment of inferior officers in the President, the heads of departments or the lower federal courts Inferior officers are those that can be fired by officers of the US Attorney General is officer, Deputy Attorney Officer is an inferior officer 3) Congress may not give itself or its officers the appointment power If Congress make a new agency Congress cannot give the appointment power to itself or its officers |
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President's Removal Power
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Unless removal is limited by statute, the President may fire any executive branch office.
1) For Congress to limit removal, it must be an office where independence from the President is desirable and Like where you investigate the President or high ranking officials. Cannot remove President’s cabinet since there for the President. 2) Congress cannot prohibit removal, it can limit removal to where there is good cause |
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Impeachment and Removal
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The President, Vice President, federal judges and officers of the US can be impeached and removed from office for treason, bribery, or for high crimes and misdemeanors
1) Impeachment does not remove a person from office House of Representatives impeaches, Senate has a trial, only if the Senate convicts is the person removed from office 2) Impeachment by the House of Representatives requires a majority vote, conviction in the Senate requires a 2/3 vote |
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Presidential Immunity/Privilege
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The President has absolute immunity to civil suits for money damages for any actions while in action
Case Ex: Nixon ordered Fitzgerald fired, Fitzgerald sue because freedom of speech violation, Sup Court ordered case dismissed even though Nixon no longer president since the Sup Court said he had absolute immunity and cannot be sued for anything done while carrying out acts of presidency. President does NOT have immunity to acts done before he was President. Example: Clinton v. Jones: when Jones sued based on harassment from before he was president and the Supreme Court said immunity is only when you are in office. The President has executive privilege for presidential papers and conversations, but such privilege must yield to other important governmental interests. |
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Presidential Power to Pardon
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The President has the power to pardon those accused or convicted of federal crimes
Exception: When there has been an impeachment there can never be a pardon for the offenses that led to the impeachment Remember can pardon just for FEDERAL crimes, not state liability President can pardon only for CRIMINAL liability and not for civil liability |
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Express Preemption
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If federal statute says federal law is exclusive in a field then state/local law is preempted
Anytime Congress has the authority to act it can say that federal law is exclusive and if so then the state/local law is preempted |
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Implied Preemption
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1) If federal and state law are mutually exclusive, federal law preempts state law. If not possible for someone to simultaneously comply with both state and fed law, then the state law is being preempted
States may set environmental standards stricter than federal law unless Congress clearly prohibits this 2) If state law impedes the achievement of a federal objective, federal law preempts state law Ex: FL had law saying if you file employment claim federally then can’t get employment aid locally. Sup Court said this impermissively interfered with federal objective of getting the claims filed 3) If Congress evidences a clear intent to preempt state law, federal law preempts state law. Even if there’s no express or otherwise implied preemption, can still be preempted if that’s what Congress wanted Ex: immigration law: Congress’ clear intent that the feds fully occupy that field is enough to preempt state law |
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Inter-governmental Immunity
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States may not tax or regulate federal government activity
State tax on bank of US was declared unconstitutional because “power to tax is power to destroy” – if can tax the fed government then could destroy it It is unconstitutional to pay a state tax out of the federal treasury Can state tax privately owned store on federal land? Yes, because taxing the private store. Can state tax federal government store? No, since the tax would be paid by the federal constitution Taxes are unconstitutional that require federal government to pay state property tax States cannot regulate the federal government if they put a significant burden on federal activity States trying to regulate federal government pollution – federal government never has to comply with state pollution levels States can have more severe standards for environmental pollution but just for private citizens |
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Definition: Dormant Commerce Clause
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State/local laws are unconstitutional if they place an undue burden on interstate commerce – inferred from grant to Congress to regulate commerce between the states
On the exam, they often refer to this as the: “Negative implications of the commerce clause.” Same things as dormant commerce clause |
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Definition: Privileges AND Immunities Clause of Article 4
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Provides that no state may deny citizens of other states of the privileges and immunities it affords its own citizens
Anti-discrimination provision Applies ONLY when there’s discrimination of out of staters |
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Definition: Privileges OR Immunities Clause of the 14th Amendment
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This is always a wrong answer UNLESS the question involves the right to travel
This is about discrimination in your own state In the slaughter house cases Sup Court gave a narrow construction of this, so limiting as to basically read the provision out of the constitution but then the Sup Court revived the clause by saying right to travel was protected and couldn’t have a law that discouraged people from traveling by not giving them as much welfare |
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If a law does not discriminate against out of staters, what standard applies?
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1) The privileges and immunities clauses of Article 4 does not apply
2) If the law burdens interstate commerce, it violates the dormant commerce clause if its burdens exceed its benefits Even if the law does not discriminate it may not be ok if it is too big of a burden Ex: Illinois trucking case |
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If the law does discriminate against out of staters, what standard applies?
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1) If the law burdens interstate commerce, it violates the dormant commerce clause unless it is necessary to achieve an important government purpose
Hard burden to meet to uphold the law – must show its an important commerce and helping instaters and instate economic is NEVER sufficient. One case was upheld when the law was about protecting state natural resources. Government also has to prove that no less discriminating alternative could achieve its goal. 1) Exception: Congressional approval Once Congress acts its commerce clause power is no longer dormant. It can approve a state law that would otherwise violate the commerce clause 2) Exception: The market participant exception: A state or local government may prefer its own citizens in receiving benefits from government programs or in dealing with government owned businesses Ex: State universities of NY can charge less for instaters than out of staters – this is ok because state universities are regarded as a government benefit program and can favor instaters State program itself can favor instaters without violating dormant commerce clause |
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If the law discriminates against out of stater's ability to earn a living, what standard applies?
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The law violates the privileges and immunities clauses of Article 4 unless it is necessary to achieve an important government purpose
1) Privileges and immunities clause applies only when there’s discrimination against out of staters 2) Discrimination must be in regard to civil liberties or important economic activities 3) Corporations and aliens cannot invoke this provision. If question where state or local government discriminating against out of staters and challenger is a corporation just use dormant commerce clause. If it’s a person bringing the suit then also consider privileges and immunities. 4) Discrimination allowed only if it’s necessary to achieve an important governmental purpose. Government will have to show it is a substantial and important purpose and the law is necessary. It will have to prove no less discriminatory alternative could achieve this goal |
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State Taxation of Interestate Commerce
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1) States may not use their tax systems to help in state business. This is the one rule that comes up every now and then! Case where if buy ethanol in state get tax credit, not if buy out of state – declared unconstitutional. Cases where tax instate dairy products much less than out of state – unconstitutional
2) A state may only tax activities if there is a substantial nexus to the state. If business operates primarily in CA with very small contact with NY, NY can’t tax it. Need substantial nexus 3) State taxation of interstate businesses must be fairly apportioned |
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Full Faith and Credit
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Courts in one state must give full faith and credit to judgments of courts in another state, so long as:
1) The court that rendered the judgment had jurisdiction over the parties and subject matter 2) The judgment was on the merits 3) The judgment is final |
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How can Congress use the constitution to regulate private behavior?
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1) The 13th Amendment can be used to prohibit private race discrimination. 13th Amendment prohibits slavery and owning slaves and authorizes Congress to make laws to enforce the Amendment
Discrimination NEVER violates the 13th amendment itself, only slavery does. Discrimination can violate federal statutes adopted by Congress under the 13th amendment 2) The commerce power can be used to apply constitutional norms to private conduct Restaurant discriminated, Supreme Court said couldn’t since meat comes across state line and a substantial cumulative effect of all discrimination of restaurants throughout country 3) Congress cannot use Section 5 of the 14th Amendment to regulate private behavior. US v. Morrison: Congress under Section 5 cannot regulate private conduct (violence against women) |
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The Public Function Exception (Constitution applicaiton to private person)
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The Constitution applies if a private entity is performing a task traditionally, exclusively done by the government
Ex: March v. Alabama: company town, company wouldn’t let Jehovah witnesses distribute literature. Sup Court ruled for Jehovah witnesses saying that running a town is traditionally a government act so have to let constitution apply Ex: Holding election/primary for government election was traditionally done by government so when private institution does it have to comply with constitution This is narrow exception! |
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The Entanglement Exception (Constitution applicaiton to private person)
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Constitution applies if the government affirmatively authorizes, encourages, or facilitates unconstitutional activity. Government would have to stop what its doing or private action would have to comply with constitution
Know Examples: 1) Courts cannot enforce racially restrictive covenants. Contract among neighbors that they wouldn’t sell property to blacks or Jews – if allow it then it would be government enforcing discrimination 2) There is state action when a government leases premises to a restaurant that racially discriminates 3) There is state action when a state provides free books to private schools that racially discriminate 4) There is not state action when a private school that is over 99% funded by government fired a teacher without regard of freedom of speech. If state didn’t encourage firing teachers for their speech then no state action ***Government subsidy is insufficient for a finding of state action – tested often!*** 5) There is not state action when the NCAA orders suspension of a basketball coach at a state university. 6) There is state action when a private entity regulates interscholastic sports within the state In the Tennessee Athletic Association case, most of the money and participants were from public schools o Only distinction from NCAA Supreme Court offered was that the TAA operates within only 1 state and NCAA in many 7) There is not state action when a private club with a liquor license in the state racially discriminates |
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The Bill of Rights applies to the states through the incorporation clause of the 14th Amendment EXCEPT
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1) The 2nd Amendment right to bear arms
States can make any regulations on weapons they want 2) The 3rd Amendment right to not have soldiers quartered in a person’s home 3) The 5th Amendment right to grand jury indictment in criminal cases. States don’t have to use grand juries if they don’t want to 4) The 7th Amendment right to jury trial in civil cases. States can abolish jury trials in state courts if they wanted to 5) The 8th Amendment right against excessive fines. The other prohibitions of the 8th amendment do apply to state and local governments but the Supreme Court has not yet ruled on excessive fines |
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Rational Basis Test
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“A law is upheld if it is rationally related to a legitimate government purpose”
Good enough if you just have a conceivably legitimate government purpose Tremendously deferential to the government and challenger has burden of proof under this review – law upheld only if challenger proves no conceivable legitimate purpose or that the law is not rationally related to it |
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Intermediate Scrutiny
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“A law is upheld if it is substantially related to an important governmental purpose”
Governments goal has to be more than just legitimate, must be important Court look only at the actual purpose, conceivable purpose isn’t good enough Means chosen must be substantially related = narrowly tailored to the purpose Means have to be a good way of achieving the objective but they don’t have to be the best way – least restrictive alternative test is not used Government has the burden of proof – must show substantially related to important government purpose |
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Strict Scrutiny
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“A law is upheld if it is necessary to achieve a compelling government purpose”
Government’s objective must be more than just something that is legitimate for governments to do – the court must be persuaded that the government’s purpose is vital and compelling Court look only to the government’s actual objective Means must be necessary for the objective – least restrictive alternative analysis is used here – must demonstrate no less restrictive alternative could achieve the objective Need more than narrowly tailored means, need means to be the least restrictive This is the most exacting review, government usually loses and the government has the burden of proof |
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Definition: Due Process deprivation of Liberty
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A deprivation of liberty occurs if there is a loss of significant freedom by Constitution or statute
Except in emergency, before an adult can be institutionalized, there must be notice and a hearing When a parent institutionalizes a child there only has to be a screening by a neutral fact finder Harm to reputation by itself is not a loss of liberty Prisoners rarely have liberty interests |
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Definition: Due Process deprivation of Property
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A deprivation of property occurs if there is an entitlement and that entitlement is not fulfilled
No longer does the Sup Court use the “rights/privileges” distinction. People have right to property if there is an entitlement – exists if there is a reasonable expectation to continue receipt of a benefit Can apply to jobs |
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Definiton: Due Process: Deprivation of Process
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Government negligence is not sufficient for a deprivation of due process. Generally, there must be intentional government action or at least reckless action for liability to exist. However, in emergency situations, the government is liable under due process only if its conduct “shocks the conscience.”
Generally, the government’s failure to protect people from privately inflicted harms does not deny due process. Only if government creates the danger or person is in governmental protection does the government have any duty to provide protection |
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Procedures Required for Due Process
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Balance
1) The importance of the interest to the individual More important the interest, the more the required procedures 2) The ability of additional procedures to increase the accuracy of the fact-finding More additional procedures will reduce the risk of erroneous deprivation, the more likely they will be required 3) The government interest in administrative efficiency The government’s interest is usually efficiency in saving money. Courts have a great deal of discretion so questions on multistate will only reference Sup court cases already decided |
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Examples of Required Procedures for Due Process
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1) Before welfare benefits can be terminated there must be notice and a hearing
2) When social security disability benefits are terminated there need only be a post-termination hearing 3) When a student is disciplined by a public school there must be notice of the charges and an opportunity to explain (to principal, other administrator – doesn’t have to be a trial type hearing) 4) Before parental rights can be permanently terminated there must be notice and a hearing 5) Punitive damages awards require instructions to the jury and judicial review Grossly excessive punitive damages violate due process 6) An American citizen contained as an enemy combatant must be afforded due process 7) Except in exigent circumstances, pre-judgment attachment or government seizure of assets must be proceeded by notice and hearing Exigent circumstances: if believe person might get rid of property before the hearing if had notice then can be attachment before notice/hearing Due process does not require an innocent owner defense to government seizure |
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Definition: Substantive Due Process
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Substantive due process asks when the government has an adequate reason in taking away a person’s life, liberty, or property is there a sufficient substantive justification (good enough reason)
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Definition: Procedural Due Process
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Must follow procedures if you take away life, liberty, process
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Test for laws affecting economic rights
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Only a rational basis test is used for laws affecting economic rights
Employment regulation like minimum wage, state regulation of trade or profession, consumer protection, etc = rational basis review and government wins |
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Substantive Due Process: The Takings Clause: Is there a taking?
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The government may take private property for public use if it provides just compensation
Is there a taking? 1) Possessory taking: Government confiscation or physical occupation of property is a taking. It doesn’t matter how small the amount of property is, if the Government confiscates or physical occupies it, that is a taking. Loretto case: NY required buildings allow for cable box – Sup court said it was a taking even though it was small because the government confiscated the space 2) Regulatory taking: Government regulation is a taking if it leaves no reasonable economically viable use of the property Government regulation is not a taking just because it decreases the value of someone’s property. It becomes a taking if it leaves no economically viable use. Penn Central v. Lucas |
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Substantive Due Process: Additional Points on the Taking Clause
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Government conditions on development of property must be justified by a benefit that is roughly proportionate to the burden imposed: otherwise it is a taking. Dolan test: benefit must have rough proportionality
A property owner may bring a takings challenge to regulations that existed in the time the property was acquired Temporarily denying an owner use of property is not a taking so long as the government’s action is reasonable. Tahoe moratoria case – temporarily denying development was not a taking as long was it was reasonable |
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Substantive Due Process: The Takings Clause: Is the taking for a public use and is compensation paid?
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Government may take private property only for public use. “Public use” is broadly defined so virtually all takings meet it, government just has to act out of a reasonable belief that the taking will benefit the public
Ex: Kelo 3) Is just compensation paid? Measured in terms of loss to owner (reasonable market value), gain to taker is irrelevant |
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Substantive Due Process: The Contract Clause
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No state shall impair the obligations of contracts
1) Applies only to state or local interference with existing contracts. Never applies to federal government! Only applies to already existing contracts 2) State or local interference with private contracts must meet intermediate scrutiny. Actual test is phrased by Sup Court is different from the traditional intermediate scrutiny: Does the legislation substantially impair a party’s rights under an existing contract? If so, is the law a reasonably and narrowly tailored means of promoting an important and legitimate public interest? 3) State or local interference with government contracts must meet strict scrutiny 4) The ex post facto clause does not apply in civil cases (An ex post facto law is a law that criminally punishes conduct that was lawful when it was done or that increases the punishment for a crime after it was committed.) Retroactive civil liability only need meet a rational basis test (A bill of attainder is a law that directs the punishment of a specific person or persons without a trial) |
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Constitutional Provisions Concerning Equal Protection
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1) The equal protection clause of the 14th Amendment applies only to state and local governments. 14th Amendment never applies to the federal government
2) Equal protection is applied to the federal government through the due process clause of the 5th Amendment. Substantively law of equal protection is the same whatever level of government but remember that for state/local government it applies through 14th amendment and for federal government it applies through the due process clause of the 5th amendment |
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What scrutiny is used for Classification based on Race and National Origin?
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Use strict scrutiny
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How do you prove a racial classification?
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1) The classification exists on the face of the law
Classification evident in the law (“Blacks cannot serve on jury;” “Blacks and whites cannot attend the same schools”) 2) If the law is facially neutral, proving a racial classification requires demonstrating both discriminatory impact and discriminatory intent To trigger strict scrutiny must have both the intent AND the impact Example: discriminatory use of preemptory challenges based on race denies equal protection Have both discriminatory impact and intent Doesn’t matter whether criminal or civil case, prosecutor or defendant |
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How should racial classifications benefiting minorities be treated?
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1) Strict scrutiny is applied
2) Numerical set asides require clear proof of past discrimination. Sup Court doesn’t like “quotas” or set asides Sup Court upheld one set aside as a clear remedy 3) Educational institutions may use race as one factor in admissions decisions to help minorities Grutter case, Sup Court upheld it because had compelling interest in getting diverse student body, can use race for that Gratz case: cannot use race quotas Note: Seniority systems may not be disrupted for affirmative action. Usual rule with layoffs is last hired is first fired, have to continue that |
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What scrutiny is used for Gender Classifications?
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Intermediate scrutiny is used
Also requires “exceedingly persuasive justification” for intermediate scrutiny, although the test is still intermediate scrutiny |
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How is the existence of a gender classification proven?
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1) The classification exists on the face of the law
Virginia saying only men could attend military academy Only women could drink 3/2 beer 2) If the law is facially neutral, proving a gender classification requires demonstrating both discriminatory impact and discriminatory intent Discriminatory impact is not enough, need to show intent too. Example: discriminatory use of peremptory challenges based on gender denies equal protection |
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How should gender classifications benefiting women be treated?
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1) Gender classifications benefiting women that are based on role stereotypes will not be allowed. Law saying woman can get alimony but man can’t – based on stereotype keeping women economically dependent on men = unconstitutional, same thing with only women getting benefits after husband dies and not vice versa
2) Gender classifications that are designed to remedy past discrimination and differences in opportunity will be allowed |
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Alienage Classifications
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1) Generally, strict scrutiny is used. Saying have to be citizen to take the bar, etc
2) Only a rational basis test is used for alienage classifications that concern self-government and the democratic process. Government may discriminate against aliens with regard to voting, serving on a jury, being a police officer, a teacher, or a probation officer. Notaries do not have to be citizens 3) Only a rational basis test is used for Congressional discrimination against aliens. Congress has power to regulate immigration, if it decides to discriminate against non-citizens only have rational basis review 4) It appears that intermediate scrutiny is used for discrimination against undocumented alien children. Law saying children of aliens had to pay for education while everyone else didn’t – Sup Court said this wasn’t constitutional, used more than rational and less than strict scrutiny |
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Discrimination Against Non-marital Children (“Legitimacy Classification”)
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1) Intermediate scrutiny is used. If government discriminates against children because parents weren’t married, intermediate scrutiny is used
2) Laws that deny a benefit to all non-marital children, but grant it to all marital children, are unconstitutional. Intermediate scrutiny is still the test but these laws always fail it Example: law saying only marital children could inherit property, Sup Court said unconstitutional Hard cases: law gives some non-marital children benefit but not other non-marital children – court used intermediate scrutiny and said that making parentage be discovered during father’s lifetime was ok |
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What scrutiny is used for all other types of discrimination?
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Rational Basis
1) Age discrimination Government retirement law – always say rational basis review and government wins 2) Disability discrimination 3) Wealth discrimination Poverty is not a suspect classification, discrimination against the poor only gets rational basis review 4) Economic regulations. Whether economic regulation challenged under due process or equal protection it gets rational basis review and the same result, government wins 5) Sexual orientation discrimination |
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Due Process v. Equal Protection
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Equal Protection focuses on how people are treated relative to each other while due process focuses on whether the infringement of a person’s rights are appropriate
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Fundamental Rights Protected Under Equal Protection: Right to Travel
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1) Laws that prevent people from moving into a state must meet strict scrutiny
2) Durational residency requirements must meet strict scrutiny. Where have to live in a place for certain amount of time before getting benefit – concern would chill travel so have to meet strict scrutiny. 50 days is the maximum residential duration requirement for voting 3) Restrictions on foreign travel need meet only the rational basis test. Not a fundamental right on international travel so just rational basis test |
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Fundamental Rights Protected Under Equal Protection: Right to Vote
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1) Laws that deny some citizens the right to vote must meet strict scrutiny
Poll tax is unconstitutional because it keeps some citizens from voting. Property ownership requirements for voting or holding public officer are almost never allowed. Court did allow property ownership requirement for a water district election which was just for allocating water rights 2) One-person – one-vote must be met for all state and local elections. For any elected body all districts must be about equal in population 3) At-large elections are constitutional unless there is proof of a discriminatory purpose. When all the voters vote for all the office holders 4) The use of race in drawing election district lines must meet strict scrutiny. If the government uses race as a predominant factor in drawing election districts to benefit minorities then the government must meet strict scrutiny 5) Counting uncounted votes without standards in a presidential election violates equal protection Note: there is no fundamental right to education |
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First Amendment: Free Speech: Content Based v. Content Neutral Restrictions
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Content-based restrictions on speech generally must meet strict scrutiny. Two types of content based laws:
1) Subject matter restrictions. When the application of the law depends on the topic of the speech, if find that then use strict scrutiny Ex: saying could only picket about labor, found unconstitutional as content based 2) Viewpoint restrictions Where the application of the law depends on the ideology of the message. Saying can’t protest the war – viewpoint restriction. In DC had law that said couldn’t protest near Whitehouse, used strict scrutiny and found it unconstitutional Content neutral laws burdening speech generally need only meet intermediate scrutiny. If law applies to all speech (whatever topic and viewpoint) then intermediate scrutiny |
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First Amendment: Free Speech: Prior Restraints
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They are judicial order or administrative system that stops speech before it occurs
1) Court orders suppressing speech must meet strict scrutiny. Procedurally proper court orders must be complied with until they are vacated or overturned. A person who violates a court order is barred from later challenging it. Gag orders on the press to prevent prejudicial pretrial publicity are not allowed Person who violates a court order cannot challenge it later, even if later found unconstitutional they can still be punished – must be complied with 2) The government can require a license for speech only if there is an important reason for licensing and clear criteria leaving almost no discretion to the licensing authority. Licensing schemes must contain procedural safeguards such as prompt determination of requires for licenses and judicial review. |
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First Amendment: Free Speech: Vagueness
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A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is allowed
Vague laws violate due process. Specific concern for vague laws that violate free speech so any law that regulates speech must be clear about what is prohibited and what is allowed. |
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First Amendment: Free Speech: Overbreadth
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A law is unconstitutionally overbroad if it regulates substantially more speech that the constitution allows to be regulated
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First Amendment: Free Speech: Fighting Words
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Fighting words laws are unconstitutionally vague and overbroad
Fighting words = words directed toward another likely to invoke a violent response. They are not protected by the 1st Amendment but for years and years Sup Court has not upheld laws prohibiting fighting words because they are unconstitutionally vague and overbroad |
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First Amendment: Free Speech: Symbolic Speech
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The government can regulate conduct that communicates if it has an important interest unrelated to suppression of the message and if the impact on communication is no greater than necessary to achieve the government’s purpose
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First Amendment: Free Speech: Symbolic Speech Examples
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1) Flag burning is constitutionally protected speech
2) Draft card burning is not protected speech. Important state interest in having men keep their draft cards so the government can have troops when needed 3) Nude dancing is not protected speech. Local governments may prohibit nude dancing 4) Burning a cross is protected speech unless it’s done with the intent to threaten 5) Contribution limits in an election campaign is constitutional, expenditure limits are unconstitutional Government may limit amount person contributed to a candidate/committee but cannot limit amount person can spend overall |
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First Amendment: Free Speech: Anonymous Speech
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Anonymous speech is protected
Distributing anonymous literature about elections is allowed, just as you can speak you can not speak, or not disclose your identity |
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First Amendment: Free Speech: Incitement of Illegal Activity
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The government may punish speech if there is a substantial likelihood of imminent illegal activity and if the speech is directed to causing imminent illegality
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What is the test for obscenity and sexually oriented speech?
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1) The material must appeal to the prurient interest
Shameful or morbid interest in sex as opposed to healthy interest in sex. Local/community standard used 2) The material must be patently offensive under the law prohibiting obscenity Must say what things are patently offensive Look at what government that has the statute’s definition of patently offensive 3) Taken as a whole, the material must lack serious redeeming artistic, literary, political, or scientific value Social value is determined by a national, and not local, standard |
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Can the regulate adult bookstores?
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The government may use zoning ordinances to regulate the location of adult bookstores and movie theaters
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Can the government regulate child pornography?
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Child pornography may be completely banned, even if not obscene. Children must be used in the production for it to be child pornography. Supreme Court said Congress amendment to make it also be computer depictions of children unconstitutional. Must have children used in production.
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Can the government punish private possession of obscene materials?
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The government may not punish private possession of obscene materials; but the government may punish private possession of child pornography
Government has compelling interest in protecting children so can punish private possession of children pornography Note: The government may seize the assets of businesses convicted of violating obscenity laws Applies to things that are not obscene as well as the obscene objects |
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Is profane and indecent speech protected under the 1st Amendment?
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Profane and indecent speech is generally protected by the 1st Amendment
1) Exception: over the broadcast media Uniquely a part of the home/accessible to children Applies to over the air television and radio, government has much less control over cable television since people have the choice to bring cable into their homes 2) Exception: in schools Schools are responsible for teaching civilized discourse and so can prohibit/punish profane language |
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Commercial Speech
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1) False and deceptive ads or advertising for illegal activity are not protected by the 1st Amendment
2) True commercial speech that inherently risks deception can be prohibited a) The government may prevent professionals from advertising or practicing under a trade name b) The government may prohibit attorney, in-person solicitation of clients for profit. Creates too big of a danger. If offer free services then its ok – less danger. Solicitation by letter is also ok because not a great danger c) The government may not prohibit accountants from in-person solicitations of clients for profit. Sup Court said attorneys are different from accountants because attorneys are trained in advocacy and so not trustworthy in solicitation while accountants trained in accuracy so not a danger 3) Other commercial speech can be regulated if intermediate scrutiny is met 4) Government regulation of commercial speech must be narrowly tailored, but it does not need to be the least restrictive alternative |
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Defamation
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Libel/slander not protected by 1st Amendment subject to following rules:
1) If the plaintiff is a public official or running for public office, the plaintiff can recover for defamation by proving by clear and convincing evidence falsity of the statement and actual malice 2) If the plaintiff is a “public figure” the plaintiff can recover for defamation by proving falsity of the statement and actual malice. Those who thrust themselves into the limelight, accessed by the media – same rules apply as to political figure 3) If the plaintiff is a “private figure” and the matter is of “public concern” that state may allow the plaintiff to recover for defamation by proving falsity of the statement and negligence by the defendant. However, the plaintiff may recover presumed or punitive damages only by showing actual malice Private figures are those who are not public or political figures. Matters of public concern = matters in which the public has a legitimate interest 4) If the plaintiff is a “private figure” and the matter is not of “public concern,” the plaintiff can recover presumed or punitive damages without showing actual malice |
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Privacy
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1) The government may not create liability for the truthful reporting of information that was lawfully obtained from the government
2) Liability is not allowed if the media broadcasts a tape of an illegally intercepted call if media did not participate in the illegality and it involves a matter of public importance 3) The government may limit its dissemination of information protect privacy Press and public have 1st Amendment right to attend criminal trials and most pretrial proceedings but other than that the government has broad latitude to close proceedings for privacy Note: Other government restrictions based on the content of speech must beat strict scrutiny |
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Public Forums
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Government properties that the government is constitutionally required to make available speech (sidewalks, parks, etc) and may regulate only if:
1) Regulations must be subject matter and viewpoint neutral, or if not, strict scrutiny must be met 2) Regulations must be a time, place, or manner regulation that serves an important government purpose and leaves open adequate alternative places for communication. Law saying noisy trucks couldn’t operate at night was upheld under this 3) Government regulation of public forums need not use the least restrictive alternative. Case prohibited concert because of noise, challengers said could have just had maximum decibel level but court found for government because didn’t have to do least restrictive alternative 4) City officials cannot have discretion to set permit fees for public demonstrations |
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Limited Public Forums
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Also called “designated public forums”: Government properties that the government could close to speech, but chooses to open to speech. Example: School facilities – evenings and weekends are non-public forums but if decide to open it to the community or students it becomes a limited public forum. If government opens it for limited public forum then must meet requirements of public forums
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Non-Public Forums
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Government properties that the government constitutionally can and does close to speech. The government may regulate speech in nonpublic forums so long as the regulation is reasonable and viewpoint neutral.
Military bases – parts usually open to the public are still non-public forums Areas outside prisons and jails are non-public forum for the sake of security Advertising space on city buses Sidewalks on post office property Airports – government can prohibit solicitation of money in airports but cannot prohibit distribution of literature in airport |
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Private Property
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There is no 1st Amendment right of access to private property for speech purposes.
This includes privately owned shopping centers! |
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Freedom of Association
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Laws that prohibit or punish group membership must meet strict scrutiny. To punish membership in a group it must be proven that the person:
1) Actively affiliated with the group, and 2) Knowing of the group’s illegal activities, and 3) With the specific intent of furthering the illegal activities Laws that require disclosure of group membership, where such disclosure would chill association, must meet strict scrutiny Laws that prohibit a group from discriminating are constitutional unless they interfere with intimate association of expressive activity |
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Freedom of Religion: Free Exercise Clause
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1) The free exercise clause cannot be used to challenge a neutral law of general applicability
2) The government may not deny benefits to individuals who quit their jobs for religious reasons Can’t force people to choose between income or religion |
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Freedom of Religion: Establishment Clause: The Test
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Can make no law respecting the establishment of religion
1) There must be a secular purpose for the law 2) The effect must be neither to advance nor inhibit religion Government must not symbolically endorse religion or a particular religion 3) There must not be excessive entanglement with religion |
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Freedom of Religion: Establishment Clause: Additional Points
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1) The government cannot discriminate against religious speech or among religions unless strict scrutiny is met
2) Government sponsored religious activity in public schools is unconstitutional. But religious student and community groups must have the same access to school facilities as non religious groups. School prayer is unconstitutional. Clergy prayers at public school graduation is unconstitutional. Student delivered prayers at high school football games is unconstitutional. Moment of silent prayer is unconstitutional 3) The government may give assistance to parochial schools, so long as it is not used for religious instruction. The government may provide parents with vouchers that they may use in parochial schools. |
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Powers of Local Government in NY
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Statute of Local Governments grants local governments the power to:
1) Adopt ordinances, including the licensing or regulation of occupations or businesses, 2) Acquire, equip and dispose of property 3) Operate recreational facilities 4) Collect rents, charges, rates and fees 5) Adopt zoning regulations 6) Perform comprehensive planning work, and 7) Issue bonds to finance local projects This statute along with County, Town, and Village Law, prescribes the forms of government adoptable by residents of the territories of these entities. |
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Education in NY
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Legislature must provide for the maintenance ad support of a system of “free common schools” available to all of the children in the state
The NY Constitution also continues the existence of the University of the State of NY to charter and control institutions of secondary and higher education in the state There is a specific prohibition against state aid to parochial schools |
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Government Function in NY
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The NY Constitution makes housing a proper function of the government. Legislature may provide for low income housing and nursing home accommodations or for clearance, replanning, reconstruction, and rehabilitation of substandard and unsanitary areas, or for both such purpose and for recreational and other facilities incidental thereto.
Despite provisions restricting the use of public funds to benefit private parties, the legislature may: 1) Make subsidies to local governments from general state funds, or authorize the state to contract indebtedness for these purposes 2) Authorize loans by local governments and to the state to housing or nursing home corporations that are regulated as to rents, profits, dividends, and disposition of their property 3) Authorize local governments to make loans to owners of multiple dwellings for rehabilitation for persons of low income 4) Grant tax exemptions up to 60 years or 5) Grant the power of eminent domain to local governments and to public corporations or any regulated housing or nursing home corporation |
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Social Welfare in NY
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The NY Constitution makes aid, care and support of the needy “public concerns” to be provided by state and local governments as determined by the legislature. The state board of social welfare mandated by the constitution visits and inspects all public and private institutions that receive public funds and are of charitable, correctional or reformatory character (except for institutions overseen by the Department of Mental Hygiene or the State Commission of Correction). The constitution also directs the legislature to provide for the protection and promotion of the health of the state’s residents as a matter of public concern.
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Limits on Aid in NY
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Legislature may not deny aid to individuals who are admittedly needy on the basis of criteria irrelevant to need, but the NY Constitution does not mandate public assistance be granted in every instance or that the state meet the full needs of each public assistance recipient.
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Limits on State and Local Government in NY - Private Bills
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Legislature’s power to enact laws benefiting private parties is limited by the NY Constitution. The legislature is prevented from auditing or allowing private claims or accounts against the state and may only appropriate funds that were audited or allowed according to law. Other areas where legislature is forbidden to enact private or local laws are:
1) Changing the names of persons 2) Laying out or altering roads or draining lowlands 3) Locating or changing county seats 4) Changing revenue in civil or criminal cases 5) Incorporating villages 6) Electing boards of supervisors 7) Selecting or empanelling grand or petit jurors 8) Regulating interest rates on money 9) Opening or conducting elections or designating voting places 10) Creating, increasing, or decreasing fees, percentages, or allowances of public officers during their terms 11) Granting any person or association the right to lay railroad tracts 12) Granting any private corporation, association, or individual any exclusive privilege, immunity, or franchise 13) Granting any exemption from taxation on real or personal property and 14) Providing for bridge building by other than a local government or public agency of the state, except over waters forming a boundary of the state |
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Local Government Home Rule in NY
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The legislature can act in relation to the property, affairs or government of any local government only by “general” law or by “special” law if:
1) on request of 2/3 of the legislature or on request of its chief executive officer concurred by a majority of such membership or 2) On certificate of necessity from the governor, reciting an emergency situation, with the concurrence of 2/3 of the legislature. There is no need for local consent if the concern of the legislation is a matter of both state and local interest |
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Statute of Local Governments in NY
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The legislature must provide for the creation and organization of local governments with powers including but not limited to local legislation and administration. The legislature can repeal or impair these powers only by a statute enacted with the governor’s approval at its regular session in one calendar year and reenacted and approved in the following calendar year.
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Eminent Domain in NY
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Local governments can take private property for public use within its boundaries. Legislature may regulate this power when the subject property lies outside the municipality’s boundaries.
At common law local government was not entitled to compensation for governmental (as opposed to proprietary) property taken by the state. Statute now requires that if eminent domain is for a purpose substantially different from that which the property was held by the local government, the taking will be treated as if from a private person. |
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Organizational Rights in NY
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Every local government, except a county wholly included within a city, is entitled to a legislative body, elected by the people of the territory. The elected officials may appoint other officials as provided by law.
Counties can form a government empowered to transfer duties and functions within different units of government or abolish certain units. Such acts require approval by a majority of voters in a referendum conducted in the county. |
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Proprietary Affairs in NY
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The legislature cannot prohibit local government from recouping a fair return on the value of the property used in their operation of public utilities, over the costs of operation and maintenance and proper reserves, in addition to the amount equivalent to taxes that such services, if privately owned, would have paid the local governments. Nor can the legislature prevent the use of such profits to provide refunds to customers for lawful purposes.
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Annexation in NY
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A local government can annex territory if the majority of the people in the territory consent in a referendum, and the local government whose area has been affected consents on the ground that the public interest has been served.
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Local Government Authority Subject to State Government in NY
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Subject to legislative authorization, local governments may adopt or amend local laws not inconsistent with the constitution or genera laws relating to the following subjects, insofar as they do not relate to the local government’s property, affairs or government:
1) Officers and employees – duties, powers, qualifications, compensation, etc 2) Membership and composition of the legislative body of a city, town, or village 3) Transaction of its business 4) Incurring obligations consistent with statutes 5) Presentation, ascertaining and discharge of claims against it 6) Acquisition, care, management and use of its roads and transit facilities 7) Levy, collection and administration of local taxes authorized by statutes, and of assessments for local improvements consistent with statutes 8) Compensation and working conditions of persons employed by contractors or subcontractors who perform work, labor, or services for it and 9) Government, protection, order, conduct, safety, health and well-being of persons or property therein |
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State Appropriation Expenditure Control in NY
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State treasury can only expend funds pursuant to appropriation law, which must have been passed within two years and by 2/3 of each branch of the legislature
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Gift or Loan Prohibition in NY
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Money of the state cannot be given or lent in aid of any private corporation or association or private undertaking. The state’s credit may not be given or lent in aid of any private individual, public or private corporation or association, or private undertaking except as to a fund or property held by the state for educational, mental health or mental retardation purposes.
These restrictions are inapplicable to authorized loans to a public corporation for the purpose of making loans to nonprofit corporations that will construct or rehabilitate industrial or manufacturing plants, that will construct buildings for research and development, or that will purchase related machinery and equipment; or for the purpose of using such funds for such purposes to improve employment opportunities of any area of the state. There is a limit on the loans of 40% per year of the cost of any such project, plus security interests in the property. |
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Source of Funds in NY
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The state has broad powers of taxation and borrowing. It is allowed to contract debts in anticipation of receiving taxes, revenues, and proceeds from the sale of bonds. Anticipatory bond obligations must be paid within 2 years (5 years for housing bonds) of issue. The state may contract “emergency” debts to repel invasion, suppress insurrection, defend the state in war or suppress forest fires. No other debts can be contract unless approved by a referendum held no earlier than 3 months after passage of a bill but not as a general election where nay other bill or law is being voted on.
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Raising and Borrowing Funds in NY
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Local governments can assess and collect property taxes within constitutional limits and the legislature can authorize improvement districts to impose such taxes. The legislature by statute may provide revenue to local governments in the form of grants, sale tax, user charges, income tax, and special assessment.
Funds can be borrowed for periods no longer than the useful life of the object or purpose of the purchase or expenditure and in no event for longer than 40 years. |
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Faith and Credit Pledge in NY
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A local government’s indebtedness must have the local government’s pledge of faith and credit, a promise to pay and use revenue powers to produce funds for payment of principal and interest. Faith and credit obligations different from “revenue” obligations, which involve a limited pledge of specified funds. “Moral obligations” are not backed by any legally enforceable obligation to pay.
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Legislature Power to Limit Local Taxes in NY
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Legislature may set lower debt ceilings than in the NY Constitution but it cannot restrict local government’s power to levy taxes on real property for the payment of interest or principal of contracted indebtedness.
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Public Officers in NY
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Top officers are elected or appointed according to constitution or statute. If no law exists they serve at the will of the appointing body or officer. The governor, lieutenant governor, comptroller, attorney general and members of the legislature are elected. Twenty civil departments are permitted by the constitution in state government. The heads of these departments are appointed by the governor with the advice and consent of the senate.
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Civil Service in NY
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Civil service appointments and promotions are made according to merit and fitness, which may be determined through the use of competitive exams, some of which favor veterans.
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Labor Law in NY
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The NY Constitution sets restrictions on work hours and wage levels for employees of contractors or subcontractors performing public works. All employees have the right to bargain collectively. The Taylor Law specifically gives the right to public employees. A Public Employment Relations Board (“PERB”) supervises labor relations. Public employees may not strike. Local governments may adopt their own labor laws if they are substantially equivalent according to PERB. NY City has its own legislatively approved system.
Public employees do not include employees of the judiciary, state militia, or persons designated as managerial or confidential, such as assistant district attorneys. |
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Public Bidding in NY
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All public work contracts costing local government more than $20,000 and purchase contracts costing over $10,000 require public competitive bidding, except for professional services. Fraud or collusion can void the contract. Government employees are forbidden to have substantial pecuniary interests in any contract with the government if they have powers with respect to executing the contract.
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Taxpayer Standing in NY
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Mere unlawfulness of an act by government does not give a taxpayer standing to challenge the act. The taxpayer must show the act is injurious or dangerous to the public interest. Plaintiff need not show direct injury to himself. “Taxpayer’s action” is allowed against all agents of local government to prevent waste or injury, or to restore and make good any property, funds or estate of a city, town, county or village if the taxpayer or taxpayers share property assessed at $1000 or more by the local government.
Taxpayer who attacks as unconstitutional an expenditure of public funds or the validity of a statute must demonstrate some special and direct injury to himself. |
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Government as Wrongdoer in NY
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Legislature has waived sovereign immunity for the state and its subdivision under the Court of Claims Act
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