The Nature of the Law Martha Dye-Whealan RPh, JD Pharm 543 Objectives : Identify and distinguish the sources of law in the United States. Understand the hierarchy of laws, and how federal and state law relate to each other. Understand significance of basic US Constitutional principles (e.g. Separation of Powers, Supremacy Clause, Full Faith and Credit Clause). 1 2 Objectives (cont d): Sources of US Law Describe the basic rights granted under each Amendment of the US Bill of Rights (I-X) as discussed, additional important amendments discussed. Understand the basic principles of appellate review. US Constitution/State constitutions International Treaties: President signs, 2/3 Senate ratifies, then incorporated into our body of law (e.g. Geneva Conventions I-IV). Statutory Law (laws made by legislatures) Common Law (laws made when courts interpret the above or previous case law) 3 4
US Constitution US Constitution Ratified 1787 Supreme Law of the Land Article I: Powers of Congress Article II: Powers of the Executive Branch Article III: Powers of the Judiciary Intent of the Framers was to separate the powers of the branches so that no one branch would have more power than another. Article IV: Governs relationships between states, relationships of states to the federal government. Article V: Describes how the Constitution may be amended. Requires a 2/3 vote by both houses of Congress to propose amendment, and 3/4 of legislatures of each state to ratify amendment (by a certain date). 5 6 US Constitution-The Supremacy Clause Bill of Rights (1791) Article VI, cl. 2: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. (Note the importance of treaties; comparable to federal law). Important addition to the Constitution, as the legislators of many of the original 13 states were concerned that there were not sufficient protections for individual rights in the original US Constitution. First 10 Amendments to the Constitution 7 8
Amendment I: Bill of Rights Amendment II: Bill of Rights Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. Freedom of assembly and expression, freedom of religion (countered by gov t establishment thereof) A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. Still debating what this means, see NRA, continuing debates about gun control. 9 10 Amendment IV: Bill of Rights Amendment V: Bill of Rights The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Note recent NSA controversy; essentially a secret court established to expedite warrants, President still wants to circumvent for War on Terror. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law. 11 12
Amendment VI-Bill of Rights In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. Landmark case: Miranda v Arizona (1966) US Supreme Court case, focusing primarily on the Fifth Amendment right against self-incrimination, which established the series of warnings that must given to an individual upon being taken in custody : Right to remain silent Anything said can be used against individual in court Right to the presence of attorney Court appointed if accused cannot afford one 13 14 Amendment VIII-Bill of Rights Capital Punishment in US Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. This is the amendment that is cited by opponents to the death penalty. Cruel and unusual punishment alleged, along with the Equal Protection Clause, when challenging executions. Supreme Court case (Furman v. Georgia, 1972), examined surveys of death row inmates over the years which demonstrated that the death penalty is disproportionately imposed on the poor and on minorities. Ruling of Court imposed temporary moratorium. Issue being examined again re: lethal injection. Hill v. McDonough, decided in June, lowers the procedural hurdles for prisoners alleging C&U punishment. 15 16
Equal Protection Clause (14 th Amendment) Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Equal Protection Clause Ratified 1868, post Civil War amendment establishing full citizenship, legal protections, and voting rights for former slaves. Basis for virtually all civil rights litigation and legislation since then. Also the basis for President Bush s argument before the Supreme Court in Bush v. Gore (2000) (See NY Times: 8/15/06: Has Bush v. Gore Become the Case that Must Not be Named? ) 17 18 Hierarchy of Statutory Law Full Faith and Credit Clause [US Constitution] Federal Statutes (CFR) State Constitutions State Statutes (RCW) County/City Ordinances All result from action of legislature=legislative process Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof. (Article IV, Section 1) The legislative acts, public records, and judicial decisions of one state must be recognized by another. 19 20
Jurisdiction: Authority of a court to exercise judicial power. Note importance of personal jurisdiction in executing a judgment against an individual defendant. Issues of personal jurisdiction, if any, must be resolved pre-trial because if trial court did not have personal jurisdiction over defendant at outset of proceeding, ruling could be dismissed on appeal. Exceptions to Full Faith and Credit Exceptions, on occasion. Usually issues with personal jurisdiction. Example: Washington (State 2) would not recognize divorce decree in Virginia (State 1) if neither party was a resident of Virginia when decree was entered. 21 22 Amendments IX and X-Bill of Rights Where do states get the power to make laws? [IX] The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. [X] The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people See Article X, above. Gives states the right to legislate in all areas except those specifically prohibited or given to Congress by the US Constitution. Prohibited: states can t make treaties, raise armies, coin money. They also can t regulate interstate commerce. 23 24
What types of laws do states make? State legislatures have broad powers to pass laws to protect public health, safety, welfare ( police powers ). Areas of law primarily handled by the states: marriage/family law, regulation of professions, property law (including wills and trusts), licensing. Counties and municipalities (cities, towns) Individual states can delegate law-making power to these individual political subdivisions (created by the states). Laws made by counties, cities, and towns are called ordinances, and have the force of law. 25 26 Common Law: Law Made by the Courts Tradition derived from English Law Trial court (civil law): examines a dispute between parties, applies the proper law to the facts before it, renders a decision to resolve the matter. If one party feels that the trial court erred in making the decision, can file an appeal with a higher court. Higher court must examine the decision and determine whether the ruling by the lower court was appropriate based on its interpretation of the facts and the resulting conclusions of law. Appeals courts one standard of review to the facts When looking at the facts, the standard is clearly erroneous. Thus, appellate court would reverse a finding of fact when: the reviewing court looks at all the evidence (facts) and is left with the definite and firm conviction that a mistake has been made (per US Supreme Court). 27 28
Appeals courts apply a different standard of review to the law When looking at the law, there are different standards of review depending on where the case was tried (jurisdiction) and the type of tribunal the case is being appealed from (criminal, civil, administrative). In Washington, appellate review of law from the trial court level is de novo the appellate court reviews the law anew, engaging in the same level of inquiry as the trial court. Stare Decisis Definition: To abide by, or adhere to, decided cases (opinions). Basic Principle: Judicial opinions at the appellate level are recorded; therefore, other courts may rely on these opinions. In practice, an appellate court s establishment of a certain rule of law must be followed by all the lower courts in that jurisdiction. This is called precedent. 29 30 Stare decisis in practice is relatively flexible. Case cited as precedent supporting a legal assertion on appeal must be on point, meaning that the facts of the case being argued before the appellate court must match the facts of the case being cited as legal precedent. Appellate courts may reverse their own decisions as circumstances and times change. Although cases from other jurisdictions possess no precedential value, they can be considered by the appellate court for their persuasive value. 31 Statutory Law and the Courts What do appellate courts look at when interpreting statutory laws? The plain language of the law. Legislative intent: why was the law passed? What did the legislature intend for the law to accomplish? Did the legislature intend for the law to apply to the specific set of facts before the court? Whether the law is too broad or vague (and thus practically impossible to enforce in an equitable manner). 32
Statutory Law and the Courts To Be Continued.. What do appellate courts look at (cont d) Public policy: is the law before the court consistent with public policy? Constitutional rights of the individual: does the law before the court conflict with individual constitutional rights? (Equal protection argument: judiciary empowered with protecting the rights of minorities against the sometimes tyrannical political majority). Administrative Law and Agencies Federal and Washington Court system Pre-emption Doctrine 33 34