Rb - Constitutional

Front 1

Mootness

Back 1

A fed court will not hear a case that has become moot, meaning a real, live case or controversy must exist at ALL STAGES of review, not merely when the complaint is filed.

Exceptions...

Front 2

Mootness Exceptions

Back 2

Not Moot if:
1) A reasonable expectation the SAME COMPLAINING PARTY would be subjected to the SAME ACTION and would not be able to resolve the issue in the short duration of the action.
2) Reasonable to expect the SAME ISSUE will be raised by other qualified plaintiffs.

Front 3

14th Am.
State Action
+ Public Function or Entanglement

Back 3

The 14th Am only applies if there is action by a state or local govt, govt officer, or PRIVATE indiv whose behavior meets requirements for state action.
State Action can be found where the individual or entity performs exclusive public functions or has significant state involvement in their activities (ex: public education)

Also: action by local gov, action by judge.

Front 4

Equal Protection Challenge
(where law discriminates against a class)

Back 4

The question is whether the State Actor's actions violates the EP Clause of the 14th Am, which prohibits govts from denying any person within their jdx of equal protection of the laws.
1. Discriminatory Classification
2. Suspect, QS, or Other Classes

Front 5

EP Clause
1. Discriminatory Classification

Back 5

Show class discriminated against and that the PL is part of that class.

Front 6

EP Clause
2. Suspect Class...

Back 6

Strict Scrutiny = Necessary to achieve a Compelling govt purpose.
-Race- law facially discrim OR if facially neutral, show impact + intent.
-Alienage- generally SS

(STATE must show it meets Strict Scrutiny)

Front 7

EP Clause
2. ... Quasi Suspect Class ...

Back 7

Intermediate Scrutiny = Substantially related to an Important govt interest. "Exceedingly Persuasive Justification"
-Gender- (same as race) benefit women based on role stereotypes not allowed. Remedying past discrim allowed.
-Illegitimacy- no less restrictive means.
(STATE must show it meets Interm Scrutiny)

Front 8

EP Clause
2. ..... All Other Classes

Back 8

Rational Basis = Rationally Related to a Legitimate govt purpose.
-Age, Marital Status
(CHALLENGER must prove NO rational basis!)

Front 9

Substantive Due Process
5th and 14th Am.
(where law limits liberty of ALL persons engaged in some activity)

Back 9

PL may argue that DF's action denies a Fundamental Right.
Under the SDP clause (and EP clause), a violation of a fundamental right is subject to STRICT SCRUTINY and the govt has the heavy burden of showing that the action is necessary to promote a compelling or overriding state interest.

Front 10

Fundamental Rights (for SDP)

Back 10

Right to PRIVACY:
=Abortion (prior to viability), Marriage, Procreation, Education (Private, NOT Public!), Relations (family), Upbringing, Custody of kids, obscene reading material, homosexual activity, refuse medical treatment.
TRAVEL
VOTE

Front 11

Standing

Back 11

Before a PL may sue in federal ct, she must show that she has a sufficient stake in the controversy and will suffer an injury in fact that will be remedied by a decision in her favor.
--> NO Advisory Opinions
--> NO 3rd Pty Standing, Except: Special Relationship, Organizational
--> NO Citizen Standing
--> NO Taxpayer Standing, Except: Attack on taxing/spending measures on 1st Am grounds (Estab. Clause)

Front 12

T, P, M Restrictions
Non-Public Forum

Back 12

PL's may argue that they are being denied their 1st Am rights under free speech and assembly.
However, the govt may reasonably regulate speech related CONDUCT through CONTENT NEUTRAL time, place, and manner restrictions.
Speech in a NONPUBLIC FORUM (such as a Court in Session) may be regulated if it is VIEWPOINT NEUTRAL and Reasonably Related to a Legitimate govt purpose (RB Test).

Front 13

First Am:
Right to Attend Criminal Trials vs. Overriding Interests
(least drastic means)

Back 13

The First Amendment grants the public and the press the right to attend criminal trials.
This right may be outweighed by an overriding interest articulated by the trial judge.
Overriding Interests:
- Accused's right to a fair trial
- Need to conduct an orderly trial proceeding.
By Least Drastic Means to ensure trial won't be disrupted (ex, make trial available on TV).

Front 14

EP Clause
1st Am Public Access to Trials

Back 14

The EP Clause of the 14th Am prohibits states from denying any person w/i their jdx equal protection of the law.
Public Access to trials is protected under the 1st am, and the 1st Am is a FUNDAMENTAL RIGHT, the SS standard should apply.
(ex: where V's family is denied access to the courtroom but Df's family is allowed, V's fam is being discriminated against)
State must prove a classification necessary to achieve a compelling state interest and means are narrowly tailored to do so.
(A Compelling state interest in a right to a fair trial, but is it necessary to remove a family from trial to do so?) Court may argue they only treat FAMILIES differently, so no Fund Right (RB Test Applies)

Front 15

1st Am: Prior Restraint
(gag orders)

Back 15

A gag order restraining release of information will be upheld if Narrowly Tailored to achieve some Significant govt interest.
Preserving a fair trial for an accused is a sufficient basis for a prior restraint only if it is the ONLY MEANS to ensure a fair trial.
Must be narrowly drawn, reasonable and definite in its scope.
Once a true fact is lawfully obtained from the public record or otherwise released to the public, a newspaper or broadcast cannot be sued for publishing it.
However, a COURT MAY LIMIT its dissemination of information to protect PRIVACY RIGHTS.

Front 16

Collateral Bar Rule

Back 16

A person who violates a court order is BARRED from later CHALLENGING it.
Procedurally proper court orders must be complied with until vacated or overturned.
Note: A person who violates a procedurally proper STATUTE is not barred from later challenging it.

Front 17

Eleventh Am Limit on Fed Courts

Back 17

While a Federal Court is precluded from hearing claims against State Govt, this rule does not apply to LOCAL GOVTS.
(ie, A Fed Court may hear a claim against a Local Govt)

Front 18

Associational (Organizational) Standing

Back 18

An organization has standing if:
1) there is injury in fact to the members of the org, that would give the individual members the right to SUE ON THEIR OWN behalf.
2) the injury to the members is RELATED TO the organization's PURPOSE, AND
3) NEITHER the NATURE of the claim nor the RELIEF requested REQUIRES the participation of the INDIVIDUAL members of the lawsuit.

Front 19

Regulation of Commerce by Congress

Back 19

Congress' power over interstate commerce is plenary and pervasive, but is NOT EXCLUSIVE.
A State's Ordinance which affects interstate commerce but does not conflict with a provision Fed Law is VALID IF:
- It does not discriminate against out of state competition to benefit local economic interests AND
- It is not unduly burdensome.

Front 20

Discriminatory Regulations

Back 20

ex: A State may not prohibit private landfill or waste disposal facilities from accepting out-of-state garbage or waste or surcharge such waste.

Front 21

State Discriminatory Regulations:
Exceptions

Back 21

A discriminatory state or local law may be valid if:
1) it furthers an IMPORTANT NON-ECONOMIC state interest and there are NO REAS ALTERNATIVES, OR
2 where state is a MARKET PARTICIPANT.

Front 22

Market Participant Exception

Back 22

Under this exception, a state may prefer its own citizens when the state is acting as a participant in the market, RATHER THAN A REGULATOR of the market, and therefore, the state is exercising its right to FAVOR ITS OWN CITIZENS.

Front 23

Contracts Clause

Back 23

The CC prevents the state impairment of all contracts rights relating to existing contracts.

A PRIVATE K can be modified if the law serves an IMPORTANT and LEGITIMATE interest and is REASONABLY and NARROWLY tailored to promote that interest.

PUBLIC K--> (where State is a party) --> requires Strict Scrutiny.

Front 24

Organizational Standing

Back 24

An organization has standing if:
1) There's an injury in fact to the members of the org that would ive the indiv members of the org a right to sue on their own behalf,
2) The injury to the members is related to the org's purpose, and
3) neither the nature of the claim nor the relief requested requires the participation of the individual members of the lawsuit *
Challenging the CONSITUTIONALITY of a claim does not require the individual participation.
However, if DAMAGES are claimed, the member's interests may be different!!!

Front 25

Ripeness

Back 25

A genuine or immediate threat of harm.
If Pl will suffer hardship w/o review (greater the hship the better).
Fed Ct may grant PRE-ENFORCEMENT REVIEW of a statute or regulation where an IMMEDIATE THREAT OF HARM exists.

Front 26

1st Am: Freedom of Speech
Prior Restraints

Back 26

A prior restraint is any govt'l action that would prevent a communication from reaching the public.
A prior restraint must be narrowly tailored to achieve some compelling or at least significant govt interest, and certain procedural safeguards must be provided (to the person whose speech is being restrained).
They are generally disfavored. Procedural Safeguards: 1) standards must be narrowly drawn, 2) the restraining body must seek an injunction, and 3) there must be prompt and final judicial determination of the validity of the restraint.

Front 27

Overbroad

Back 27

A regulation will not be upheld if it is overbroad.

Ex: A prohibition against selling "sexually graphic material" prohibits constitutionally protected speech, since material includes material which is not obscene under constitutional standards.

Front 28

Vagueness

Back 28

A regulation must give persons reas notice of what is prohibited.

Ex: Because the term "sexually graphic material" is unclear in describing what speech is regulated, and the ordinance fails to provide any standards of criteria, the ordinance is unconstitutionally vague.

Front 29

Unfettered Discretion

Back 29

A regulation cannot give officials BROAD discretion over speech issues; there must be defined STANDARDS for applying the law.

Ex: where a regulation gives a review panel unfettered discretion to determine what speech is prohibited.

Front 30

Content Regulation

Back 30

If regulates protected speech, must be narrowly tailored to achieve a compelling govt purpose, unless it falls into a category where govt has allowed content-based restrictions on speech.
(Obscenity, Advocacy of Unlawful Conduct, Defamation, Commercial Speech)

Front 31

T,P,M Restrictions

Back 31

Ex Regulating the content of images; not content-neutral even though only seeks to prohibit sales of sexually graphic material.

Front 32

Obscenity
PIPO SLAPS

Back 32

Speech that depicts sexual conduct that, taken as a whole by the AVG PERSON, applying contemporary COMMUNITY standards:
1) Appeals to the PRURIENT INTEREST in sex
2) portrays sex in a PATENTLY OFFENSIVE way, and
3) Lacks SERIOUS LITERARY, ARTISTIC, POLITICAL, or SCIENTIFIC value is not protected.

Front 33

Procedural Due Process

Back 33

A. Taking of Life, Liberty, or Property (denial of equal protection rights qualifies as a liberty interest).
B. Process Required... depends on:
1) the importance of the INDIV INTEREST
2) the value of the special procedural SAFEGUARDS to that interests
3) the GOVT INTEREST in fiscal and administrative efficiency.
Where PL is not challenging the sufficiency of the process itself but the access to the process...

ACCESS TO COURTS: waiver of fees imposed on an indigent PL is required when the imposition of a fee would deny a FUNDAMENTAL RIGHT to the indigent (ie, would deny the 1st Am right to free association if he couldn't go through w/ federal case)

Front 34

Procedural Due Process
Denial of Liberty Interests

Back 34

A deprivation of liberty occurs when a person is denied a freedom provided by the constitution.
Person must show equal protection and due process rights were violated to prevail on a claim.
(Ex: By disallowing a lawsuit , a Ct may be denying the freedom of an important constitutional right: to contest a discrimination claim.)
Denial of Access to Courts--> where imposition of a fee would deny a fundamental right to an indigent person (to go to trial), a fee waiver is required.

Front 35

Indiv Rights (SSTREPS)
1. State Action?
2. 1st Am applicable to states through 14th Am.
3. 1st Am FREE EXERCISE OF RELIGION CLAUSE:

Back 35

Court cannot declare religious beliefs to be false, but can inquire into the SINCERITY of the belief.

Strict Scrutiny:
Compelling state interest?
Means necessary/narrowly tailored?
---> less restrictive alternatives available?

Front 36

Indiv Rights (SSTREPS)
1. State Action?
2. 1st Am applicable to states through 14th Am.
3. 1st Am ESTABLISHMENT CLAUSE

Back 36

Sect Preference?
a. If so, then SS.
b. If not, then Rule (state axn/statute) upheld if SEX:
i) Secular Purpose
ii) Secular Effect
iii) No Excessive govt entanglement w/ religion

Front 37

Indiv Rights (SSTREPS)
1. State Action?
2. 14th Am. EP Clause

Back 37

A. Fundamental Right?
B. Classification? (Race/Alienage, Gender/Illegit, Other)
a. Intent to Discriminate?
i) facial?
ii) discrim impact?
iii) discrim motive/purpose?
C. Suspect Class (SS), QS (IS), Other (RB)
D. If no intent to discrim, then RB applies.

Front 38

Freedom of Speech - Content

Back 38

To justify a content-based regulation of speech, the gov must show that the regulation is necessary to serve a compelling state interest and is narrowly drawn to achieve that end.

Front 39

Content-Neutral Regulations

Back 39

Content-neutral regulations are subject to intermediate scrutiny and will b upheld if gov can show that
1) they advance important interests unrelated to suppression of speech, AND
2) the don't burden substantially more speech than necessary to further those interests.

Front 40

Time, place, Manner Restrictions -
Public Places

Back 40

To be Valid, gov regulations on speech in public places must:
1) be content neutral
2) be narrowly tailored to serve a significant govt interest
3) leave open alternative channels of communication.

Front 41

Symbolic Speech

Back 41

Speech includes not only verbal communication, but conduct that is undertaken to communicate an idea, ie, expressive speech/symbolic speech. The court will uphold a conduct regulation if:
1) the reg is within the const power of the gov
2) it furthers an important gov interest
3) the gov interest is UNRELATED TO SUPPRESSION of speech, and
4) the incidental burden on speech is not greater than necessary
(ex:burning draft card held as related to gov's interest in facilitating the draft system, thus unrelated to speech suppression.
Contrarily, Burning Flag held as related to suppression of speech. A restraint on speech that would be invalid.