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206 Cards in this Set

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Justiciability criteria
Abstention
Standing
Political Question
Ripeness
Mootness
Eleventh Amendment (fed cts canNOT hear private party's or foreign govt's claims against state gov't)
What are the basic elements of standing?
Injury in fact (P must personally suffer injury)
Causation
Redressability (decision likely to remedy the injury—no advisory opinions)
**Note no generalized grievances
Can Ps assert others' claims with 3rd party standing? Rule + exceptions
Generally no EXCEPT
-Close relationship
-If 3rd party cannot assert his own rts
-Organizational standing
(MUST STILL SHOW CAUSATION & REDRESSABILITY)
What are the elements of organizational standing?
Members have standing to sue
Interests are germane to org's purpose
Neither claim nor relief requires participation of individual members
Do taxpayers have standing? Rule + exception
No EXCEPT you can challenge your own tax bill AND
where taxpayers challenge gov't expenditures as pursuant to fed statutes as violating Establishment Clause
Ripeness: when can a court grant pre-enforcement review of a law or regulation?
Where:
1) Hardship suffered w/o preenforcement review; and
2) issues and record are fit for judicial review
What are the exceptions to mootness?
Wrong capable of repetition but evading review
Voluntary cessation + ability to renew activity
Class action suits and losing the named P
What is meant by "adequate and independent state grounds"?
SCOTUS will NOT exercise jurisdiction if state court judgment is based on adequate and independent state law grounds (i.e. reversal on federal law ground will not change the result)
When should federal cts abstain from intervening in state ct proceedings? What is the exception?
Unsettled question of state law
Pending state criminal proceedings EXCEPT where there is a case of proven harassment or prosecutions in bad faith
What are the four certain political questions?
"Republican form of gov't" clause
Foreign policy
Impeachment/removal process
Partisan gerrymandering
The 11th Amendment: What does it bar? What does it not bar?
Bars federal courts from hearing a private party's or foreign state's claims against a state gov't (Also, Congress can’t create causes of action that allow citizens to sue a state in state court)

Does not bar:
1 Where gov’t has EXPLICITLY waived
2 Actions pursuant to section 5 of 14th amendment
3 Actions by U.S. or other states against state government
4 Actions in bankruptcy cts
5 Actions against state officers for money damages & injunctive relief for violations of fed law BUT not if state treasury will be liable for retroactive damages
What are the ways of getting to SCOTUS?
1-Writ of Certiorari – all cases from state cts & fed cts of appeals, but discretionary
2-AUTOMATIC where statute provides for appeals from 3 judge fed district ct panels (Voting Rights Act)
3-Original & exclusive jurisdiction over suits btwn states & cases involving ambassadors, public ministers and consuls
What is the only circumstance when SCOTUS has automatic appellate jurisdiction?
Appeals from 3-judge federal district ct panels
SCOTUS will hear a case only after final judgment from which courts?
State high courts
Federal Cts of appeals
3-judge fed district courts
When can state officers be sued? Exception?
For injunctive relief
Money damages from their own pockets
But NOT if state treasury must pay retroactive damages
What are the exceptions to the rule that the federal gov't has no general police power?
[MILD]
M Military
I Indian reservations
L Land and territory that is federal
D District of Columbia
What are the limits of the Taxing & Spending Power
Congress can adopt ANY tax to raise revenue
And ANY program to spend that revenue so long as Congress believes it will serve the GENERAL WELFARE
To what does the Commerce Clause extend?
-Articles in interstate commerce
-Channels of interstate comm (highways, waterways, internet)
-Instrumentalities of interstate comm (persons or things in commerce)
-Activities that have a substantial effect on interstate comm. (economic activities presumed to have substantial effects)
The substantial effect test for interstate comm can consider aggregate effects UNLESS...
Law is non-economic in nature (e.g., domestic abuse law); then must show a substantial economic effect
What laws can Congress enact under the 14th Amendment? What limits are there?
Under sec. 5 of 14th amendment, Congress can pass laws to enforce sec. 1 of 14th amendment

-BUT CANNOT create new rights or expand the scope of rights under sec. 1
-Any Fed laws passed under sec. 5 must be “congruent & proportional” to “preventing or remedying” violations of the 14th amendment
What does the 10th Amendment do generally?
Limits Congressional powers, states that all powers not granted to U.S. are reserved to the states
How can Congress control state activity, despite 10th Amendment limitations? What CAN’T it do?
CAN Induce by putting strings on grants (must be clear & related to the purpose of the federal program)
CAN Prohibit harmful commercial activity
CANNOT “compel or commandeer” state legislative or regulatory activity
When can congress delegate power? What can’t it delegate?
Congress can’t delegate executive power to itself or its officers

No real limit on authority to delegate legislative power to administrative agencies though, must just be accompanied by “intelligible principles”
What is the property power of Congress?
To dispose of federal property however it wants SO LONG AS it considers taking requirements
What is the postal power of Congress?
Exclusive power; gov't monopoly
What is required to delegate legislative power?
Intelligible standards
What kinds of veto are not constitutional?
Line item
Legislative (i.e. allowing one branch of congress to overturn executive action; violate bicameralism & presentment)
What are the main areas of executive power over external affairs?
War
Foreign relations
Treaties
Exec agreements
What is the main differences btw treaties and executive agreements?
Senate must ratify treaties, NOT agreements Treaties trump all conflicting state laws and conflicting preceding federal laws; executive agreements ONLY trump conflicting state laws
* When a treaty trumps state law, that state law is both invalid AND UNconstitutional
When are treaties equal in status to a statute?
When they are self-executing or implemented by statute
What happens if a treaty & a statute conflict?
Last in time wins
What approval is necessary after a treaty is entered into by the President?
Approval by 2/3 of the senate
What do executive agreements prevail over? What don’t they prevail over?
Prevail over conflicting state law, but not over conflicting federal law or the constitution
Where can the President send troops as commander-in-chief? What can Congress do?
Anywhere he wishes, but congress can refuse to appropriate money & challenge the president’s actions in the political arena
What are the main areas of executive power over domestic affairs?
Pardons
Appointment/removal
Veto power
General power as Chief Executive
Where it is not enumerated, what is the test for legitimacy of executive domestic action?
-If President acts with authority of Congress, President's authority is at its maximum
-If President acts where Congress is silent, President's authority is somewhat questionable
-If President acts against Congress, President's authority is at its minimum
Whom does the President appoint?
Ambassadors
Federal judges
Officers of the U.S.
SUBJECT to confirmation by the senate
When can the president remove an executive official? What must Congress satisfy to limit President's removal power?
Can fire any executive official unless statute limiting removal.
Congress may limit if independence from President is desirable so long as it permits removal for good cause
What is executive privilege & what are the limits of it?
Definition: the right of the president to withhold information; protects, papers & conversations with advisors
BUT, must yield to “overriding need” in criminal cases to insure a fair trial. Balancing test of pres’s need to maintain vs. congress’ interest in disclosure
What can the president PARDON?
All accused of federal crimes, NOT state crimes even if president claims a federal issue is involved.
CANNOT pardon someone who has been impeached & convicted
What is required by Congress for impeachment?
House impeaches by issuing “bill of impeachment” accusing officer of “high crimes and misdemeanors” (Majority in House)
Senate holds trial and only if convicted by 2/3 vote is person actually removed
What does and doesn't executive immunity apply to?
Absolute immunity from civil damages based on acts in office NO immunity from acts before taking office
What are the forms of implied preemption w/re to the Supremacy Clause?
Generally, implied preemption wherever federal and state laws are mutually exclusive, 3 types
-impossible to enforce both state & federal
- state law impedes achievement of federal objective
-state law is inconsistent w/ the purpose of the fed law
What is inter-governmental immunity?
States canNOT tax or regulate federal gov't activity
“the power to tax is the power to destroy”
When can a state tax or regulate the federal govt?
Generally they cannot tax or regulate the feds unless the feds consent (Power to tax is power to destroy)
BUT, can impose NONDISCRIMINATORY taxation on persons or businesses that work for the federal govt
What does full faith and credit require?
Judgment by court in one state must be enforced by courts in other states IF

-Court that rendered judgment had jurisdiction over parties and subject matter
-Judgment was on merits
-Judgment is final
What does the Article IV privileges and immunities clause prohibit?
Establishes that no state may deprive citizens of other states of the privileges and immunities it accords to its citizens

(In other words, limits ability of states to discriminate against out-of-staters)
What is the trigger for the Art IV Privileges and Immunities Clause?
STATE law that discriminates against nonresidents NO APPLICATION TO FED LAW
Who cannot invoke the protection of the Art IV Privileges and Immunities Clause?
Aliens
Corporations
Which rights are cannot be discriminated against as to out-of-staters per the Art IV Privileges and Immunities Clause?
-Fundamental rts involving commercial activities
-civil liberties

UNLESS discrimination is “necessary” to achieve an “important” government purpose
What is the test states law must meet to get around Art IV Privileges and Immunities Clause?
Discrimination must be NECESSARY to achieve an IMPORTANT government interests.

Requires: Substantial state interest or important purpose + least restrictive means
When does the Dormant Commerce Clause come into play and how can a state avoid a violating it?
Comes into play when state law “burdens” interstate commerce (can be discriminatory against out-of-staters or not).

IF DISCRIMINATORY against out of state interests, must be NECESSARY to achieve IMPORTANT govt interest (exceptions for subsidies, public health & safety need, where state is a market participant OR where congressional approval)

NONDISCRIMINATORY burden on interstate commerce OK if: (1) Rational basis (rationally related to legit state end), (2) burden on interstate commerce outweighed by state’s interest in enforcing regulation
Nondiscriminatory state taxes on interstate commerce will be valid IF...
-Substantial nexus to taxing state (e.g. can’t tax out of state corp, but can tax in-state buyer from that corp)
-Fair apportionment
What is the only area where Congress can directly regulate private conduct?
13th Amendment; prohibits slavery. Congress can prohibit racially discriminatory action by ANYONE (badges of slavery)
For protections of individual rights, what is the threshold requirement?
State action
What is NOT state action in the educational context?
Non-university education generally NOT a gov't function
mere licensure and subsidies for private school NOT enough
What constitutes state action (what are the tests?)
-activities that are TRADITIONALLY & EXCLUSIVELY the prerogative of the state (utility companies are NOT enough)
-where state AFFIRMATIVELY facilitates, encourages or authorizes acts of discriminations by its citizens (Shelley v. Kramer)
-SOMETIMES where entanglement btwn state and private action (parking garage case)
Which of the Bill of Rights is NOT incorporated into the 14th Amendment due process clause?
2nd amd: Right to bear arms
3rd amd: Right not to have soldiers quartered in home
5th amd: Right to grand jury indictment
7th amd: Right to jury trial in civil cases
8th amd: Right against excessive fines
What does the Contract clause do?
Prohibits states from enacting any law that retroactively impairs K rts
What are the different levels of scrutiny for Contract clause issues?
Intermediate scrutiny for PRIVATE Ks
Still intermediate, but STRICTER scrutiny for PUBLIC Ks
What are the aspects of the levels of scrutiny?
Rational basis: “Rationally related” to a “legitimate” govt purpose. Burden on challenger

Intermediate scrutiny: “Substantially related” to “important” government purpose. Burden on gov't.

Strict scrutiny: “Necessary” or “narrowly tailored” to achieve a “compelling gov't purpose.” This means there is no less restrictive alternative. Burden on gov't.
What level of scrutiny applies to socioeconomic legislation?
Rational basis
What level of scrutiny applies to gender and legitimacy classifications?
Intermediate scrutiny
For which suspect classes (under the Fed. Constitution) does strict scrutiny apply?
Race & ethnicity
Alienage/citizenship
National Origin
**Also applies to laws that burden fundamental rights
What is the threshold question to ask for procedural due process?
Has there been a deprivation of life, liberty or property? IF NOT, NO PROCESS IS DUE. IF so, then you have a PDP issue.
What are some examples of Life, Liberty & Property infringements that require due process?
Life: death penalty – must have a hearing & abide by 8th amendment before imposing

Liberty: any kind of detention (must have notice & hearing), physical punishment & restrictions of legal rights whether or not constitutionally protected

Property: ENTITLEMENT not mere expectation
A high speed police chase ends in a boy’s death. His parents claim that recklessness caused the death thus making the officers liable for a due process violation. Is it a DP violation?
No – deprivation of life, liberty or property usually means INTENTIONAL not accidental deprivation.

Reckless behavior can qualify though if it “shocks the conscience” but this is a HARD standard.
If there is a deprivation of life, liberty or property, how does the court determine what process is due?
Balancing test of:
-Important of interest to the individual
-Ability of additional procedures to increase accuracy of fact-finding; AND
-Gov't interests
Must court fees be waived for indigent plaintiffs?
Only where it is for a fundamental right (e.g. marriage license, divorce court). Not for nonfundamental rights (bankruptcy fees)
What does the “Taking Clause” do?
Provides that private property may not be taken for public use without compensation
What is the public use standard (level of scrutiny) for takings?
Rational basis
What are the fundamental rights triggering strict scrutiny for purposes of substantive due process?
VOTE
TRAVEL
1st AMENDMENT (speech, association, free exercise of religion)
PRIVACY which includes: [CAMPERS]
Contraception
Abortion
Marriage & Divorce
Procreation
Education (right for parents to control PRIVATE ed)
family Relations (custody, raising kids, live together)
Smut – right to read obscene material in privacy of home so long as not child porn
What is the only fundamental rt to trigger the undue burden test for purposes of substantive due process?
Abortion (state regulation pre-viability is okay unless they impose an “undue burden” on the right to an abortion)
What are the rights for which the level of scrutiny is not known for purposes of substantive due process?
Private consensual gay acts
Refuse medical treatment
Possess firearms
What are the domestic/foreign distinctions of right to travel?
Foreign travel need only meet rational basis Domestic travel, strict scrutiny
Is there a fundamental right to public education?
NO; there is, however, a fundamental right that parents can educate their children as they see fee
Is there a fundamental right to practice a trade or profession?
NO; otherwise the state couldn’t easily require BAR exams!
Is there a fundamental right to assisted suicide?
NO
What is the step-by-step approach for equal protection analysis?
1-Is there state action? (14th amendment if state; 5th amendment due process clause if feds – “reverse incorporation”)
2-Is there a discriminatory classification?
What class is discriminated against & is there INTENT? (discrim on face, discrim application of facially neutral law, discrim effect AND motive)
3-If so, what level of scrutiny applies?
4-Does the law meet that level of scrutiny?

How does one determine the existence of a discriminatory classification for equal protection?
Facial classification
Discriminatory Application
OR BOTH discriminatory effect AND discriminatory intent
For equal protection, what deserves strict scrutiny?
--Race
--Nat'l origin
--Alienage UNLESS it's about participation in gov't or illegal alien adults
ALSO protected under EQP clause:
--fundamental right to travel
--fundamental right to vote
For equal protection, what deserves intermediate scrutiny?
Gender
Illegitimate kids
Undocumented immigrant kids
For equal protection, when does alienage invoke only rational basis review?
-state alienage for policy-making/govt functions & issues related to self-gov't and democratic process (voting)
-Congressional regulation of aliens and immigration
What level of scrutiny applies to affirmative action?
Strict scrutiny; though 2 explicitly recognized “compelling” state interests justify affirm. Action:
1)remedying past discrimination by THAT INSTITUTION
2)diversity in higher education
When can schools voluntarily assign kids on the basis of race?
Only if it meets strict scrutiny: compelling interest & means narrowly tailored
Is de jure segregation of schools unconstitutional? De facto?
De jure = unconstitutional; de facto=ok
What is the general rule re: gender classifications & what are the recognized exceptions?
Intermediate scrutiny and SCOTUS has said state must have an “exceedingly persuasive justification” to adopt gender classification; particularly attentive to stereotypes.

Exceptions where gender class is okay:
-statutory rape (women can get pregnant; not men)
-the draft (men are bigger/stronger)
-citizenship laws (passing on citizenship to kids)
What is the main issue that gives rise to equal protection right to travel cases?
Minimum durational residency requirements
What are the content-based vs content-neutral levels of scrutiny?
Content-based: strict scrutiny
Content-neutral: intermediate scrutiny – must serve “important” interests other than suppression of speech and “must not burden substantially more speech than necessary”
What are the categories of content-based restrictions?

What are content-neutral restrictions?
Content based restrictions =
- Subject matter
- Viewpoint
Classic content neutral restrictions = time, place, manner regulations
How can conduct related to speech be regulated?
By content-neutral time, place, manner restrictions so long as:
-not overbroad
-not void for vagueness
-can’t give officials unfettered discretion
If a law is restricting speech in a PUBLIC FORUM is content-neutral, what else must be shown for it to be constitutional?
-allows other opportunities for speech to take place
-narrowly tailored to serve a significant (important) state interest
When can a content-neutral regulation be struck down based on reasonableness?
Overbreadth
Vague
Unfettered discretion by state official
What are the exceptions to the rule against content-based restrictions?
Incitement of illegal activity
Fighting words/Hate speech/threats
Obscenity/sex
Commercial advertising
Defamation
Speech by gov't workers on the job in performance of their duties
Obscenity/sex three part test
Material must: Appeal to prurient interest (local scope)
Be patently offensive
Lack serious scientific, artistic, educational, etc. value (nat'l scope)
What are the “three footnotes” re: obscenity as unprotected speech?
Zoning of adult theaters is OK
Profanity is protected except in schools & FCC can prohibit profane broadcasts
Child porn can be banned even if it is not obscene.
What categories of places are available for speech?
Public and designated public fora
Non-public fora
Private property
For public and designated public fora, gov't speech regulations must meet time, place, manner restrictions that meet this three part test?
Content neutral
Narrowly tailored to serve important gov't interest AND Leave open alternative channels of communication
For non-public fora, gov't speech regulations must meet this two part test?
Viewpoint neutral AND Rational basis
What are four kinds of non-public fora?
Military bases
Gov't workplace
Schools
Courts
What are the constitutional requirements for defamation?
Public figure/public concern: P must show by CLEAR & CONVINCING evidence: 1) falsity of statement and 2) actual malice (D knew false or acted in reckless disregard of truth)

Private figure/public concern: P must show: 1) falsity of statement and 2) negligence of speaker, but can get punitive damages if actual malice.
What commercial speech MUST be allowed and what CAN be banned?
Truthful advertising must be allowed.
But, can ban commercial speech if:
1-misleading
2-regarding an illegal product
3-ban passes intermediate scrutiny
When can symbolic speech or expressive conduct be restricted?
1-govt has important interest
2-restriction not related to suppression of speech
3-impact on communication no more than necessary
What is prior restraint and what level of scrutiny applies?
Prior restraint = administrative order or judicial decision that stops speech before it occurs

Subject to strict scrutiny
When can state require permits for speech activity?
Where – guidelines are clear; laid out in advance; no discretion for exec. Officials
What are the exceptions to the general rule that government employees cannot be hired or fired based on political party, philosophy or act of expression?
1-speech made pursuant to official duties
2-prohibited from speaking with respect to political campaigns (protects EEs from being forced to electioneer)
3-failure to perform ones job
4-no protection for policy making officials and confidential advisers
Is there a 1st amendment right to anonymous speech?
Yes
Can the media be liable for reporting government records?
No; so long as truthful and lawfully obtained
Can the media be liable for illegally intercepted conversations?
No if they did not
1-participate in obtaining the information; and
2-the speech involves matters of public concern
Is there a first amendment right to use privately owned property for speech?
No
When are contribution limits ok?
Laws may limit amount of money that a person can contribute to a candidate, but NOT to support/oppose a ballot referendum
What scrutiny applies to laws that prohibit or punish membership in a group?
Strict scrutiny
When can the government require disclosure of affiliation with a group?
Only where strict scrutiny is met because disclosure can chill speech
When does the right to free association permit discrimination?
Where it involves intimate association or is integral to the purpose of the group (e.g. boy scouts can keep out girls & gays, Jaycees can’t keep out women)
When can someone be punished for association with a group engaged in illegal activities?
1-association proven
2-knowledge of illegal activities shown
3-person possesses specific intent to further illegal activities
What are the two clauses of freedom of religion?
Freedom of exercise
Establishment clause
To what does the freedom of exercise NOT apply?
Neutral law of general applicability
For establishment clause, laws that prefer one sect over another must meet what level of scrutiny?
Strict
For establishment clause, laws that do NOT prefer a sect are valid IF...
SEX
S Secular purpose
E Effect canNOT endorse religion/particular religion
X no Excessive entanglement with religion
What kind of voting problem does equal protection protect against?
State dilution of the rt to vote by malapportionment of electoral districts
Absent fed law, when may a state regulate local aspects of interest comm?
1 NO discrim against out-of-st competition AND 2 NOT unduly burdensome
What must state law satisfy in order to be able to prefer state residents over out-of-state residents for employment? W/re Art IV Priv/Imm
Nonresidents are causing the problem in the state AND Least restrictive means
Tests for burdening lawful and unlawful commercial speech
Unlawful commercial speech: rational basis

Lawful commercial speech; burden MUST:
1 Serve substantial gov't interest
2 Directly advance that interest AND
3 Be narrowly tailored

CanNOT COMPLETELY ban lawful commercial speech b/c it's never going to meet narrow tailoring test
What are the two main 1st Amend rts?
Freedom of speech/assembly
Rt to attend crim trials for public and press
What is required to restrict 1st Amend rt to attend crim trials?
Overriding interest articulated by judge
What is prior restraint? When is it okay?
Prior restraint is when anyone says up front that no speech is allowed Okay ONLY IF it meets strict scrutiny
Over what does SCOTUS have original jurisdiction?
Consuls Ambassadors Public ministers AND CASES WHERE STATE IS A PARTY
What sort of residency requirement will likely survive constitutional challenge?
Bona find residency requirement that does NOT mess with suspect class or fundamental rts
What is required for state action?
A LOT MORE than even heavily regulating a business and financing it. Private firm MUST be playing a public function, OR state involvement must be very very high
To defeat obscenity challenge by saying the speech has artistic value, social value, how much value is required?
A LOT Proven artistic merit; serious (not just some) social value; etc.
What role do the states have in foreign commerce?
NONE CanNOT burden foreign comm
How can prior restraints on in-court speech/press be okay?
Overriding interest
What kind of activities does the General Welfare clause NOT apply to?
NON-economic activities, like air bag regulation e.g.
What is the proper essay approach to issue of whether a state law is invalid w/regard to interstate commerce?
FIRST, does fed law preempt?
SECOND, does the law:
--EITHER discriminate against out-of-state comm to promote local interests?
--OR unduly burden interstate comm in a way that outweighs law's interests?
THIRD, is it nonetheless valid IF:
--EITHER it furthers important, noneconomic state interest
--OR state is market participant
--AND there is no better alternative
What are public fora?
Parks, streets, sidewalks, and designated public fora
When is bicameralism needed?
Legislative veto!! One house of Congress can't invalidate an admin/exec decision
When looking at 1st amendment speech issues, go through the following issues...
--State action
--Prior restraint
--Strict scrutiny IF content-based (if content-neutral, can be reasonable time/place/manner restriction)
--Must have reasonable procedural safeguards
--Overbreadth
--Vagueness
--Unfettered discretion to officials

2-step process:
1 Is speech unprotected? (e.g. incitement, obscenity, commercial)
2 IF protected, then strict scrutiny
|
Will MA SJC do advisory opinions?
Advisory opinions - MA courts will not issue advisory opinions b/w private litigants, but will answer certified questions from a federal court in unsettled questions of MA law + requests from legislature, Governor or executive counsel on important questions of law
Can a city control the sale of liquor within its borders? How does it do that?
Interstate Regulations - MA grants cities and towns broad control over the sale of liquor. A town may request that the legislature pass a "home-rule" petition forbidding the sale of alcohol w/in it borders
What are the suspect classifications in MA?
RESH - Religion, Ethnicity, Sex, Handicap Suspect Classifications - In addition to race, alienage, national origin, MA views religious, ethnic, handicap- and sex-based discrimination as warranting strict-scrutiny. Applicable to state/local laws but not federal laws. Age not a suspect classification
Can the SJC invalidate a federal law based on religious, ethnic, handicap, and sex based discrimination?
No, the Massachusetts classifications other than race, alienage, and national origin come from the MA Constitution and apply only to state and local laws.
Can you discriminate against someone based on their disability under the MA Constitution?
No - Article 114 forbids discrimination against any "otherwise qualified" handicapped person in any program in any "program or activity" within the Commonwealth. Although SJC not explicitly so stated, article 114 probably reaches private as well as state acts of discrimination.
Where does Massachusetts equal protection come from?
Article 1 of the Massachusetts constitution provides that equality of the law may not be abridged or denied based on sex, race, color, creed or national origin
What is the Massachusetts rational basis test?
The Rational basis test applied in non-suspect class equal protection analysis - MA rational basis test has somewhat more bite than its federal counterpart. The courts explicitly balance the harm to the disadvantaged class against the public purpose of the classification survives if any state of facts reasonably may be conceived to justify it.
Can two people of the same sex marry?
Same Sex Marriage - SJC has ruled that denying marriage and its protections to same-sex couples is unconstitutional under equality and liberty provisions of MA constitution.
What special protection does Mass have for its elections?
Free Elections - Article 9 forbids state or private interference w/ electoral process
What special protection does Mass have for the freedom of religion? If there's a neutral law, what are the burdens of each party in a suit over that law?
Freedom of Religion - Article 46 provides any law burdening free exercise of religion must: 1. Advance compelling gov't interests 2. Be narrowly tailored to achieve these interests If law is neutral, claimant must show: 1. Sincerely held religious belief which 2. Conflicts with and is burdened by the state requirement Gov't must then show 1. Requirement serves an unusually important gov't goal 2. Exemption for the claimant would substantially hinder the fulfillment of that goal
Is there any remedy if you’re discriminated against by a private actor in Massachusetts?
There might be. MA statutory law often protects individuals against discriminatory conduct by private as well as state actors. Apply constitutional standards for gov't conduct to private actors otherwise outside sphere of constitutional protection.
What is the main Massachusetts statute forbidding discrimination by private actors?
Chapter 151 B
What does Chapter 151B require in employment? When is discrimination permitted in employment under 151B? Who does it apply to?
Chapter 151 B: Employment - Employers, labor orgs, and employment agencies may not discriminate against any protected class in the hiring, firing, promoting, or in the terms, conditions or privileges of employment, including salary and promotions. Discrimination is permissible only based on a "bona fide occupational qualification," that is, one based strictly on the legitimate requirements of the job. 151B also forbids anyone from aiding or abetting (or attempting to aid or abet) any discriminatory employment practice. 151B does not apply to employers w/ six employees or less.
Does 151B apply to employers with 1 to 6 employees?
No, 151B does not apply to employers with six employees or less.
What does 151B require for housing?
Chapter 151B Housing: 151B forbids discrimination against any protected class in the sale or lease of housing, and applies to those in the business of granting loans or engaging in real estate transactions. Also prohibits economic discrimination
What does 151B require for credit and services?
Chapter 151B Credit and services: Companies that issue credit services cannot discriminate against any protected class - nor may they practice economic discrimination (redlining - refusing to lend money in certain neighborhoods.)
Can a lender refuse to lend money in a certain neighborhood?
No, this is called redlining and is forbidden by Chapter 151B.
What are the classes protected under 151B?
Race, Color, National Origin, Ancestry, Sex, Sexual orientation. (some provisions bar discrimination based on handicap and over 40) Mnemonic: RCN Requires ASS
RCN Requires ASS - H40
Can I discriminate against an employee over age 40? What about discriminating against a 22 year old? Do the provisions apply to credit offerors? Can I have a mandatory retirement program?
Age: Employers cannot discriminate based on age where claimant is over 40, but can discriminate based on youth. Age discrimination provisions do not apply to those extending credit. Mandatory retirement programs are generally forbidden. A policy exception exists for, e.g., a person in an executive or high policy-making position if the retirement equals at least $44k. A policy exception also for tenured professors.
What about handicapped people? Do they get anything special under the MA 151B?
Handicap: Employers, owners/managing agents of certain housing accommodations, must make "reasonable accommodations" for otherwise qualified handicapped employees.
I don’t like pregnant ladies. Can I discriminate against them?
Sex: MA forbids discrimination based on pregnancy or other sex-related med conditions. Employers must permit pregnant women to use accumulated sick leave during or after pregnancy and must provide unpaid leave during birth. A woman returning to work after giving birth must be offered a reasonably equivalent position in terms of pay, job responsibilities, and opportunities for advancement.
Can I create a hostile work environment? I really like calling women names. I also like making fun of straight men. I call them breeders. I'm straight. Is this okay?
Sexual harassment: 151B forbids discrimination in terms or conditions of employment through the creation of a hostile work environment and by sexually harassing behavior of supervisors or fellow employees. 151B also prohibits same-sex sexual harassment, regardless of sexual orientation of the parties.
Can I discriminate against homosexuals under 151B and get away with it? What does this do to adoption and divorce? Gay marriage? Partner benefits?
Sexual Orientation: 151B provides some protection against discrimination based on sexual orientation. These provisions protect Gay, Bisexual, and Straights, but not pedophiles. MA forbids discrimination in awarding child custody in divorce or in placement of foster children. Specifically precludes protection for gay marriage. So, employers don't need to provide benefits to gay partners.
Can I force a Seventh Day Adventist to work on Saturday? What about a person who sincerely believes that they can’t work on the Sabbath, but whose religion doesn’t require it?
Unlawful for employer to impose any condition of employment that would require an individual to violate a sincerely held religious belief. Note: Analysis must focus on the sincerity of individual's belief, as court may not consider whether a particular belief is required by a religion. (That would violate establishment clause)
How do I file a discrimination claim under 151B?
1. File w/ MCAD 2. w/in 6 months of violation (or continuing violation) 3. MCAD investigates and determines whether to proceed w/ full administrative hearing. 4. After 90 days or w/ permission of administrator, remove to Superior Court 5. Claimants who remove their cases have the right to jury trial
What is the statute of limitations to file with MCAD for a discrimination action?
The action must be filed within six months of the incident. OR Employee can file under "continuing violation" as long as one act falls w/in limitations period.
What happens if I don’t file my 151B claim with MCAD?
The MCAD filing is jurisdictional in nature, so failure to file bars the claim entirely.
Can I file my 151B claim in Superior Court? What happens then? Can I get a jury trial?
After a complaint has been with the MCAD for 90 days or w/ consent of the commissioner a claimant may file in superior court terminating the administrative proceedings. Claimants who remove their cases have the right to jury trial
I know I lose my 151B claim if I don’t file within 90 days, but do I lose all other claims?
151B: Preemption: Failure to file timely complaint w/ MCAD bars all remedies under 151B but does not bar other statutory claims or claims under common law, unless statute involved is remedial rather than substantive or the litigant seeks to expand a common law cause of action based on the public policy articulated in 151B
Can you give me an example of a discrimination claim that might survive a failure to bring it w/in the 6 month limitations period of 151B?
Common law claim for wrongful discharge based on interference w/ advantageous relations is not barred by 151B, even if the requisite animus for the tort is provided by an age-discriminatory motive.
Can you give me another example of a 151B claim that might survive if you failed to bring it within 6 months?
An employment K or collective bargaining agreement containing an anti-discrimination provision provides an independent cause of action for breach of contract and is not preempted by 151B.
Can you give me an example of a claim that might be pre-empted if I fail to file my MCAD claim?
An attempt to bring a direct action under the MA Constitution or to bring a claim under the MA Civil Rights Act (MCRA) may be barred if 151B provides the exclusive remedy for the alleged discrimination, such as a claim of handicap discrimination.
You said 151B does not apply to employers with 6 or fewer employees, what happens to my claims then?
When 151B does not apply, common law claims, claims under the MCRA, and claims under the MA Equal Rights Act are not precluded -- i.e. 151B does not apply to employers with fewer than six employees, so those employees may raise common law or other statutory rights to address injuries resulting from sexual harassment.
Who has the burden of proof in a 151B action?
1. P proves prima facie case of discrimination 2. D proves legitimate, nondiscriminatory reason for action. 3. P proves pretext (actions actually done for discriminatory reason)
What remedies are available for a 151B violation?
1. Injunctive relief 2. compensatory damages 3. emotional distress 4. attorneys’ fees and costs, 5. punitive damages. IMA PE teacher (Injunctive, monetary, attorney, punitive, emotional)
What sort of injunctive relief is available for a 151B violation?
Injunctive Relief: The MCAD and the superior court may award injunctive relief, including cease-and-desist orders and orders directing the hiring, reinstatement, or upgrading of employees. CD, How R U? (Cease/Desist, Hire, Reinstate, Upgrade)
What sorts of compensatory damages are available for a 151B violation?
Compensatory Damages: Claimants may be awarded lost wages, anticipated lost wages, and emotional distress damages. LAD - (Lost, anticipated, Distress) Lost wages may include the value of benefits lost, including pensions that would have accrued.
Does the plaintiff have to present expert testimony to prove the existence of emotional distress in a 151B action?
Emotional distress is deemed a natural and probable consequence of discrimination so expert testimony is not needed to establish its existence.
What about attorneys’ fees and costs in a 151B discrimination claim? The cost of litigation is pretty steep.
Attorneys' fees and reasonable costs may be awarded to prevailing claimants.
I really want to punish these bastards for violating 151B! Is there some way to get punitive damages?
Punitive damages may only be awarded by the superior court, not by MCAD, for egregious or willful violations of 151B (see exception for housing cases below).
Does the charitable immunity cap apply to actions under 151B?
No, the charitable immunity cap does not apply to actions under 151B.
Anything else I can get, say for a housing case under 151B?
In a housing case, damages can include the expenses used for alternative housing and moving costs incurred as a result of the unlawful practice.
Are there civil damages for violating 151B?
Violation Number: 1. $10k 2. $25k if w/in 5 years 3. $50k if w/in 7 years
Are there other Massachusetts statutes of note? Perhaps one that is judged in relation to the rights and privileges of white guys?
MA Equal Rights Act (MERA) - MERA provides that all persons, regardless of "sex, race, color, creed or national origin" shall have same rights as white males to (i) make and enforce contracts, (ii) purchase, lease, and sell real and personal property, and (iii) have the equal benefit of the laws. Section 103 provides the same rights to persons, "regardless of handicap or age." Corporation for Public Broadcasting (Contract, Property, Benefit of law)
What is the procedure for filing an action under the Massachusetts Equal Rights Act?
Procedure: 6-mo statute of limitations applies, and claimant must 1st file w/ MCAD or bring suit directly in superior court.
What remedies are available under the Massachusetts Equal Rights Act?
Remedies: prevailing claimants are entitled to equitable, including injunctive relief, compensatory and exemplary damages, including emotional distress, and a mandatory award of attorneys' fees and costs. IMA PE teacher Injunction Monetary Attorney's fees Punitive Emotional
How about a law that covers general civil rights?
MA Civil Rights Act (MCRA) 1. Anyone (private or state actor) 2. Interfering w/ any right 3. Secured by MA or US constitutions or laws 4. through threats, intimidation or coercion
What are the limits on the Massachusetts Civil Rights Act?
Requires that D threaten, intimidate or coerce the P into doing something. Direct violation of rights are not subject to liability unless in addition to attempt to force P to do something.
What are the remedies available under the Massachusetts Civil Rights Act?
1. Injunctive relief 2. Monetary Damages 3. Attorney fees 4. SJC upheld injunction prohibiting D from harassing/harming any member of protected class + P's IMA Class clown (Injunction, Monetary, Attorney, protection for class)
Civil rights act is a class clown!
Can employers pay women and men different wages for the same work?
Equal Pay Act: no wage discrimination based on sex - employers cannot pay men and women different wages for "work of like or comparable character or work of like or comparable operations." Court must determine (i) whether the substantive content of the job is comparable -- i.e. whether the duties of the job have important common characteristics and (ii) whether the two positions involve comparable skill, effort, responsibility, and working conditions. Act also requires reasonable maternity leave.
Can an amusement park discriminate based on sexual orientation?
MA Public Accommodation Law: MA forbids discrimination "in any place of public resort, accommodation or amusement" based on race, religion, national origin, sex, physical or mental disability, or sexual orientation. "Place of public accommodation" defined expansively, includes inns, taverns, hotels, retail establishments, hospitals, transportation facilities. Also includes insurance/credit agencies w/ a place of business in MA and parades on a public street to which public invited. Public accommodation law reaches discrimination in private organizations if such org own a "place" or leases space for meetings. To be protected from law, org has to show that it is highly selective in its membership (beyond merely excluding members of protected groups).
Are there any constitutional defenses to anti-discrimination statutes?
Constitutional defenses to anti-discrimination statutes: MA statutory ant-discrimination laws are subject to constitutional review in their application. In some instances, federal constitutional rights may trump state statutory provisions.
John wants to picket at Planned Parenthood. Is there anything he should consider?
Injunction regulating conduct: GL c. 266 § 120 E requires protestors at abortion clinics to be 18 feet from entrance. Also, a particular clinic had third party standing to seek an injunction requiring a particular protestor to remain 50 feet from clinic b/c the protestor's behavior constituted a public nuisance that interfered w/ patients' right to seek an abortion.
Can a judge issue an injunction against a litigant speaking to the media during a trial?
Injunction regulating speech: an injunction which restrains a litigant from discussing case in media is a prior restraint on speech which must be based on a compelling interest with no reasonable, less restrictive alternative to the order available. A general interest in maintaining the anonymity of children's identity in a care and protection case is not sufficiently compelling to sustain an injunction absent specific findings as to the harmful effect of disclosure on children.
Judge John Jakes is a family court judge. Before him is a child involved in a care and protection case. What does he need to find before he can issue an injunction against anyone involved talking with the media.
A general interest in maintaining the anonymity of children's identity in a care and protection case is not sufficiently compelling to sustain an injunction absent specific findings as to the harmful effect of disclosure on children. So, he’d need to make specific findings about the harmful effect that disclosure would have on this child.
Can a public housing development prohibit all door-to-door campaigning and soliciting?
No - Regulations in residential areas: Public Housing - A public housing authority's policy prohibiting all door-to-door campaigning and soliciting violates tenants' right to receive communications and non-tenants rights to distribute information in a public forum such as a public housing development.
What about in schools, do students lose their right to speak when they enter the school house?
Freedom of expression in Public Schools: By statute, MA provides protection to the expression of students unless such expression causes disruption or disorder w/in school - even speech considered lewd or vulgar is protected unless it causes disruption.
Johnny wears a t-shirt that says, “F**k the Draft” to school. Can he be ordered to remove the shirt if it isn’t causing a disruption?
No. By statute, MA provides protection to the expression of students unless such expression causes disruption or disorder w/in school - even language considered lewd or vulgar is protected unless it causes disruption.
Can a city criminalize begging?
No. - A statute imposing criminal liability for soliciting contributions and peaceful begging in public is unconstitutional as overbroad and unreasonable content-based restriction on expressive activity
Is there a right to bear arms in the Massachusetts Constitution?
Right to bear arms - No right to bear arms under art. 17 of the MA Declaration of Rights for a private citizen to keep and bear arms and thus to require that a citizen have a right to do so is not unconstitutional; nor is there any question of a property right or deprivation of liberty involved in the statutory procedures for obtaining a license for obtaining a license to carry firearms.
For the Equal Pay Act, what two things does the court look at?
Court must determine (i) whether the substantive content of the job is comparable -- i.e. whether the duties of the job have important common characteristics and (ii) whether the two positions involve comparable skill, effort, responsibility, and working conditions. 1. Comparable Content 2. Comparable REWS (Responsibility, Effort, Working condition, skill)
What does one have to show to avoid being required to let in (women/men/blacks/gays) into your private club under the public accommodation law?
To be protected from law, org has to show that it is highly selective in its membership (beyond merely excluding members of protected groups).
You're the head of the Kiwannis and you exclude women, does the Public Accommodation law apply to you?
It might - Public accommodation law reaches discrimination in private organizations if such org own a "place" or leases space for meetings.
What does reasonable mean when we're talking about "reasonable accommodations" for handicapped persons?
1. No undue financial hardship on employer 2. Not require employer to waive or disregard essential functions of the job 3. Likelihood of success
What impairments don't get reasonable accommodations under 151B?
Non-chronic impairments, such as broken limbs, sprained joints, concussions, appendicitis, etc. are not considered handicaps for purposes of 151B.
Does the 20K charitable immunity cap apply to actions under 151B?
No - 20k charitable immunity cap does not apply to actions under 151B.
What two statutes allow for punitive and emotional distress damages for violations of civil rights? Which one does not?
MERA & 151B allow for punitive and emotional damages (IMA PE) MCRA does not
Who may bring an action under the MCRA?
AG or Private Citizen 1. AG gets injunction (or other equitable relief) 2. Private party gets injunction or equitable relief including economic damages Either if prevails gets attorney's fees and costs.
When is discrimination permissible under 151B?
Discrimination is permissible only based on a "bona fide occupational qualification," that is, one based strictly on the legitimate requirements of the job. BFOQ - Bona Fide Occupational Qualification