MBE Con Law Flashcards
The Personnel Handbook of a particular city contains all of that city’s personnel policies. One section states, “where feasible and practicable, supervisors are encouraged to follow the procedures specified in this Handbook before discharging a city employee.” Those specified procedures include a communication to the employee of the reasons for the contemplated discharge and an opportunity for a pre-termination trial-type hearing at which the employee may challenge those reasons.
After a year of service, the secretary to the City Council was discharged without receiving any communication of reasons for her contemplated discharge and without receiving an opportunity for a pretermination trial-type hearing. The secretary files suit in federal district court to challenge her discharge solely on constitutional grounds.
Which of the following best describes the initial burden of persuasion in that suit?
A: The City Council must demonstrate that its personnel handbook created no constitutionally protected
interest in city employment or in the procedures by which such employment is terminated.
B: The City Council must demonstrate that the secretary’s termination was for good cause.
C: The secretary must demonstrate that state law creates a constitutionally protected interest in her
employment or in the procedures by which her employment is terminated.
D: The secretary must demonstrate that she reasonably believed that she could work for the city for as long as she
wished.
C: The secretary must demonstrate that state law creates a constitutionally protected interest in her employment or in the procedures by which her employment is terminated.
When challenging the deprivation of a constitutionally-protected right without due process of law, a plaintiff first must demonstrate that she has a constitutionally protected right. Here, the secretary must first demonstrate that state law created a constitutionally-protected interest either in her job or in the procedures for termination. Only this preliminary showing will trigger the procedural due process protections afforded to property interests in public employment.
A statute in a particular state provided state monetary grants to private dance, theater, and opera groups located in that state. The statute required recipients of such grants to use the granted monies for the acquisition, construction, and maintenance of appropriate facilities for the public performance of their performing arts. The last section of the statute conditioned the award of each such grant on the recipient’s agreement to refrain from all kinds of political lobbying calculated to secure additional tax support for the performing arts.
The strongest constitutional basis for an attack upon the validity of the last section of the statute would be based upon the
A: Commerce Clause.
B: Obligation of Contracts Clause.
C: Fifth Amendment.
D: First and Fourteenth Amendments.
D: The First and Fourteenth Amendments.
The strongest constitutional basis for an attack on the provision is that by conditioning the award of a
grant on the recipient’s agreement to refrain from all kinds of political lobbying designed to secure additional tax support, the state was prohibiting a particular kind of speech or political activity, in violation of the First and Fourteenth Amendments. State actions that restrict speech or similar political activity are subject to strict scrutiny and rarely pass.
