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I. The Power of the Federal Court

1. Background. The power of the federal court system is Article III, which creates only one court system. Key components include:

 A. Jurisdiction - original and appellate

 B. Supreme Court practices and procedures

 1) Rule of Four

 2) Writ of Certiorari (Cert.) v. Appeals

 C. Cases and Controversies Principles

 1) Standing (Who can bring a case to court)

 a) Taxpayer's Standing

 b) Standing of Organizations

 c) Specific Damages

 d) Hypo on Standing and Inquiry

 e) Third Party Standing

 f) Physican/Patient - Third Party Standing

 2) Ripeness (When)

 a) Abstention

 b) Pending State Action

 c) Exception to Pending State Action

 3) Mootness

 a) DeFunis v. Odegaard (1974)

 b. "Capable of Repetition but evading Review"

 4) Political Questions

 2. Supreme Court Jurisdiction is divided into Original and Appellate

 A. Original. When the trial itself is held at the Supreme Court.

 1) The subject matter covers two main areas:

 a) A situation where a state is party to a suit.

 b) Any suit involving diplomatic personnel.

 2) Two key points of Original Jurisdiction

 a) It is not subject to Congressional manipulation

 b) It is limited to the above two subject matter areas.

B. Appellate. The power to review the decisions of all state and lower federal court decisions.

1) Unlike original jurisdiction, it is subject to Congressional manipulation. Per Article III, Congress can create other courts inferior to the Supreme Court.

 2) The two components of appellate jurisdiction are:

 a) Diversity - Citizenship of different states

 b) Federal Question - Is it involved?

C. Hypo: Congressional limits on Supreme Court jurisdiction. Could Congress limit the power of the Supreme Court to hear certain matters such as abortion cases?

 1) Yes. The language of Article III would appear to support Congress as

Section 2 states that "the Supreme Court shall have appellate jurisdiction . . . . with such exceptions, and under such regulations as the Congress shall make." The closest and the last time Congress did with jurisdiction was in Ex Parte McCardle (1869).

2) No. Marbury v. Madison (1803) established the principle of Judicial Review, a concept not mentioned in the Constitution. Therefore, if Congress did deny jurisdiction to the Supreme Court, the Supreme Court could conceivably declare this denial unconstitutional. This also could be a breach of the Separation of Powers Doctrine.

 3. Supreme Court Practices and Procedures.

A. Rule of Four. Means that it takes four votes of the Supreme Court Justices to review a case. There are two types of reviews:

 1) By Writ of Certiorari: is discretionary.

2) By Appeal (mandatory Supreme Court review): as a matter of right of long as a Federal Question is involved. Thus an Appeal is possible:

 a) For State Court Judgment. Where state court decides

 (1) a Federal Statute or Treaty is invalid.

 (2) a state statute is valid and this decision was challenged.

 c) For a Federal Court of Appeals. When it invalidates a state statute.

 B. Cert. versus Appeal. When will the Supreme Court grant an Appeal or Cert?

 1) For a Federal Statute - if it is held invalid, review is by appeal.

 2) For a State Statute

 a) If held Constitutional, and this decision is challenged, review is by appeal.

 b) If held Unconstitutional, Supreme Court review is by Cert.

 If Statute held Const. If Statute held Unconst.

Court Statute S. Ct. Review is by: S. Ct. Review is by: 

 State State Appeal Cert.

 Fed. State Cert. Appeal

 State Fed. Cert. Appeal

4. "Cases and Controversies" Principle. The General Rule is that the courts can only decide issues as they arise in live controversies. Thus, the courts won't give any advisory opinions. As developed by the courts, this General Rule focuses on four main components.

A. Standing. It is the most important factor and is based more on a principle of need. A party must be sufficiently affected and have an interest in the dispute before he is allowed to present his case in court.

1) Taxpayer's Standing. General Rule is that one who pays general taxes (income tax) lacks standing to challenge governmental expenditures as unconstitutional because no particularized injury is alleged (even if taxpayer won, his tax bill would be the same). See Frothingham v. Mellon. But a person or organization assessed a special excise tax has standing to challenge consitutionality of that tax.

a) Exception to General Rule. Flast v. Cohen (1968). A taxpayer has standing if he can establish nexus between tax and himself as being:

(1) A challenged measure enacted under congressional taxing or spending power.

 (2) A tax that exceeded some specific limit on the congressional power.

b) To date, only a prohibition against the establishment of religion has been held to be a specific limitation on federal spending power to give a general taxpayer standing to challenge it.

2) Standing of Organizations. An organization itself may not have standing, but if its members are so harmed, the organization may be considered to suffer an injury-in-fact. But this injury-in-fact must be particularized, even if slight; shared in common with others; and attenuated.

a) In Morton v. Sierra Club (1972), the club was denied standing to sue to halt development of portions of national forest because club failed to allege that it or any of its members would be affected by the development.

b) But in United States v. Scrap (1973), law students allowed to challenge ICC rates which would indirectly cause a depletion of natural resources and result in more refuse. The injury-in-fact here was that the students used natural resources in Washington and that their physical environment would be harmed.

3) Specific Damages. A party must have an injury-in-fact and not a theoretical or ideological claim. The General Rule here is that Standing requires a showing of specific injury that is the consequence of the defendant's actions and that judicial relief will remove or compensate for the injury.

4) Hypo on Standing and Injury. Which type of plaintiff is most likely to have standing?

 a. Who has been harmed most narrowly or specifically?

 b. Who has been harmed the most?

 c. Of those harmed, who is the most identifiable?

 A guide being that the more general the harm, the less likely that person will have standing and vice versa, the one most specifically harmed in the greatest degree, the more likely that party will have standing.

5) Third Party Standing. General Rule is that third party standing not allowed, and thus, you cannot assert a claim for the harm suffered by another. But, if a party is harmed, he might be able to assert the rights of others if:

 a) the third party is unable to assert his own rights, or

b) the harm suffered by plaintiff affects his relationship with third parties and indirectly violates the rights of these third parties, or

c) physician/patient third party standing - In Singleton v. Wulff (1976), Supreme Court held that a physician has standing ju turti (e.g. third party) to assert the right of a pregnant woman patient in challenging the constitutionality of a state's abortion statute. The physician was uniquely qualified by virtue of his confidential, professional relationship with the patient to litigate the constitutionality of the state's interference with a discriminatory abortion law.

d) In Craig v. Boren (1976) a bar owner was given standing to assert the rights of an eighteen-year-old male in Oklahoma, whereas the eighteen-year-old female could buy liquor, he had to wait until he as 21.

6) Notes on Standing Requirement.

a) A plaintiff must be sufficiently affected by the matter, have an interest, and must have a real interest, but this need not be an economic harm being suffered.

b) A plaintiff must show a casual relationship between the injury in fact and the Constitutional harm of which he is complaining about.

c) A Taxpayer can only attack a taxing or spending statute and can do so only upon a specific constitutional ground and not on the basis of a general harm.

 d) In 1970, the Supreme Court set forth a two-part test for standing:

(1) First - the party must allege that the challenged action has caused him injury in fact, economic, or otherwise.

(2) Second - the question is whether the interest sought to be protected by the party is arguably within the zone of interest to be protected or regulated by the statute or constitutional guarantee in question.

e) In Roe v. Wade, the Supreme Court held that a woman no longer pregnant may nevertheless retain the right to litigate the point because it is "capable of repetition yet evading review."

B. Ripeness. There must be an immediate threat of harm to the plaintiff. The court's big concern is that the case is brought to court too soon. This may result in either an advisory opinion, or a premature one that could harm either party or the controversy in general. Here, there are two General Rules:

1) Abstention. Federal courts have power to defer judgment in a case involving an unsettled question of state law to allow the state court to resolve it. Thus, the Pullman Principle per Railroad Commission of Texas v. Pullman (1941).

2) Pending State Action. As long as there is a pending state proceeding, it is improper for the federal court to provide relief in the form of an injunction or declaration. Thus, if a party is prosecuted in state court and claims that his federal rights were violated, that state action must be terminated with a final judgment before the federal court will take up the matter of the violation of the party's federal rights. See Younger v. Harris (1971).

3) Exception to Pending State Action (Harris). Federal court will enjoin state action where a defendant can prove the state action was deliberate harassment or that he was prosecuted in bad faith -- with no hope of state for a valid conviction.

C. Mootness. This is the reverse (or flipside) of ripeness (where the concern is that the case is too premature) as it focuses on whether the controversy is too late. A dispute must remain unsettled and of continuous practical importance to the real interests of the litigants to justify a judicial decision.

1) In DeFunis v. Odegaard (1974), a white law student's challenge to the State of Washington's affirmative action program was dismissed because when the case reached the Supreme Court, the student no longer had interest in the outcome.

2) "Capable of Repetition but Evading Review" Exception. Is the pregnancy, election laws, involving issues of short duration where the plaintiff or the class of plaintiffs can reasonably be expected to be subject to the same dispute or problem.

D. Political Questions. Here, the court assumes there is a controversy, but the focus is shifted to the fact that the court simply will not hear certain cases. A refusal to hear a case because it is a "Political Question" does not give the lower court's judgment constitutional approval (which would be the case for other matters), it merely says that the Supreme Court will not review this issue on its merits.

 1) A Political Question is:

a) An issue committed by the Constitution to the other branches of government; and

 b) Inherently incapable of resolution and enforcement by the Judicial System.

 2) Issues held "Political Questions:"

 a) What constitutes a "Republican form of government" per Article IV?

 b) Questions involving Foreign Relations/Affairs.

 c) Questions involving internal affairs of Congress or the Executive Branch.

 d) Whether a state has properly ratified a Constitutional Amendment.

3) What is or is not a political question is a matter of the court's discretion, as prior "Political Questions" have been invaded by the court and deemed non-political in one aspect or another.

II. POWER OF CONGRESS (ARTICLE I)

1. General. The Constitution vests all powers in Congress per Article I which are its Enumerated Powers, but these specific powers are also augmented by the "Necessary and Proper Clause", which gives Congress the additional power to carry out all powers of the federal government. Two key questions are:

 A. Delegation. Determining the degree that Congress can delegate its power.

B. A Government of Limited Powers. The Constitution creates a national government of specific and limited powers delegated to it by the Constitution. Everything that the federal government does must be traceable back to the Constitution.

2. Delegation. Since Congress has all the powers, the key question is whether a delegation of its powers was proper.

A. Standard for Determining a Proper Delegation. Congress can delegate if proper standards are met. (General Rule) The Power of Delegation has been broadly defined (Schechter Poultry v. United States, 1935) and the delegation must include a clear standard for action by the delagatee.

B. Exception to General Rule.  Congress can only delegate those powers which are uniquely confined to Congress. Thus, it cannot delegate those powers which it does not possess by the Constitution.

 C. Arizona Constitution has a similar set of rules.

 3. Determining the Constitutionality of a Congressional Act. This is a two-part analysis.

A. Is the Act within one or more of Congress' enumerated powers as augmented by the Necessary and Proper Clause?

B. Does the Act violate the Bill of Rights or some other Constitutional provision which limits governmental power?

 4. Specific Congressional Powers. Are listed in Section 8 of Article I and consist of the:

 A. Commerce Clause: Must important power. To regulate commerce.

 B. Taxing and Spending Power. To do just that.

C. Military and Foreign Power. To declare war and approve treaties with foreign nations.

 D. Other less important powers:

 1) To regulate Indian Affairs.

2) Investigatory Power. To investigate, within limit, to secure information to help it carry out one of its other powers.

  3) Property Power. To control all federal property.

 4) Bankruptcy Power. To make bankruptcy laws.

 5) Postal Power. To create a postal system.

 6) Power over Citizenship. To make laws of naturalization.

 7) Admiralty and Maritime Power.

 5. The Commerce Power. The most important power and most complete.

A. No case since 1936 has congressional legislation under the Commerce Clause regulating nongovernmental persons has been invalidated as exceeding congressional power.

 B. Scope of Power. Congressional Power, as a general rule, the power to regulate:

1) The transportation of anything (whether or not a commercial activity is involved).

 2) Activities that affect Interstate Commerce (substantial economic effect).

3) The appropriate uses of things that have been in interstate commerce. (Protective conditions can be imposed on these items.)

C. General thrust of this Congressional Power is reflected in NLRB v. Jones and Laughlin Steel Corp. (1937) when it upheld congressional power to regulate any activity, local or interstate, which, either by itself or in combination with other activites:

 1) Has a substantial economic effect upon Interstate Commerce, or

 2) Has an effect on movement in interstate commerce.

6. Taxing and Spending Powers. Are powers separate and apart from the Commerce Clause.

A. Bar HYPO: If a question relates to revenue or spending, ask how the taxing amd spending powers are affected.

B. Taxing Power. General Rule is a tax measure is valid if it bears some reasonable relation to revenue production or if Congress has the power to regulate the taxed activity. Limitations on this are:

 1) Duties, import and excise taxes must be uniformly applied throughout the U.S.

2) A Direct Tax (one imposed directly on property or a person) must be levied in proportion to the census. Federal Income Tax was originally held a direct tax, but this has been offset by the 16th Amendment.

 3) Neither Congress nor the states can tax exports to foreign nations.

C. Spending Power. Little litigated, but of great importance to Congress is its power to pay the debts or the federal government and provide for the common defense and general welfare of the U.S. Since 1937, all congressional spending acts have been upheld.

 7. Military and Foreign Powers. 

A. The War Powers. Congress has power to declare war, raise and support the Armed Forces, and to make rules governing the Armed Forces.

1) These war powers have been used to justify domestic legislation which helps the war effort or alleviate the effects of the war on the home front at times when the other congressional powers may have been doubtful.

2) The constitutional basis for Military Justice is found in this Article I power (and not Article III, which sets up the Judicial System) and thus has resulted in:

 a. Judicial Review of habeas corpus proceeding in military courts.

 b. Power of military courts to try enemy civilians and soldiers.

c. Power of military courts over servicemen only for "service connected" offenses.

 d. That military courts cannot try civilians.

B. Treaty and Foreign Affairs Power. While power to make treaties is Presidential, Congress by 2/3 consent, must approve them. Key points relating to treaties which are parallel to federal legislation:

 1) A treaty is supreme over inconsistent state laws.

 2) A treaty supercedes earlier inconsistent federal statutes.

 3) A later federal statute supercedes earlier treaties.

 8. Power over Indian Tribes. The power over the tribes is complete.

A. The main problem centers on the authority of a state to enact laws affecting Indians and Indian Reservations. If this is the case:

1) Look for Presumption: any state law that conflicts with a federal law is preempted by the federal law.

2) Lacking federal statute: any state law that unduly interfers with tribal self government will generally be held invalid.

B. General Rule is that any state law involving Indians and an activity on a reservation is invalid, but if the impact of the state law is on non-Indians off the reservation, the state law will probably be upheld.

 9. Investigative Power.

III. Powers of President (Article II).

1. Background. As Chief Executive Officer, the Powers of the President focus on the implementation of federal law. Article II is the source of this power and can be divided into three areas.

 A. Domestic Power:

 1) Power of Appointment

 2) Power of Removal

 3) Degree of President's Power

 B. External Power

 C. Executive Privilege

 D. Other Powers

2. Domestic Powers. In theory, President has no power over internal or domestic areas, this being the exclusive domain of Congress, but he has certain powers over the internal operations of the Executive Branch.

A. Power of Appointment. Major emphasis here is the power to appoint ambassadors, judges, and executive branch officials with 2/3 consent of Senate.

1) President has executive power to appoint General officers of the Army, Navy, Air Force as commander-in-chief.

2) General Rule is that Congress cannot appoint Executive Officers who perform non-legislative functions. In Buckley v. Valeo (1976), appointment of Federal Election Commission officials by Congress held to violate separation of powers because the officials performed mixed (both legislative and executive) functions.

B. Power of Removal. Whether or not the president can remove a federal officer depends on the type of federal agency involved.

1) Executive Branch Cabinet Agencies. President has exclusive power to appoint cabinet agency officials, subject to 2/3 consent of Congress and exclusive power to remove them without congressional approval, as these officials serve at the pleasure of the president.

2) Independent Federal Agencies. Such as SEC, FTC, etc., Congress may regulate or participate in the removal of these officials of these agencies. Rationale for congressional participation is that these agencies were organized under legislative power of congress to fulfill some of its functions.

C. Degree of President's power keyed to congressional opposition.

1) President's power is greatest when he acts in pursuance or in concert with a congressional act because Congress's power is added to the President's power.

2) When President acts in absence of statute, he must look to Article II for his power.

 3) When President acts contrary to statutue, his authority is at its lowest ebb.

 3. External Power. President is chief Foreign Affairs Officer.

 A. Leading Case is U. S. v. Curtiss-Wright (19 ) which concludes:

1) The power of the federal government to act in foreign affairs is not derived from specific grants of power in the Constitution, but rather from inherent powers of national sovereignty.

2) President alone has power to act for nation in foreign affairs.

3) Legislation can delegate very broad discretion to President in foreign affairs.

B. President has constitutional authority to make executive agreements with other nations without consent of Senate, per U.S. v. Belmont (19 ), but any executive agreement will not have domestic consequences if it conflicts with a valid congressional statute.

4. Executive Privilege, is not constitutionally based, but rather stems from the inherent need to protect the confidentiality of President's communications. Presidential documents and conversations presumed privileged, but this is not absolute, and the courts will balance the need of the material sought against the potential harm to the Office of the President. Recent considerations are:

 A. National Security Secrets: are given great deference by court.

B. In Criminal Proceeding: the privileged information could/will be available to the prosecution if a need for it can be demonstrated U.S. v. Nixon (1974).

C. Screening Records of Former President: Federal statute requiring GSA to screen Presidential Papers is valid, despite the Executive Privilege. Nixon v. GSA (1977).

 5. Other Presidential Powers.

A. The right to bring lawsuits on behalf of the U.S. is an exclusive power of the executive branch, to include the right to decide whether to prosecute.

 B. President has limited power to grant pardons.

 C. President has veto power over all legislation (which can be overruled).

 6. Overlap of Congressional and Executive Powers: exists in two main areas:

A. Where Congress attempts to do executive functions, such as appointments, litigation, and investigations. This brings up a separation of powers issue.

B. Investigative power of Congress, while broad, may infringe upon President's power. Ask:

1) Does the congressional investigation relate to some present or proposed legislation?

 2) If so, Congress is not infringing on President.

IV. Speech and Debate Clause (Immunity)

1. Background. This is a privilege granted to legislators that is special. It has two

dimensions.

  A. Who can invoke this right?

 B. How does it apply?

2. Persons who can invoke this right. (It is absolute in who can use it, but not in its immunity provided.)

 A. Any member of Congress.

 B. Any administrative aide of Congress.

 C. Congressional Counsel (of permanent employment).

 3. This immunity applies to:

 A. Actual speeches or debates.

 B. Whatever goes on in a Committee Hearing.

 C. Legislative Investigation.

4. Scope of Immunity. Acts that occur in the regular course of the legislative process and the motivation behind those acts are immune from prosecution. Exceptions:

 A. Bribe taking, if a bribe not covered.

 B. Speeches made outside Congress.

C. Defamatory Statements, via republication even if the same statements were

protected when made in Congress.

V. Federalism.

1. Background. This relates to the principles of a federal, or central form of government, and the allocation of powers. Its main components are:

 A. Sovereign Immunity.

 B. Intergovernmental Taxation.

 C. The Privilege and Immunity Clause.

2. Sovereign Immunity. This is a particular privilege that prevents certain parties from suing a government.

 A. Source.

 1) Federal government. Inherent in its constitutional powers.

 2) States. Derived from the 11th Amendment.

 B. Federal Immunity. Key factors are:

 1) A state cannot sue U.S. without specific authority of Congress.

 2) But federal government can sue a state without the state's permission.

 3) Suit against a federal officer.

a. is deemed a suit against U.S. if relief would be granted from federal treasury or would interfer with public administration.

b. as an individual, allowed if the officer's act was beyond his statutory power or his valid power was exercised in an unconstitutional manner.

 C. State Immunity. Key factors:

 1) State needs permission to sue federal government.

 2) State does not need permission to sue another state.

3) Hall v. Nevada (1979) says that a state's sovereign immunity is limited to the borders of each state and thus one state may be subject to the jurisdiction of another's state court. In Hall, a California resident was allowed to sue state of Nevada in California's court.

 D. How to overcome sovereign immunity.

 1) Claim that the governmental act was unconstitutional.

 2) Join the applicable government officer as a defendant.

 3. Intergovernmental Taxation and Regulation. General Rules are:

 A. A state cannot impose a direct tax on a federal instrumentality.

B. Federal government can tax a state only to the extent that a proprietary function is involved by the state.

C. Federal government cannot tax a state if to do so would burden traditional state functions.

D. Federal government cannot regulate a traditional state activity. See National League of Cities v. Usery (1977).

 4. Privilege and Immunity Clause (Article IV).

A. Article IV was designed to ensure that citizen of State A, traveling in State B, was given the same privileges and immunities enjoyed by citizens of State B.

B. This clause is essentially an act of equal protection and applies only when a state treats its citizens better than noncitizens.

C. Burden of Proof on State. A state can treat its own citizens better than noncitizens, but it may have the burden of proof to show that the state law involved is necessary to accomplish a state objective.

D. Permissible Discrimination. Allowed when state objective is to preserve state-owned natural resources or local public institutions.

 E. Corporations not a citizen of a state for purposes of this clause.

VI. Regulation of Interstate Commerce.

1. Federal Power over Interstate Commerce: is complete, but not absolute, and is shared with the states in certain areas. Focus here is on:

 A. State Regulation of Interstate Commerce:

 1) Federal limitations.

 2) Existence of state regulations.

 3) Balancing "local" and "national" interests.

 4) Access to local markets by foreign sellers.

 B. State Taxation of Interstate Commerce.

 1) Test of determining validity of state tax.

 2) Types of taxes allowed.

2. State Regulation of Interstate Commerce: Only becomes a burden to interstate commerce in the absence of federal legislation. Thus, the first step is to determine if federal legislation exists.

 A. Federal legislation may limit state regulation in two ways:

 1) The commerce clause itself will deny state regulation of interstate commerce.

2) The supremacy clause will cause federal law to preempt state law. And then ask:

 a. Is there an actual conflict between federal and state law?

 b. Has Congress manifested an intent to "occupy the field" involved?

c. Does the federal statute imply exclusive federal control or does it allow for federal and state control to exist side by side?

 B. In absence of federal legislation, state regulation of commerce may exist where:

 1) The local interest is substantial and reasonable.

 2) The regulation does not discriminate against out-of-state competitors.

 3) The burden on interstate commerce is light.

C. Balancing "local" and "national" interests. The court has held that promoting "local" interests may not override the "national" interest in the free flow of commerce.

1) Thus in Southern Pacific v. Arizona (1945), the court said the substantial burden on interstate commerce could not be justified for safety reasons. Arizona, under its police power, attempted to limit trains passing through the state.

2) But Congress can declare local interests adequate to justify some regulation of interstate commerce.

D. Access to local market by foreign sellers: Absent federal regulation, a state can regulate local aspects of business if the state does not economically discriminate against out-of-state firms shipping goods in interstate commerce.

3. State Taxation of Interstate Commerce.

 A. Test for determining validity of state tax: Ask:

1) Are there minimum contacts to establish a "nexus" between the state and subject matter?

 2) Is the tax a reasonable burden on interstate commerce?

 3) Is both interstate and intrastate commerce treated alike?

 4) Does the tax not result in multiple tax burden?

 B. Types of taxes allowed:

1) Property tax. Goods brought into a state from out of state may be taxed is the "continuity of transit" has been broken. Thus, a state cannot tax goods passing through it.

 2) Sales tax on an interstate sale. Buyer in California, and seller in Arizona:

 a. The state of origin (Arizona) cannot tax the sale.

b. But the state of destination (California) can tax the sale if there is an adequate nexus such as seller have an office or resident salesman in the state.

3) Use tax. Can be imposed by a state for property bought elsewhere but brought into the state. Had the same property been purchased in state, it could have been taxed. The out-of-state seller can be required to collect the use tax and remit it to the state of the buyer if the seller has minimum contacts (resident salesman, etc.) with the buyer's state.

4) Tax on a transportation company. Any such tax is valid if the state can show it is a tax situs.

VII. State Action under 13th and 14th Amendments.

1. Background. The 14th Amendment is addressed to state action that would deprive a person of life, liberty, or property without due process of law.

A. Section 1 of the 14th Amendment sets forth these 3 prohibitions on state action and section 5 allows Congress to make laws relating to these prohibitions. The initial judicial interpretation in the 1880s was that these prohibitions only apply to state governmental and not to private action.

B. The focus here is on "private actions" to see if they can be characterized as "state action" for purposes of imposing constitutional limits. The court has looked at private actions in two ways:

 1) The Public Function Analysis.

 2) The Nexus Approach.

 a. Governmental involvement by licensing.

 b. Use of public property by private groups.

2. Public Function Analysis. Private property having the characteristic of public property such as a company town or shopping center may mean that a private activity is like a state functionally and, like a state cannot deny life, liberty or property to individuals.

A. Marsh v. Alabama (1946) was the first case where Supreme Court treated a company town like a municipality.

B. Hudgens v. NLRB (1976) overruled Logan (1968) where a shopping center was considered like a state facility. Now a shopping center can exclude people from it since it is not a governmental function.

C. But if a state law requires a shopping center to allow people to picket, etc., the law would be upheld.

3. The "Nexus" Approach. Under the public function analysis, private activities that were similar to public agencies were examined to see if they were discriminating against individuals. Under the Nexus Approach, the emphasis was in determining if there was enough of a nexus (link) between the private and public action to create a situation where a private action indirectly or by acquiescence on the part of a governmental entity was depriving people of their rights. Test her is to ask: "Was there enough of a link between the private and state action to as to get the state involved?"

A. Shelley v. Kramer (1948). Here the court held that a racially restrictive covenant, while entirely privately negotiated, could not be enforced by state courts because this would violate the equal protection clause of the 14th Amendment.

1) The link here was that state courts were ready to enforce the private acts of discrimination.

2) Neither the private act of the restrictive covenant by itself or the neutral position of the court in enforcing a binding covenant by itself violated the 14th Amendment. But linked together, they did.

VIII. Substantive Guaranties of Rights Not in the First and 14th Amendments.

1. Impairment of the obligations of contracts: per Article I, section 10, this section of the Constitution is directed at the states (but the 5th Amendment has been held to impose parallel restraints on the federal government).

A. General Rule. It applies to a state's legislative retroactive changes only, that would destroy the rights or remedies of a contract.

 1) It is binding only on the states and not on the federal.

 2) It applies only to retroactive changes.

 3) It applies only to legislative changes.

 4) But it does not affect judicial or future changes made in a contract.

B. Test used in Court: one of balancing the public interest against the private contractual right.

C. Modern Cases. In United States Trust Co. v. New Jersey (1977), the Supreme Court used the contract clause to invalidate action taken by New Jersey and New York when these two states repealed a covenant between them and bondholders of Port Authority that stipulated that revenues from Port Authority would not be used to support any railroad that was not "self-supporting". The two states simply passed laws repealing this covenant.

D. Standard of Evaluation. In U.S. Trust Co., the court indicated that a more stringent standard under the contract clause would apply when a state impaired its contractual obligations than when private contracts were involved.

2. Bill of Attainder and Ex Post Facto Laws. Neither can be passed by a state or the federal government, both prohibited by Article I.

A. The court defines a Bill of Attainder as any legislative punishment upon a named individual, as opposed to proper legislation which sets out a general standard of criminal conduct and leaves the application of the general standard to individuals to the judicial process.

 B. Thus, the determination of guilt is a judicial function and not a congressional one.

3. "Taking Clause" of 5th Amendment: Also called the "just compensation" clause, which has been incorporated into the 14th amendment to provide parallel restrictions on both the state and federal government. Thus, neither can take private land for public use without giving just compensation to its owners. The Basic Principles are:

A. If there is an actual taking of private property, it is a compensible event as a matter of constitutional guarantee.

B. Zoning laws may render land useless but there is no "taking" per se. But this may also be a compensible event, per Pennsylvania Coal v. Mahon (1922).

C. Courts may take a balancing approach and allow a government to decide the lesser of two evils where private property involved and the property destroyed to save other property is considered not "a taking," see Miller v. Schoene (1928).

D. A law may limit the use of property in an on-going business and this limitation is not a "taking" is the law is supported by a valid purpose. Per Goldblast v. Hempstead (1962).

 E. Test: Ask:

 1) Is there a taking which gives rise to a right of compensation.

2) Or is there a valid regulation that may lower property value but not be a taking?

 3) Has title or value passed to the government to give rise to a taking?

4) Was the taking for a valid public purpose? (Note: government can exercise its police power for a wide range of purposes and "get away with it".)

IX. 14th Amendment

1. Background of Due Process Clause. The critical clause of the 14th Amendment may be applied and thus analyzed in two dimensions.

A. Procedural Due Process. Applies to notice and hearings and the general procedure or process involved in adjudicating an individual's rights. A fair procedure requires, a a minimum, an opportunity to be heard by a neutral and fair decision maker.

B. Substantive Due Process. Unlike procedural due process that focuses on the mechanics, substantive due process says that there are some individual rights that are so important, than any regulation or restrictions imposed on them will be evaluated to determine if they are reasonable.

2. Procedural Due Process. Defects in this area are usually curable by giving notice to the individual involved/affected.

 A. The 3 key factors in determining procedural due process requirements: Ask"

 1) What private interest is being affected?

 2) What is the risk of erroneously depriving this interest?

3) What additional burden will be imposed on the government to provide additional procedural safeguards?

B. Private Interests. General Rule is that there must be some entitlement stemming from some statute, contract, common law or understanding before procedural rights must be satisfied prior to the termination of the entitlement.

1) If you only have an expectation or hope then that is not considered "Property" for 14th Amendment requirements. But if you have something else that the courts normally rely on, then your interest will be protected.

C. A notice and hearing as a precondition to government or government sanctioned action has been required before certain entitlements are terminated.

1) In Sniadach v. Family Finance (1960) an uncontested prejudgment wage garnishment was invalid. The Wager had a property interest in wages and was being denied the right to contest the garnishment.

 2) But Sniadach Rule not followed where:

 a. The creditor posts a bond.

b. The creditor has a detailed affidavit supporting the garnishment with prior notice and it is approved by a judge.

  c. Opportunity for a full trial at a later date.

 3) Other entitlements requiring a prior evidentiary hearing include:

 a. Welfare benefits: Goldberg v. Kelly (1972)

 b. Driver license.

4) Some entitlements do not require prior hearings, but do require some notice and post-termination review or hearing.

 a. Disability benefits: Mathew v. Eldridge (1972).

 b. Public employment: Arnett v. Kennedy (1974).

3. Substantive Due Process: Examines the substance of the law and asks if the law is reasonable.

A. Substantive Due Process and Equal Protection: are similar in that they examine the substance of the law rather than the procedure, but equal protection focuses on how people are classified as a group and substantive due process focuses on how individual rights of all people are being affected. Thus:

 1) due process question would be raised if a law:

 a. Limited the liberty of all persons to engage in an activity.

 b. Prohibits everyone from buying contraceptives.

 c. Prohibits publicly funded schools.

 2) An equal protection question would be raised if a law:

 a. Limited some, but not all people from engaging in an activity.

 b. Prohibits some people from buying contraceptives.

 c. Establishes separate schools for children of different races.

B. Background Cases. From 1897-1937, the Supreme Court invalidated many state laws on the basis of their violation of substantive due process.

1) The thrust of substantive due process was of the economic regulation of business by the states. The Supreme Court's analysis was based primarily on finding a real and substantial relationship between a state statute and its objectives.

2) Lockner v. New York (1905) is an example of the court's "means-ends" analysis where the court declared invalid a N.Y. law limiting hours worked by Bakers as violating the right of parties (owner and employee) to contract for labor.

3) Meyer v. Nebraska (1923). Court invalidated a state law that limited languages taught in elementary school to only English. The property right involved was the occupation of Meyers as a teacher of German.

C. The Modern Approach as reflected in Nebbia v. New York (1934). When the Supreme Court upheld a state law regulating the price of milk. Here the court was not questioning the legislative intent, but rather focusing on whether the law had a rational relation to a legitimate purpose.

 1) The court set forth a 3 part test. Ask:

a. Does the state law deal with a problem that lies within the state's police power? (Here the focus is on the end results and since a state's police power is broad, the answer will usually be yes.)

b. Is the means designed to achieve the legitimate ends reasonable. (This focuses on the relationship between the means and the ends.)

c. Is the law arbitrary or discriminatory? (Does the law have a greater impact on one group?)

2) Under this 3 part analysis, the state rarely loses as the Nebbia policy of the court is not as acting as a "super legislature" but saying that any reasonable economic policy pursued by a state will not violate due process.

X. Equal Protection

 1. Background.

 A. Basic Analytical Outline

 1) General Rule

 2) Exceptions

 a. Suspect Classification

 b. Fundamental Rights

 3) Over and Under Exclusive

 4) Race

 a. Types of Purposeful Racial Discrimination

 b. DeJure and DeFacto Segregation

 c. Benign Racial Discrimination

 5) National Origin

 6) Alienage

 7) Almost "Suspect" Categories

 8) Fundamental Interests

 a. Burden of Proof on State

 b. Established Fundamental Rights

 2. Equal protection problems can be viewed in terms of a General Rule and 2 exceptions.

A. General Rule is that any Rationale Basic for classifying people that relates to a legitimate governmental interest is valid.

 1) Test is to Ask:

 a. Is there a reasonable end being pursued by the state or government?

 b. Is what the state/government doing reasonable?

 2) If the General Rule is applied to a situation, the state/government tends to win.

B. The two exceptions to the General Rule of how people are classified or treated are: Suspect Categories and Fundamental Rights.

1) Suspect Classifications. When people are classified according to the following categories, this will automatically trigger the court to apply a strict Judicial Scrutiny Test:

 a. Race

 b. National Origin

 c. Alienage (Status of Citizenship).

2) Fundamental Rights. Focus here is that the type of right involved and when any of these rights are involved, the state/government will have to provide a compelling state interest to justify any infringement on these rights:

 a. Any First Amendment Right

 b. Right to travel interstate

 c. Right to procreate

 d. Right to marry

 e. Right to privacy in sexual and family matters

 f. Right to vote

3) Not Quite Suspect Categories. Are intermediate or half-way categories, that if used, will not be judged by a strict scrutiny test of a suspect category, but will require more than rational basis used for the General Rule. These include:

 a. Gender (sex)

 b. Legitimacy

C A sample case showing Over and Under Exclusive. Mass. Bd. of Retirement v. Murgia (1976), where a state law requiring mandatory retirement of state police at age 50 was upheld even though Murgia was as physically fit as a younger officer.

1) Court said that state employment was not a "Fundamental Right" and that age was not a "Suspect Category." Thus, the compulsory retirement law was held to satisfy the rational basis test because it was generally true that advancing age meant less physical fitness and not to uphold law would impose too great a burden on state.

 2) Murgia claimed that the state was both over and under exclusive:

a. Over Exclusive: is using too big of a net, and state getting too many physically fit officers and retiring them at age 50.

b. Under Exclusive: is using too small a net, and state, by focusing on age alone, was getting too few of the unqualified officers to retire.

 D. Race. Any form of classification that relates to race will be held unconstitutional.

 1) Types of Purposeful Racial Discrimination include:

a. Discrimination on the face of the law: The law says that a certain race only can be jurists, thus excluding all other races.

b. Discrimination in the administration of the law. Applying a neutral law against only Chinamen.

c. Discriminating motives behind a law. Difficult to prove but some laws may be based on stereotype thinking, i.e. that a widow was more dependent than a widower.

2) De Jure and DeFacto Segregation of Races in School. This is one of the few cases where racial classification can be a factor.

a. DeJure segregation is defined in Keyes v. School District of Denver (1973) as a current condition of segregation resulting from intentional state action and one that violates equal protection.

b. If DeJure segregation is found, remedy is not only to desegregate, but also for a school to take affirmative action to integrate. But there are limits and the courts try for a balance so as not to become a Super Superintendent!

3) Benign Racial Discrimination. Courts have upheld affirmative action programs in hiring and school admission programs which give preference to minorities. Thus BIA can establish a preference for Indians in employment and professional schools can allow minorities to compete on a separate basis for admission.

E. National Origin is an independent suspect category that will trigger the strict scrutiny test. Race is still considered the primary suspect category, and national origin discrimination is identical as race in its invidious impact on people. Thus consider race and national origin as two sides of the same coin.

F. Alienage is usually a lower "suspect" category in that the federal government can discriminate against non-citizens, but a state cannot.  For a state to justify classification by national origin, it would have to have a compelling state interest. But the federal government will only need a rational basis for using national origin to classify people. Ask:

 1. Who is doing the discrimination: federal or state?

2. If federal government involved, at what level is this happening? (The higher the level, the more allowable the discrimination.)

G. Almost "Suspect" Category. Sex and legitimacy are close to being suspect categories and may someday make it. In the interim, a new or middle standard of equal protection is being used by courts. This standard is more than the traditional basis, but less than the strict scrutiny test. For classifications to be based on sex or legitimacy to be valid:

 1. It must fulfill some important governmental objective.

2. There must be a substantial relationship between the classification and the governmental objective.

H. Fundamental Interests: when involved, they will require that the state provide a compelling state interest to justify their use. Thus, the burden of proof shifts to the state or federal government to demonstrate the validity of its action. (Whereas under the general rule, the burden is on the individual to prove that there is no rational basis for the governments actions.)

1) Burden of Proof. In addition to proving a compelling state interest, a state also must demonstrate that the method used is the least intrusive manner. Since individuals are being deprived of a "Fundamental Right," the method of deprivation must impose the minimum effect or impact on them.

 2) Established Fundamental Rights per the court area:

a. Any First Amendment Right: Freedom of speech and press, Freedom of assembly, and freedom of religion.

b. Right to travel interstate: established in Sharpio v. Thompson (1969) and any state residency requirements would not deny out-of-state residents basic necessities (welfare, medical care) not allowed, but less basic needs (divorce, voting) can be upheld.

c. Right to Procreate is the oldest fundamental right a reflected in Skinner v. Oklahoma (1941)

d. Right to Marry

e. Right to Vote: this right has two dimensions:

1. Right not to be denied to vote via voter qualifications of owning property. This can be only overcome by a showing of a compelling state interest.

 2. Right not to have Vote Diluted: the one-man, one-vote rule.

f. Right to Privacy.

XI. Free Speech

1. Free Speech. Freedom of Speech and Press not absolute. It is a relatively new development, a 20th Century matter, even though free speech is a First Amendment right.

 A. Analysis: Ask:

 1. Who is involved?

 2. How is the individual attempting to communicate?

 3. Where is the speech located?

 4. What is the speaker saying?

B. Who is involved? It makes a difference, because a person's position, public or private, affects the protection afforded his speech, especially in cases of defamation.

 1. Federal Regulators/Regulations.

 a. Red Lion v. FCC (1969). Court upheld the FCC "Fairness Doctrine."

b. Miami Herald v. Tornillo (1974). Court held that government could not require newspapers to print the reply of someone who had been attacked in its pages.

2. Defamation/Libel. Libel is traditionally a type of expression not protected by First Amendment. But determining liability and damages resulting from it depends on who is involved because different libel standards govern libel of public officials and figures, as opposed to private persons.

a. Time Libel Rule. In New York Times v. Sullivan (1964). Court set standard that a public official could not recover for libel unless malice was proved. Malice is acting with knowledge of falsity or in reckless disregard of whether the statement is true.

b. The Time Libel Rule also applies to public figures who voluntarily get into the limelight.

c. The Times Libel Rule does not apply to a private individual who is involved in a newsworthy event

Plaintiff Defendant Standard

Public Official v. Private Figure Times Libel (actual malice)

Gertz  v. Private Individual Negligence

Private Individual v. Private Individual Absolute liability

C. How is the individual attempting to communicate? General Rule is that symbolic speech is entitled to First Amendment protection but not as much as pure speech.

1. Conduct may have a communicative content and may be intended to express a point of view. If so, the First Amendment protections are triggered, but this does not mean that the conduct is protected merely because of its relationship to the speech.

2. General Rule is that a governmental regulation over conduct is constitutional if:

 a. The government has the power to make the regulation.

 b. If the regulation furthers an important or substantial governmental interest.

 c. If the governmental interest is unrelated to the suppression of free speech.

d. The incidental restriction on the First Amendment is no greater than necessary to further the governmental interest.

D. Where is the speech located? Where the public forum is located will affect the protection afforded the speech. General Rule is that public expression is allowed in the streets, but not in public places not deemed suitable for expression.

1. Standard Applied: Ask: "Is the First Amendment use for which the individual has put the place to use consistent with the nature of that place?

a. As defined by the courts a public forum includes: Parks, streets, capitol grounds.

b. A public forum is not: a courthouse, courthouse grounds, a library, a jail, or a public bus.

 2. In focusing on the physical location of a speech, the General Rules are:

a. A state can regulate the time, place, and manner of expression, but not the content of expression.

b. Doctrine of vagueness and overbreadth has been used to invalidate regulations interfering with public expression.

c. Any regulations involving location location of speech must be equally applied to all groups.

 3. The location of a speech is also involved in the right to free assembly.

E. What is the speaker saying? The content of a speech may make a difference in certain areas.

 1. The key matters involved here are:

 a. Obscenity.

 b. Fighting words.

 c. Commercial speech.

2. Obscenity. Basic Rule is that it is not protected First Amendment speech and it is up to a jury to decide what it means in a particular area or situation. Key factors are:

 a. The test is 3 parts. Ask:

 1. Does it appeal to the prurient interest in sex of the average person?

2. Does it present sex in a potently offensive way on the basis of the contemporary community standards?

 3. Does it lack serious social value?

 b. Any obscenity statute, to be valid, must be strict and not overly vague.

c. A state can regulate sexually explicit material in the area in conjunction with minors, zoning, liquor regulations and displays.

d. Private possession of obscenity cannot be regulated by the state as this would violate the right to privacy, but almost anywhere else, a state could regulate obscenity if the material is defined as such.

3. Fighting Words: Those spoken to start a fight are outside the First Amendment. See Chaplinsky v. New Hampshire (1942), where this doctrine originally developed in a context that focused on the content of the speech without closely examining the context in which it was spoken.

a. This doctrine was later refined to conform to the general rule that a regulation cannot be based on the content of a speech, but that it could focus on the time, place, manner, and even related conduct.

b. Statutes that attempt to regulate "fighting words" tend to be overboard and vague because they define punishable speech as "abusive language" or "opprobrious words" and with these definitions tend to cover both protected (non-fighting) and unprotected (fighting) words.

4. Commercial Speech: is similar to symbolic speech in that it is entitled to First Amendment protection, but not as much as non-commercial or pure speech. The general thrust here is that commercial speech is allowed as long as it is not misleading, deceptive, fraudulent or is involved in illegal products.

a. In the legal profession, the traditional bans against lawyer advertising has been broken by the public's right to have access to information about legal services.

b. Like a shoe or vacuum cleaner salesman, a lawyer can advertise, but is not allowed to deceive?

XII. Freedom of Assembly. Partly because of their vital role for people who lack access to other means of communication and partly because of their historic association with First Amendment rights, streets, sidewalks have achieved a special status in our law.

A. General Rule: Government can regulate time, place, manner of speech, and can regulate conduct, but not speech content. Thus, assemblies can be controlled and the general emphasis has been on either the location or the effect of the speech.

1. Thus in Feiner v. New York (1957), court upheld a conviction of Feiner for making an inflamatory speech as violating a breach of peace because he was attempting to incite a riot.

2. But in Edwards v. South Carolina (1963), a similar conviction for breach of the peace was overturned as violating the First and 14th Amendment. Here, Negro demonstrators were peacefully parading through the state capitol grounds and there was no violence or threat of violence on the part of the paraders.

B. Streets and Parks are considered public forums and the general rule is that the government cannot regulate speech-related conduct in these places except to serve significant governmental interests.

C. But in places other than parks and streets, the power of the government to exclude peaceful assemblies or speech depends upon the purpose of such institutes.

1. Thus schools and libraries have been treated as public forums and peaceful assemblies and speeches compatible with their purposes are allowed and cannot be prevented.

2. But there are some public institutions that do not perform speech-related functions. These range from hospitals to welfare departments to jails and military buses.

a. In these places, the government can exclude even peaceful assemblies and speeches which interfere instrumentally or symbolically with the functions of these governmental institutions.

b. Thus in Adderly v. Flordia (1966), the jail was ruled off-limits for assembly and the sheriff was allowed to arrest protestors.

XIII. Freedom of Association and Belief: implied in the right of free assembly is a right to privacy and to assemble with those of your choosing.

A. Right to Privacy. General Rule is that you have a right to join an association and to keep your membership private. This Rule applies across the board except to the communist party, where the government can require the disclosure of one's membership.

1. Thus for purposes of government employment, for membership in the Bar, for legislative investigations, an association is not required to disclose its membership, nor is an individual required to disclose the association to which he belongs, except if this involves the communist party.

 2. Loyalty Oaths. An individual is not required to sign them. 

B. Requirement of a Countervailing State Interest. To overcome a group's right to exercise its First Amendment rights, the state must show a substantial interest.