Con Law - Individual Liberties

Question 1

What is the State Action Doctrine?

Answer 1

Represents principle that the Const. applies ONLY to gov’t (“state”) action and NOT private conduct, UNLESS Congress is regulating private behavior p/t… 1) the 13th Am (prohibiting slavery and involuntary servitude): Congress can prohibit private race discrimination and has broad pwrs to adopt laws to enforce this prvn NOTE: only slavery violates the 13th Am DIRECTLY; private discrimination can violate LAWS passed p/t the 13th Am 2) the Commerce Cl: Can can apply Const. norms to private conduct if it affects interestate commerce (e.g. CRA of 1964) NOTE: Congress CANNOT use §5 of the 14th Am to regulate PRIVATE behavior; it can only regulate state/local gov’ts

Question 2

What are 2 instances where private conduct can be considered “state action”?

Answer 2

1) Public Function exception: If a private entity is performing a task TRADITIONALLY, EXCLUSIVELY done by the gov’t (e.g. a company town ran by a private operator; running elections) 2) Entanglement exception: The Const. applies if the gov’t affirmatively (i) authorizes; (ii) encourages; OR (iii) facilitatesunconst. activity; NOTE: there needs to be SIGNIFICANT involvement (e.g. a ONE time gift from the gov’t is NOT signficiant state action); needs to be CONTINUOUS involvement VERY inconsistent doctrine, so KEY e.gs = cts cannot enforce racially restrictive cov’ts there IS state action when the govt leases premises to a restaurant that racially discriminates there IS state action when a state provided free books to private schools that racially discriminate there ISstate action when a private entity regulates interscholastic sports w/in a state there is NO state action when the NCAA orders suspension of a basketball coach at a state university there is NO state action when a private school that is over 99% funded by the govt fires a teacher b/c of her speech there is NO state action when a private club w/ a liquor license from the state racially discriminates

Question 3

Which BOR prvns are NOT “incorporated” (i.e. they DON’T apply to the states)?

Answer 3

1) 3d Am right NOT to have soldiers quartered in a persons home 2) 5th Am right to a grand jury indictment in CRIMINAL cases 3) 7th Am right to jury trial in CIVIL cases 4) 8th Am right against excessive fines ALL OTHER prvns of the BOR are incorporated and apply to the states via the 14th Am.

Question 4

What are the 3 levels of scrutiny re: individual liberties/equal protection?

R.RL
I.SI
S.NC

Answer 4

1. Rational basis -
   - law / regulation is upheld if it is RATIONALLY related to a LEGITIMATE gov’t purpose
   - Burden of proof = on the plaintiff / citizen
2. Intermediate scrutiny
   - law / regulation law is upheld if SUBSTANTIALLY related to an IMPORTANT gov’t purpose
   - Burden of proof = on the gov’t
3. Strict scrutiny:
   - law / regulation is upheld if NECESSARY to achieve a COMPELLING gov’t purpose
   - Burden of proof = on the gov’t

Question 5

What is procedural due process?

Answer 5

The procedures that a gov’t MUST FOLLOW in order to take away someone’s life, liberty or property

Question 6

When does a “deprivation” liberty or property occur?

Answer 6

Deprivation of liberty: occurs if there is the loss of a significant freedom provided by the Const or a statute Deprivation of property: occurs if a person has an ENTITLEMENT (a reasonable expectation to the continued receipt of a benefit) and that entitlement is not fulfilled

Question 7

Is gov’t negligence sufficient to deprive a person of due process?

Answer 7

NO! Generally, there must be INTENTIONAL gov’t action; or at least RECKLESS ACTION for liability to exist NOTE: in emergency situations, the gov’t is liable under DP ONLY IF the conduct “shocks the conscience”

Question 8

Is the gov’t FAILURE to protect people from private harm a denial of due process?

Answer 8

NO! Generally, the gov’ts failure to protect ppl from PRIVATELY inflicted harms does NOT deny due process

Question 9

(Only) If there HAS been a deprivation (of liberty/property), how can we tell if in-place procedures are sufficient?

Answer 9

3-part balancing test: 1) The IMPORTANCE of the interest to the individual Greater importance = more procedural protection needed 2) The ability of ADDITIONAL procedures to increase the accuracy of the fact-finding Will more procedures reduce erroneous deprivation? 3) The gov’ts interest in EFFICENCY and SAVING $$ EXAMPLES w/ adequate process Welfare benefits (notice; hearing) Termination of parental custody rights (notice; hearing) Non-emergency institutionalization (notice; hearing) Social Security disability benefits termination (post-termination hearing) Reptuational harm (NOT A LOSS of liberty) Prisoners liberty interest (OFTEN not a loss of liberty) Punitive damage awards (jury instruction; judicial review) Non-citizen held as enemy combatant (ability to challenge continued detention) US citizens facing charges abroad by US military (Habeas Corpus) Actual bias in a ct proceeding (recusal by the judge is necessary)

Question 10

What is substantive due process?

Answer 10

Asks whether the gov’t has an adequate reason for taking away a person’s life, liberty, or property NOW, analysis is used to protect (i) ECONOMIC liberties;(ii) safeguarding PROPERTY; AND privacy (fundamental rights)

Question 11

What is the basis for evaluating laws that affect economic rights (p/t substantive due process)?

Answer 11

Only a RATIONAL BASIS test is used for laws affecting economic rights

Question 12

What is the standard req’d p/t the Takings Cl of the 5th Am?

Answer 12

The gov’t may take PRIVATE property for PUBLIC use but ONLY IF it provides JUST COMPENSATION or terminates the regulation Ask… FIRST: has there been a “TAKING”? Posessory taking = gov’t confiscation OR physical occupation of property Regulatory taking = gov’t regulation is a taking IF it leaves NO REASONABLE economically viable use of the property NOTE: Gov’t conditions on the development of property (exactions) must be justified by a benefit ROUGHLY proportional to the burden proposed A property owner may bring a takings challenege to regulations that ALREADY EXISTED at the time the property was acquired Temporarily denying an owner use of property is NOT a taking so long as the gov’ts action was reasonable SECOND: is it for PUBLIC USE? It’s a “public use” SO LONG AS the gov’t acts out of a reasonable belief that the taking will benefit the public THIRD: is JUST COMPENSATION paid? Measured in terms of loss to owner in reasonable MKT value terms (NOTE: the GAIN to the gov’t is IRRELEVANT)

Question 13

What is the Ks Cl of Art. I of the Const?

Answer 13

It says: no STATE shall impair the obligations of K Only applies to STATE/LOCAL interference w/ EXISTING Ks (never applies to fed gov’t) STATE/LOCAL gov’ts CAN interefere w/ existing PRIVATE Ks IF INTERMEDIATE SCRUTINY is met If the interference is substantial, then the law must be NARROWLY tailored to meet an important gov’t interest STATE/LOCAL gov’ts CAN interefere w/ existing GOV’T Ks IF STRICT SCRUTINY is met (bc State is a party of contract so issue of CONFLICT OF ISSUE)

Question 14

When can the gov’t adopt ex post facto laws?

Answer 14

Ex post facto law = one that punishes conduct that was LAWFUL when it was done Gov’t can create ex post facto laws in CIVIL CASES ONLY NEVER in CRIMINAL cases

Question 15

Which 8 fundamental rights (protected under substantive due process) are subject to strict scutiny?

Answer 15

The right to PRIVACY, specifically… 1) right to marry 2) right to procreate 3) right to custody of one’s child Can only be terminated if st proves a compelling interest like child abuse/neglect NOTE: a state CAN create an irrebuttable presumption that a married woman’s husband is the father of her child 4) right to keep family together Includes extended family BUT NOT students w/ no bio relationsh 5) right to cntrl raising children 6) right to purchase/use contraceptives 7) right to travel from state to state (BUT NOT int’l travel) NOTE: for voting purposes, 50 DAYS is the MAXIMUM allowable durational req 8) right to vote “One-person, one-vote” must be met for all state/local elections e.g. poll taxes are unconst.

Question 16

What is std for regulating abortions?

Answer 16

1) Prior to viability: states CANNOT prohibit abortions, but MAY regulate abortions AS LONG AS the regulation is not an UNDUE BURDEN on the ability to obtain an abortion 2) After viability: states MAY prohibit abortions UNLESS necessary to protect the woman’s life or health NOTE: the gov’t has NO DUTY to subsidize abortions or provide abortions in public hospitals Spousal consent and notification laws are unconst. Partential notice is OK as long as there is a judicial safety valve

Question 17

What are the 3 rights where the level of scrutiny is UNKNOWN?

Answer 17

1) Right to engage in private consensual homosexual activity 2) Right to refuse medical care Competent adults have the right to refuse medical care, EVEN IF it’s life-saving A state has a compelling interest in protecting the sancity of life (so may require CLEAR AND CONVICING evidence that person wants to terminate treatment) A state may prevent family members from terminating treatment NO const right to physician-assisted suicide 3) Right to possess firearms

Question 18

what are the elements of Taking?

Question

During military drills that occurred during a severe storm, a military jet was forced to make an emergency landing. As there were no airports nearby, the jet was forced to land on a farmer’s property. The landing destroyed acres of growing crops, resulting in a substantial economic loss for the farmer. The landing destroyed not only the growing crops (which he intended to sell months later), but also the possibility of growing further crops for the rest of the season. However, the farmer will be able to plant crops the following spring as normal. The farmer filed suit under constitutional law principles on the basis that he is owed just compensation for the value he would have been able to receive months later when selling the crops. He has not yet filed any tort claim related to the destruction of his crops. Which of the following amounts would constitute the most likely amount to be received by the farmer based on the current suit?

Answers

The value of the crops at the time they were destroyed, because the action constituted a taking.
The value of the crops at the time they would be sold, because the actions constituted a taking.
Nothing, because the farmer was not planning to sell the crops when they were destroyed by the landing.
Nothing, because the landing would not constitute a taking.

Answer 18

A taking is almost always found in the following situations: (i) When there is an actual appropriation or destruction of property, or the government permanently physically invades the property; and ii) when there is a permanent, total loss of economic value in the land. Note that a decrease in economic value, a temporary denial of economic use, utility rate regulation, and zoning ordinances do not necessarily result in a taking, unless the above rules are met. Further note that even if there is destruction or actual occupation of private property, a taking is less likely to be found in emergency situations.

Rationale:

Answer choice D is correct. Here, while the damage is severe for the season, it does not permanently destroy the land: only a temporary denial of economic use occurs. Also, because the jet was forced to land due to an emergency, a taking would be even less likely to be found. Answer choice A is incorrect because the action would not constitute a taking, and the man would not be eligible to receive any compensation. Answer choice B is incorrect because not only did the landing not represent a taking, but if it was a taking, he would be only entitled to the fair market value of the crops at the time of the taking. Answer choice C is incorrect because regardless of the value of the land at the time of the taking, the landing did not constitute a taking. Further, although the crops were not yet ready for sale, there was some economic value attributable to the crops.

Question 19

What is Per Se Taking

Answer 19

Per se takings

In two instances, a regulation clearly results in a taking.

1) Physical occupation

A taking has occurred when the governmental regulation results in a permanent physical occupation of the property.

Example: A law requiring a landlord to permit a cable company to install equipment on the landlord’s property that would remain indefinitely constituted a taking, even though the installation had only a minimal economic impact on the landlord.

2) No economically viable use - PERMANENT AND TOTAL ECONOMIC LOSS

When a regulation results in a PERMANENT AND TOTAL ECONOMIC LOSS of the property’s economic value, a taking has occurred. Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) (zoning ordinance precluding owner of coastal property from erecting any permanent structure on the land was a taking); Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302 (2002) (32-month building moratorium was not a taking

NB - Adverse economic impact: A regulation that results in a dramatic decline in the value of the regulated property DOES NOT necessarily constitute a taking.

Question 20

what are the rules and exceptions to Regulatory (zoning) taking?

Question

A state passed a law prohibiting the construction of any structure within 100 feet of the shoreline of an inland lake. A landowner owned a piece of empty lakefront property that extended 200 feet beyond the shoreline. The landowner sued the state, alleging that the law constituted a taking. Which of the following, if raised at trial, would not factor into the court’s determination of whether or not a taking has occurred?

Answers

The degree to which the law benefits society at large.
Whether the law substantially advances a legitimate government interest.
The owner’s intentions in possessing the property.
The owner’s ability to sell the property to a third party.

Answer 20

4. Regulatory Taking

Generally, a governmental regulation that adversely affects a person’s property interest is NOT a taking, BUT it is possible for a regulation to rise to the level of a taking. In determining whether a regulation creates a taking, the following factors are considered:

i) Economic Impact - economic impact of the regulation on the property owner;
ii) Interference w/ Owners Reasonable Investment-Backed Expectations - the extent to which the regulation interferes with the owner’s reasonable, investment-backed expectations regarding use of the property; and
iii) Type of Taking (Physical or Zoning) and Balance Between Society Benefits and Violaion of Essential Owners Rights - character of the regulation, including the degree to which it will benefit society, how the regulation distributes the burdens and benefits among property owners, and whether the regulation violates any of the owner’s essential attributes of property ownership, such as the right to exclude others from the property.

NB - A court generally will not examine whether a regulation substantially advances a legitimate governmental interest.

Rationale:

Answer choice B is correct. Generally, a governmental regulation that adversely affects a person’s property interest is not a taking, but when a regulation so substantially hinders a person’s property interest as to make it virtually valueless, that law may be considered a “regulatory taking.” In determining whether a regulation constitutes a taking, the court will consider: (1) the economic impact of the regulation on the property owner; (2) the extent to which the regulation interferes with the owner’s reasonable, investment-backed expectations regarding his use of the property; and (3) the character of the regulation, including the degree to which it will benefit society, how the regulation distributes the burdens and benefits among property owners, and whether the regulation violates any of the owner’s essential attributes of property ownership, such as the right to exclude others from the property. A court generally will not examine whether a regulation substantially advances a legitimate governmental interest. Here, all the factors are valid considerations for the court except whether or not the law advances a legitimate government interest. Answer choice A is incorrect because a court may consider the degree to which a law will benefit society. Answer choice C is incorrect because the court may consider the extent to which the law interferes with the owner’s reasonable expectations regarding the use of his property; if the owner had purchased the property with no intent to build a structure on it, his claim would be significantly weakened. Answer choice D is incorrect because the ability to resell the property speaks to the economic impact of the property regulation to the owner. It may also be relevant in determining whether any one of the essential attributes inherent in property ownership has been violated.

Question 21

What are the types of Taking

. A taking is almost always found in the following situations: (i) When there is an actual appropriation or destruction of property, or the government permanently physically invades the property; and ii) when there is a permanent, total loss of economic value in the land. Note that a decrease in economic value, a temporary denial of economic use, utility rate regulation, and zoning ordinances do not necessarily result in a taking, unless the above rules are met.

Further note that even if there is destruction or actual occupation of private property, a taking is less likely to be found in emergency situations.

Answer 21

B . Types of Taking

1. Seizure of Property (note - govt may seize private property not only for its own direct use but also to transfer the property to another private party (directly or indirectly but subjected to Public-use Challenge(may be intermediate / rational basis change where private person as burden of proof)
   - Govt Function - - Govt seizure of private property for governmental use, such as acquiring privately held land in order to construct a courthouse or other government building. … in such a case, the property owner’s primary (if not ONLY) challenge to the seizure is whether he has received just compensation
   - Public-Use - govt seize private property to transfer the property to another private party and the taking need merely be “rationally related to a conceivable public purpose.” … in such a case the Public-use Challenge can be invoked which challenge as not being made for a public use. Private party has the burden to prove a lack of legitimate interest or rational basis.
   - Private party has burden whenever the rational basis standard is used. .. Depends with intermediate standard could be govt or private
   - In addition to traditional health, safety, and welfare justifications, economic redevelopment goals constitute a sufficient public purpose to justify the seizure. Moreover, a government-mandated transfer of property from one private party directly to another (e.g., from lessor to lessee) may nevertheless be for a public use. .
2. Damage to or Destruction of Property

A destruction of property or property rights by the federal, state, or local government can also result in a taking.

• The destruction need not directly benefit the government
• Similarly, physical damage to property or interference with a property owner’s rights by governmental action can result in a taking. Example: County ownership of an airport that resulted in an invasion of the airspace of nearby property owners by planes taking off and landing at the airport constituted a taking. (owner could not enjoy silence on property)
• NB - a statute that requires an owner of property rights to take action in order to preserve an unused right does not result in a taking if the owner fails to take such action.
• Exception—public peril (NO RECOVERY OF DESTRUCTION) - governmental destruction of private property in RESPONSE TO PUBLIC PERIL DOES NOT TRIGGER A RIGHT COMPENSATION (A TAKING BY DAMAGE BUT NO COMPENSATION)… EX The owners of infected cedar trees located near apple orchards were not entitled to compensation when the cedar trees were destroyed pursuant to a state statute in order to prevent the spread of the infection to the orchards
  3. Characterization of Property

The Takings Clause prevents a government from recharacterizing private property as public property.

Example: Interest on the purchase price of an insolvent corporation placed by the buyer in an account with the court as part of an interpleader action involving the corporation’s creditors was private property. A state court’s interpretation of a statutory provision that the interest was public money constituted a taking.

4. Regulatory Taking (zoning)
   - Generally, a governmental regulation that adversely affects a person’s property interest is not a taking, but it is possible for a regulation to rise to the level of a taking.
   - Public-use challenge - in the context of a regulation, a state or local government can act under its police power for the purposes of health, safety, and welfare. In addition, a public purpose can encompass aesthetic and environmental concerns.
   - Moreover, it is generally inappropriate for a court to examine whether a regulation substantially advances a ‘legitimate governmental interest’ (intermediate scrutiny standard). (Note, however, that an arbitrary or irrational regulation may constitute a due-process violation.) Private party has the burden is on the the taking to prove a lack of legitimate interest or rational basis. - Private party has burden whenever the rational basis standard is used.
5. Exaction as a Taking (not a Regulatory Taking)

exaction - ex·ac·tion - the action of demanding and obtaining something from someone, esp. a payment or service

A local government may exact promises from a developer, such as setting aside a portion of the land being developed for a park in exchange for issuing the necessary construction permits. Such exactions do not violate the Takings Clause if there is:

i) An essential nexus between legitimate state interests and the conditions imposed on the property owner (i.e., the conditions substantially advance legitimate state interest); and
ii) A rough proportionality between the burden imposed by the conditions on property owner and the impact of the proposed development.

Ex (state-required grant of an easement across beachfront property as a condition on the issuance of a building permit was a taking due to lack of essential nexus);

Ex state-required dedication of land to the city for use as a greenway and pedestrian/bicycle pathway in exchange for permit to expand a store and parking lot was a taking due to lack of rough proportionality)

In determining whether there is rough proportionality between the burden and the impact, the government must make an individualized determination that the conditions are related both in nature and extent to the impact.

These requirements are limited to exactions; they do not apply to regulatory takings. (rent cap was not an exaction taking, but instead was a valid regulation under the Takings Clause).

Question 22

Exaction as a Taking (not a Regulatory Taking)

Question

A supermarket wanted to expand its building to add space for a coffeehouse. City officials, acting pursuant to a zoning ordinance, refused to grant a required building permit for the addition unless the supermarket added a child care center that would take up as much space as the proposed coffeehouse. In a suit filed in state court against appropriate city officials, the supermarket challenged this decision on constitutional grounds. Although the city officials presented no evidence and relied solely upon a general assertion that there was a shortage of child care facilities, the court ruled against the supermarket. The supermarket appealed. On appeal, is a court likely to uphold the lower court’s ruling in favor of the city officials?

Answers

Yes, because the burden was on the supermarket to demonstrate that there was no rational relationship between the child care requirement and a legitimate governmental interest, and the supermarket could not do so because the requirement is reasonably related to improving the lives of families and children residing in the city.
Yes, because the burden was on the supermarket to demonstrate that the child care requirement was not necessary to vindicate a compelling governmental interest, and the supermarket could not do so on these facts.
No, because the burden was on the city to demonstrate that this requirement was necessary to vindicate a compelling governmental interest, and the city failed to meet its burden under that standard.
No, because the burden was on the city to demonstrate a rough proportionality between the child care requirement and the impact of the supermarket's proposed action on the community, and the city failed to do so.

Answer 22

5. Exaction as a Taking (not a Regulatory Taking)

exaction - ex·ac·tion - the action of demanding and obtaining something from someone, esp. a payment or service

A local government may exact promises from a developer, such as setting aside a portion of the land being developed for a park in exchange for issuing the necessary construction permits. Such exactions do not violate the Takings Clause if there is:

i) An essential nexus between legitimate state interests and the conditions imposed on the property owner (i.e., the conditions substantially advance legitimate state interest); and
ii) A rough proportionality between the burden imposed by the conditions on property owner and the impact of the proposed development.

Ex (state-required grant of an easement across beachfront property as a condition on the issuance of a building permit was a taking due to lack of essential nexus);

Ex state-required dedication of land to the city for use as a greenway and pedestrian/bicycle pathway in exchange for permit to expand a store and parking lot was a taking due to lack of rough proportionality (the added pathway for public would take up most of the development (see exam question) — so private party would suffer and public would benefit disproportionally)

Rationale:

Answer choice D is correct. Generally speaking, the government may use its police power to regulate land use if the regulation is for health, welfare, or safety purposes. A land regulation is valid and does not constitute a taking if it substantially advances legitimate governmental interests and there is a proportional relationship between the burden on the landowner and the benefit to the state. When the constitutionality of a government action is in question, the burden of proof lies with the government, unless the rational basis test applies. Because the city failed to meet its burden under these facts, the city’s requirement was unconstitutional. Answer choices A and B are incorrect because they articulate, respectively, the rational basis and strict scrutiny tests, which are both inapplicable, and because they each wrongly place the burden on the supermarket. Answer choice C is incorrect because, although it properly places the burden of proof on the city, it incorrectly applies the strict scrutiny test.

Question 23

What are Fundamental Rights

What are Non-fundamental Rights

FYI

14th Amend Due Process

• Suspect Classification - Race, Ethnicity and National Origin / Alienage - - - judicial review of law/regulation subject to strict scrutiny and are invalid in govt can show necessary to achieve a compelling govt interest
• Quasi-Suspect Classification - Gender and Legitimacy = = > subject to intermediate scrutiny the burden is on the state to show that a statute/law/regulation that treats sexs and birth status differntly is substantially related to an important govt interest
• Non-suspect Classification - Age, Poverty/Wealth,Sexual Orientation - - judicial review is rational and burden is on P to show that there law is not rationally related to a legitimate govt issue (laws are presumed valid under rational basis so the burden is on P to overcome this presumption by establishing that the law is ARBITRARY or IRRATIONAL)

Answer 23

Fundamental Rights

• Right to Vote
• Right to Travel
• Right to Privacy (including marriage, divorce, sexual relations, abortion, child rearing/parenting. and the right of related persons to lie together/familial relationships)

Standard of Review - - >state actions/govt infringement on Fundamental Rights (only those listed above) are reviewed under STRICT SCRUTINY and only upheld if GOVT can meet its burden of NECESSARY to achieve a COMPELLING govt interest

Non-fundamental Rights

• Those related to social or economic interests such as business, taxation, lifestyle or zoning

Reqs a review of RATIONAL and the P must meet its burden of showing there is NO RATIONAL relationship betw the law/regulation and LEGITIMATE govt interest (laws are presumed valid under rational basis so the burden is on P to overcome this presumption by establishing that the law is ARBITRARY or IRRATIONAL)

if on a question, a fundamental right is being infringed upon all persons, the issue is liekly one of Substantive Due Process (5th Amend). If the right is being denied to only a particular class of person, then Equal Protection is in play (14th Amend)