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25 Cards in this Set
- Front
- Back
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Standing and other case/controversy limitations
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A. Standing – Must show an injury (personal) that the D caused and that can be redressed by requested relief
B. Ripeness – must be an existing dispute that threatens immed. and sub. Hardship to P and can be resolved by final jmt. C. Mootness – Controversy must be real and live. Or, it must be capable of repetition, but evading review (e,g. abortion). For WA, state may retain moot appeal if involving issues of sub. Public interest D. State action – govt. action and private conduct where significant government involvement. |
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Individual Rights Claim? Threshold issues
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1. State Action (analyze first)
2. Levels of Judicial Scrutiny (know which one is relevant for each individual rights claim): a. Rational Basis – the govt. law, reg. or action will be upheld if rationally related to a legit. Interest – burden on P. Under WA law, P must show beyond a reasonable doubt b. Intermediate Scrutiny – The govt. law, reg. or action upheld only if substantially related to important govt. interest. c. Strict scrutiny – govt. law, reg. or action upheld only if it is narrowly tailored to achieve a compelling interest |
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Takings
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(5th Amendment) – Fed. Govt. = 5th am., State govt. = 14th am. State can’t take private property for public use without just compensation.
1. Taking vs. Non-taking (a) Possessory Taking – confiscation, destruction, or permanent occupation. Exception if serious public health or safety emergencies (b) Regulatory taking – reg leaves no reasonable economically viable use of the prop. (c) Decrease of econ. value – weigh govts purpose v. decreased value with reasonable expectation in use. For WA law, no pmnt if to prevent public harm, otherwise balance governments purpose v. economic impact on owner 2. Taking must be for public use. WA law has less deferential std, Gov. must prove taking necessary for pub. Purpose 3. Just Compensation – Fair market value at the time of the taking. WA law states no compensation if prop damaged during lawful police investigation of a crime. |
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Contracts Clause
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States and local govt. regulations (not judicial decisions) cannot substantially interfere with the
obligations of existing contracts. Private Ks reviewed under intermediate scrutiny. Public contracts reviewed under strict scrutiny |
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Substantive Due Process
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When rights fundamental, both fed and WA apply SS, if not fundamental, RB usually applied
1. Fundamental right of Privacy (including contraception and abortion), Marriage, Interstate Travel, Vote. WA has explicit right to privacy in Const. a. Abortion – before viability, no undue burden (substantial obstacle) on woman’s right to abortion. After viability, gov. may prohibit abortion except necessary to protect mother’s life or health. UB = req. spousal notification or banning partial birth abortions. No UB for 24-hour waiting period, requiring a doc to perform, or parental consent if bypass mechanism available b. Interstate Travel – no residency waiting req. allowed on basic necessities c. Voting – poll tax invalid, property ownership requirement invalid, ballot dq disfavored. Voting districts must be nearly mathematically exact for fed election, for state and local elections, just can’t be any unjustifiably large disparities in the voters among districts. d. Economic Liberties – RB review. WA law exception for (1) SDP analysis of government land use regs – same balancing as takings and (2) right to free public education. |
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Procedural Due Process
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adequate notice, hearing, unbiased decision maker – if any violated it’s a PDP violation. WA
approach same as fed. 1. Property – includes land, personal belongings and any existing entitlement (like welfare) to a spec. benefit under fed or state law for which there is a legitimate expectation that the benefit continue 2. Liberty – all SDP, 1st am. etc. . . – freedom to exercise fundamental rights that have been impaired by intentional government action. Note – defamation alone not enough, but defamation plus is. 3. What process is due? (Notice/Opportunity to be heard) - Mathews Balancing Test – balance importance of the interest to the P and the ability of additional procedures to increase accuracy of fact finding against the government’s interest in admin. Efficiency and cost a. Trial-type evidentiary hearing prior to termination of welfare, but can be after termination of disability b. Notice and opportunity to respond to charges before suspension from pub. School, but after if student presents a danger to persons or property c. Notice and opportunity to respond to charges before for cause removal, provided trial-type evidentiary hearing after termination – giving gov. more leeway when market participant. |
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Equal Protection: Suspect classification based on race/national origin
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– look if it involves a suspect or quasi suspect class, or a fundamental right. Apply app. Scrutiny. Does govt. action meet level of scrutiny
1. Suspect clas. Based on Race or Nat. Origin - SS when govt. action intentionally discriminates based on these. To prove intentional discrimination, a P must show a. law is discriminatory on its face b. patently discriminatory application of facially neutral law, OR c. motive behind law or action d. SPECIAL NOTE ON AFFIRMATIVE ACTION – any gov. action that favors racial or ethnic minorities must also meet SS. May do AA to (1) remedy persistent and discrimination affecting readily identifiable individuals and (2)to achieve diversity within public schools – BOTH MUST BE NARROWLY TAILORED = proportional to injury, stop after a reasonable amount of time, no burden to innocent third parties. |
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Suspect Classification based on Alienage
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a. RB review when fed. Gov. intentional discriminates against any aliens
b. SS when state or local gov. intentionally discriminates against resident aliens. Exceptions for processes of state govt. or jobs involving public fns c. RB review when state or local discriminate against undocumented aliens |
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Equal Protection: Burdens fundamental interests of some people and not others
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Requires strict scrutiny
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Equal Protection: What kind of classification does the law create
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(a) Suspect – race and ethnicity, sometimes alienage - requiring strict scrutiny
(b) Quasi suspect –gender, illegitimacy - requiring intermediate scrutiny analysis. For AA actions – IS is applied (i) WA law has Equal Rights Amendment – treats gender disc. Under SS. Outcome is usually the same though (c) Rational Basis for non-suspect or non-fundamental rights clas.– wealth, age, and others requiring rational basis |
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Equal Protection: WA P&I clause
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WA P&I clause – prohibits a law on its face or as applied, to confer a privilege of citizenship to a minority class to the detriment of the majority.
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Speech: Private Speech
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only restricts govt. reg. of private speech. Govt doesn’t have to fund private speech
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Speech: Prior Restraint
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Strict scrutiny. Licensing and permitting authorities for speech must operate under narrowly drawn and clear standards that leave no discretion, and must be an opp. For prompt judicial review of denial.
i. WA forbids prior restraints on constitutionally protected speech under any circumstances (not true in acuality, like if two const. protections are at odds) |
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Speech: The Issue Treo
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Vagueness, Overbreadth, or Excessive Discretion
i. Void for Vagueness if reasonable person cant tell from the terms what is permitted and prohibited ii. Overbroad if it affects substantially more speech than necessary to serve govt. legit interest iii. Unduly discretionary if officials given inadequate standards for applying the laws |
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Speech: Content Based restrictions
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restrictions on subject matter or viewpoint must meet strict scrutiny unless they are an exception (unprotected or less protected speech
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Speech: Unprotected Speech - 6 categories
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(i) Incitement of Unlawful Conduct – illegal conduct must be likely, immanent and intended by speaker. All three must be in statute
(ii) Fighting Words – abusive words, directed personally to hearer, likely to produce immediate any physically violent reactions in the average person (iii) True Threat – a stmt a reasonable person would interpret as the D’s serious declaration of intent to kill or inflict bodily harm (iv) Obscenity & Sexually Oriented Speech – sexual conduct that, taken as a whole, (1) appeals to the prurient interest in sex using community standards, (2) is patently offensive, using community standards; and (3) lacks serious value of a literary, artistic, political, or scientific nature, using a national reasonable person standard. Like actual child porn. Zoning of adult bookstores and theaters can be regulated, but must not be zoned out of existence (v) Defamation – for pub. Figures must be actual malice (vi) Commercial Speech a. unprotected if for an illegal activity or it is false or misleading b. truthful ads with inherent risk of deceiving or misleading the public can be forbidden c. Otherwise, govt. regulation for lawful ad. Upheld only if it meets intermediate scrutiny |
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Speech: Content-Neutral Regulations
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(Time, Place, Manner Restrictions of Public/Non-Public Forums
(i) Traditional and limited public forums - must be neutral as to subject matter and viewpoint, narrowly tailored to serve important govt interest, and leave alternative avenues of communication. NOTICE – a hybrid between intermediate and strict scrutiny (ii) WA TPM restricts on political speech in traditional public forums must meet SS (iii) Non traditional forums (schools, post office, airport) – must only be viewpoint neutral and meet RB (iv) Private property – govt. may adopt reasonable restrictions to limit access (v) Under WA law, individuals have the right to solicit signatures for initiative at large shopping centers so long as it does nt interfere with property owners rights and shoppers have an open egress to the store |
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Speech: The Media
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(i) publication of Unlawfully obtained info – (1) info must be truthful and a matter of public concern, (2) media did not obtain it unlawfully or know who did, (3) original speaker of truthful info had reduced expectation of privacy
(ii) Standards of review for media a. content based regs of all media subject to SS b. content neutral regs of print, internet, and cable subject to SS c. content neutral regs of radio and tv subject to IS |
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Freedom of Association
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1. Association for political activities is a fundamental right, govt. restrictions must meet SS
2. Assn. for illegal activities – may be prohibited if gov proves the person (1) is actively participating in the group, (2) knowing of its illegal activities, and (3) specifically intended to further those illegal activities 3. Laws req. disclosure of assn membership must meet SS 4. Forbidding a group to discriminate is invalid if they interfere with the group’s expressive activity 5. Govt. ees or ICs can’t be fired for expressing opinion in public as a citizen on matters of public interest unless it undermines ers authority or disrupts ers policy. First. Am. does not protect stmts made in an ees or contractors official capacity within the work place. |
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Religion: Establishment Clause
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Govt. discrimination against religion or among religions must meet SS
(a) Nondiscriminatory reg is Constitutional if it meets the Lemon test (i) Secular Purpose (ii) Secular Effect – primary effect must not to be to advance or inhibit religion (iii) No undue entanglement – must not create excessive state action with religious admin. (b) Govt. must remain neutral between religious and secular private schools in regards to fin. Benefits (c) Govt. can’t sponsor religion in schools, but it must accommodate religious exercise under equal access rule (d) WA law – stricter on aid to religious k-12 schools. Financial assistance is illegal whether given directly to school or indirectly through students or their parents (this is fine under Const.) |
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Religion: Free Exercise Clause
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Govt. can’t specifically punish or interfere with religious beliefs, but can incidentally burden religions practice by general regulation of conduct. WA protection of absolute freedom of conscience is different and stronger than 1st am. guarantees – any govt action that has a coercive effect on religious practices must meet SS
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Right to Keep and bear arms
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Gives law abiding individual the right to
a. Own a handgun (or other ordinary firearm), b. Maintain it in an operational state in the home, and c. Use it for lawful self-defense d. Restrictions – can limit use of dangerous or unusual weapons, or prohibit ownership by felons or mentally ill, forbid firearms in places like schools, and impose conditions and disqualifications on commercial sales e. WA law – right to bear arms in defense of himself or the state – right not for individuals or corps to form private army or security force |
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State Interference with Federal System: Dormant Commerce Clause
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A. Dormant Commerce Clause – absent Fed. Reg, state or local gov may regulate interstate commercial activities
1. Must not discriminate against interstate commerce 2. Must not put an undue burden on interstate commerce 3. A state or local reg. that discriminates against out of state economic actors or activities must meet SS i. Apply the same 3 tests that you do for discrimination here: disc. On its face, in practice, or motive ii. Non disc. taxes will be invalid if the burdens on interstate commerce outweigh benefits of legit gov. interest 4. Exceptions to DCC – it it’s a congressional authorization OR the market participant doctrine (state govt. has greater authority where it is participating in the market. |
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State Interference with Federal System: Privileges and Immunities Clause
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State and local governments cannot explicitly discriminate against out-of state citizens as to important economic activities or important civil liberties. SS standard
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10. The Messianic Psalms
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Psalms 2, 22, 110, 118
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