Wa Barbri - Con Law

Front 1

LIST

four threshold issues

Back 1

Standing

Mootness

Ripeness

State Action

Front 2

DEFINE

standing

Back 2

1) Injury
2) Redressability

Injury must be personal

If claim involves serious public interest immediately affecting substantial portion of population, standard relaxed

Front 3

DEFINE

mootness

Back 3

Controversy must be:
1) Real
2) Live

Appellate court can retain moot appeal involving issues of substantial public interest

Front 4

DEFINE

ripeness

Back 4

1) Existing dispute
2) Threatening immediate hardship
3) Can be resolved by final judgment

Front 5

DEFINE

state action

Back 5

1) official government conduct
2) private conduct w/significant government involvement

Front 6

LIST

judicial review standards

Back 6

Rational basis

Intermediate scrutiny

Strict scrutiny

Front 7

DEFINE

rational basis JR

Back 7

1) Rationally related to
2) Legitimate governmental interest

Front 8

DEFINE

intermediate scrutiny

Back 8

1) Substantially related to
2) Important governmental interest

Front 9

DEFINE

strict scrutiny

Back 9

1) Narrowly tailored to
2) Compelling interest

Front 10

DEFINE

takings clause doctrine

Back 10

Government cannot take private property for public use without just compensation

Public use: rationally related to health, safety, aesthetic purpose

Just compensation: fair market value at time of taking OR terminate regulation and pay damages

Front 11

Washington takings rule if some economic value left on land

Back 11

Balance:
1) Purpose vs.
2) Economic impact on landowner

Front 12

Contract clause doctrine

Back 12

State/local government regulations cannot substantially interfere with obligations of existing contracts

Front 13

Judicial review of substantive due process claims

Back 13

When rights fundamental, apply strict scrutiny

When non-fundamental, apply rational basis review

Front 14

LIST

fundamental rights

Back 14

1) Marriage
2) Procreation
3) Contraception
4) Consensual sodomy
5) Parental rights
6) Living with extended family
7) Denial of medical treatment
8) Privacy (WA)
9) Right to abortion (WA)

Front 15

Abortion rights before/after viability

Back 15

Before viability: regulation to protect mother's health/fetal life must not place undue burden on woman's right to obtain abortion

After: government may prohibit all abortions unless procedure is necessary to protect woman's life or health

Front 16

Economic liberties rule (substantive due process)

Back 16

Regulations of economic activities are reviewed under rational basis

WA: exception for governmental land use regulations; same balancing analysis as for takings

Front 17

Procedural due process / Property

Back 17

Land, personal belongings, any existing entitlement to specific benefit under fed/state law which there is legitimate expectation that benefit will continue

Front 18

Procedural due process / liberty

Back 18

Freedom from injury, physical restraint, freedom to exercise fundamental rights that have been impaired by intentional government action

Front 19

Process due under procedural due process

Back 19

Notice, fair hearing before unbiased decision maker

Mathews test: weigh importance of plaintiff's interest and ability of additional procedures to increase accuracy of fact-finding against government's interests in administrative efficiency/cost

Front 20

Pre-deprivation hearing required when...

Back 20

Pre-deprivation hearing required when more likely benefit is a necessity; more likely, more likely pre-hearing also required

Front 21

Approach to Equal Protection issues

Back 21

1) What trait/basis does law use to classify? Does trait involve suspect class or fundamental right?

2) What level of judicial review must be applied? What is necessary to prove an intentional discriminatory classification under the appropriate level of judicial review?

3) Does government's law or action meet the appropriate level of scrutiny?

Front 22

Suspect class based on race/national origin

Back 22

When government action intentionally discriminates against class based on race or national origin, federal and WA courts apply strict scrutiny

Front 23

Proving intentional discrimination

Back 23

1) to prove government’s law is discriminatory on its face, or 2) to prove patently discriminatory application of facially neutral law, or 3) to prove discriminatory motive behind the law or action

Front 24

Affirmative action

Back 24

Affirmative action: any government action favors racial or ethnic minorities must meet strict scrutiny

Must also be narrowly tailored

Front 25

Suspect class based on alienage

Back 25

When fed government intentionally discriminates against any aliens, courts apply rational basis review


When state or local government intentionally discriminates against resident aliens, apply strict scrutiny


When state or local government intentionally discriminates against undocumented aliens, rational basis

Front 26

Quasi-suspect class based on gender

Back 26

When government action intentionally discriminates on class based on gender, intermediate scrutiny

Affirmative action: any government action that favors women must meet intermediate scrutiny

Washington: WA constitution contains equal rights amendment; state or local laws that differentiate on basis of sex are treated as suspect classifications tested under strict scrutiny

Front 27

Quasi-suspect class based on illegitimacy

Back 27

When government action intentionally discriminates against non-marital children, intermediate scrutiny

Fundamental rights classifications: when government action restricts some person in the exercise of fundamental rights enjoyed by others, apply strict scrutiny

Non-suspect class/non-fundament rights class: when government action discriminates on basis of non-suspect class or as to non-fundamental rights, courts apply rational basis review

Front 28

Privileges and Immunities in WA

Back 28

In addition to protecting suspect-class and fundamental rights, P&I clause of WA constitution prohibits law, either on its face or as applied, to confer privilege of citizenship (i.e., own business/property) on one minority class of citizens to the detriment of the majority of all other citizens

Front 29

Free speech content based regulations vs. content neutral regulations

Back 29

Content based restrictions on subject matter or viewpoint of speech must meet strict scrutiny; content neutral laws that burden expressive conduct generally need to meet intermediate level scrutiny


Exceptions: categories of unprotected speech, less protected speech, and government funded speech may be regulated using subject matter of speech so long as they are viewpoint neutral

Front 30

Prior restraints on speech

Back 30

Prior restraints: prevents speech before it occurs, and generally must meet strict scrutiny; licensing and permitting authorities for expressive activities must operate under narrowly drawn and clear standards that leave no discretion, and must be opportunity for prompt judicial review of license or permit denial

Washington: WA constitution has been held to forbid prior restraints on constitutionally protected speech

Front 31

Vagueness doctrine re:speech

Back 31

Vagueness: void for vagueness if reasonable person cannot tell from terms of the law what is prohibited and what is permitted; i.e., indecency statutes prohibiting lewd speech

Front 32

Overbroad regulation

Back 32

Overbroad: affects substantially more speech than necessary to serve government’s legitimate purposes

Front 33

Unduly discretionary regulation

Back 33

Unduly discretionary: gives officials inadequate standards for applying law’s requirements

Front 34

Symbolic speech regulation

Back 34

Symbolic speech: government may regulate symbolic speech if it has 1) important purpose and 2) unrelated to suppression of the message, and 3) if the burden on communication is no greater than necessary to achieve that purpose

Front 35

LIST

types of unprotected speech

Back 35

Incitement of illegal conduct

Fighting words

True threats

Obscenity

Child Porn

Zoning Regs

Commercial speech

Front 36

Incitement of illegal conduct

Back 36

Incitement of illegal conduct: for speech to be punished as incitement, illegal conduct must be likely, imminent, and intended by the speaker

Front 37

Fighting words

Back 37

Fighting words: abusive words, directed personally to the hearer, that are likely to produce immediate and physically violent reactions in the average person

Front 38

True threats

Back 38

True threat: statement that reasonable person would interpret, under circumstances, as defendant’s serious declaration of intent to murder or inflict bodily harm

Front 39

Obscenity

Back 39

Obscenity/sexually-oriented speech: material must describe or depict sexual conduct that, taken as a whole by the average person: 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

Front 40

Child porn

Back 40

Child porn: production, sale, possession of materials depicting actual minors engaging in sexual activities

Front 41

Zoning regulations

Back 41

Zoning regulations: location of adult bookstores and theaters may be regulated

Front 42

Three types of commercial speech

Back 42

Commercial speech: three types
1) Commercial advertising that solicits for an illegal activity or that is false or misleading is unprotected speech that can be prohibited

2) Truthful advertising with inherent risk of deceiving or misleading the public can be forbidden

3) Otherwise, government regulation of truthful commercial advertising for lawful products or services will be upheld only if it meet intermediate level scrutiny

Front 43

Protected speech level of scrutiny

Back 43

Strict scrutiny for protected speech categories: with exception of government restrictions on speech activities that it funds, all other content-based regulations of speech must meet strict scrutiny review

Front 44

Time/Place/Manner

Traditional Public Forums

Back 44

Traditional public forums: government regulation of the time, place, manner of speech and assembly in traditional public forums (streets, sidewalks) or in designated public forums (auditoriums) is only permitted if regulation is content neutral, both as to subject matter and viewpoint, is narrowly tailored to serve an important governmental interest, and leaves open alternative avenues of communication

Washington: political speech time/place/manner restriction in trad. pub. forum must meet strict scrutiny

Front 45

Time/Place/Manner

Limited/Nonpublic Forum

Back 45

Limited/nonpublic: government regulation of time, place, manner of speech and assembly in

Front 46

Time/Place/Manner

Private Forum

Back 46

Private: govt. adopts reasonable regulations to limit access to private prop. for speech/assembly purposes

Washington: constitution initiative provision gives individuals right to solicit signatures for initiative at large shopping centers, provided solicitation does not unduly interfere with property owner’s rights

Front 47

Campaign funding

Back 47

Government cannot limit amounts that person can spend on his/her own campaign, or on independent expenditures to get candidate elected. Government CSN limit contributions to political candidates, and require candidates disclose names of contributors and the amounts that they contributed

Front 48

Freedom of press

Back 48

Basic principle: media enjoys no greater free speech rights than private citizens

General regulations or taxes imposed on businesses apply to media; special regulations or taxes targeting the media specifically must meet strict scrutiny

Publishing unlawfully obtained info: media may publish unlawfully obtained info if 1) info is truthful and matter of public concern, 2) media didn’t obtain unlawfully and/or did not know who did, 3) the original speaker of the truthful information had reduced expectation of privacy

Front 49

Standards of review for press

Back 49

Standards of review: content based regulations of all media subject to strict scrutiny

Content neutral regulations of print, internet, cable TV are reviewed under strict scrutiny; content neutral regulations of radio and TV broadcasts will be subject only to intermediate level scrutiny

Front 50

Freedom of Association

Political activities

Back 50

Association for political activities: association for political speech purposes is fundamental right and government restrictions must meet strict scrutiny

Front 51

Freedom of Association

Illegal activities

Back 51

Association for illegal activities: may be prohibited and membership punished if person 1) actively participated in the group, 2) knowing of its illegal activities, 3) specifically intending to further illegal activities

Front 52

Freedom of Association

Anonymous association

Back 52

Anonymous association: disclosure of group membership that may chill association = strict scrutiny

Front 53

Freedom of Association

Discriminatory membership

Back 53

Discriminatory membership: forbidding discrimination invalid if interferes with group’s expressive activity; government not required to subsidize discriminatory group on same terms as non-discriminatory group

Front 54

Freedom of Association

Government employees

Back 54

Government employees: a public employee or independent contractor cannot be fired or disciplined for expressing opinions in public as a citizen on matters of public interest UNLESS speech or association undermines employer’s authority or disrupts employer’s policies. 1st Amendment does not protect statements made in employee’s/contractor’s official capacity in the workplace

Front 55

Free Exercise Clause

Back 55

Free Exercise Clause: Government cannot specifically punish/interfere with religious beliefs, but can incidentally burden religious practices by general regulations of conduct

Exceptions: religiously based denials of unemployment compensation benefits; religious education outside of the public school system

Washington: constitution protects “absolute freedom of conscience”; different and stronger than 1st amendment’s free exercise guarantees; any government action that has coercive effect on religious practices must meet strict scrutiny

Front 56

Establishment Clause

Back 56

Establishment Clause: government regulation against religion or among religions = strict scrutiny

Lemon test: non-discriminatory regulation must 1) serve secular purpose; 2) primary effect must not advance or inhibit religion; 3) must not create excessive governmental entanglement w/religion

Front 57

Dormant Commerce Clause

Back 57

In absence of federal regulation, state or local government may regulate interstate commercial activities, provided that regulation does not discriminate against or unduly burden interstate commerce

Front 58

Dormant Commerce / Out of State Actors

Back 58

Out of state actor: state/local reg discriminates against out of state economic actors / activities = strict scrutiny

Front 59

Dormant Commerce / Non-Discriminatory Regs

Back 59

Non-discriminatory: invalid if burdens on interstate commerce outweigh benefits in furthering legit gov interest

Non-discriminatory tax: state taxes that discriminate against out of state businesses subject to strict scrutiny; non-discriminatory taxes valid only if 1) taxes activity has substantial nexus to state and 2) tax is fairly apportioned to apply only to taxpayer’s business activities within the state

Exceptions: congress authorizes (wakes up); “marketplace doctrine” when government acts in market

Front 60

WA Privileges and Immunities Clause

Back 60

Privileges and immunities clause: state and local governments cannot explicitly discriminate against out of state citizens as to important economic activities or civil liberties