Missed MBE Qs

Question 1

JUDICIAL POWER
Judicial Review in Operation:

Acting pursuant to its general power to tax and spend, Congress enacted a federal statute appropriating funds for the construction of religious schools in areas that (i) meet certain population requirements and (ii) are not within 50 miles of an existing public school. No such schools have yet been built, as no communities currently in existence meet both of these requirements. An organization aimed at preserving public education sued in federal court to enjoin the construction of any such schools, arguing that government funding for the construction violates the Establishment of Religion Clause. Which of the following best describes how the district court should dispose of the suit?

A. Hear the case, and issue the injunction if the government cannot show that the construction of the schools is rationally related to a legitimate government interest.

B. Hear the case, and issue an injunction if the statute does not have a secular purpose.

C. Dismiss the case, because there is no organizational standing to challenge appropriation of federal funds.

D. Dismiss the case, because it does not involve a justiciable case or controversy.

Answer 1

Answer choice D is correct. An action that is brought too soon (i.e., is “unripe”) will not be heard by federal courts. In order for a case to be ripe for litigation, the plaintiff must have experienced a real injury or the imminent threat of real injury. Because no community fits the statute’s requirements at this time, the case is not ripe and should be dismissed.

Question 2

JUDICIAL POWER
Judicial Review in Operation:

unripe

Answer 2

will not be heard by federal courts. In order for a case to be ripe for litigation, the plaintiff must have experienced a real injury or the imminent threat of real injury

Question 3

JUDICIAL POWER
Judicial Review in Operation:

an organization may bring an action on behalf of its members if

Answer 3

if (i) its members would have standing to sue, and (ii) the interests at stake are germane to the organization’s purpose. There would be organizational standing here because, although there is generally no taxpayer standing, taxpayers do have standing when challenging government spending under the Establishment Clause. Further, the interest at stake is directly related to the organization’s purpose. The case may not be heard, however, because it is unripe.

Question 4

INTERGOVERNMENTAL IMMUNITIES
Federal Immunities:

The Department of Defense entered into a contract with a state-owned weapons manufacturer. The contract called for the production of defense equipment to be used by the military. The Department of Defense agreed to purchase all of the defense equipment produced by the state-owned weapons manufacturer for a period of one year. Each purchase made by the Department of Defense during that one-year period was subject to taxation pursuant to state law. The Department of Defense filed suit in federal court challenging the constitutionality of the state tax applied to its purchases under the contract.

Is the Department of Defense subject to the state tax for its purchase?

A. No, because the contract involved military defense.

B. No, because the Department of Defense is immune from state taxation.

C. Yes, because the power to tax is an essential incident of state sovereignty.

D. Yes, because, by purchasing defense equipment from a state-owned manufacturer, the Department of Defense consented to state taxation.

Answer 4

Answer choice B is correct. The federal government and its instrumentalities (such as a national bank) are immune from taxation by the states. In this case, the Department of Defense, part of the federal government, is immune from taxation by the state for any purchases made pursuant to the defense contract.

Question 5

INTERGOVERNMENTAL IMMUNITIES
Federal Immunities:

Is mere fact that a contract involved in military defense enough to result in immunity from state action?

Answer 5

NO, not necessarily

if the military is a purchaser under the contract, then yes

Question 6

INTERGOVERNMENTAL IMMUNITIES
Federal Immunities:

Taxation & State Sovereignty

Answer 6

Although the power to tax is an essential incident of state sovereignty, that power is limited when applied to the federal government.

Question 7

INTERGOVERNMENTAL IMMUNITIES
Federal Immunities:

Taxation & State Sovereignty (Can fed consent to taxation by state gov’t ben entering into contract w/ state owned business?)

Answer 7

NO, It is immune from state taxation regardless of whether the other party to the contract was the state or a private entity.

Question 8

STATE REGULATION & TAXATION OF COMMERCE
The Dormant Commerce Clause:

Congress enacted a statute permitting states to enact any law regarding the regulation and taxation of persons in the financial services industry, provided that any such law is consistent with federal statutes regulating the industry. A state enacted a statute that taxed all out-of-state financial services corporations doing business in the state. However, the statute did not tax local financial services corporations. A group of out-of-state financial service corporations joined in a court action challenging the constitutionality of the state statute.

Is the state statute constitutional?

A. No, because it violates the Dormant Commerce Clause.

B. No, because it violates the Comity Clause.

C. Yes, because a state may tax a corporation for doing business in the state.

D. Yes, because Congress specifically permitted this type of statute.

Answer 8

Answer choice D is correct. Because Congress has exclusive authority over interstate commerce, it may explicitly permit states to act in ways that would otherwise violate the Dormant Commerce Clause. In this case, Congress, by statute, permitted states to enact any law, including a tax law, regarding the financial services industry that is consistent with applicable federal statutes. Accordingly, the state enacted a statute taxing out-of-state financial services corporations doing business in the state. Although the state statute discriminated against out-of-state corporations, the statute enacted by Congress permitted such discrimination.

Question 9

PROCEDURAL DUE PROCESS
Procedural Due Process Applied:

The jury commissioner at a state court was charged with stealing the identities of dozens of potential jurors. She readily confessed to her crime to her employer immediately after the allegations of her behavior surfaced. The county immediately terminated her employment. Both her employment contract and state law clearly stated that jury commissioners can be terminated only if there is just cause to do so. A hearing was scheduled for a week following the commissioner’s termination. The commissioner filed suit to have herself reinstated as commissioner. She alleged that, because she had not been convicted, she was entitled to a pre-termination notice and an opportunity to respond.

Has the commissioner likely received the due process to which she is entitled?

A. Yes, because she will receive a prompt post-termination hearing.

B. Yes, because no hearing is required when there is
cause to terminate the employee.

C. No, because she has not been convicted of a crime.

D. No, because she did not receive a pre-termination hearing.

Answer 9

Answer choice A is correct. Generally, a public employee who may be discharged only for cause has a property interest in her job, and therefore is entitled to notice of termination and a pre-termination opportunity to respond. A formal pre-termination hearing, however, is not required. If there is a significant reason for immediately removing a “for-cause” employee from the job, a prompt post-termination hearing with reinstatement and back pay if the employee prevails constitutes sufficient due process. Here, the commissioner’s theft of information directly related to her position as jury commissioner and the ability to continue such criminal behavior is a justification for her immediate removal as commissioner. Accordingly, only a post-termination hearing is required, and as that hearing is set for the week following the commissioner’s termination, the commissioner has likely received proper due process.

Question 10

PROCEDURAL DUE PROCESS
Procedural Due Process Applied:

public employees’ right to to hearing upon termination for cause

Answer 10

absolute, but can be post termination

Question 11

EQUAL PROTECTION
General Considerations:

A state passed legislation requiring professional gardeners to obtain a license to charge for gardening services within the state. To obtain the license, individuals must pay a $50 fee and complete an instructional class covering, among other things, how to avoid underground electric and gas lines when gardening. Although it was not the legislature’s intent, the legislation disproportionately affects one race, as the majority of gardeners in the state are of the same race. Is the legislation constitutional?

A. No, because it has a disparate impact on a particular race and is not necessary to advance a compelling government interest.

B. No, because race is a suspect classification.

C. Yes, because it is rationally related to a legitimate state interest.

D. Yes, because it is substantially related to an important government interest.

Answer 11

Answer choice C is correct. The rational basis standard of review applies to laws that draw distinctions based on age, wealth, or most other classifications (such as “gardeners”), and those that have a disparate impact on a particular class without a discriminatory intent. Because there is no discriminatory intent in this legislation, rational basis review would apply.

Question 12

EQUAL PROTECTION
General Considerations:

What does disparate impact trigger?

Answer 12

in order to trigger strict or intermediate scrutiny, there must be a discriminatory intent on the part of the government. The fact that legislation has a disparate effect on people of a particular race is, without intent, insufficient. Without discriminatory intent, the state must only prove that the law is rationally related to a legitimate state interest

Question 13

EQUAL PROTECTION
General Considerations:

Intermediate scrutiny test is…

Answer 13

substantially related to an IMPORTANT government interest.

Question 14

FREEDOM OF RELIGION
Free Exercise:

An employee of a large non-denominational church served five years as the minister for the church’s youth program. During the past year, the minister was diagnosed with severe chronic migraine headaches, which caused him to miss work one or two days per week. Subsequently, the senior pastor of the church and the board of deacons, who had final say on the hiring and firing of all ministerial staff, unanimously voted to terminate the minister’s employment and provide him with a modest severance package. He filed suit against the church under the Americans with Disabilities Act, which, in part, protects both government and private employees against discrimination based on certain medical and physical disabilities, including chronic migraine headaches. The minister seeks reinstatement and back pay. The church filed a motion for summary judgment. Should the court grant the church’s summary judgment motion?

A. Yes, because the Free Exercise clause of the First Amendment supports the dismissal.

B. Yes, because it violates the church’s First Amendment association rights.

C. No, because the Americans with Disabilities Act is a neutral law of general applicability.

D. No, because the minister’s due process and equal protection rights were violated.

Answer 14

Answer A: In Hosanna – Tabor Evangelical Church and School v. EEOC, 132 S.Ct.694 (2012), the Supreme Court unanimously recognized the existence of a “ministerial exception” grounded in the First Amendment Religious Clauses that precluded the application of employment discrimination laws concerning the employment relationships between a religious organization and its ministers. Requiring a church to accept or retain an unwanted minister interferes with the internal operations of a religious organization in violation of the Free Exercise and Establishment Clauses of the First Amendment.

Question 15

FREEDOM OF RELIGION
Free Exercise:

Does the ministerial exception violate the free association rights of a church under the First Amendment?

Answer 15

No! That’s not how we deal with these cases.

Question 16

FREEDOM OF RELIGION
Free Exercise:

A public square located in a major city contained a number of statues of historical figures, including religious ones. Members of various religions came to the square to pray in front of the religious statues. One religious statue depicted the founding member of a particular religious sect. Under the sincerely held beliefs of the sect, sect members were not permitted to worship or pray at any religious statue until sundown. The sect used the statue in the square as a place of worship and prayer on a regular basis, considering it sacred. As a result of an outbreak in crime in the square at night, the city enacted an ordinance prohibiting the presence of any persons in the square after sundown. The sect challenged the ordinance on the ground that it violated the Free Exercise Clause.

Will the sect’s challenge to the ordinance be successful?

A. No, because the ordinance was not enacted to target the sect’s religious practices.

B. No, because the ordinance is a valid time, place, or manner restriction.

C. Yes, because the ordinance restricted the sect’s religious practices.

D. Yes, because the ordinance did not impact the practice of other religions.

Answer 16

Answer choice A is correct. Generally, only state laws that intentionally target religious conduct are subject to strict scrutiny. Neutral laws of general applicability that have an impact on religious conduct are subject only to the rational basis test. In this case, there are no facts to suggest that the ordinance was enacted to intentionally target the sect’s religious conduct. Instead, the ordinance was enacted due to an outbreak of crime at night in the square. Although the ordinance has a disparate impact on the sect’s exercise of religion, the ordinance is a neutral law of general applicability, subject only to rational basis review. Therefore, the sect’s challenge will not be successful.

Question 17

FREEDOM OF RELIGION
Free Exercise:

Do time/place/manner restrictions apply to free exercise?

Answer 17

NO

Question 18

FREEDOM OF RELIGION
Free Exercise:

Is disparate impact on a particular religion sufficient in and of itself to constitute a violation of the Free Exercise Clause?

Answer 18

NO!

Question 19

FREEDOM OF EXPRESSION & ASSOCIATION
Regulation of Content:

A state highway administration, acting pursuant to statutory authorization by the state legislature, has promulgated rules for large electronic billboards located along roads maintained by the state. These rules are concerned with the potential for driver distraction and the ensuing adverse consequences for highway safety. Among the rules is one that bans the graphic display of violence. The producer of a movie wants to promote the movie through a short clip from the movie on billboards subject to this rule. The clip contains a graphic display of violence.
The producer has filed an action in the appropriate federal court challenging the state highway administration’s rule as a violation of the First Amendment as applicable to the states through the Fourteenth Amendment.
Of the following standards, by which should the state highway administration’s rule be judged?

A. As a rule that deals with a matter traditionally subject to regulation, it must be upheld unless it is arbitrary or irrational.

B. As a regulation of commercial speech, there must be a reasonable fit between the government’s ends and the means chosen to accomplish those ends.

C. As a time, place, or manner restriction, it must be narrowly tailored to serve a significant governmental interest.

D. As a content regulation, it must be necessary to achieve a compelling governmental interest.

Answer 19

Answer choice D is correct. Although viewpoint neutral, the state highway administration’s rule is a content-based regulation of speech because it prohibits the graphic display of violence. As such, the strict scrutiny standard of review applies. The rule must be necessary to achieve a compelling governmental interest.

Time, place, or manner restrictions must be narrowly tailored to serve a significant governmental interest, and arguably, rules regarding electronic billboard specifically are time, place, and manner restrictions. However, the portion of the rule affecting the movie producer is a restriction of the content of expression. The more stringent standard applies.

Question 20

JUDICIAL POWER
Judicial Review in Operation: (standing 2x time missed)

A defendant was indicted for violation of a federal criminal statute that made possession or use of harmful chemicals for non-peaceful purposes illegal. Violation of the statute is punishable by imprisonment. The statute was enacted by Congress to implement a treaty. The defendant admitted that he violated the statute, but contended that the statute violated the Tenth Amendment by interfering with powers reserved to the states. Does the defendant have standing to pursue this challenge?

A. Yes, because the defendant would suffer an injury in fact from enforcement of the statute.
B. Yes, because the statute exceeded Congress’s enumerated powers.
C. No, because the right to assert a Tenth Amendment challenge belongs only to the state.
D. No, because the statute was enacted by Congress to implement a treaty.

Answer 20

Answer choice A is correct. In order to have standing to assert a claim or defense, a person must suffer an injury in fact. Here, the defendant is subject to imprisonment for violation of the statute, which the defendant contends is unconstitutional. Because the defendant has suffered an injury in fact, he has standing to assert the claim.

Question 21

JUDICIAL POWER
Judicial Review in Operation: (standing 3x time missed)

The President created an office to encourage the improvement of local communities through faith-based organizations. The office was funded from monies appropriated by Congress for the general discretionary use of the President. The office provided support only to religious organizations. A taxpayer brought suit in federal court challenging the constitutionality of this office. The federal government has moved to dismiss this suit. Should the court allow the taxpayer’s suit to proceed?

A. Yes, because the funding of the office violates the First Amendment Establishment of Religion Clause.

B. Yes, because the source of the funds for the office is a congressional appropriation.

C. No, because the plaintiff as a taxpayer lacks standing.

D. No, because the First Amendment Establishment of Religion Clause does not apply to the executive branch.

Answer 21

Answer choice C is correct. A taxpayer generally does not have standing to file a federal lawsuit simply because the taxpayer believes the government has allocated funds in an improper way. Answer choice A is incorrect because, although there is an exception to the rule that a taxpayer lacks standing to challenge a governmental expenditure when the expenditure violates the First Amendment Establishment of Religion Clause, this exception is very narrow. The exception does not apply to the expenditure of general discretionary funds by the executive branch.x

Question 22

EXAM NOTE

Standing questions: P qualified?

Answer 22

Eliminate answer choices involving only the substance of the claim and focus on whether the P is legally qualified to press a claim, regardless of merit.

Question 23

EXAM NOTES

Standing questions: tax payer

Answer 23

Not for gov generally allocating funds in a way that they don’t like.

Has standing when challenging gov’t expenditures as violating the Establishment Clause. BUT it does not apply to:

(1) Congressional transfer of property to religious orgs under Property Power
(2) Prex expenditures to religious orgs from discretionary fund appropriated by Congress

Question 24

THE POWER OF CONGRESS
War & Defense Powers:

U.S. armed forces seized an alien engaged in combat against them in a foreign country. The alien was taken to a territory outside the United States but over which the United States had sovereign control. Shortly thereafter, Congress passed a law denying federal courts jurisdiction over habeas corpus petitions filed by individuals who were designated as enemy combatants, but did not generally suspend the privilege of filing habeas corpus petitions. Subsequently, the alien, who was designated an enemy combatant by the President, filed a habeas corpus petition in federal court. May the court hear this petition?

A. No, because Congress denied the federal courts jurisdiction over this type of petition.

B. No, because Congress has plenary power over aliens.

C. Yes, because Congress lacks the power to limit the jurisdiction of the federal judiciary.

D. Yes, because the privilege of filing a habeas corpus petition extends to aliens in a territory over which the United States has sovereign control.

Answer 24

Answer choice D is correct. Under the Suspension Clause of Article I, Section 9, Clause 2, a detainee retains the privilege to file a habeas corpus petition unless this privilege is suspended. This clause applies to individuals detained in a territory over which the United States has sovereign control, even though such territory is outside the United States. Answer choice A is incorrect because, while Congress may limit the jurisdiction of the federal judiciary, Congress may not exercise this power in a manner that violates the Constitution. Accordingly, Congress may not limit the constitutional right to habeas corpus by removing jurisdiction from federal courts. Answer choice B is incorrect because, although Congress generally has plenary power over aliens, this power is subject to the privilege to file a habeas corpus petition. Answer choice C is incorrect because Congress has the power to limit the jurisdiction of the federal judiciary.

Question 25

FEDEARL INTERBRANCH RELATIONSHIPS
Immunities & Privileges:

A federal judge improperly granted a search warrant for the home of a woman she believed was dating her ex-husband. In doing so, the judge acted with malice and for the sole purpose of harassing the homeowner. The homeowner brought a civil action in federal court against the judge personally for damages based on the violation of the homeowner’s Fourth Amendment rights. The homeowner acknowledges that the judge had jurisdiction to issue the search warrant. The judge seeks dismissal on the action on the grounds of immunity. Should the court dismiss the case?

A. No, because the judge acted with malice.

B. No, because a judge enjoys only qualified immunity with regard to the violation of a person’s constitutional rights.

C. Yes, because the judge had jurisdiction to issue the search warrant.

D. Yes, because an action for damages may not be maintained against a sitting judge.

Answer 25

Answer choice C is correct. A judge is absolutely immune from civil liability for damages resulting from her judicial acts unless it is clear that the judge did not have jurisdiction. Since the judge in question had jurisdiction to issue the search warrant, the court should dismiss the homeowner’s action.

Question 26

PROCEDURAL DUE PROCESS
Procedural Due Process Applied:

A policyholder sued her casualty insurance company for failing to timely pay a claim. The case reached the highest court of the state. The sole issue before the court was whether the policyholder was entitled to punitive damages. The company timely moved to recuse one of the judges on the ground that she was pursuing a similar action against the insurance company seeking punitive damages in state court. The judge determined that state law did not require her recusal, and she cast the deciding vote in the court’s punitive damages decision in favor of the policyholder. The company timely and properly filed a petition for a writ of certiorari, seeking a review of the judge’s decision not to recuse herself. May the Supreme Court hear this case?

A. Yes, because the judge’s refusal to recuse herself violated the Due Process Clause of the Fourteenth Amendment.

B. Yes, because the Supreme Court may correct any erroneous ruling by a state judge.

C. No, because the issue is moot.

D. No, because the judge’s refusal to recuse herself was based on adequate and independent state grounds.

Answer 26

Answer choice A is correct. Due process entitles a person to a fair decision maker. A judge must recuse herself when she has a direct, personal, substantial, pecuniary interest in a case or there is a serious risk of actual bias. The judge’s refusal to recuse herself likely violated the Due Process Clause of the Fourteenth Amendment because there was a serious risk of actual bias toward the insurance company since the judge had a similar action against the same insurance company. Answer choice D is incorrect because, although the judge’s decision was based on state law, it was contrary to the Due Process Clause. Accordingly, there is a federal issue to be decided by the Supreme Court.

Question 27

PROCEDURAL DUE PROCESS
Procedural Due Process Applied:

When may SCOTUS correct an erroneous state court ruling?

Answer 27

When there is a federal issue (i.e., implicates constitutional rights).

Question 28

PROCEDURAL DUE PROCESS
Procedural Due Process Applied:

An elderly patient received public aid benefits in her home state and voluntarily entered a nursing home to facilitate her care. The public aid benefits covered the cost of her nursing home care as well as medical treatment and living expenses. The nursing home was located in a small rural town where the patient had lived all her life, and where all of the patient’s family and friends lived. Unbeknownst to the patient, the state conducted an investigation of the nursing home and disqualified the home from receiving any further state benefit payments. Due to the disqualification, the patient was told she would have to move to the nearest state-qualified nursing home, which was located seventy miles away, in order to continue using her benefits. The patient immediately filed a suit against the state, claiming that her due process rights were violated. Will the patient prevail in her suit against the state?

A. Yes, because the patient has a cognizable property interest in continuing to live in her nursing home and was denied fair notice.

B. Yes, because the administrative burden of contacting the patient and holding a hearing is outweighed by the patient’s interest in staying in her hometown.

C. No, because the patient has no protected property or liberty interest that has been violated.

D. No, because the patient is entitled only to a post-decision evidentiary hearing and has not pursued the hearing.

Answer 28

Answer choice C is correct. An individual’s right to procedural due process hinges on whether the threatened interest is a protected interest. While the patient does have a cognizable interest in receiving public aid benefits and is entitled to both fair notice and fair process if those benefits are threatened by government action, the state did not terminate the patient’s benefits, but rather disqualified the nursing home where the patient was treated from participating in public aid. The patient’s receipt of aid benefits has not been affected, although she will have to use those benefits in a different setting. Accordingly, her property rights have not been violated. Nor does the patient have a cognizable liberty interest because she has not been involuntarily committed and has not had fundamental rights (such as parental rights) taken away. Therefore, as no protected interest has been threatened, there has been no violation of the patient’s due process rights. Answer choice A is incorrect because the patient does not have a cognizable property right in staying in the nursing home of her choice. Answer choice B is incorrect because this evaluation of notice and hearing is triggered only if a protected interest has been threatened. Answer choice D is incorrect. Because no property interest has been infringed, there is no need to consider what sort of hearing would have been required.

Question 29

Protected Due Process Interests

Answer 29

1. nature of liberty at stake (property, liberty, notice & hearing
2. value of protecting that interest
3. gov’t’s interest in efficiency and cost

Question 30

SUBSTANTIVE DUE PROCESS
Fundamental Rights:

A city adopted an ordinance that prohibited any apartment building from housing more than one convicted felon on the premises. A convicted felon owned an apartment building in the city. He lived in one of the apartments in the building with his brother, who was also a convicted felon. The building owner received a citation from the city for violating the ordinance, and was ordered to pay a fine and bring the building into compliance. The building owner sued the city, arguing that the ordinance violated his constitutional rights. What is the best argument for striking down the ordinance?

A. The ordinance violates the Privileges and Immunities Clause.

B. The ordinance violates the Equal Protection Clause.

C, The ordinance violates the Eighth Amendment.

D. The ordinance violates the Due Process Clause.

Answer 30

Answer choice D is correct. The guarantee of substantive due process is based upon the idea that laws should be reasonable and not arbitrary, and ensures that a governmental action that infringes upon a fundamental right is subject to strict scrutiny. Related persons have a fundamental right to live together in a single household. In this case, the ordinance prevented the man from living with his brother. Thus, the man’s best argument is that the ordinance, by prohibiting him from living with a family member, violates substantive due process. Answer choice

Answer choice B is incorrect because the law does not employ a suspect classification, and thus any equal protection claim would be subject to rational basis review. The man would have a difficult time showing that the ordinance did not satisfy this standard.

Question 31

EQUAL PROTECTION
General Considerations:

A state’s department of corrections developed an exam for the recruitment of prison guards consisting of a written exam and a physical exam. The written portion tested for basic aptitude at a 12th grade educational level and included questions on arithmetic, alphabetizing, reading comprehension, and memory retention. The physical portion included such activities as pushing a 300-pound weight across a set distance, a timed one-mile run, and rope climbing. An investigation revealed that applicants who were members of minority groups that had historically experienced discrimination were significantly more likely to fail the written exam and that female applicants were significantly more likely to fail the physical exam. A minority man and a non-minority woman sued the department, alleging that the exam violated their equal protection rights. At trial, the jury found that the purpose of the exam was substantially related to the important government interest of protecting the public from dangerous criminals and that this interest was an exceedingly persuasive justification for the department’s actions. Which of the following parties has a valid equal protection claim against the department of corrections?

A. The man only.

B. The woman only.

C. Neither the man nor the woman.

D. Both the man and the woman.

Answer 31

Answer choice C is correct. The Equal Protection Clause of the Fourteenth Amendment provides that “no state shall … deny to any person within its jurisdiction the equal protection of the laws.” To trigger strict or intermediate scrutiny, there must be discriminatory intent—whether shown by the very language of the law, its application, or the motive behind the law—on the part of the government. The fact that legislation has a disparate effect on people of different races, genders, etc., without intent, is insufficient to trigger strict or intermediate scrutiny. Here, the facts do not indicate any form of discriminatory intent, but only a disparate impact. Therefore, rational basis would apply to both the man’s and the woman’s claims. The jury found that the government argument surpassed the rational basis standard and met the intermediate scrutiny standard (substantial relation to an important government interest); therefore, both claims fail.

Answer choices A, B, and D are incorrect because the plaintiffs failed to show a discriminatory intent. Thus, neither party has a valid claim under the Equal Protection Clause.

Question 32

EQUAL PROTECTION
Suspect Classifications:

A number of immigrants from a South American country had settled in a U.S. city. Most of the immigrants were legal U.S. residents. After the economy declined and the unemployment rate in the region increased, tensions between ethnic groups in the area arose. The city council passed an ordinance that prohibited a non-citizen from serving on the city’s police force. A legal U.S. resident, who was not a U.S. citizen, applied for a position on the police force and was denied based on the ordinance. He sued the city on Equal Protection grounds. What statement most accurately describes the burden of proof?

A. The applicant must show that the ordinance is not rationally related to a legitimate state interest.

B. The applicant must show that the ordinance is not the least restrictive means to achieve a compelling government interest.

C. The city must show that the law is substantially related to a legitimate government interest.

D. The city must show that the ordinance is the least restrictive means to achieve a compelling government interest.

Answer 32

Answer choice A is correct. When assessing an Equal Protection challenge to state or local governmental action based on alienage, the state or local government must generally satisfy the strict scrutiny standard. However, for state laws that restrict or prohibit an alien’s participation in government functions, the burden is on the challenger to show that the governmental action does not have a rational relationship to a legitimate state interest. Answer choice C is incorrect because it describes the intermediate scrutiny test, which applies in the case of a classification based on gender or status as a non-marital child. Answer choice D is incorrect because, although the strict scrutiny test typically applies to a challenge of a state law that involves alienage, there is an exception for state laws that restrict an alien’s participation in government functions.

Question 33

EQUAL PROTECTION
Suspect Classifications:

state laws that restrict or prohibit an alien’s participation in government functions - what is the burden?

Answer 33

the burden is on the challenger to show that the governmental action does not have a rational relationship to a legitimate state interest

Question 34

EQUAL PROTECTION
Suspect Classifications:

When assessing an Equal Protection challenge to state or local governmental action based on alienage, what is the burden?

Answer 34

the state or local government must generally satisfy the strict scrutiny standard.

Question 35

TAKINGS CLAUSE
Types of Taking:

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?

A.The degree to which the law benefits society at large.

B. Whether the law substantially advances a legitimate government interest.

C. The owner’s intentions in possessing the property.

D. The owner’s ability to sell the property to a third party.

Answer 35

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.”

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 36

TAKINGS CLAUSE
Types of Taking:

In determining whether a regulation constitutes a taking, the court will consider, what factors?

Answer 36

(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.

Question 37

TAKINGS CLAUSE
Types of Taking:

Will a court examine whether a regulation substantially advances a legitimate governmental interest?

Answer 37

Not generally.

Question 38

FREEDOM OF EXPRESSION & ASSOCIATION
Regulation of Time, Place & Manner of Expression:

For the past ten years, a city has maintained an internet website. Pursuant to a rule adopted by the city council, anyone, including public employees and officials in addition to the general public, was permitted to post comments on the city’s website. The webmaster was tasked with reviewing the posted comments and removing any that were obscene or irrelevant. After the website was recently inundated with comments regarding a particular ordinance passed by the council, the council ordered the webmaster to remove the feature from the city’s website that permitted the posting of comments. A resident of the city has filed a suit challenging the city’s action as a violation of the First Amendment.
Of the following, which provides the best support for the resident’s argument that the comments section of the city’s website constitutes a public forum?

A. Because the website has existed for at least 10 years, it qualifies as a traditional public forum.

B. Public employees and officials could post comments on the website.

C. The city permitted the general public to post comments on the website.

D. The website is freely accessible by anyone in the general public.

Answer 38

Answer choice C is correct. A public forum is a place that has been devoted to public discourse either traditionally or by governmental designation. In this case, because the city has permitted the public to post comments on its website, it is likely that the court would find that the website constitutes a public forum.

Question 39

FREEDOM OF EXPRESSION & ASSOCIATION
Regulation of Time, Place & Manner of Expression:

What forms can a public forum take?

Answer 39

a traditional public forum or a designated public forum.

the comments section of a public website may constitute a designated public forum, but even its existence for the past ten years is highly unlikely to be a sufficient length to qualify the website as a traditional public forum.

Question 40

FREEDOM OF EXPRESSION & ASSOCIATION
Regulation of Time, Place & Manner of Expression:

Is access alone enough for a showing of public forum?

Answer 40

Although the public must be able to access a place in order for it to be a public forum, access alone is not sufficient to establish a place as a public forum. For example, places such as airport terminals to which the public has access are not considered to be public forums.

Question 41

FREEDOM OF EXPRESSION & ASSOCIATION
Regulation of the Media:

A professional football player was accused of sexually assaulting a young man in a local bar. The prosecution refused to divulge the name of the alleged victim. Nevertheless, a reporter determined the alleged victim’s identity through interviews of eyewitnesses present at the scene. The reporter’s newspaper published the alleged victim’s name, causing the alleged victim extreme embarrassment. The alleged victim sued the newspaper and the reporter. Can the alleged victim recover damages?

A. Yes, the alleged victim can recover from the reporter.

B. Yes, the alleged victim can recover from the newspaper.

C. Yes, the alleged victim can recover from the newspaper and the reporter.

D. No, the alleged victim cannot recover from either the newspaper or the reporter.

Answer 41

PUBLIC CONCERN & lawful attainment seems to be the tipping point here

Answer choice D is correct. The First Amendment shields the media from liability for publication of a lawfully obtained private fact, e.g., the identity of a rape victim, so long as the news story involves a matter of public concern. Therefore, neither the newspaper nor the reporter are liable for legally gathering and publishing these private facts concerning a matter of public concern.

Note: The First Amendment also shields the media from liability for publishing information that was obtained illegally by a third party as long as the information involves a matter of public concern, and the publisher neither obtained it unlawfully nor knows who did.

Question 42

FREEDOM OF EXPRESSION & ASSOCIATION
Regulation of Association:

A student joined a small national organization during her freshman year of college after several of her friends, who were active in the organization, told her about the organization’s annual all-expense paid ski trip for its card-carrying members. The student attended a recruitment drive, signed a pledge of loyalty to the party, paid her annual dues, and received an organization pin. The student never attended a meeting or read the organization’s literature she was given. The student later joined other members of the organization at the ski resort. During a meeting around the ski lodge fireplace, the student learned for the first time that the organization was a radical organization. The organization’s members were preparing to use subversive means to achieve their objective of installing the organization’s spiritual leader as Supreme Dictator of the United States. To this end, the organization was stockpiling mind control serum and planned to poison the nation’s water supply. After returning home, the student consciously avoided members of the organization and never participated in the organization’s activities again, but the student’s name remained on the organization’s active member roster. Three years later, the student neared graduation and applied for federal employment.

Can the student be denied public employment based upon her membership in this organization?

A. No, because the student did not personally participate in the organization’s subversive plot.

B. No, because the student did not intend to install the organization’s spiritual leader as Supreme Dictator.

C. Yes, because the student continues to be listed as an active member of a subversive organization.

D. Yes, because the student has knowledge of the organization’s illegal objectives and failed to report them to the authorities.

Answer 42

Answer choice B is correct because the student lacked the specific intent to further the organization’s illegal objectives; this intent is necessary in order to punish her based upon her association with the group. The First Amendment’s freedom of association protects the right to form or participate in any group, club, or other organization virtually without restriction, but the right is not absolute. The government may justifiably infringe the right of association to advance a compelling state interest, such as preventing discrimination or subversive activities designed to undermine the democratic process.

A person may only be punished or deprived of public employment based on their political affiliation if that individual (i) is an active member of a subversive organization, (ii) has knowledge of the organization’s illegal activities, and (iii) has a specific intent to further those illegal objectives.