Xxxxxxx: Fact Pattern:

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1 Xxxxxxx: Overall, good work, especially considering that you are still 6 weeks away from the bar exam. If you did this without referencing any notes, it is very impressive. It seems to me that you spotted the major issues. The analysis can be fleshed out in a few spots [see notes below], and should be corrected as noted. I d recommend putting this sample question aside and then try to write it again a couple weeks before the bar exam. I bet you will notice a marked improvement after you have spent more time working on other Con Law essays and MBE questions. Fact Pattern: City, a municipality in State X, owns and operates a landfill site for household and commercial non-hazardous waste disposal. City finances this operation by charging fees based on a rate formula involving the weight and volume of waste delivered at the site. City s landfill is relatively new and therefore has substantial unused capacity. Outko, an out-of-state trucking firm engaged in hauling non-hazardous waste, has entered into contracts with various out-of-state municipalities to transport their non-hazardous wastes for disposal to City s landfill. Inko, a State X trucking firm with its offices in City, has been hauling non-hazardous waste from sources within City, from elsewhere in State X, and from outside of State X, to City s landfill for disposal. City has recently enacted an ordinance banning out-of-state waste in City s landfill and imposing a new rate fee for waste from sources anywhere outside of City, but within State X. This new rate fee is twice that charged for waste of identical weight and volume from sources within City. The National Association of Waste Truckers (NAWT) is an organization representing waste haulers. Both Outko and Inko are members of NAWT. On behalf of all its members, NAWT plans to bring an action against City in federal district court in State X, challenging the Constitutionality of the landfill ordinance. 1. What challenges, if any, under the U.S. Constitution, may be brought against City s landfull ordinance, and how should each be decided? Discuss. 2. May NAWT properly assert those challenges? Discuss. 1. What challenges under the US Constitution may be brought against City s landfill ordinance?

2 1. a. Dormant Commerce Clause The Dormant Commerce Clause prevents state and local governments from discriminating against out-of-state businesses and unduly burdening interstate commerce. To be constitutional, the ordinance must be rationally related to a legitimate governmental objective. Does the ordinance discriminate against out-of-state businesses? City is likely to argue that while Outko is an out-of-state business, Inko is an in-state business, and the ordinance imposes the same tax on out-of-city waste dumping on both, showing that in-state and out-of-state business are treated equally under the law. Because both in-state and out-of-state businesses are treated equally, the law is not discriminatory. NAWT is likely to argue that the law is discriminatory on its face. The law prevents dumping of out-of-state waste, while waste from in-state is still allowed to be dumped. Because the law distinguishes out-of-state dumping from in-state dumping, local interests are favored. Additionally, there is a new rate fee for waste from outside City, showing facial discrimination. The desire to benefit one s own citizens over those of other states is not a legitimate objective under Dormant Commerce Clause analysis. The only way to counter the facial discrimination is to show that the ordinance furthers an Important Noneconomic State interest (such as health, safety and welfare) AND there is no reasonable nondiscriminatory alternative. Here, the City may argue it is trying to protect health or welfare of its citizens by ensuring a long-running dump, but since the City could charge everyone more to dump in the landfill, the City cannot meet the second prong. Therefore, it is likely facially discriminatory. Does the ordinance unduly burden interstate commerce? NAWT is likely to argue that the ordinance unduly burdens interstate commerce for the same reasons the ordinance is discriminatory. Out-of-state dumping is completely disallowed, which burdens interstate commerce, and the new rate fee for waste which comes from out-of-state further burdens interstate commerce by increasing its cost. If City could show that its interest in enforcing the regulation outweighed this burden, then the regulation would not likely violate the Dormant Commerce Clause. Here, City will have difficulty making such an argument since the regulation appears to be designed specifically to benefit residents of the City against all others. This sort of favoritism is not allowed under the Dorman Commerce Clause. Market Participant Exception An exception to the Dormant Commerce Clause exists when the state or local government is acting as a market participant. A government is a market participant when it is acting as a purchaser, seller or buyer of the good or service in question. [ Always define your terms so grader knows you really understand them.] While the ordinance is discriminatory, and unduly burdensome on interstate commerce, because City is acting as a market participant in its ownership and operation of the landfill, the ordinance is thus allowed through the market participant exception. 1.a. Conclusion

3 Because City is acting as a market participant, the ordinance will not be found unconstitutional under the Dormant Commerce Clause. 1.b. Contracts Clause The Contracts Clause prevents states from enacting laws which impair rights under existing contracts, but does not ban states from doing so entirely, if the law: 1) Serves an important public interest, 2) Is reasonable, and 3) Is narrowly tailored to promote the public interest. Your analysis on this issue is good, but you are applying the incorrect standard. There are three main standards for review under the Contracts clause. First, if the government is a participant in the contracts being impaired, then the court applies the stricter standard you articulated above. Second, if the law requires contracts to be re-written (e.g., state orders terms of home loans modified because of horrible housing market), then the court will require a reasonable relation to a legitimate public purpose. Essentially rational basis review. Third, where, as here, the law creates a generally applicable rule of conduct having the incidental byproduct of impairing contractual obligations, the Contract Clause does not apply at all!! So, to cover your bases, you should probably discuss all of these standards, then say the first standard does not apply since City is not a party to any contracts. The second standard might apply, but not likely since law does not require any contracts to be re-written. But, if second standard did apply, likely be found to be unconstitutional for the same reasons as under the Dormant Commerce Clause. But, if the court views the law as simply incidentally impairing contracts, Contract Clause not likely to apply. Does the ordinance impair rights under existing contracts? Because Outko has entered into contracts to transport out-of-state waste to City s landfills, and the ordinance prevents Outko from continuing to perform its obligations under the contracts, the ordinance impairs rights under existing contracts. City will thus have to show that the law is valid under the three-prong test above. Courts are also highly skeptical of government impairment of contracts to which the legislating government is a party. Here, City has a contract with Outko to accept waste into the landfill, and because the contract to which City is a party to is affected, the Court is more likely to find the ordinance unconstitutional under the Contracts Clause. Does the ordinance serve an important government public interest? City is likely to argue that it has an important government interest in protecting its landfills to ensure that its own citizens are able to use the landfill by not squandering its current substantial unused capacity. [ always helpful to give a reason for your statement based on the fact pattern, if possible] NAWT is likely to argue that precisely because the landfill has plenty of unused capacity, a law limiting dumping inside the landfill does not serve the purpose of an important government interest. Is the ordinance reasonable and narrowly tailored to promote the government public interest?

4 NAWT is likely to argue that the ordinance is not reasonable, and not narrowly tailored to promote the government interest because it calls for a complete ban on out-of-state dumping. There are likely to be less restrictive means which City can employ to promote its interest, and accordingly this requirement is not fulfilled. For instance, the City could apply the rate increase to anyone in state or out of state wanting to use the landfull. Contracts Clause Conclusion Because City is impairing rights under existing contracts, and City cannot satisfy the three-prong test required, it is likely that the Court will find that the ordinance is unconstitutional under the Contracts Clause. [in light of the correct standard discussed above, this conclusion would need to be revised] 1.c. Privileges and Immuities Clause of the 14 th Amendment The privileges and immunities clause of the 14 th Amendment prevents states from discriminating against fundamental rights of citizens of another state. NAWT may argue that because the ordinance prevents Outko, an out-of-state corporation, from waste dumping, the privileges and immunities clause renders the ordinance unconstitutional. However, the 14 th amendment does not apply to corporations, so this argument will fail. [ very good; this is a total gotcha, and you spotted it] [Look at the Equal Protection Clause too. It was used to invalidate laws that discriminated against corporations, and potentially applicable here using rational basis review.] 1. Conclusion Because City is acting as a market participant, the ordinance will not be found unconstitutional under the Dormant Commerce Clause. Because the 14 th Amendment Privileges and Immunities Clause does not apply to corporations, the ordinance will not be found unconstitutional on that basis, either. However, the ordinance is likely to be found unconstitutional under the Contracts Clause. [extra space here to set off new topic] 2. May National Association of Waste Truckers (NAWT) Properly Assert Those Challenges? 2.a. Standing For a plaintiff to properly assert a challenge in federal court, the Plaintiff must have standing, meaning that it has a significant stake in the proceeding. The challenge is brought by an organization, NAWT, so the court will determine whether NAWT has organizational standing. 2.b. Organizational Standing

5 For a Plaintiff to have Organizational Standing, three requirements must be met: 1) The individual members of the organization must have standing, 2) The subject matter of the challenge must be germane to the organization s purpose, and 3) Individual participation must not be necessary. Do the Individual members have standing? Standing has three requirements: 1) Injury, 2) Causation, 3) Redressibility. Injury For the court to properly find standing for the individual members, the court must find that there has been some actual harm to the Plaintiff, or that harm to the Plaintiff is imminent. Both Outko and Inko are businesses engaged in out-of-state waste removal. Both have contracts to transport waste to City, and both are negatively affected by the ordinance banning disposal of waste in City s landfill because Outko and Inko will no longer be able to carry out their business in disposing of out-of-state waste in City. Because there are negative economic effects to both Outko and Inko, and Outko and Inko are members of NAWT, the court will find that an injury has occurred. Causation For the court to properly find standing, the court must find a causal connection between the government s action and the Plaintiff s harm. Here, the injury caused to Outko and Inko is a result of the ordinance passed by City restricting out-of-state waste dumping in their landfill. Accordingly, the court will find that the causation requirement is satisfied. Redressibility For the court to properly find standing, the court must find that an action taken by the court will remedy the harm suffered by the Plaintiff. Should the court find that the ordinance passed by City restricting out-of-state waste dumping in City s landfill is unconstitutional, the ordinance will no longer have effect, and the harm to Outko and Inko will be remedied, as Outko and Inko will be free to continue dumping in the landfill pursuant to their contracts. Because a favorable ruling by the court will cease the harm caused to the Plaintiff, the redressibility requirement is met. Is the subject matter of the litigation germane to the organization s purpose? For an organization to have standing, the subject matter of the litigation must be germane to the organization s purpose. NAWT exists to protect the interests of waste truckers. An association of waste truckers has a strong interest in seeing that its members ability to continue to dump waste is protected, because that is the manner in which waste truckers generate their business. An ordinance prohibiting dumping of out-of-state waste in landfills is counter to that interest, and thus the subject matter of the litigation is germane to NAWT s purpose. Is Individual Participation Required?

6 For the court to properly adjudicate a challenge to Constitutionality, the court must find that individual participation is not required by the members of the organization, to insure that the interests of the members are protected. NAWT is likely to argue that individual participation is not required, because the ordinance prohibits all dumping of out-of-state dumping, and both Outko and Inko are engaged in out-of-state dumping. Accordingly, the ordinance affects both members in the same manner, restricting their outof-state dumping, and individual participation is not required, because their interests are aligned. The new rate fee also affects both Outko and Inko equally for waste taken from outside of City (in the case of Inko), and waste taken from outside of State X, in both companies cases. The court is likely to find that individual participation is not required on that basis. [really good work on this second section. You should include a mention of Mootness and ripeness, since they need to be looked at to make sure a controversy is justiciable. Just a sentence or two for each. Finally, I am not sure the graders would be looking for civ pro type stuff in this answer, but I would mention that because the issue is unconstitutionality under the federal constitution, a federal court has jurisdiction under federal question, but would not have jurisdiction under diversity since NAWT has members in the same state in which the City is located. Maybe just a paragraph or two analysis for this issue. So, FOR FUTURE REFERENCE, all questions about whether X can assert a challenge in federal court should look at: justiciability under Article III: standing, Mootness, ripeness; and then consider how the federal court obtains jurisdiction.] 2. Conclusion Because all requirements for organizational standing will be met by NAWT, the court is likely to find that NAWT can properly assert its challenge to City s ordinance. Furthermore, the matter is not moot and it is ripe for decision. Finally, federal court has jurisdiction under federal question.