FEDERAL COURT JURISDICTION

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2 FEDERAL COURT JURISDICTION

3 FEDERAL COURT JURISDICTION COMES FROM ARTICLE III OF CONSTITUTION FEDERAL QUESTION-- arising under this Constitution, the laws of the United States and treaties made under their Authority

4 FEDERAL COURT JURSIDICTION DIVERSITY controversies between a State and Citizens of another State between Citizens of different States Must be complete diversity. Plaintiff and Defendant from the same state will destroy diversity. Original jurisdiction of the Supreme Court cannot be altered; it can be made concurrent with lower court jurisdiction, but cannot be added to or subtracted from. Exclusive original jurisdiction exists only in controversies between or among states

5 FEDERAL COURT JURSIDICTION Appellate jurisdiction can be changed by Congress In all other cases before mentioned, the supreme Court shall have appellate Jurisdiction, with such Exceptions as the Congress shall make.

6 WHAT IS JUSTICIABILITY? IT IS A JUDICIALLY CREATED CONCEPT MEANING THE ABILITY OF A FEDERAL COURT TO HEAR A CASE COMES FROM ARTICLE III CASE OR CONTROVERSY REQUIREMENTS MUST BE ACTUAL DISPUTE BETWEEN THE PARTIES BEFORE THE COURT FOR A FEDERAL COURT TO HAVE JURISDICTION NO ADVISORY OPINIONS

7 STANDING INJURY IN FACT-NOT HYPOTHETICAL OR SPECULATIVE, MORE THAN INJURY TO THE AVERAGE PERSON (fear of enforcement of federal law without proof not sufficient concrete harm-fisa) CAUSATION REDRESSIBILITY-CAN THE RELIEF REQUESTED ALLEVIATE THE HARM Standing does not exist where only relief requested is equitable, and the harm is based on wholly past conduct, with no threat of repetition

8 ADVISORY OPINIONS Does matter reflect actual controversy between or among parties before the court? Does it ask court to render a decision which, pursuant to law, is not binding on the parties?

9 States bringing suit on behalf of their citizens are treated with special solicitude need not meet standing requirements as strictly as nongovernmental plaintiffs

10 SPECIAL TYPES OF STANDING

11 ORGANIZATIONAL STANDING ORGANIZATION MEETS REQUIREMENTS or MEMBERS HAVE STANDING, and SUIT RELATES TO ORGANIZATION S PURPOSE, and MEMBERS NOT NEEDED FOR ADJUDICATION- MIGHT BE NEEDED WHEN DAMAGES ARE SOUGHT ON INDIVIDUAL BASIS

12 ORGANIZATIONAL STANDING Harm to the aesthetic and/or recreational interests of environmental group s members is sufficient to confer standing, but generalized grievance is not Purely procedural violation does not confer standing without some concrete harm

13 TAXPAYER STANDING MUST RELATE TO A LEGISLATIVE APPROPRIATION, which is ALLEGED TO VIOLATE THE FIRST AMENDMENT. RECENTLY SUPREME COURT LIMITED TAXPAYER STANDING TO CHALLENGE TO CONGRESSIONAL APPROPRIATIONS THAT VIOLATE ESTABLISHMENT CLAUSE. Does not include executive expenditures from general discretionary funds, or tax credits

14 THIRD-PARTY STANDING Example of Prudential standing-not based upon Article III, can be changed by Congress Litigant must have suffered injury in fact Litigant must have a close relation to third party Must be some hindrance to third-party s assertion of his/her own rights

15 MOOTNESS CIRCUMSTANCES OR STATUS GIVING RISE TO THE CAUSE OF ACTION ARE OVER; THERE IS NO LONGER A LIVE CONTROVERSY FOR THE COURT TO DECIDE

16 MOOTNESS EXCEPTIONS: CAPABLE OF REPETITION YET EVADING REVIEW-- STATUS OR CONDITION IS TIME-BOUND, i.e, IS LIKELY TO END BEFORE THE CASE IS FULLY ADJUDICATED, SUCH AS PREGNANCY-MUST BE CAPABLE OF HAPPENING TO THAT PLAINTIFF, NOT TO SOME OTHER INDIVIDUAL VOLUNTARY CESSATION NAMED PARTY IN A CLASS ACTION NO LONGER HAS STANDING

17 MOOTNESS, EXCEPTIONS DEFENDANT HAS BEEN RELEASED FROM CUSTODY, BUT COLLATERAL CONSEQUENCES EXIST FROM CONVICTION EXIST

18 RIPENESS CIRCUMSTANCES OR STATUS GIVING RISE TO THE CAUSE OF ACTION MUST HAVE ALREADY OCURRED; THERE MUST BE LIVE CONTROVERSY AT THE TIME THE ACTION IS BROUGHT AND THROUGHOUT THE ENTIRE ADJUDICATION; IF THE HARM HAS NOT YET OCCURRED, THE ACTION IS RIPE ONLY IF THE HARM IS CERTAIN AND IMMINENT (occasionally court has used the term inevitable or credible threat of enforcement )

19 RIPENESS TIPS: CHECK THE EFFECTIVE DATE OF THE STATUTE. A CASE IS NOT RIPE IF THE STATUTE HAS NOT GONE INTO EFFECT UNLESS THE ENFORCEMENT IS CERTAIN AND IMMINENT! (Court may consider hardship to parties by premature adjudication)

20 RIPENESS, CONT. HAVE ADMINISTRATIVE REMEDIES BEEN EXHAUSTED? HAS STATUTE BEEN ENFORCED?

21 POLITICAL QUESTION IS THE ISSUE TO BE DECIDED TEXTUALLY DEMONSTRABLY COMMITTED TO A COORDINATE BRANCH OF GOVERNMENT (OTHER THAN THE COURTS)? IS THERE A LACK OF JUDICIALLY MANAGEABLE STANDARDS TO RESOLVE THE ISSUE WOULD A JUDICIAL DECISION EVINCE A LACK OF RESPECT FOR A COORDINATE BRANCH OF GOVERNMENT?

22 POLITICAL QUESTION Plurality (but not majority) of the Court has indicated that questions about POLITICAL (as opposed to RACIAL) gerrymandering (drawing districts to favor incumbents or persons from particular political parties) are political questions.

23 POWERS OF CONGRESS

24 COMMERCE CLAUSE CONGRESS CAN REGULATE COMMERCE IN THREE WAYS: INSTRUMENTALITIES OF COMMERCE CHANNELS OF COMMERCE ACTIVITIES HAVING A SUBSTANTIAL RELATIONSHIP TO COMMERCE

25 COMMERCE CLAUSE CUMULATIVE EFFECTS TEST IS STILL GOOD LAW- Gonzales v. Raich (California medical marijuana law) Production of marijuana for home consumption has a substantial effect on supply and demand in the national market for that commodity" and "we have no difficultly concluding that Congress had a rational basis for believing that failure to regulate the intrastate manufacture and possession of marijuana would leave a gaping hole in the CSA."

26 SECTION 5 OF THE FOURTEENTH AMENDMENT ENABLES CONGRESS TO EFFECTUATE GOALS OF THE FOURTEENTH AMENDMENT CAN ONLY REMEDY STATE DISCRIMINATION STATUTE MUST: REMEDIATE PROVEN INFRINGEMENT OF INDIVIDUAL S PROTECTED RIGHTS FIT AND BE RESEPONSIVE TO THE NATURE AND DEGREE OF DISCRIMINATION

27 SECTION 5, 14 TH AMEND GENERALLY ENABLES CONGRESS TO PREVENT OR REMEDY DISCRIMINATION AS TO CLASSES OR RIGHTS SUBJECT TO MID-LEVEL OR STRICT SCRUTINY

28 NECESSARY AND PROPER ARTICLE I, POWERS. SEC. 8 LISTS ENUMERATED NECESSARY AND PROPER IS NOT AN INDEPENDENT SOURCE OF POWER. IT MERELY EXPANDS THE MEANS CONGRESS CAN USE TO ACHIEVE ENDS CONSTITUTION VESTS IN IT OR ANY DEPARTMENT OR OFFICER OF THE GOVERNMENT (BANK ASSISTS IN COINING MONEY, ETC.)

29 NECESSARY AND PROPER RECENT EXAMPLES Sabri v. U.S.-challenged federal statute that makes it crime to bribe a state employee of an entity that takes more than $10,000 in federal funds. The bribery need not be related to a program that or an employee who receives the funds. SCt says statute is necessary and proper to Congress power to spend $$$-wants to make sure it is going to honest government Jinks v. Richland County-provision of federal supplemental jurisdiction statute that tolls state statutes of limitations in diversity cases necessary and proper to Congress power to superintend federal courts US v. Comstock-Congress may keep federal prisoners who are sexually dangerous beyond date of release-arguably a retreat from McCulloch requirements that legislation be tied to some federal power stated in the Constitution-arguably expanded reading of clause s reach

30 TAX AND SPEND MUST BE FOR GENERAL WELFARE. IF CONDITIONAL SPENDING, TERMS MUST BE UNAMBIGUOUS, MUST BE RELATIONSHIP BETWEEN CONDITION AND FEDERAL INTEREST IN PROGRAM FUNDED, AND CANNOT VIOLATE OTHER PROVISIONS OF CONSTITUTION.

31 CONGRESSIONAL POWER TO TAX Congress has virtually unlimited power to tax, restricted only by constitutional requirements of uniformity and proportionality (but latter is affected by 18 th Amend. National income tax) Congress cannot tax exports, but may levy use tax proportionate to services or benefits conferred on ships or cargo in port before international travel

32 POWERS TIP CONGRESS HAS NO POWER TO LEGISLATE FOR THE GENERAL WELFARE EXCEPT IN RELATION TO ITS POWER TO TAX AND SPEND

33 POWER TO DELEGATE Congress can delegate its rulemaking function to an essentially executive entity so long as it creates articulable standards for the rule maker to follow In the past, the Supreme Court has held that some delegation was beyond Congress power, or was excessive. This was called the non-delegation doctrine.

34 CONGRESSIONAL POWER Congress has no power to strip federal courts of jurisdiction over habeas corpus cases unless writ is suspended in accordance with Constitution

35 THE PRESIDENT S POWER COMES ONLY FROM ARTICLE II OR FROM CONGRESS-THIS IS ABSOLUTELY TRUE WHEN IT COMES TO DOMESTIC POWER. HIS FOREIGN AFFAIRS POWER, WHILE BROADER IS NOT UNLIMITED EXECUTIVE POWER

36 EXECUTIVE POWER PRESIDENT HAS NO EMERGENCY POWER PARTICULARLY WHERE CONGRESS HAS CONSIDERED GIVING THE PRESIDENT SUCH POWER AND DECLINED TO DO SO

37 EXECUTIVE POWER HIGHLIGHTS American Citizen seized on Afghan has right to due process War does not give President a blank check Non-citizens detained at Guantanamo have right to habeas corpus. President had no power under statutes or law of war to create military tribunals that did not comply with at least due process requirements of UCMJ; Geneva convention applied.

38 EXECUTIVE POWER EXECUTIVE PRIVILEGE EXTENDS TO COMMUNICATIONS AND PAPERS, BUT IS SUBJECT TO COMPULSION OF LAW (PROBABLY LIMITED TO A CRIMINAL CASE) WHERE SUCH EVIDENCE IS RELEVANT AND NECESSARY TO A CLAIM, UNLESS PRESIDENT CAN PROVE MILITARY, DIPLOMATIC OR NATIONAL SECURITY INTERESTS WOULD BE COMPROMISED

39 EXECUTIVE IMMUNITY EXECUTIVE IMMUNITY OBTAINS SOLELY TO LIABILITY FOR OFFICIAL ACTS COMMITTED WHILE PRESIDENT- ARE THERE ANY UNOFFICIAL ACTS COMMITTED WHILE IN OFFICE?

40 SEPARATION OF POWERS ALLOCATION OF POWERS AMONG THREE BRANCHES OF FEDERAL GOVERNMENT

41 SEPARATION OF POWERS LEGISLATIVE MAKES LAW, EXECUTIVE CARRIES OUT LAW, JUDICIAL INTERPRETS LAW

42 SEPARATION OF POWERS LAW MUST ME MADE IN ACCORDANCE WITH CONSTITUTIONAL REQUIREMENTS BICAMERALISM AND PRESENTMENT; THE IDENTICAL STATUTE MUST PASS HOUSE AND SENATE AND BE SIGNED BY PRESIDENT (OR IF VETOED, OVERRIDDEN BY 2/3 HOUSE AND SENATE). LEGISLATION ALTERS LEGAL RIGHTS DUTIES AND RELATIONS OF PERSONS OUTSIDE THE LEGISLATIVE BRANCH.

43 SEPARATION OF POWERS ONCE CONGRESS DELEGATES AUTHORITY IT CANNOT RETAIN CONTROL OVER THE EXECUTION OF THE AUTHORITY; CONGRESS CANNOT REMOVE EXECUTIVE OFFICIAL Recognition of foreign government is executive power, cannot be abrogated by Congress

44 SEPARATION OF POWERS CONGRESS CAN DELEGATE POWER TO MAKE LAW THAT IS TO ENACT REGULATIONS WHICH ESSENTIALLY EFFECTUATE THE STATUTE, SO LONG AS IT SETS FORTH AN INTELLIGIBLE PRINCIPLE TO WHICH THE PERSON OR ENTITY TAKING THE ACTION MUST CONFORM

45 APPOINTMENT POWER POWER TO REMOVE IS INCIDENT TO POWER TO APPOINT SUPERIOR OFFICERS MUST BE APPOINTED BY THE PRESIDENT WITH ADVISE AND CONSENT OF SENATE

46 APPOINTMENT POWER INFERIOR OFFICERS MAY BE APPOINTED BY PRESIDENT ALONE, BY HEADS OF DEPARTMENTS OR BY JUDICIARY INFERIOR OFFICER IS ONE WHOSE RESPONSIBILITIES AND TERM OF OFFICE ARE LIMITED, AND WHO ANSWERS TO A SUPERIOR OFFICER (SPECIAL PROSECUTOR) HOWEVER, DOUBLE FOR CAUSE REMOVAL POWER (PRESIDENT REMOVES PRINCIPAL OFFICER, WHO CAN ONLY REMOVE COMMISSION MEMBERS FOR CAUSE) VIOLATES SEPARATION OF POWERS

47 RECESS APPOINTMENTS President has power to make appointments not subject to Senate approval while Senate is in recess Can be inter or intra session recess Vacancy can have arisen prior to recess Recess must be more than 10 days If Senate says they are in session, they are, unless objection is noted. Must be available to transact business, not actually transacting it.

48 THE ALLOCATION OF POWER BETWEEN FEDERAL GOVERNMENT AND STATE GOVERNMENTS FEDERALISM

49 TENTH AMENDMENT CONSTITUTIONAL EMBODIMENT OF FEDERALISM POWERS NOT DELEGATED TO UNITED STATES BY CONSTITUTION OR DENIED TO STATES BY CONSTITUTION ARE RESERVED TO THE STATES OR TO THE PEOPLE MUST HAVE BEEN POWERS STATES POSSESSED AT THE RATIFICATION OF THE CONSTITUTION

50 CONGRESS CAN GOVERN STATES WHEN STATES ACT IN SAME CAPACITY AS PRIVATE PERSONS ALSO REGULATED (FLSA state as employer, Drivers Privacy Act state as possessor of information)

51 CONGRESS CANNOT COMMANDEER, COERCE OR COMPEL STATE EMPLOYEES OR OFFICIALS TO CARRY OUT FEDERAL LAW (Brady Bill-state CLEOs cannot be forced to do background checks)

52 CONGRESS MUST GIVE STATE CHOICE/OPTION TO ENFORCE FEDERAL LAW (NY. v. U.S. incentives are okay, forcing state to take title to waste is not)

53 CONGRESS CANNOT LEGISLATE IN SUBSTANTIVE AREAS HISTORICALLY RESERVED TO STATES- DOMESTIC RELATIONS WHERE STATES ARE TO BE TREATED DIFFERENTLY BY FEDERAL LAW, THERE MUST BE CONTEMPORANEOUS EVIDENCE TO JUSTIFY THE TREATMENT (Section 5 of the Voting Rights Act).

54 ELEVENTH AMENDMENT STATE MAY NOT BE SUED IN FEDERAL COURT BY CITIZENS OF ITS OWN OR OF OTHER STATES OR FOREIGN NATIONS. DOES NOT APPLY TO SUITS BY OTHER STATES OR UNITED STATES. PURPOSE IS TO MAKE SURE FEDERAL COURTS DO NOT PICK A STATE S POCKET FOR DAMAGES.

55 ELEVENTH AMENDMENT HOWEVER, UNDER EX PARTE YOUNG, A STATE EMPLOYEE CAN BE SUED UNDER THE THEORY THAT A STATE OFFICIAL ACTING UNCONSTITUTIONALLY IS NOT CLOAKED WITH THE IMMUNITY OF THE STATE EMPLOYEE CAN ONLY BE SUED FOR PROSPECTIVE INJUNCTIVE RELIEF, NOT DAMAGES DAMAGES AVAILABLE ONLY WHEN EMPLOYEE ACTS OUTSIDE THE SCOPE OF EMPLOYMENT, IN INDIVIDUAL CAPACITY

56 ELEVENTH AMENDMENT STATES CAN CONSENT TO SUIT IN FEDERAL COURT

57 ELEVENTH AMENDMENT -CONGRESS RIGHT TO ABROGATE UNTIL 1996, SUP. CT. HAD HELD THAT CONGRESS COULD ABROGATE STATE IMMUNITY UNDER ITS COMMERCE POWERS OR ITS POWERS UNDER 5 OF THE FOURTEENTH AMENDMENT. THAT IS NO LONGER THE CASE. IN THE PAST 5 YEARS THE SUP. CT. HAS REPEATEDLY HELD THAT CONGRESS HAS NO POWER UNDER THE COMMERCE CLAUSE. THE ONLY CIRCUMSTANCE IN WHICH THE COURT HAS FOUND THAT CONGRESS VALIDLY EXERCISED ITS POWER TO ABROGATE UNDER SEC. 5, 14 TH AMENDMENT IS WITH REGARD TO FAMILY AND MEDICAL LEAVE ACT AND ADA ACCESS TO COURTS.

58 11 TH AMEND. ABROGATION Although Congress can probably abrogate immunity under the Tax & Spend Clause, statute must clearly set forth that accepting the funds waives the immunity.

59 STATE POWER TO AFFECT INTERSTATE COMMERCE ALTHOUGH POWER TO REGULATE INTERSTATE COMMERCE BELONGS TO CONGRESS, IF CONGRESS HAS NOT ACTED IN A PARTICULAR AREA, STATE CAN REGULATE INTERSTATE COMMERCE SO LONG AS IT DOES NOT UNDULY BURDEN COMMERCE

60 STATE POWER TO AFFECT INTERSTATE COMMERCE IF THE STATUTE DISCRIMINATES AGAINST COMMERCE (DISADVANTAGES OUT-OF- STATE BUSINESSES TO THE ADVANTAGE OF IN-STATE BUSINESSES) IN STATUTORY LANGUAGE INTENT OR EFFECT, APPLY STRICT SCRUTINY (VIRTUALLY PER SE INVALID)

61 STATE POWER TO AFFECT INTERSTATE COMMERCE STATUTES THAT REGULATE EVENHANDEDLY, WHERE EFFECT ON COMMERCE IS INCIDENTAL, APPLY PIKE BALANCING TEST BALANCE THE BURDEN ON COMMERCE AGAINST THE BENEFIT TO THE STATE STATE CAN DISCRIMINATE WHERE THEY ARE PARTICIPANTS IN RATHER THAN REGULATORS OF THE MARKET

62 TRADITIONAL GOV T FUNCTION STATE THAT OWNS ENTITY OPERATING A TRADITIONAL GOVERNMENT FUNCTION (SUCH AS TRASH COLLECTION AND DISPOSAL) SUBJECT TO PIKE BALANCING, EVEN IF FACIALLY DISCRIMINATORY (REQUIRES ALL WASTE PROCESSED WITHIN GOVERNMENTAL BOUNDARIES TO BE PROCESSED AT GOVERNMENTAL FACILITY). ESSENTIALLY OVERRULES CARBONE FOR GOVERNMENTALLY OWNED FACILITIES

63 STATE POWER TO AFFECT INTERSTATE COMMERCE EVEN IF STATE IS A MARKET PARTICIPANT, IT CANNOT VIOLATE PRIVILEGES AND IMMUNITIES CLAUSE OF ARTICLE IV STATE MUST TREAT IN STATERS THE SAME AS OUT-OF STATERS (NOT CORPORATIONS OR ALIENS) WITH RESPECT TO FUNDAMENTAL RIGHTS UNLESS STATE CAN SHOW SUBSTANTIAL JUSTIFICATION FOR THE DISCRIMINATION (OUT-OF-STATERS ARE THE PECULIAR SOURCE OF THE EVIL )

64 STATE POWER TO TAX IN INTERSTATE COMMERCE STATE CAN ONLY TAX ACTIVITIES OR PROPERTY LOCATED WITHIN THE STATE A STATE TAX ON INTERSTATE ACTIVITIES MUST PASS COMPLETE AUTO TEST: ACTIVITY TAXED MUST HAVE SUBSTANTIAL NEXUS TO TAXING STATE; MUST NOT DISCRIMINATE AGAINST INTERSTATE COMMERCE; MUST BE FAIRLY APPORTIONED (INTERNAL AND EXTERNAL CONSISTENCY); MUST BE FAIRLY RELATED TO STATE SERVICES.

65 State must give individuals and corporations credit for income earned and taxed out of state POWER TO TAX

66 PRIVILEGES & IMMUNITIES-ART. IV Can only be raised by out of stater Does not protect Corporations or Aliens

67 MISC. TAXATION ISSUES STATE CANNOT TAX IMPORTS OR EXPORTS FEDERAL GOVERNMENT CANNOT TAX EXPORTS

68 PREEMPTION COMES FROM THE SUPREMACY CLAUSE OF ARTICLE VI- FEDERAL LAW TAKES PRECEDENCE OVER STATE LAW DID CONGRESS INTEND TO BE THE ONLY GOVERNMENTAL ENTITY REGULATING IN THIS FIELD???

69 PREEMPTION EXPRESS PREEMPTION-CONGRESS STATES IN THE STATUTE, OR AGENCY IN ITS REGULATIONS IMPLEMENTING THE STATUTE, THAT FEDERAL LAW IS TO GOVERN IN THE AREA (no presumption against preemption in such cases) IMPLIED PREEMPTION LAWS CONFLICT SUCH THAT ONE CANNOT COMPLY WITH BOTH STATE LAW FRUSTRATES PURPOSE OF FEDERAL LAW EXTENT OF FEDERAL LEGISLATION AN/OR REGULATION IS SO BROAD THAT IT EVINCES A CONGRESSIONAL INTENT TO OCCUPY FIELD

70 HOWEVER, SCT RECENTLY RULED THAT FDA S APPROVAL OF PHARMACEUTICAL LABELING DOES NOT PREEMPT STATE COMMON LAW CLAIMS FOR FAILURE TO WARN, AS LAW PERMITS MANUFACTURER TO HAVE MORE DETAILED WARNINGS THAN FDA REQUIRES.

71 PROCEDURAL DUE PROCESS STANDARDS OF REVIEW: EQUAL PROTECTION FUNDAMENTAL RIGHTS INDIVIDUAL RIGHTS

72 STATE ACTION ONLY GOVERNMENTS ARE BOUND BY THE REQUIREMENTS OF THE FOURTEENTH AND FIFTEENTH AMENDMENTS THIRTEENTH AMENDMENT GOVERNS PRIVATE CONDUCT AND PROHIBITS NOT ONLY SLAVERY BUT BADGES AND INCIDENTS OF SLAVERY (Property ownership, right to contract)

73 STATE ACTION SOMETIMES PRIVATE ACTION CAN BECOME SO CLOSELY CONNECTED TO THE STATE OR IMBUED WITH INDICIA OF STATE APPROVAL OR CONDUCT THAT PRIVATE ACTION IS GOVERNMENT ACTION FOR THE PURPOSES OF THE FOURTEENTH (AND FIFTEENTH) AMENDMENT(S)

74 NEXUS APPROACH-IS THE QUALITY AND QUANTITY OF THE CONNECTION BETWEEN THE PRIVATE AND PUBLIC CONDUCT SUFFICIENT TO WARRANT CONCLUDING THE PRIVATE CONDUCT SHOULD BE ATTRIBUTED TO THE STATE SYMBIOTIC RELATIONSHIP-Burton v. Wilmington Housing Authority

75 Governmental function Primary election Company town Judicial enforcement or condonation, under certain circumstances Shelley v. Kramer Lugar v. Edmondson Oil However, these are the exceptions rather than the rule

76 PROCEDURAL DUE PROCESS IS THERE A RIGHT? To have a property interest in a benefit, a person must have more than an abstract need or desire for it or a unilateral expectation of it, and he must have a legitimate claim of entitlement to it, it is a purpose of ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined, and it is a purpose of the constitutional tight to a hearing to provide an opportunity for a person to vindicate those claims. Board of Regents v. Roth.

77 PROCEDURAL DUE PROCESS WHAT PROCESS IS DUE? MATHEWS V. ELDRIDGE: BALANCE (1) PRIVATE INTEREST and (2) THREAT OF ERRONEOUS DEPRIVATION BY USE OF THE PRESENT PROCEDURE against (3) THE INTERESTS OF THE GOVERNMENT AND COST THE GOVERNMENT OF ADDITIONAL SAFEGUARDS, INCLUDING FINANCIAL COST.

78 POWER OF EMINENT DOMAIN (TAKINGS) MUST BE FOR THE PUBLIC USE ULTIMATE USER NEED NOT BE THE PUBLIC SO LONG AS THERE IS A PUBLIC BENEFIT TO THE GOVERNMENTAL ACTION-KELO-CITY COULD TAKE PROPERTY NOT IN SLUMS OR BLIGHTED AREAS AS PART OF COMPREHENSIVE REVITALIZATION PROJECT WHICH WOULD BE BUILT, OWNED AND MAINTAINED BY PRIVATE ENTITY

79 TAKINGS, CONT. PER SE TAKINGS (Nature of Governmental interest not a justification to relieve government from compensating owner; property can be real or personal) PERMANENT PHYSICAL INTRUSION OR OCCUPATION (DE MINIMUS NOT A DEFENSE) PERMANENT DEPRIVATION OF ALL ECONOMICALLY VIABLE USE; TEMPORARY BUILDING MORITORIUM NOT PER SE

80 PER SE, CONT. CONDITIONAL PERMIT WHERE THERE IS NOT ESSENTIAL NEXUS BETWEEN CONDITION AND LEGITIMATE STATE INTEREST. MUST BE ROUGH PROPORTIONALITY, THAT IS, DEGREE OF EXACTIONS REQUIRED BY GOV T MUST BEAR PROPORTIONAL RELATIONSHIP TO GOVERNMENTAL INTEREST Denial of permit for refusal to accede to conditions raises same issues as complying for purposes of evaluating excessiveness of demands

81 TAKINGS, CONT. REGULATORY TAKING NOT AMOUNTING TO TOTAL DEPRIVATION OF ALL ECONOMICALLY VIABLE USE IS NOT A PER SE TAKING. WHETHER COMPENSATION MUST BE GIVEN IS DETERMINED BY BALANCING THE GOVERNMENTAL BENEFIT AGAINST THE BURDEN ON THE PROPERTY OWNER (Raisin Growersgovernment must pay growers lost income even though net proceeds from sale returned to them.)

82 SECOND AMENDMENT APPLIES TO CONGRESSIONAL AND STATE LEGISLATION COURT HAS NOT ARTICULATED WHAT STANDARD WILL APPLY (most lower state and federal courts are using some form of intermediate scrutiny)

83 CONTRACTS CLAUSE Applies only to state statutes That substantially impair obligations of existing contracts Where contract is between two private parties, court looks to whether there is public purpose and whether law is reasonable and appropriate Where state is party to contract some courts look to whether purpose is reasonable and law is necessary to achieve that purpose

84 EQUAL PROTECTION FUNDAMENTAL RIGHTS

85 STRICT SCRUTINY GOVERNMENT HAS THE BURDEN OF PROVING THE REGULATION FURTHERS A COMPELLING GOVERNMENTAL INTEREST AND IS NARROWLY TAILORED TO ACHIEVE THAT INTEREST (NO LESS RESTRICTIVE ALTERNATIVES AVAILABLE). Court has reevaluated narrow tailoring in higher education affirmative action cases. Does not require exhaustion of all race neutral alternatives, but government must prove that such available and workable alternatives do not suffice. SUPREME COURT HAS FOUND COMPELLING INTEREST EXISTS IN ONLY TWO CASES: DIVERSITY IN HIGHER EDUCATION REMEDYING PAST GOVERNMENTAL DISCRIMINATION IN THE SUBSTANTIVE AREA REMEDYING RACE DISCRIMINATION IN ELEMENTARY/SECONDARY EDUCATION IS NOT YET A COMPELLING INTEREST

86 ECONOMIC SUBSTANTIVE DUE PROCESS Challenges brought to state laws regarding terms and conditions of employment claiming they were violations of due process succeeded until the New Deal. Concept was virtually dead until Rehnquist court resurrected the concept in a series of cases where Court held that punitive damages in civil suits that did not bear some relationship to compensatory damages violated the businesses due process rights.

87 STRICT SCRUTINY APPLIES TO RACE (INCLUDING AFFIRMATIVE ACTION PLANS), NATIONAL ORIGIN, ALIENAGE (STATE LAWS, EXCEPT SOME STATE GOVERNMENTAL LAWS CONFERRING BENEFIT, SUCH AS EMPLOYMENT IN POLICY MAKING POSITION, SOMETIMES CALLED GOVERNMENTAL FUNCTION EXCEPTION), FUNDAMENTAL RIGHTS (PRIVACY, MARRIAGE, FAMILY, VOTING LAWS THAT AFFECT ONE-PERSON ONE VOTE AND QUALIFICATIONS to vote for general governmental office, TRAVEL)

88 FEDERAL LAWS AFFECTING LEGAL ALIENS GET RATIONAL BASIS UNDOCUMENTED (ILLEGAL) ALIENS GET RATIONAL BASIS EXCEPT PLYLER (BAN ON CHILDREN OF UNDOCUMENTED IMMIGRANTS CANNOT ATTEND PUBLIC SCHOOL-MAY BE CONSIDERED INTERMEDIATE SCRUTINY, CERTAINLY NOT MERE RATIONALITY)

89 VOTING RIGHTS STATUTES AND REGULATIONS AFFECTING THE VOTING PROCESS AND BALLOT ACCESS ISSUES ARE SUBJECT TO SLIDING SCALE BURDEN TEST; THE GREATER THE BURDEN ON THE RIGHT TO VOTE, THE HIGHER THE LEVEL OF SCRUTINY. States MAY (not must) draw districts based on total rather than voter eligible population) People may vest commission rather than legislature in power to redistrict, despite Art. I, sec. 4. Limited purpose governmental entities are not subject to s.s.

90 ABORTION PRE-VIABILITY-GOVERNMENT CANNOT PUT UNDUE BURDEN ON WOMAN S ACCESS TO ABORTION. UNDUE BURDEN=REGULATION WHICH HAS INTENT OR EFFECT OF PLACING SUBSTANTIAL OBSTACLE IN WOMAN S PATH TO OBTAINING ABORTION (TEXAS ADMISSION PRIVILEGES LAW court examined state s purpose and effect and concluded law s purpose was not supported by evidence, and evidence demonstrated access to pre-viability abortions severely curtailed by law)

91 UNDUE BURDEN In 2016, SCt held Texas admitting privileges and licensing law posed previability undue burden on women seeking abortion. Purported health reasons not supported by evidence Law forced closure of approx. 50% of facilities offering abortion--proven by direct testimony and plausible inferences.

92 POST-VIABILITY-STATE CAN REGULATE UP TO AND INCLUDING OUTRIGHT BAN EXCEPT WHERE WOMAN S LIFE IS AT STAKE. PRIOR TO LAST TERM, STATUTES ALSO REQUIRED HEALTH EXCEPTION. SCT HELD FEDERAL PARTIAL BIRTH ABORTION ACT WAS NOT UNCONSTITUTIONAL ON ITS FACE BECAUSE IT LACKED A HEALTH EXCEPTION AND PROHIBITED THE PROCEDURE PRE-VIABILITY.

93 MID-LEVEL SCRUTINY REGULATION MUST BE SUBSTANTIALLY RELATED TO IMPORTANT GOVERNMENTAL INTEREST (EXCEEDINGLY PERSUASIVE JUSTIFICATION) APPLIES TO GENDER, ILLEGITIMACY LAWS BURDEN OF PROOF ON STATE

94 RATIONAL BASIS REGULATION MUST BE RATIONALLY RELATED TO LEGITIMATE GOVERNMENTAL INTEREST BURDEN OF PROOF ON PLAINTIFF APPLIES TO ALL CLASSES AND RIGHTS NOT COVERED BY HIGHER LEVELS

95 FOURTEENTH AMENDMENT TIP LEVEL OF SCRUTINY IS DETERMINED BY THE CLASS INTENTIONALLY TARGETED BY THE GOVERNMENT. ACCIDENTAL DISCRIMINATION OR DISCRIMINATORY IMPACT AGAINST A PROTECTED CLASS WILL NOT JUSTIFY A HIGHER LEVEL OF SCRUTINY.

96 SPEECH ASSOCIATION THE FIRST AMENDMENT RELIGION

97 RIGHT TO TRAVEL Not in constitution, but firmly embedded in our jurisprudence. Embraces three components: Right of citizens of one state to enter and leave another state; Right of citizen of one state to be treated as guest and not unwanted visitor in another; For travelers seeking permanent residency in new state right to be treated like other citizens of that state Found to have been implicated and violated only in cases where states impose durational residency requirements on newly arrived persons seeking essential government benefits (welfare, school, free medical care)

98 UNPROTECTED SPEECH SPEECH LIKELY TO PRODUCE IMMINENT LAWLESS ACTION AND INTENDED TO PRODUCE IMMINENT LAWLESS ACTION-BRANDENBURG FIGHTING WORDS-WORDS BY THEIR VERY UTTERANCE INFLICT INJURY OR TEND TO INCITE IMMINENT BREACH OF THE PEACE- USUALLY APPLIED TO WORDS THAT ARE A PERSONAL ATTACK

99 UNPROTECTED SPEECH (CONT.) OBSCENITY- WOULD AVERAGE PERSON, APPLYING CONTEMPORARY COMMUNITY STANDARDS, CONCLUDE THE WORK, TAKEN AS A WHOLE, APPEALS TO THE PRURIENT INTEREST DOES THE WORK, TAKEN AS A WHOLE, LACK SERIOUS LITERARY, POLITICAL OR ARTISTIC VALUES (NO COMMUNITY STANDARD) DOES THE WORK DESCRIBE OR DEPICT IN A PATENTLY OFFENSIVE WAY, SEXUAL CONDUCT PROSCRIBED BY STATE LAW

100 TRUE THREATS-encompass those statements where the speaker means to communicate a serious expression of a subjective intent to commit an act of unlawful violence to a particular individual or group of individuals NEED NOT INTEND TO CARRY OUT ACT; IT IS ENOUGH IF THE TARGET IS PUT IN FEAR OF BODILY HARM, BUT DECLARANT MUST INTEND TO THREATEN APPLIED TO CROSS BURNING

101 UNPROTECTED SPEECH (CONT.) LIBEL, SLANDER, DEFAMATION FALSE OR MISLEADING COMMERCIAL SPEECH DEPICTIONS OF ANIMAL CRUELTY ARE PROTECTED

102 DEFAMATION WHERE TARGET IS A PUBLIC OFFICIAL, RECOVERY ONLY WHERE DECLARANT MADE STATEMENT WITH ACTUAL MALICE KNOWLEDGE STATEMENTS ARE FALSE OR RECKLESS DISREGARD FOR TRUTH OR FALSITY PRIVATE FIGURE MUST PROVE MALICE FOR PUNITIVE DAMAGES

103 HOW TO DETERMINE WHAT TEST TO APPLY: WHAT DOES THE STATUTE REGULATE IS IT CONTENT BASED--THAT IS, IS IT AIMED AT THE MESSAGE OF THE COMMUNICATION NO LABOR PICKETING VIOLENT VIDEO GAMES, SIGN ORDINANCES THAT REGULATE ACCORDING TO THE TYPE OF SIGN IS IT CONTENT NEUTRAL IS IT AIMED AT SOMETHING OTHER THAN THE CONTENT, DOES IT RESTRICT SOMETHING NO MATTER WHAT THE MESSAGE IS NO PICKETING OR LEAFLETING IS IT VIEWPOINT BASED OR NEUTRAL DOES IT REGULATE THE SIDE OF AN ISSUE OR THE POINT OF VIEW OF A SUBJECT NO ANTI-WAR PICKETING

104 WHERE DOES THE COMMUNICATION OCCUR TRADITIONAL PUBLIC FORUM-- LOCATIONS WHICH HAVE HISTORICALLY BEEN USED FOR THE EXCHANGE OF CONTROVERSIAL IDEAS DESIGNATED PUBLIC FORUM PUBLICLY OWNED PROPERTY WHICH THE GOVERNMENT HAS INTENTIONALLY OPENED UP TO CLASSES OF PERSONS FOR THE EXCHANGE OF IDEAS, BUT HAS NOT HISTORICALLY BEEN USED FOR THE PURPOSE NON-PUBLIC FORUM(LIMITED) PUBLICLY OWNED PROPERTY NOT USED FOR THE EXCHANGE OF IDEAS

105 POLITICAL SOLICITATIONS Subject to strict scrutiny, including candidates for judicial office. State may bar personal solicitation for contributions.

106 Government regulations of speech on private property depends on whether it is content based or neutral

107 STANDARDS OF PROOF Traditional Public Forum Designated Public Forum Non-Public (Limited) Forum Content Based Strict Scrutiny Strict Scrutiny Reasonable and Viewpoint Neutral Content Neutral Time, Place & Manner Restriction Time, Place & Manner Restriction Reasonable and Viewpoint Neutral

108 TIME PLACE AND MANNER REGULATIONS MUST BE CONTENT NEUTRAL NARROWLY TAILORED TO SERVE A LEGITIMATE GOVERNMENTAL INEREST ALTERNATIVE CHANNELS OF COMMUNICATION ARE LEFT OPEN

109 SPECIAL STANDARDS FOR SPECIAL KINDS OF SPEECH

110 EXPRESSIVE CONDUCT/SYMBOLIC SPEECH CONDUCT IS THE MESSAGE BURNING FLAG, WEARING ARMBAND, BURNING DRAFT CARD REGULATION MUST BE WITHIN THE POWER OF GOVERNMENT REGULATION MUST FURTHER IMPORTANT GOVERNMENTAL INTEREST INTEREST MUST BE UNRELATED TO SPEECH RESTRICTION ON SPEECH NO GREATER THAN NECESSARY TO ACHIEVE INTEREST

111 COMMERCIAL SPEECH CANNOT BE FALSE OR MISLEADING GOVERNMENTAL INTEREST IS SUBSTANTIAL REGULATION MUST DIRECTLY ADVANCE THE INTEREST REGULATION MUST BE NO BROADER THAN NECESSARY TO PROTECT THE INTEREST COMMERCIAL ACTIVITY MUST RELATE TO LAWFUL ACTIVITY

112 GOVERNMENT SPEECH GOVERNMENT MAY CONTROL ITS OWN SPEECH, AND IS NOT EVALUATED BY SAME SUBSTANTIVE STANDARDS AS WHEN IT REGULATES PRIVATE SPEECH. IT IS SUBJECT ONLY TO OTHER CONSTITUTIONAL PARAMETERS, SUCH AS ESTABLISHMENT CLAUSE PUBLIC MONUMENTS DISPLAYED ON PUBLIC PROPERTY, EVEN IF DONATED BY PRIVATE ENTITY SPECIALTY LICENSE PLATES ISSUED PURSUANT TO PROCESS ESTABLISHED BY MOTOR VEHICLE BOARD (NOT AD HOC VANITY PLATES)

113 COMPELLED SPEECH GOVERNMENT CANNOT DIRECTLY CONTROL PRIVATE PERSON S MESSAGE EXCEPT WHERE GOVERNMENT REQUIRES DISCLOSURE OF FACTUAL UNCONTROVERSIAL INFORMATION, STRICT SCRUTINY APPLIES UNDER TAX AND SPEND CLAUSE, GOVERNMENT CAN RESTRICT USE OF FEDERAL FUNDS TO ESPOUSING CERTAIN MESSAGES, BUT CANNOT KEEP ENTITY RECEIVING FEDERAL FUNDS FROM ADVOCATING MESSAGE WITH NON-FEDERAL MONIES.

114 VAGUENESS TWO RELATED CONCEPTS WHICH TEST THE CONSTITUTIONALITY OF A STATUTE VAGUENESS STATUTE MUST BE WORDED WITH SUFFICIENT SPECIFICITY AND CLARITY SO THAT AVERAGE PERSON WILL KNOW WHETHER THE EXPRESSION IN WHICH HE/SHE IS ABOUT TO ENGAGE IS PROHIBITED STATUTE CANNOT GIVE LAW ENFORCEMENT TOO MUCH DISCRETION THAT PERMITS CENSORSHIP BY CONTENT Can only challenge as applied if statute is not vague as applied to plaintiff, then cannot raise rights of third persons

115 OVERBREADTH OVERBREADTH-STATUTE PROHIBITS PROTECTED CONDUCT, ITS SWEEP IS TOO BROAD.

116 OVERBREADTH First Amendment overbreadth is an exception to the traditional rule is that "a person to whom a statute may constitutionally be applied may not challenge that statute on the ground that it may conceivably be applied unconstitutionally to others in situations not before the Court." "This is deemed necessary because persons whose expression is constitutionally protected may well refrain from exercising their right for fear of criminal sanctions provided by a statute susceptible of application to protected expression."

117 PRIOR RESTRAINTS RESTRAINTS ON EXPRESSION PRIOR TO PUBLICATION, AS OPPOSED TO PUNISHMENT AFTER PUBLICATION-- where public officials possess the power to deny use of a forum in advance of actual expression EXAMPLES LICENSE PERMIT (PARADE)(SIGN OR BILLBOARD REGULATIONS THAT REQUIRE PERMISSION TO ERECT ARE NOT GENERALLY CONSIDERED PRIOR RESTRAINTS) INJUNCTION NON-DISCLOSURE OR GAG ORDERS

118 PRIOR RESTRAINTS, CONT. Party seeking restraint bears heavy burden of proving constitutionality. Burden of proving that the expression is unprotected expression must rest on the censor. If the ordinance requiring a permit is valid on its face, litigant must apply then challenge denial. If the ordinance is unconstitutional on its face, litigant need not apply for permit before brining suit If injunction enters, it must be obeyed appeal the order

119 PRIOR RESTRAINTS, CONT. Must be narrow, objective, and definite standards to guide the licensing authority. Any restraint imposed in advance of a final judicial determination on the merits must be limited to preservation of the status quo. Therefore, the procedure must also assure a prompt final judicial decision, to minimize the deterrent effect of an interim and possibly erroneous denial of a license.

120 GOVERNMENT EMPLOYEE SPEECH Employee is protected in speaking about matter of public concern, except if subject is also within job description or matter of employee s responsibility. Employee is protected even if within scope of employment if speech is pursuant to subpeona.

121 presence of that person affects in a significant way the group s ability to advocate public or private viewpoints. [Cite omitted]. But the freedom of expressive association, like many freedoms, is not absolute. We have held that the freedom could be overridden by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedom. Boy Scouts v. James Dale, 120 S.Ct (2000) ASSOCIATION

122 ASSOCIATION, CONT. Government can deny employment based on affiliation with subversive organization only if individual is proven to have known of the illegal objectives and intended to further them Laws that require disclosure of membership where disclosure will interfere with right of association are valid if law passes strict scrutiny

123 ESTABLISHMENT FREE EXERCISE RELIGION

124 BAN ON ESTABLISHMENT MEANS: STATE CANNOT PREFER ONE RELIGIOUS SECT OR DENOMINATION OVER ANOTHER; STATE CANNOT PREFER RELIGION OVER ABSENCE OF RELIGION STATE CANNOT PREFER ABSENCE OF RELIGION OVER RELIGION

125 ESTABLISHMENT CLAUSE STATUTE MUST HAVE SECULAR PURPOSE STATUTE MUST NOT HAVE PRIMARY EFFECT OF ADVANCING OR INHIBITING RELIGION WHAT IS STATUTE S EFFECT DOES IT CREAT EXCESSIVE ENTANGLEMENT (NO LONGER A SEPARATE CONSIDERATION, VIEWED IN LIGHT OF THE FIRST TWO PRONGS)

126 ESTABLISHMENT CLAUSE, CONT. STATE CAN CHOOSE TO PROVIDE FUNDING FOR GOODS OR SERVICES TO RELIGIOUS AS WELL AS PUBLIC SCHOOLS OR STUDENTS WITHOUT VIOLATING ESTABLISHMENT CLAUSE STATE CAN CHOOSE TO DECLINE TO PROVIDE SCHOLARSHIPS TO INDIVIDUALS OPYING TO USE FUNDS TO ATTEND THEOLOGICAL SCHOOL (TRAINING TO BE CLERIC)

127 ESTABLISHMENT CLAUSE-RELIGIOUS SPEECH State cannot refuse to make its premises (limited governmental fora) available to religious groups when the message the group espouses is the same as that of non-religious groups which can use premises. However, university can require all recognized student organizations to adopt non-discriminatory policies even if it means religious group that admits only persons adhering to particular religious belief is not qualified to be RSO

128 ESTABLISHMENT CLAUSE LAWS DISCRIMINATING AGAINST RELIGION OR A SECT OF RELIGION ARE GENERALLY SUBJECTED TO STRICT SCRUTINY, HOWEVER LAWS OF GENERAL APPLICATION THAT ONLY INCIDENTALLY BURDEN RELIGION ARE SUBJECTED TO RATIONAL BASIS

129 ESTABLISHMENT CLAUSE Prayers by clerics at convening of legislative or deliberative bodies not a violation as long as evidence does not evince intentional hostility towards or preference for particular sect or sects.

130 FREE EXERCISE LAWS WHICH INTERFERE WITH A PERSON S EXERCISE OF HIS/HER RELIGION ARE SUBJECTED TO STRICT SCRUTINY, EXCEPT LAWS OF GENERAL APPLICATION WHICH ONLY INCIDENTALLY BURDEN RELIGION ARE SUBJECT TO RATIONAL BASIS.

131 MISCELLANEOUS TOPICS

132 BILL OF ATTAINDER PROHIBITED TO BOTH FEDERAL AND STATE GOVERNMENTS LEGISLATIVELY IMPOSED PUNISHMENT A bill of attainder is a legislative act which inflicts punishment without a judicial trial. Legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial are bills of attainder prohibited by the Constitution.

133 BILL OF ATTAINDER HISTORICAL APPROACH: IMRISONMENT, BANISHMENT, CONFISCATION OF PROPERTY, DEPRIVATION OF RIGHT TO PARTICIPATE IN PROFESSIONS FUNCTIONAL APPROACH: DOES THE LAW FURTHER NON-PUNITIVE INTERESTS? (Megan s law furthers state interests in protecting children from assault)

134 MOTIVATION-Was the law passed to punish a particular person? Nixon v. G.S.A.: Act directed the Administrator of GSA to take custody of Nixon s presidential papers and have them screened by government archivists. Statute held not a bill of attainder; fact that Act specifically referred to Nixon by name did not create automatic violation of B of A clause, since at the time of the Act s passage, Congress was only concerned with Nixon s materials. LESS BURDENSOME ALTERNATIVES

135 EX POST FACTO LAWS IMPOSES A CRIMINAL PENALTY FOR PAST CONDUCT LAWFUL WHEN COMMITTED; INCREASES THE PENALTY FOR CRIMINAL ACT OVER THAT WHICH WAS IN EFFECT AT TIME ACT WAS COMMITTED; REMOVES A DEFENSE OR CHANGES THE QUANTUM OF EVIDENCE NECESSARY TO CONVICT

136 EX POST FACTO LAWS DOES NOT APPLY TO PROCEDURAL CHANGES Fl. Law changed procedure by which punishment determined in capital cases; under old statute, death sentence was imposed unless jury recommended mercy, in which case life imprisonment was imposed. Under new statute, jury s recommendation was only advisory.

137 ABSTENTION REFUSAL OF FEDERAL COURT TO HEAR A CASE OVER WHICH IT WOULD OTHERWISE HAVE JURISDICTION PULLMAN ABSTENTION-federal case turns on unsettled issues of state law; no parallel state proceeding necessary BURFORD ABSTENTION-subject matter is matter of public concern and of extensive state regulation, and federal court intervention would disrupt state administrative scheme YOUNGER ABSTENTION-pending criminal or administrative proceedings in state court or agency capable of adjudicating the issue; except bad faith or harassment COLORADO RIVER ABSTENTION-equitable abstention; duplicative proceedings in state and federal courts or multiple proceedings in federal court; look to factors such as 1) first filed; 2) furthest along; 3) convenience to parties; 4) piecemeal litigation

138 INDEPENDENT AND ADEQUATE STATE GROUNDS PERMITS FEDERAL COURT TO REFUSE TO REVIEW STATE COURT JUDGMENT WHICH RESTS ON INDEPENDENT AND ADEQUATE STATE GROUNDS, EVEN IF THE CLAIM IS BASED ON FEDERAL LAW; MOST OFTEN APPLIED TO FEDERAL HABEAS CORPUS ACTIONS

139 INDEPENDENT AND ADEQUATE STATE GROUNDS A CLAIM BASED ON FEDERAL (CONSTITUTIONAL OR STATUTORY) LAW IS NOT REVIEWABLE BY A FEDERAL COURT IF THE LAST STATE COURT TO CONSIDER THAT CLAIM RELIED ON A STATE GROUND FOR THE DECISION, THAT IS BOTH INDEPENDENT OF THE MERITS OF THE FEDERAL CLAIM AND ADEQUATE TO SUSTAIN THE COURT S DECISION STATE LAW OR RULE CAN BE PROCEDURAL OR SUBSTANTIVE; HOWEVER IF RULE S APPLICATION IS EXORBITANT OR WILL WORK GRAVE INJUSTICE, FED. COURT WILL REVIEW DECISION; STATE COURT MAY DECLINE TO REVIEW FEDERAL CLAIM ON PROCEDURAL GROUND (CONTEMPORANEOUS OBJECTION RULE); FEDERAL COURT WILL NOT ENTERTAIN CASE FURTHER

140 INDEPENDENT AND ADEQUATE STATE GROUNDS STATE COURT DECISION MUST CLEARLY AND EXPRESSLY STATE IT RESTS ON STATE GROUNDS IF STATE COURT DECISION DOES NOT CLEARLY AND EXPRESSLY STATE IT RESTS ON STATE GROUNDS, FEDERAL COURTS WILL ACCEPT AS THE MOST REASONABLE EXPLANATION THAT THE STATE COURT DECIDED THE WAY IT DID BECAUSE FEDERAL LAW COMPELLED IT TO DO SO.