Flashcards in Con Law Deck (89)
Fundamental RIghts & Test
Strict Scrutiny for race, religion, national origin, and physical disability. Must involve state action.
law will be upheld if there is a COMPELLING state interest that is accomplished by the LEAST INTRUSIVE MEANS.
All non-fundamental rights claims. Law will be upheld if there is a LEGITIMATE state interest and the law is RATIONALLY/REASONABLY tailored to accomplish that interest.
like the USC, the FLC provides basic equal protection. Under the FLC, strict scrutiny is applied to all fundamental rights and discrimination based on RACE, RELIGION, NATIONAL ORIGIN, and PHYSICAL DISABILITY.
is required for all equal protection claims
freedom of religion, speech & press
same as USC
freedom of assembly
same as USc (peacefully assemble and redress grievances), but FLC adds right to instruct Reps.
right to work & right to bargain collectively are fundamental rights and strict scrutiny applies. No one can be denied work because of membership or nonmembership in a union. Both public and private employees have the right to bargain collectively, but public employees have NO right to strike.
military power & right to bear arms
MP is subordinate to civil power. RTBA-licensing requirements do NOT infringe on right. FLC requires 3-day waiting period (excl. wknds & holidays) between "purchase" (transfer of money/value) and delivery of any "handgun" (capable of being carried in one hand). Does not apply to trades or to ppl w/ a concealed weapons permit (CCW). County may further restrict by requiring background checks and 3-5 day waiting period.
USC 5th applies to FD & 14th applies to states provide gov't shall NOT take a person's life, liberty, or property w/o due process of law. DP contemplates fair process/procedure such as fair trial, which requires at least an opportunity to present objections to the proposed action to a FAIR, NEUTRAL decision maker. NO double jeopardy.
substantive due process
if it involves fundamental rights, strict scrutiny test applies. Otherwise, rational basis applies.
procedural due process
extends to private organizations exercising quasi-public functions (i.e. professional orgs).
searches and seizures
express guarantee under FLC, must be construed in conformity with SCOTUS' interpretation of the 4th amend. Search warrant requires probable cause and sworn affidavit with specificity.
pretrial release and detention
right to bail. exception: capital offenses or crime punishable by life, if probability of guilt is great; or threat to public safety or integrity of judicial system.
prosecution for crime
capital crimes require grand jury indictment; other felonies can be either GJ or prosecution information. Juveniles: charged with an act of delinquency; bench trials; can be tried as an adult upon request of state or Def demand.
costs of criminal proceedings
only payable after conviction final and any appeals exhausted
fee may be charged to solvent filer; no delays unless rebellion or invasion
imprisonment for debt/by administrative agencies
no person shall be imprisoned for failure to pay debt unless fraud is proved (b/c of K obligation). Debt does not include criminal fines, alimony, child support, taxes, tort damages. Admin. agencies may not punish by imprisonment and can only impose penalties as authorized by law.
NO excessive fines, cruel or unusual punishment, forfeiture of estate, indefinite imprisonment, unreasonable detention of witnesses. NO death penalty for mentally challenged or for those 16 or younger at time crime was committed.
rights of accused
information of nature and cause of accusation, copy of charges, compulsory attendance of witnesses, confront accusers, counsel, testify or not, speedy and public trial in county where crime was committed, fair trial and jury selection (no preemptory challenges for exclusion based on race). These rights are WAIVED IF NOT DEMANDED.
(or vic representative) to be informed, present, heard at all crucial stages, but NOT interfere w/ accused constitutional rights.
1-levying war against the state or 2-adhering to or giving aid and comfort to enemies of the state. Requires 2 witnesses' testimony re: same overt treasonous act or open court confession.
access to courts
the courts shall be open to every person for redress of injury, and justice shall be administered w/o denial or delay. If legislature abolishes a cause of action or restricts one's access to the courts: a reasonable alternative MUSt be provided UNLESS there is a compelling necessity for abolition AND NO alternative method of meeting the public necessity can be established.
Trial by jury
exists for criminal proceedings and for civil proceedings where right was established by original FLC. NO right for civil commitment, eminent domain, or equitable proceedings.
number of jurors
6 member juries; except capital cases get 12 member juries.
right to privacy
FLC expressly grants; requires strict scrutiny, compelling state interests, and least restrictive means. (i.e. med treatment, pregnancy, parental rights). FLC allows parental notification before minor's abortion if judicial process of waiver is available. Women have right to abortion, but no obligation on state to pay for service.
access to public records and meetings. Every person has right to access, inspect, copy public records; public meetings must be open and require notice to the public. Exemptions: permitted if: 1-law states a public necessity justifying the exception, and 2-law is no broader than necessary to accomplish the state purpose.
taxpayers bill of rights
legislature must provide to all taxpayers by law
limitation contingency fees in medical liability cases
30% of first $250k; 10% if over $250k; excluding reasonable costs