Constitutional Flashcards
CONSTITUTIONAL ----------- 5th Amendment ----------- What does 5th Amendment's Due Process provide?
The due process clause
“No person shall . . . be deprived of life, liberty, or property, without due process of law . . .”
CONSTITUTIONAL ----------- 14th Amendment ----------- What does 14th Amendment's Equal Protection provide?
“. . . nor shall any State deprive any person of life, liberty, or property without due process of law. . .
CONSTITUTIONAL ----------- 5th Amendment - Zoning ----------- What does due process ensure in the context of zoning?
due process clause ensures:
🔸Fairness in the way in which a zoning
regulation is adopted or a zoning decision is made (procedural due process),
and
🔸Fairness in the scope and implementation of the zoning regulation (substantive due process).
CONSTITUTIONAL ----------- Taking ----------- State the 3 step inquiry to be made.
CONSTITUTIONAL
- Economic impact on O.
- Interference w/ investment backed expectation.
- Character of LG action - for public purpose,
- ———-
* NOTES* - Eliminate a nuisance is not public purpose.
- Inv Back = taking – Inord Burd = Bert
CONSTITUTIONAL ----------- 14th Amendment ----------- What must be claimed under 14th Amend, Eq Protection?
CONSTITUTIONAL ----------- 14th Amend. Discriminate against a. Interference w/ fundamental rights. a. If in suspect class get heightened scrutiny. Courts are deferential to LG.
CONSTITUTIONAL ----------- 1st Amendment ---------- State the 4 part test to review a sign regulation.
4 part test ~ (c) + (d) are hardest for LG
~~~
speech by MS. DAN
~~~
—SPEECH—
a. Speech re: lawful activity + not Misleading.
- –RESTRICTION—
b. re: Subst govt interest (traffic, appearance)
c. Directly Advances that interest.
d. Narrow.
CONSTITUTIONAL ----------- 1st Amendment ---------- A sign ordinance that restricts First Amendment will be upheld if these 3 items found.
CONSTITUTIONAL ----------- Upheld if: a. Justified w/o reference to content b. Narrowly tailored, and c. Alternative channels to communicate.
CONSTITUTIONAL ----------- 1st Amendment ---------- State 2 things to look for when analyzing a claim that land use decision restricts Non-Commercial Speech.
- Content based restrictions (particularly as to signs)
will receive heighted scrutiny - Treatment of similar signs w/ different requirements.
- ## Reed v. City of Gilbert, 135 S.Ct. 2218 (2015).GOOD EXAM AREA. Because you can’t discriminate based on content.
CONSTITUTIONAL ----------- 1st Amendment ---------- Are Freedom of Religion claims found in land use?
Rarely.
If land use decision is neutral and of general applicability, it need not be justified by a compelling governmental interest even if it has
an incidental effect on burdening a particular religious practice.
CONSTITUTIONAL ----------- 14th Amendment ----------- State the 5 elements of an Equal Protection claim.
Elements:
1. Deprivation of a constitutionally protected right.
2. Deprivation occurred under color of State law.
3. Injury in fact sustained due to the deprivation.
4. The Def is not immune from suit.
5. More than nominal damages have been sustained.
State the 2 circumstances under which 1983 Qualified Immunity exists.
CONSTITUTIONAL ----------- Qualified exists if: 1) Acting in one’s official capacity 2) Official conduct does not violate clearly established statutory or constitutional rights which a reasonable person would have known. (ex. not race).
State the 1 circumstance under which 1983 Absolute immunity exists.
Absolute exists if:
One who functions as a judge or prosecutor enjoys absolute immunity, even if given a different title.
Can be appropriate for governmental officials in a Q-J function.
Is Commercial Speech easier to control? Why or why not?
Traditionally use more lenient ‘intermediate scrutiny’ test but International Outdoor v. City of Troy says that if Commercial Sign is CONTENT BASED, use STRICT SCRUTINY (“SCIRT”) analysis.
———–
You can’t treat commercial signs differently based on content.
———-
>but easier to control private speech, what gives?
LG’s ability to regulate speech is greatest in a:
A. Public forum (streets, parks).
B. Quasi public forum.
C. Non public forum (airport terminal, university EM).
D. A LG may never regulate speech.
C. Non-public forum.
Why? b/c public forums are SUPPOSED to be used for expression. LGs ability to regulate there is quite limited.
PUBLIC - strict scrut; t/p/m + compell int
Q-PUB - less scrutiny; t/p/m + compell int
NONP - least scrutiny; t/p/m + compell int
~I always want to say A - public forum. Perhaps I’m confusing commercial w/ non-commercial. We know non-commercial is viewed w/ heightened scrutiny.
Is the 1st Amendment test applied more restrictively or less restrictively for non-commercial signs?
Depends on whether it is CONTENT BASED or not.
———–
Don’t focus on ‘commercial’ focus on ‘content.’
———–
SCIRT vs. Intermediate Scrutiny by MS. DANA
