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60 Cards in this Set
- Front
- Back
LIST
four threshold issues |
Standing
Mootness Ripeness State Action |
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DEFINE
standing |
1) Injury
2) Redressability Injury must be personal If claim involves serious public interest immediately affecting substantial portion of population, standard relaxed |
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DEFINE
mootness |
Controversy must be:
1) Real 2) Live Appellate court can retain moot appeal involving issues of substantial public interest |
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DEFINE
ripeness |
1) Existing dispute
2) Threatening immediate hardship 3) Can be resolved by final judgment |
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DEFINE
state action |
1) official government conduct
2) private conduct w/significant government involvement |
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LIST
judicial review standards |
Rational basis
Intermediate scrutiny Strict scrutiny |
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DEFINE
rational basis JR |
1) Rationally related to
2) Legitimate governmental interest |
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DEFINE
intermediate scrutiny |
1) Substantially related to
2) Important governmental interest |
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DEFINE
strict scrutiny |
1) Narrowly tailored to
2) Compelling interest |
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DEFINE
takings clause doctrine |
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 |
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Washington takings rule if some economic value left on land
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Balance:
1) Purpose vs. 2) Economic impact on landowner |
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Contract clause doctrine
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State/local government regulations cannot substantially interfere with obligations of existing contracts
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Judicial review of substantive due process claims
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When rights fundamental, apply strict scrutiny
When non-fundamental, apply rational basis review |
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LIST
fundamental rights |
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) |
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Abortion rights before/after viability
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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 |
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Economic liberties rule (substantive due process)
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Regulations of economic activities are reviewed under rational basis
WA: exception for governmental land use regulations; same balancing analysis as for takings |
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Procedural due process / Property
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Land, personal belongings, any existing entitlement to specific benefit under fed/state law which there is legitimate expectation that benefit will continue
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Procedural due process / liberty
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Freedom from injury, physical restraint, freedom to exercise fundamental rights that have been impaired by intentional government action
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Process due under procedural due process
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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 |
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Pre-deprivation hearing required when...
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Pre-deprivation hearing required when more likely benefit is a necessity; more likely, more likely pre-hearing also required
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Approach to Equal Protection issues
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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? |
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Suspect class based on race/national origin
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When government action intentionally discriminates against class based on race or national origin, federal and WA courts apply strict scrutiny
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Proving intentional discrimination
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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
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Affirmative action
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Affirmative action: any government action favors racial or ethnic minorities must meet strict scrutiny
Must also be narrowly tailored |
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Suspect class based on alienage
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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 |
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Quasi-suspect class based on gender
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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 |
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Quasi-suspect class based on illegitimacy
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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 |
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Privileges and Immunities in WA
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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
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Free speech content based regulations vs. content neutral regulations
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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 |
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Prior restraints on speech
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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 |
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Vagueness doctrine re:speech
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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
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Overbroad regulation
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Overbroad: affects substantially more speech than necessary to serve government’s legitimate purposes
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Unduly discretionary regulation
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Unduly discretionary: gives officials inadequate standards for applying law’s requirements
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Symbolic speech regulation
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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
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LIST
types of unprotected speech |
Incitement of illegal conduct
Fighting words True threats Obscenity Child Porn Zoning Regs Commercial speech |
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Incitement of illegal conduct
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Incitement of illegal conduct: for speech to be punished as incitement, illegal conduct must be likely, imminent, and intended by the speaker
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Fighting words
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Fighting words: abusive words, directed personally to the hearer, that are likely to produce immediate and physically violent reactions in the average person
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True threats
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True threat: statement that reasonable person would interpret, under circumstances, as defendant’s serious declaration of intent to murder or inflict bodily harm
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Obscenity
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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
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Child porn
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Child porn: production, sale, possession of materials depicting actual minors engaging in sexual activities
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Zoning regulations
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Zoning regulations: location of adult bookstores and theaters may be regulated
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Three types of commercial speech
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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 |
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Protected speech level of scrutiny
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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
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Time/Place/Manner
Traditional Public Forums |
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 |
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Time/Place/Manner
Limited/Nonpublic Forum |
Limited/nonpublic: government regulation of time, place, manner of speech and assembly in
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Time/Place/Manner
Private Forum |
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 |
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Campaign funding
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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
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Freedom of press
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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 |
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Standards of review for press
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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 |
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Freedom of Association
Political activities |
Association for political activities: association for political speech purposes is fundamental right and government restrictions must meet strict scrutiny
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Freedom of Association
Illegal activities |
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
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Freedom of Association
Anonymous association |
Anonymous association: disclosure of group membership that may chill association = strict scrutiny
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Freedom of Association
Discriminatory membership |
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
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Freedom of Association
Government employees |
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
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Free Exercise Clause
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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 |
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Establishment Clause
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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 |
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Dormant Commerce Clause
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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
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Dormant Commerce / Out of State Actors
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Out of state actor: state/local reg discriminates against out of state economic actors / activities = strict scrutiny
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Dormant Commerce / Non-Discriminatory Regs
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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 |
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WA Privileges and Immunities Clause
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Privileges and immunities clause: state and local governments cannot explicitly discriminate against out of state citizens as to important economic activities or civil liberties
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