30 August 2016 Briefings on Cases are the majority of the work The paper and presentation is the main grading of the course The midterm and the final are the purpose of judging both the core items needed from the class are digested and the subject matter of the test has been understood and he will point out what will be on the exams both the midterm and the final Multiple choice and short answer that will have a short answer at the end Cases briefed online two cases a week and every week two students will volunteer to stand up and talk about the case Law is the performance of academia Class will be in parts Case Brief Marbury vs. Madison John Adams lost the election to Thomas Jefferson • Adams second president • He tried to put his people in all areas of government • Judiciary act of 1801 (1789) o He put this into effect o With his Congress he tried to come up with the new version of the judiciary act of 1801—tried to create o Justice of the peace back then a lower level judge • Signs all these executive orders to Thomas Jefferson establishes the Judiciary Act of 1802—the new judiciary act of 1789 This unwinds all the appointments of Madison, which Marburry didn’t receive—this was signed and he never obtained it “Midnight Judges” These judges were looked at the midnight judges that were established by Adams Was it a valid appointment? ARTICLE 3 OF THE CONSTITUTIONS Tells judges what they can hear—cases between states and ambassadors Superior court is the highest trial court Supreme court is the appellate course Marbury brought his case to the Issue Rule Application Conclusion IRAC is how you brief cases—I section is where you give facts Issue does the court have the authority have the authority to rule over this case— article 3 Application this is what the supreme court CASE BRIEFS 2 Conclusion what we got was judicial review—any appointments made can be looked at by the supreme court—the ability of the court system (their check to the balance) this is a valid law or no this isn’t a valid law—this is the supreme court giving itself more power than it does Judicial branch having the authority to throw out laws upon the base of constitutional All the cases we are looking at are appeals court cases To overrule the judicial the congress both houses need ¾ vote Congress has a way to give Supreme Court to hear cases directly and On test: judicial review from The Supreme Court justices: 1. Chief Justice John G. Roberts Jr. 2. Justice Clarence Thomas 3. Justice Anthony M. Kennedy 4. Justice Ruth Bader Ginsburg 5. Justice Stephen G. Breyer 6. Justice Samuel Anthony Alito Jr. 7. Justice Sonia Sotomayor 8. Justice Elena Kagan Bill of Rights will be on the exam Tort is civil (you seeking something from someone else) Battery—criminally and civilly be sued Civil people seeking retribution from another person Criminal the criminal side of it Civil: a person seeking something from another person Criminal: retribution by a grieved society Different Torts: things people sue for Torts: Negligence • Negligence the largest thing that person sues for o Negligence the failure to use reasonable care (failure to take reasonable care that resulted in damages) o Negligence has elements: o Someone owes a duty to someone else; someone breached that duty; and that breach of duty caused damages o Duty o Breached o Causation • Stare Decisis: precedent, the principle that has been established by prior court rulings that is upheld if the court decisions to follow o Laws and interpretations of laws are created from prior legal cases and decisions and judges are obligated to respect the precedent CASE BRIEFS 3 • Duty: doctor patient, landlord tenant, parent child • Breached the violation of the duty • Causation comes in two forms o You are the actual cause (you did it) o You are the proximate cause (you didn’t exercise reasonable care) • When suing someone you are looking for a deep pocket • Strict Liability—something is so obviously dangerous that if someone gets hurt you are liable Strict Liability –ON THE TEST • Liability is presumed—the presumption is yours to defend is strict liability • You need to defend that what they did is within the boundaries of the law— shifting the decision to the plaintiff if you are defending Negligence “per se” • It is the law • If you violate the law or a policy it is presumed that you are negligent • If you are following the law vs. obstruction of the law Criminal Law Common law Assault and Battery • Assault putting someone in the immediate apprehension of physical harm o Assault needs to be aware • Battery the unlawful touching • Assault and batter exists on both sides of the law Robbery and Burglary • Robbed and burglary ONT THE TEST o Burglary is a crime against property o Robbery his a crime against a person o Burglary: the unlawful entry into the dwelling of another with the intent to commit a larceny or a felony there in ▪ Walking into a house that doesn’t just include just residences (if you were to leave your door open then that would be a violation in the old common law—but the modern conception would be that burglary occurred without the need to manipulate anything to get in) ▪ Burglary would look into the if the person had the intent to commit a felony ▪ Burglary the intent is the necessity to o Robbery: the unlawful taking of an item from another by force or fear ▪ Threatening a person would be robbery ▪ If you touch a person then it would be robbery ▪ Leaving burglary or theft into robbery Homicide • Homicide: unlawful of a human being with malice and forethought • If you were engaged in a felony and a person dies then it is felony murder CASE BRIEFS 4 • If you were engaged in a felony that resulted in death then you were engaged in murder False Pretenses • Misrepresentation with the material fact with the intent to defraud • Material Fact is the complicated part • The intention to fraud with using the misrepresentation of the facts • Material fact: something that a reasonable person would take into consideration before entering a transaction The deeper definitions and elements would be our essays or short answers in the exam Bill of Rights All the laws we look into will take into consideration and expand 1. Speech, religion, press, and assembly a. Right to practice religion and the establishment clause 2. Well regulated militia The Right to Bear Arms 3. No Quartering Act—cannot be forced by troops to let them live in your home 4. Freedom from unnecessary search and seizure 5. Due Process Clause a. Impartial judge b. Freedom from self-incrimination c. Double jeopardy 6. Right to speedy trial and right to counsel 7. Trial by jury in civil cases 8. No excessive bail and cruel and unusual punishment 9. These rights do not deny other rights—they are not exclusive 10.Rights that are not reserved by the federal government here are reserved by the states a. Example medical marijuana b. Everything that the federal government doesn’t have then the states have it c. States sovereignty Government center in Orange County and there are not a lot of homeless services available The center is both the federal Service providers are coming out there to provide services for people This has become a de facto homeless center Argument: it all has to go and come up with a better argument Negative: keep it all the same Health and safety Santa Ana Homelessness Issue Emergency Shelter CASE BRIEFS 5 Housing Authority—how do you guarantee that a person can have public housing Public Housing is where the government owns the housing NYC has 180,000 public housing buildings County Housing Wet Housing: here’s a roof and then we’ll treat you—the NIMBYism with services and shelter not in their housing areas Wanting to have housing for addicts and alcoholics without providing the help The issue with veteran’s having housing issues—how they were discharged Removing the honorable discharge portion of the requirements so that they can be helped with housing as well How to deal with the housing issue with homelessness and this will be reviewed when we are looking at the basic civil rights that should and could exist Lecture Notes 6 September 2016 Week 2 Midterm: 50 multiple choice, true false, and short answer open ended questions At the end of it he will hand us a bonus piece that we can choose to do and after turning in the exam can use my laptop Brief Presentation New York Times Co vs. Sullivan Sullivan’s worry about future implications about the article (ADVERTISEMENT) and with the recent issues with civil rights movement and Martin Luther King Jr His case didn’t require him to show how he was harmed directly (Alabama’s Law)— Difference between punitive damages and general damages are not necessary to differentiate between in the two when entering the case and verdict (libelous per se) 14th Amendment due process clause applies the Bill of Rights to the states Terminiello v. Chicago 337 U.S. 1, 4 De Jonge v. Oregon 299 U.S. 353 DEFINITION FROM SULLIVAN FOR TEST: “actual malice—a knowing or reckless disregard for the truth Expanded to recklessly collected information now includes checking your sources must have some “journalistic integrity” to be protected behind Sullivan History goes back to those coming over here to have a voice and not be suppressed by the government Government saying what you can and can’t say is a violation of the 1st amendment and the concept of “political correctness” Not having a state run news agency—the importance of having the press (freedom) to be the voice of the people CASE BRIEFS 6 SPEECH NOT PROTECTED: Defamation—a false statement about another person that is published to a 3rd party (libel vs. slander) TRUTH THE ABSOLUTE DEFENSE TO DEFAMATION Freedom of Speech • Government can’t force you to speak or say something • Art work expression • People stop it not the government In Class Activity Colin Kaepernick’s explanation of why he sat during the National Anthem Defense: First Amendment right How many others don’t pay attention during the National Anthem Exercising his constitutional rights (supported by the President) IRAC—fundamentally understand the issue and do the reading not so much on the format NTY vs. US NEAR vs. Minnesota No prior restraint unless certain (3) cases ON TEST—GIDEON VS WAINWRIGHT (CIVIL GIDEON) Week 3 Lecture notes 13 September 2016 Freedom of Speech and Freedom of the Press Speech will mean media for the sake of the press—any way that someone communicates in a mass operation Freedoms protected by the Constitution and Freedoms not protected by the Constitution New York Times Co v Sullivan • Law suit on the base of libel for defamation • Needing the malice Limited Issue Public Official—a public issue for limited issue Public official known off of one thing The slander for defamation with a limited issue public official has to be a suit based upon what they are known for then malice needs to be proved CASE BRIEFS 7 Example suing for fraudulent taxes to Warren Buffet and being known for finances— then he has to prove “actual malice” if he were to sue for slander Free Speech is speech without restraint However looking at what the exceptions are in free speech NEAR v Minnesota • Jay M Near publishes a newspaper anti everything • A criminal case • “Injunctions” against him for “public nuisance” • Publishes an article on a local mobster • Near began his defense mounted upon the First Amendment • Rule: you can’t restrict things like this (near’s hate Sunday paper) just because you don’t like what it says • Prior Restraint is not valid—you can’t censor newspapers • Crucial military publication, anything obscene, and anything that would incite actionable acts of violence New York Times Co v United States • The publication of the Pentagon Papers in 1971 and to enjoin the newspapers Whitney v California • Constitution does not protect when a person is to incite the over throwing of the government Schenck v US and Brandenburg v Ohio and What is on the Exam • Know what the rule was for Schenck: clear and present danger • Know what the rule was for Brandenburg: imminent lawlessness • Know which one came first (California is an exception with needing to point out a specific action in order to be considered as “imminent lawless action”) (Abrams v US and Dennis v US Whitney v California Schenck v US Gitlow v US) CSPAN video: www.cspan.org/video/?323 The Freedom of Speech Talk • Institute for Public Accuracy • National Press Club • Myron Belkind • The support for Mr. Rysen(?) the national press club gave him the freedom of the speech award in 2012 • The government’s attempts to block the reporting of the actions in Ferguson, MO • Norman Solomon RootsAction.org and Co-Founder & Institute for Public Accuracy Executive Director • The attempts of the government to stop the press from publishing the acts of the government with surveillance, giving Iran faulty nuclear, and Botnet etc. http://www.cspan.org/video/?323 CASE BRIEFS 8 • The “freezing effect” now no longer a “chilling effect” o Now it is stopped • To President Obama and Halter, your effort to compel new york times reporter james risen to reveal his resources is an assault on the freedom of press we urge you in the strongest terms to halt action on risen and to safeguard the freedom of the speech and for journalists to uphold defending their sources identity • Organizing the actions against the press and mobilizing an attempt to educate the public with what is going on with the attempts and current political pressures to stop the press • The collision between an administration that “talks good and does bad” and mobilize a citizenry to understand what is at stake • Culmination of one phase of that and the initiation of the next • To “lance that boil of fear and intimidation” that affects the actions of the press and the willingness to publish • The efforts to prevent the government from future and current actions to threaten the publication • Enactment of t a meaningful “shield law” that the media is separate from the government and that they are needed and their independence is necessary to hold the government accountable for their actions • Subpoenas for the press • Journalist shield laws that have been presented in the Congress • Not saying that the press is above the law and above the judicial branch but that a sense of independence is necessary • Gregg Leslie o Reporters committee for Freedom of the Press and Legal Defense Director & Attorney • The massive subpoena of the AP phone record in the search for a CIA operator • The Fox News Reporter’s email account breached accused of an espionage charge by asking a government employee about/for information • Making greater notification for journalist before their third party communications were looked at; making it more difficult to the prosecutor but it helps keep the government more accountable • Reporter’s privilege of not needing to disclose their sources similar to those of a spouse and doctor and the necessity to provide the shield laws for the press • Congress needs a meaningful shield and the government’s accountability to the people are held by watchdogs there needs to be something enacted of their powers to stop this pressure and there is a necessity for reporters • Whistle blowers are needed for the government and for the reporters as sources there is a need for protection of whistleblowers and the communications between the reporter and the whistle blowers • James Risen has refused to name a source for information about a CIA operation in Iran that appeared in his book “State of War” • The Obama administration has pursued 8 cases under the Espionage Act the Committee to Protect Journalists • Courtney Radsch: committee to Protect Journalists Advocacy Director CASE BRIEFS 9 • Leak investigations and surveillance revelations have made government officials fearful of reporting and acting as a whistle blower • Journalists more broadly has a serious chilling or freezing effect on the press • Without the backing of a large media outlet with a large team of lawyers then those individual reporters are even more fearful of the reporting of what the government is doing • Looking at National Security and Anti-State Charges as a cover to suppress journalists—subversion or terrorism is the anti-state charges o The subversion or terrorism as the source of or charge against journalists as Anti-State charge o This is a higher degree of the past charges of defamation or libel • It is difficult to go abroad and advocate on behalf of freedom when these same freedoms are abridged at home • Government to uphold the Constitution and democratic principles upon which the society is built and the ensure the functioning of the democratic process in which the freedom of the speech is a crucial role • Delphine Halgand: Reporters Without Borders o Measures the freedom of information in 186 countries and the freedom that reporters, bloggers, and others enjoy o US holds the 46th position on this index o No true freedom of the press or speech if whistleblowers are not upheld • Crackdown on whistleblowers can be said to restrict all not approved information of the government by the press • Reporters without borders are defending and assisting news providers all around the world • Phil Donahue the issues with that come with corporate media (former talk show host) you need to have the availability of larger numbers of people to create a middle where the real news can be found • 5 MNC’s are now controlling the media or the middle mainstream media has a lot to report and a lot to be ashamed of due to no longer be righting back o No longer • New york times reporter james risen was subpoenaed to testify at the trial of a former CIA operation • Risen has refused to reveal his source—taking advantage of his first amendment right • This is an issue of not necessarily the threat to security but the embarrassment of the administration • James Risen, New York Times journalist and author “State of War” o About not just him but some basic issues that affect all journalists and all Americans o The Justice Department in the Obama Administration were the ones who turned this into a fundamental fight against press freedom in their appeal to the 4th circuit claiming the fundamental thing this case is about is that there is no such thing as a reporter’s privilege thus turning this case into a show down of the first amendment and the freedom of the press granted by the US and the Constitution CASE BRIEFS 10 o The fundamental question of the freedom of the press and the freedoms that are given to the press that are now being suppressed by the administration under the guise of national security, espionage, and terrorism • Ahmed ghappour university of California hastings school of law serves as outside counsel for the Freedom of the Press Foundation • How does the First Amendment and the Freedom of the Press survive in a Post-9/11 age? That is all the same issue now—this is the central or core question that is being addressed • The subpoena to reveal his source expired during the Bush administration and was renewed in the Obama Administration the harassment that Risen has experienced during both administrations (public and private efforts) to harass him that started in the Bush Administration • The statements issued by Pulitzer Prize winners—rootsaction.org and it is a vendetta against the press • Company Man book by former CIA director • The political nature by the Justice Department on this issue • Career Washington v. Political Washington o FBI and NSA act as career Washington and post 9/11 they have had more power to investigate, track, and find information o There is a need for the large wide ground support • Policy by the Justice Department of what they will do when issuing • The hesitation of the AUSA to get permission from the attorney general and Washington o Rather than the AUSA that can subpoena anyone and investigate anyone Testable Items: laws designed to protect reporters and their sources are called “Shield Laws” just know what shield laws are and know the subject matter Exclusions to Speech: Obscenity is NOT protected speech in 1920 that could have been anything outside the societal expected norm Whether or not obscenity is protected ends in CA Jacob Ellis v Ohio—Ellis wanted to show a semi-sexual scene in his movie and that is banned in Ohio by law and by showing the moving Justice Potter Stewart “Doesn’t know what obscenity is but he knows it when he sees it”—an explanation by the Supreme Court to explicitly identify what obscenity is— TEST Marvin Miller—had a magazine that was mailed with sexual images and the magazine went to a family restaurant in new port beach and he was arrested and goes to the Miller v. California—the Miller Test came out of this by the Supreme Court and obscenity needs to meet all three standards CASE BRIEFS 11 1. Whether the average person, applying contemporary community standards, would find that the work taken as a whole, appeals to prurient interests; 2. Whether the work depicts or describes, in an offensive way, sexual conduct or excretory functions, specifically defined by applicable state law; and 3. Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value Stage One: cannot ever be overcome EXCEPTION with the New York case with the child pornography laws Ferber rule—if the person is not underage then the person is not in violation of child porn laws ON THE TEST: Miller Test and New York v Ferber Miller Test is on the test WORD FOR WORD Know the child pornography case example question “what was the effect of the New York v Ferber ruling” it found that child pornography explicitly lacked any societal interest and was not protected by the First Amendment Need to know that child pornography is NOT protected and that the First Amendment will not help you here Intellectual Property: knowing what this concept is which is encompasses the three big parts of the intellectual property Trademark: what identifies you Example—coca-cola creates a song for the super bowl and their trademark is that they are the cursive large Coca-Cola Going to the US PTO to file for it after you have already established it—once you have a trademark a little r after it you had to have filed with the US Patent and Trade Office once you get the trademark you get this symbol ! ® Copyright: something that you create Examples—a song, a book, a speech, a haiku, a facebook status When you have it you can put a little c at the end of it File a copyright when you need to prove that you created this and that it is your intellectual property before you go file © Patent: a novel idea for an actual process Example—a new way to do something, to make something, a new gear in an engine, a new type of engine, a new type of water ball Poor man’s patent when mailing a description to yourself and open it then it doesn’t mean anything Filing a patent application part of the process when you submit the patent—hire an engineer and they pull apart every single piece and then put it back together in the manner which is your idea and you need to compare it with every other patent to determine whether or not anything is similar to this ℗ Most patents are either rejected or abandoned CASE BRIEFS 12 In the book there is a significant amount on privacy: Roe v Wade • It is included under our privacy argument because that is how the judges looked at the case by looking at our constitution and extending our right • Privacy issue the sensitivity • Conglomerated case a build up of 18 years of cases that resulted in Roe v Wade • The Supreme Court found that there was an “inferred right to privacy in the US Constitution” • The Supreme Court recognized the inferred right to privacy and the California Court confirmed it In class: Edward Snowden Freedom of Speech and Prior Restraint Week 4 Lecture Notes 20 September 2016 Federal Law Government Policy Alexander S. Balkin, Esq. 1. Bio a. Command inspector general: Naval Supply Systems Command—Fleet Logistics Center San Diego i. IG (investigating government watchdog) ii. b. Previous Experience i. U.S. Nuclear Regulatory Commission (Fiscal Policy/Rulemaking/ Strategic Planning) ii. Department of Defense (Acquisition Policy) iii.U.S. House of Representatives (CA-46 Dana Rohrabacher) 2. Publications a. When it comes to presidential candidates you reap what you sow the hill.com july 22,2016 3. Lecture Roadmap a. Brief overview of Federal Government structure and purpose b. Difference between law & regulation c. How to find/research federal regulations d. Considerations in lawmaking e. Considerations in rulemaking f. Practical application g. Part II: Presidential Electoral Procedure 4. The Basics a. What is the basic form of the American government? i. Democracy? Yes ii. Republic? Yes iii.Representative Democracy 5. Form of government CASE BRIEFS 13 a. In additional to being a representative democracy the United States is also constitutional democracy and the US is therefore also a constitutional republic indeed, the united states might be labeled a constitutional federal representative democracy but where one word is used with all the over simplication that this necessary entails democracy and republic both work 6. Basics a. Branches of the government and their functions i. Legislative branch 1. Creation of laws (in theory) ii. Judicial 1. Interpretation of the law iii.Executive 1. Execution of laws a. Executive level agencies—creation of the President in order to carry out the law 7. What is law a. Law a system of rules that a particular country or community recognizes as regulating the actions of its members and may enforce by the imposition of penalties 8. Where does law come from? a. Sources of American law i. Constitution: Foundation document (delegates authority to create other laws) 1. Whether or not an agency or individual has the authority to do something ii. Statute/Act: Laws enacted by the legislature iii.Case Law: Organic creation of law through judicial interpretation (Common Law) 1. Created through judicial interpretation the natural one that comes about iv. Administrative law (law-ish): Regulations created by Federal agencies/entities 1. The president uses his power to delegate laws created by congress that his agencies will carry out 9. Where is Administrative Law in the process? a. Constitution: Established the form of government and delegates authority to the branches b. Legislature: Create (generally) high level/broad U.S.C. c. Executive i. Code of Federal Regulations C.F.R. created bythe federal agencies/entities when they create administrative law 10.What are regulations a. Administrative law b. Rules and administrative codes issued by governmental agencies to enforce/execute/carry out laws although tye are not laws regulations CASE BRIEFS 14 have the force of law since they are adopted under authority granted by statutes and often include pentalites for violations 11.Regulations c a. Come from the executive branch this is what we mean when we discuss federal law Examples of Law 42 U.S.C. § Law: atomic energy act of 1954 says…regulate domestic nuclear reactors Regulation: PART 170-FEES FOR FACILITIES MATERIALS, IMPORT, AND EXPORT LICENSES, AND OTHER REGULATORY SERVICES UNDER THE ATOMIC ENERGY ACT OF 1954 AS AMENDED Law high level regulation very tailored to a situation Considerations: Law Making • “Law like sausages cease to inspire respect in proportion as we know how they are made” • John Godfrey Saxe • Q: Why is lawmaking so terrible to witness? o HINT: Incentives Rulemaking: the process through which federal agencies go through in order to make regulations Administrative Procedure Act • Requires agencies to o Keep the public informed of their organization, procedures and rules o Provide for public participation in the rulemaking process o Establish uniform standards for the conduct of formal rulemaking and adjudication o Define the scope of judicial review UNITED STATES CODE: the following provisions in the electoral college Electoral college is a process not a place 538 electors total of all the members of congress Fat Leonard fraud scandal The Power Point he presented will be put online on Blackboard Midterm Example for briefing the case Sample Answer being asked by a district attorney for a filing determination The sample answer format should meet the same format as the question Burglary The first issue is whether Doe committed the crime of burglary. (Rule) CASE BRIEFS 15 Burlary is unlawful entry into the dwelling of another, with the intent to commit a larceny or felony therein. Intent to Commit a Larceny or Felony—this fails because there isn’t any Unlawful taking: in the instant matter, doe did take a case of beer without paying for it, amounting to an unlawful taking By force or fear (this our conclusion and choose a position here) Do took the case of beer after being refused the opportunity Discuss all the points where he will be charged with not just one (everything he wrote is abbreviated in the online example—use his sample as a rule guide not road map Analysis is each point below then we are going to be doing our analysis and that is where we are getting our points Issue: next is the matter of filing a battery charge The common law (penal code) Battery is the unlawful offensive touching or contact with another Using the facts in the instant matter, there is no allegation that any contact was made between Doe and the store clerk, as such this crime will not attach Looking at all this and seeing then how each would attach—Doe can only be likely charged with theft due to the facts supporting every point with theft Our test next week will most likely be CRIMES Our final will be TORTS This first time writing a test like this (the issue brief) will be extra credit and the final will be more difficult Locate the Issue Writing the Correct Rule Analysis is where we get the largest share of the points—this is where we get our logical inference Application of the facts and law into a real life situation Having it broken up like this on the test will be the easiest instead of having it all in one bulk BRING A SCANTRON for the multiple choice Short answer just write on the test it wont be too long The extra credit can be just typed or written separately as long as it is handed to him before we leave All employment rights are based upon American civil rights Miranda Rights will be on the test Fails to talk about the act of coercion CASE BRIEFS 16 If you have an attorney and your rights have been read to you then your confession will stand—unless coercion is used for example standing over you not giving you water or letting you use the restroom A ruse is absolutely allowed Miranda has the protection of you knowing your rights Due Process—before anything is taken from you have these certain rights He reframes the argument for the state with finding the Katesenbach v With the civil rights movement Looking at this one restaurant that Article 1 Section 8 clause 3 The state before this created a negative commerce clause a dormant commerce clause Congress saying No All these restaurants doing this and these restaurants in a collective bucket by looking at them all together are probably getting their meat out of state—interstate commerce clause Took their federal rules and used the commerce clause and that was the basis for Congress to create rules for employees Biggest way the commerce clause is setting a tenant or case in the law is the due process clause Before the government can take something from you—you have a right to be heard When you are working at one of these agencies by you working there you have a vested right in something You having your employment (any government employers) your due process rights have to be followed ON TEST: PRIVATE EMPLOYERS THE STATE’S POLICE POWERS States apply a version of the federal employee discrimination and employee rights as they apply to the state—this is the best way for them to take the federal level laws and apply them to the state “At will” employers—you are hired and fired without due process Contract: the collective bargaining agreement it is the employers granting the due process right ON THE TEST AND CAN GOOGLE UNDER FEDERAL LAW EMPLOYERS CANNOT DISCRIMINATE UNDER THESE TENANTS: RACE SEX PREGNANCY RELIGION NATIONAL ORIGIN DISABILITY AGE MILITARY SERVICE OR AFFILIATION CASE BRIEFS 17 BANKRUPTCY OR DEBT OR STATUS GENETIC INFORMATION CITIZENSHIP Fourth Amendment equal protection clause with due process and the fifth amendment will be your back up to your equal protection clause Title 7 is what created the employment portion as to how it applied to civil rights • Arguing the commerce clause is how they expanded it and used as their basis Standards in each law • Age Discrimination and Employment Act 1978 o If you have more 20 workers at the office then you cannot discriminate on age with people over 40 AGE 40—LOOKING FOR THIS ON THE TEST • Rehabilitation Act of 1973 o Most important thing is the protection for people with disabilities Section 504 o In Section 504 of this act: requires reasonable accommodations ON THE TEST o Section 504 applies to anybody who gets federal money ▪ Cities federal authorities housing departments universities schools if you get a federal grant or federal money then section 504 applies o Reasonable accommodation: for those who are ▪ In California if you are doing 70% of upgrades to a building (of its value) in renovations then you have to do all the ADA updates o Reasonable accommodation: an alteration of policy to accommodate a disability o Anyone who gets federal money then has to pay attention to Section 504 o Reasonable request ▪ Nexus is there a nexus for it—somebody has to certify that it is reasonable that they have something and that what they are asking for is reasonable • Disability • Connected • This is what the nexus shows ▪ Fundamentally Alter our policies or operations o This grants the big part—if you get federal money then you have to comply with Section 504—they give a very narrow idea of accommodations where as ADA gives more definition o Anybody with help, treats, or deals with this then they can provide the nexus and can certify this • American’s with Disabilities Act ADA o Two separate distinct laws o Requires reasonable accommodations ▪ Requires architectural changes and making everything accessible o This is the blanket CASE BRIEFS 18 o Gives us: A DISABILITY IS A MENTAL OR PHYSICAL HEALTH CONDITION THAT SUBSTANTIALLY LIMITS ONE OR MORE LIFE ACTIVITIES (on the test) o Applies to everybody for all intensive purposes but it defines what a disability is vs Section 504 just requires federal money • Employment litigation o If you are going to work with the government o Sexual harassment training, discriminate based upon race o If you did do that or if they alleged that you did then they have to get from the Department of o You need to make a claim directly to that government agency a letter that says you fired me because of this and I want damages need to do this within 6 months of injury—California a Request for Damages within 6 months of injury o If they departments says that they will not give you anything then you will sue them o If the dollar gets one dollar in fines or penalties then the defendant has to pay every single dime that they incurred o If someone has a pension then the damages are through the roof o Test question: an employer says that an employee cannot have their wheelchair in the office then you would sue under both Section 504 and ADA Law and Policy Midterm Study Guide *Extra credit following the exam – know crimes vs torts Marbury v Madison (Established the theory of judicial review) • Landmark United States Supreme Court case • Court formed the basis for the exercise of judicial review in the United States under Article III of the Constitution o Article III – establishes the judicial branch of the federal government o Judicial branch comprises the Supreme Court of the United States and lower courts as created by Congress • Landmark decision helped define the boundary between the constitution and separate executive and judicial branches of government • Supreme Court announced for the first time the principle that a court may declare an act of Congress void if it is inconsistent with the Constitution • Legal principle of judicial review came from this case o Judicial review – ability of the court system to look at a law and say whether its valid or not and keeping with the constitution • Any dispute can be taken directly to the Supreme Court which gave new jurisdiction to the Supreme Court • The supreme court adopted a monitoring rule over government actions Case details CASE BRIEFS 19 • Washington and John Adams lost election to Jefferson • Adams tried to put his people places to poison the new government • Hijacked the Judiciary Act (how judges are appointed) 1801 • Adams tried to stack the bench as judges • Marbury was a Justice of the Peace • Marbury never got his appointment • Jefferson, created his Judiciary Act of 1802, that undoes everything that Adams did back to 1789 • Marbury asks for his appointment because it was assigned but never delivered, court wouldn’t hear the case • Petition was denied FINAL: Justices on the current Supreme Court: 1. Ruth Bader Ginsburg 2. John Roberts Jr (Chief Justice) 3. Sonia Sotomayor 4. Clarence Thomas 5. Anthony Kennedy 6. Samuel Alito 7. Elena Kagan 8. Stephen Breyer 9. Merrick Garland (proposed by Obama) Antonin Scalia just recently died and was the best friend of Ruth Bader Ginsberg Brief cases (IRAC): Issue – What is the case about and the issue Rule – The laws that were discussed Application – How the law was applied, or not applied Conclusion – The final outcome FINAL: The Bill of Rights 1. Speech, Religion, Press, Assembly 2. Right to bear arms 3. No quartering act – can’t be forced to let troops live with you 4. Freedom from unnecessary search and seizure 5. Due process clause – right to an impartial judge, freedom from self incrimination, no double jeopardy 6. Right to a speedy trial and your right to counsel 7. Trial by jury in civil cases 8. No excessive bail or cruel and unusual punishment 9. These rights do not deny other rights 10. Rights that are not reserved by the federal government are reserved to the states Amendment I – Freedom of Speech 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. CASE BRIEFS 20 Amendment II – Right to Bear Arms 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. Amendment III – No Quartering No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law. Amendment IV – Freedom from Unnecessary Search and Seizure 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. Amendment V – Due Process (no double jeopardy) 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; nor shall private property be taken for public use, without just compensation. Amendment VI – Right to a Speedy and Public Trial 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 defense. Amendment VII – Right to Trial by Jury In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law. Amendment VIII – No cruel and unusual punishment Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. Amendment IX – Do not deny other rights The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. Amendment X – Rights reserved to the States 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. The Basics of Law FINAL: Tort – civil crimes, handled in Civil Court; Punching someone in the face; suing is the civil side/the tort. Person seeking something from a person CASE BRIEFS 21 • A tort, in common law jurisdictions, is a civil wrong that unfairly causes someone else to suffer loss or harm resulting in legal liability for the person who commits the tortious act • Although crimes may be torts, the cause of legal action is not necessarily a crime, as the harm may be due to negligence which does not amount to criminal negligence • The victim of the harm can recover their loss as damages in a lawsuit • In order to prevail, the plaintiff in the lawsuit, commonly referred to as the injured party, must show that the actions or lack of action was the legally recognizable cause of the harm • Tort law is different from criminal law in that: o Torts may result from negligent as well as intentional or criminal actions and o Tort lawsuits have a lower burden of proof such as preponderance of evidence rather than beyond a reasonable doubt. • Sometimes a plaintiff may prevail in a tort case even if the person who allegedly caused harm was acquitted in an earlier criminal trial. For example, O. J. Simpson was acquitted in criminal court of murder but later found liable for the tort of wrongful death. Civil Court is people seeking something from people. Person seeking something from a person. • Biggest thing people sue for in civil court is “negligence.” Fail to exercise reasonable care. Criminal court it is retribution by a grieved society. Don’t have the option of whether or not to press charges, it will happen. Negligence: Someone owed a duty to someone else; someone breached the duty and caused damages. Parking on a hill and then the car rolled and hurt. A reasonable person would have put their parking brake on. But because there is no law, this is just negligence. Negligence has elements: 1. Duty – someone owed a duty to someone else a. Strict liability – something is so inherently dangerous, if something happens to someone, you’re liable/negligent. Example: own a dynamite factory and one of your employees gets hurt. b. The defendant has to prove that what they did was within normal conforming laws 2. Breach – someone breached that duty 3. Causation – that breach caused damages You were the actual cause OR You were the proximate cause (you didn’t exercise reasonable care) Stare decisis – is the doctrine of precedent. The definition: laws and interpretations of laws are created from prior legal cases and decisions and judges are obligated to respect the precedent. Negligence per se – its written, its the law. Says if you violate the law or the policy its presumed that you are negligent. Its all but proved that you were negligent (i.e. drunk driving). Negligence is owing someone a duty, i.e. providing them with a safe car ride home, if the car’s tire blew out you could be found negligent if the tires were bald. Negligence per se is drunk driving, because drunk driving is against a written law but you did it anyways. FINAL: Criminal Law CASE BRIEFS 22 *Assault – assault is placing someone in immediate apprehension of harmful or offensive contact, a threat. i.e. raising your fist at someone. You have to be aware of it in order for it to be assault.*Battery – physically harming someone (if you were hit from behind this would be battery because you weren’t aware of the harm before it occurred) Assault and battery on the criminal side and on the civil side Robbery vs burglary – Burglary is a crime against property, robbery is a crime against the person *Burglary – the unlawful entry into the dwelling of another with the intent to commit a larceny or felony therein (someone breaks in and steals jewelry from an empty house) *Robbery – the unlawful taking of an item from another by force or fear. Someone commands something from you (someone steals your purse) When the crime leaves burglary and becomes robbery – a kid breaks in and steals a bag of skittles, if left would have been burglary, but if he pushed the employee, then it is robbery. *Theft – is the unlawful taking of an item from another (stealing items from a store) Unlawful entry – you’re not allowed to be there. Dwelling could be residence or storage unit or wherever, to commit a larceny or felony. Intent matters and what they do once inside matters. *Homicide – unlawful killing of a human being with malice aforethought (premeditation) Larceny is a crime involving the unlawful taking of the personal property of another person or business. Felony murder rule – if you were engaged in the commission of a felony and another person dies, you’re on the hook for murder too. You didn’t intend to commit the murder but you intended to commit the felony and it resulted in a death = 1st degree murder Like if you sold drugs to someone who overdosed and died? False pretenses- misrepresentation of a material fact with the intent to defraud • Material Fact: something a reasonable person would take into consideration before entering a transaction. i.e. Selling a car without disclosing it has transmission issues Article III of the constitution is where judges get their power and determines the cases they can hear. At supreme court, between states and ambassadors. New York Times v. US The ruling made it possible for the New York Times and Washington Post newspapers to publish the then-classified Pentagon Papers without risk of government censorship or punishment. To exercise prior restraint, the Government must show sufficient evidence that the publication would cause a “grave and irreparable” danger New York Times v. Sullivan (Public Official Defamation) CASE BRIEFS 23 • Established actual malice standard, which has to be met before press reports about public officials can be considered to be defamation and libel and allowed free reporting of the civil rights campaigns in the southern United States • Defamation of a public official • One of the key decisions supporting the freedom of the press • The actual malice standard requires that the plaintiff in a defamation or libel case, if he is a “public figure”, prove that the publisher of the statement in question knew that the statement was false or acted in reckless disregard of its truth or falsity • Because of the extremely high burden of proof on the plaintiff, and the difficulty of proving the defendant’s knowledge and intentions, such claims by public figures rarely prevail. FINAL: Actual malice: a knowing or reckless disregard for the truth and Actual Malice must be proved against a public official “Limited issue public official” – something individual i.e. Octomom. Actual malice has to be proven if its based on the issue they are known for. i.e. Donald Trump and accusation of filing fraudulent taxes. A normal person doesn’t have to prove actual malice. Defamation – is false statement about another person published to a third party. Speech that is not protected. Truth is the absolute defense of defamation. Libel (written) and slander (spoken) Free Speech – expression without restraint The 14th amendment applies the bill of rights to the states • The 14th amendment is a very important amendment that defines what it means to be a US citizen and protects certain rights of the people. • There are three important “clauses” in the 14th amendment, each of which are still important today. o Citizenship Clause – gives all Americans born in the US and African Americans the right to citizenship. o Due Process Clause – Protects the 1st amendment rights of the people and prevents those rights from being taken away by any government without “due process.” o Equal Protection Clause – This part of the fourteenth amendment states that there may be no discrimination against them by the law. The federal government enforces this protection on the states, ensuring that they do not. Remember that the Bill of Rights protects some rights for Americans. The equal protection clause extended this protection to the state governments. This clause of the 14th amendment would later be used to end discrimination and segregation in the South. Clear and present danger rule came first in 1919, with the case of Schenck vs US then Imminent lawlessness was adopted with Brandenburg vs Ohio in 1969. Near v Minnesota – government cannot exercise restriction of speech or restraint, except in rare circumstances Schenck vs US (Distributed Anti-War Flyers) • Enforcement of the Espionage Act of 1917 during World War I • Defendants who distributed leaflets to draft-age men, urging resistance to induction, could be convicted of an attempt to obstruct the draft, a criminal offense CASE BRIEFS 24 Clear and present danger rule circumstances/limits can be placed on First Amendment freedoms of speech, press, or assembly. An example of this would be yelling fire in a crowded theatre. Brandenburg vs Ohio (KKK Leader) • Brandenburg invited a television reporter to attend and cover a KKK rally • Portions of the rally were filmed, showing men in robes and hoods, carrying firearms, burning a cross and making speeches. • Speeches made reference to possibility of re-vengeance as well as announced plans for a march on Washington • Statute as applied purports to punish mere advocacy and forbid on pain of criminal punishment, assembly with other to advocate the described action and the statute falls within the condemnation of the first and fourteenth amendments. Imminent lawlessness is a standard used to define the limits of free speech. Under the imminent lawless action test, speech is not protected by the First Amendment if the speaker intends to incite a violation of the law that is both imminent and likely. An example of this would be, standing in front of a crowd of people and saying let’s go shoot some people. Shield laws – legislation to protect reporters’ privilege; involves the right for reporters to refuse to testify as to information on their sources of information obtained during the new gathering and dissemination process. Reporter cannot be subpoenaed or court ordered to testify about information contained in a news story. No shield laws at the federal level, most of the 50 states have shield laws or other protections in place for reporters. Exclusions to Free Speech: Obscenity Ellis vs Ohio(Obscenity) Semi-explicit sex scene, Justice Potter Stuart, doesn’t know what obscenity is, but knows it when he sees it. Miller v CA – Miller Test (Definition of Obscenity) 1. Whether the average person applying contemporary community standards would find that the work taken as a whole appeals to the prurient interest. 2. Whether the work depicts or describes in an offensive way sexual conduct or excretory functions specially defined by applicate state law 3. Whether the work, taken as a whole lacks serious literary artistic political or scientific value. (This is not definable, that nothing can pass the miller test and you can basically get away with OR simply put: 1. Is it porn? 2. Does it actually show sex? 3. Is it otherwise useless? https://en.wikipedia.org/wiki/First_Amendment_to_the_United_States_Constitution https://en.wikipedia.org/wiki/First_Amendment_to_the_United_States_Constitution CASE BRIEFS 25 Anything except for child porn will fall into these questions. Therefore, the only thing considered obscene is considered child porn. Justice Potter Stuart – obscenity, don’t know what it is but I know it when I see it NY vs Ferber (Child Porn) Found that child porn, had no societal value and no meaning to it and thereby not protected by the first amendment. Anything related to a depiction of a minor, is now possibly including graphic creations that depict a minor. Intellectual Property (an example speech that isn’t protected) Trademark – what identifies you, logos. Have to get a patent first before you can claim it as yours. You can then put the ® Copyright – something that you create, voice over, song, book, speech, haiku, FB status. Can put the C at the end, don’t need to file. If someone steals your idea and you want to take them to court, you have to file for copyright. © Patent – novel idea for an actual process, a way to do something, a way to make something, new type of engine. File an application for a patent (patent pending), process – hire an engineer to identify the item and that process to get to put the item together. Row vs Wade (Privacy/Abortion) – whether a person has a right to get an abortion. Judges inferred a right to privacy based on constitution and extending that right and found that abortions were legal. The US supreme court found that there is an inferred right to privacy from the US Constitution, the CA Constitution article 1 section 1 gives you right to privacy Due process: fair treatment through the normal judicial system, especially as a citizen’s entitlement. For example, when you work for the government at any level, you have a due process right; before the government takes something from you, you have a right to be heard. Due process rights have to be followed, before you can be terminated. Private employers, is done through the state’s police powers, the states apply an aversion of employee rights using police powers. Police powers, have the ability to regulate based on their residents. State Police Power: In the United States, state police power comes from the Tenth Amendment to the Constitution, which gives states the rights and powers “not delegated to the United States.” States are thus granted the power to establish and enforce laws protecting the welfare, safety, and health of the public. Discrimination: Federal Law: employers cannot discriminate based on any of the following: Race, sex, pregnancy, religion, national origin, disability, age, military service, bankruptcy debt or status, genetic information, or citizenship. They all fall under either the Fifth or Fourteenth amendment Age discrimination employment act: expansion of title 7 under civil rights act, more than 20 people in the office, cannot discriminate over the age of 40 Title 7 of civil rights act: created the employment portion of the civil rights movement, by arguing the commerce clause CASE BRIEFS 26 • Commerce Clause – describes an enumerated power listed in the United States Constitution (Article I, Section 8, Clause 3). The clause states that the United States Congress shall have power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Rehabilitation act of 1973: protection of people with disabilities, section 504 (guarantees rights to people with disabilities), requires reasonable accommodations. Applies to anyone that gets federal money (cities, universities, federal grant, county) has to grant reasonable accommodations. • Alteration of policy to accommodate a disability, you have to grant it if it is reasonable, there is a nexus (has to be certified by someone) between what they are asking for and their disability and if it a fundamental alteration. • Nexus – the bridge between the diagnosis and the requirement (i.e. A dr. says that the patient has anxiety, and the dog keeps them calm, so they have to have the dog with them at all times – the dog is the Nexus) ADA (American Disabilities Act): defines a disability is a mental or physical health condition that substantially limits one or more major life activities. • ADA, expands beyond section 504. Requires reasonable accommodations, includes architectural accommodations, TTY/TTD, defines the disability. A disability is a mental or physical health condition that substantially limits one or more major life activities. Miranda rights: based on the fifth amendment to not self incriminate; if u have an attorney and your rights have been read to you, your confession will stand unless there is coercion • Coercion: the practice of persuading someone to do something by using force or threats “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?” Miranda rights came from the Miranda v. Arizona case in 1966, • The defendant was questioned by police officers, detectives, or a prosecuting attorney in a room in which he was cut off from the outside world. • The defendant was not given a full and effective warning of his rights at the outset of the interrogation process. The questioning elicited oral admissions and signed statements that were admitted at trial. • Miranda was found guilty of kidnapping and rape and was sentenced to 20-30 years imprisonment on each count. • On appeal, the Supreme Court of Arizona held that Miranda’s constitutional rights were violated in obtaining the confession because he was not informed of his right to counsel during questions and trial and therefore reversed the judgement. • He was then retried without his confession and convicted again on the same charges. FINAL EXAM Congress shall make no law establishing religion or prohibiting the free exercise thereof CASE BRIEFS 27 Philosophical and religious views are perceived to be one and the same, regardless of what it is rooted in doesn’t matter, can’t alieve you from everything. Free Exercise Clause: The Free Exercise Clause reserves the right of American citizens to accept any religious belief and engage in religious rituals. What you believe and what you do (the right to believe and the right to act) • The first is absolute, you cannot change what people believe, its what you do with it that can be changed • The only time the court can change this is when the society has a compelling reason/interest to do so • For example: Animal Sacrifice (there was a compelling interest by the American people; so it was illegal) • Rule of general applicability, as long as they don’t target a single religion it is allowed. Strict scrutiny is used in evaluating laws, burdening religious freedom and looks for compelling state interest. i.e. Anti vaccination rule • To pass strict scrutiny, the legislature must have passed the law to further a “compelling governmental interest,” and must have narrowly tailored the law to achieve that interest. Establishment clause: congress shall make no law in the establishment of religion. Not national religion and do not favor one or the other. No national religion. SHORT ANSWER: Lemon Test: A law is constitutional and does not violate the constitution: 1. The statute must have a secular legislative purpose 2. Its principal or primary effect must be one that neither advances nor inhibits religion 3. The statute must not foster an excessive government entanglement with religion If it passes the lemon test it is constitutional, it if doesn’t then it is isn’t constitutional Religious Land Use and Institutionalized Persons Act (RLUIPA) Protects individuals, houses of worship and other religious institutions from discrimination from zoning and landmarking laws. Land Use Regulation: • No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person • Including a religious assembly or institution unless the government can demonstrate threat imposition of the burden on that person, assembly or institution a. Is in furtherance of a compelling governmental interest; and CASE BRIEFS 28 b. Is the least restrictive means of furthering that compelling governmental interest Church gets a use permit, wanted to expand services to operate a food kitchen, showers, meals, for homeless shelter (but if you asked the church they weren’t operating a shelter). Neighbors were upset, city said exceeding use of the permit, took permit away. Homeless were using drugs, some were mentally ill, etc. when the church was closed they went to the park next door. (in a neighborhood with a school and homes). Kid comes down slide at the park and gets poked by a needle. I.e. Harbor Church in Ventura BROWN ACT Promote transparency and public trust through: • Public access to meetings • Public attendance and participation • Receipt of public comment Closed meetings • Allowed for o Real property negotiations o Labor related items o Personnel issues o Litigation • Must make announcement of closed meeting and describe purpose on agenda • Report out of closed meeting Public Comment: If there was a subcommittee that accepted public comment, then at the full meeting of the board, there is not a subcommittee meeting. • Did the chair violate the brown act, answer is no as long as there no significant change to the item. If there is, then you have to reopen public comment. California public records, any item is available for review. You can get copes if you pay for them. Sue the Government: If you are suing a government entity, requirement gov’t doc number 954.4, have to make a claim within 6 months of injury for your damages in writing. Death Penalty: California Superior court must review every case where the death penalty has been opposed Federal Court: Why do you want to be in federal court? • Defendants want to be in federal court, plaintiffs want to be in state court. • Federal court is more proper, more controlled and the rules are easier than state civil court. Less regulations/rules in federal court CASE BRIEFS 29 Statute of limitations • How long after something happens you have before you cannot sue • Evidence diminishes (witnesses, evidence, etc.). • Based on the gravity of the crime, not the propensity to disappear. Before you file a law suit, statute of limitations: • Which statue of limitations applies (the tort you are suing for ) • When does the action accrue • Are there any tolling provisions (pauses the statute of limitation (minor under 18, lack of capacity, incarceration) You can shorten/lengthen the statue of limitations, cannot extend past 4 years past its end date. Jurisdiction: What can be heard? CA courts have 2 jurisdictional (subject matter jurisdiction and personal jurisdiction). Subject-matter jurisdiction is the authority of a court to hear cases of a particular type or cases relating to a specific subject matter. Example: bankruptcy court only has the authority to hear bankruptcy cases. Personal jurisdiction: is the power of a court over the parties in the case. Before a court can exercise power over a party, the constitution requires that the party have certain minimum contacts with the forum in which the court sits. • Court can hear cases as long as the defendant had resided in CA at the time of the injury/accident (reside with the intent to remain) • If the defendant is personally served while in CA, includes flying in a plane over CA • If the defendant consents to CA jurisdiction (contracts cases). • When the defendant has made an appearance and realizes that the court can adjudicate an answer; defendant has minimal contacts with the forum state – can expect to me hailed into court there. Everything regarding jurisdiction you are looking at the defendant, because the plaintiff already submitted to the courts jurisdiction Serving Someone: • The person who is serving, has to be over 18 and not a party to the case • You can serve someone by any means that are allowed. • Have to make 3 attempts, in person, then 2 others. Venue to file your action: Venue, refers to the county where the action may be filed; give the defendant control of where the action may be filed. General rule: venue is proper in the county where any of the defendants reside at the commencement of the action. If the defendant doesn’t reside in CA you can file in any county. CASE BRIEFS 30 Permissive counter claims: Litigate multiple claims all at once Pleadings – complaint is the document that starts your lawsuit. Plead Doe’s 1-10 – the purpose is to add later parties to the case. Can amend your complaint 1 time before it is filed ,otherwise you have to ask the court permission Motion for judgment on the pleadings: there is no case here Motion to strike: Oral: remove from the record; Written: get it out of the public record because there is no proof. • Most common place used, Strike Punitive damages (damages to punish, make an example out of something) Anti-slapp motion: the whole reason you are suing is to crush my first amendment right. Newspapers file these. Strategic lawsuit against public participation (SLAPP). There is a slap back motion. Example: If I was to write a Yelp review, the business could try to sue me (SLAPP), I would file an Anti-SLAPP motion, the business would file a Slapp Back. The answer in a pleading: • Allege why things are wrong, they didn’t do anything wrong • For each cause of action they have to give an answer, either admin or deny. • Have to plead any defenses they have; if the don’t plead then they lose their ability to. If u don’t file demurrer, motion to strike, then they have 30 days to answer. Discovery: the formal exchange of information between both sides of the law suit. • Production of documents – request for production of documents • Interrogatories – written deposition; questions and facts about the incident (CA can ask 35 questions). • Deposition – out of court examination, similar to what you would have at trial, sworn under oath; illicit testimony and hear attorney’s objections – see the testimony and lock it in o You can ask almost anything at a deposition, except for things that are privileged. Privileged information; patient/dr; clergy, sexual assault victim/counsellor; • Written Deposition: they have 30 days to file an answer after default judgment. • Subpoenas – this is the exception – this is for people that are not parties Default Judgment: You have 30 days to file an answer CASE BRIEFS 31 Default motion is when you file a complaint and you serve the party and they don’t file a motion in 30 days, you file for default which locks them out of the case. • Civil code section 473 – if in 6 months, you can file this to show there was an inadvertence or mistake to set it aside Settlement Negotiations: You can never talk about in court is discussions during settlement negotiations. Not allowed to bring up any information, because you bring it all out on the table. Exception to Confrontation Clause: Witness unavailable or refuse to testify and the statement needs to be non-testimonial. Right to confront witnesses that will testify. • Crawford case (911 tape, this is not testimony), tape was used. • Testimonial evidence is not allowed unless you have the right to cross examine the witness. • Domestic violence where there is a 911 call, the call is asking for help, not testimony. Heresay: An out of court statement offered for the truth of the matter asserted. • Heresay is not allowed in court, unless there is an exception, due to the unreliability of the statement, don’t have the ability to prove it was true. • If you are looking at a statement to determine it was heresay: Out of Court / Statement / Offer for the Truth of the Matter Assertive (OTMA). • Exceptions where heresay is allowed: o Admission by a party (because voracity is presumed); o dying declaration – Guy with his last breath makes statement (because voracity is presumed); o Excited Utterance – it’s what falls out of your mouth when you hear something; o Statement against pecuniary interest – a statement that would hurt you (retelling what a third party told you). 5th amendment: You cannot be forced to testify against yourself; your spouse cannot be compelled to testify against you. Miranda rights. Spouse could waive these rights. 4th amendment – protected from unreasonable search and seizure. Employed via warrants. • If you want to search something or someone, you need a warrant. • If an officer sees a felony in front of them, they can arrest without a warrant. • If the police officer doesn’t see a misdemeanor, a citizen’s arrest can help this along. • The search requirement of the 4th amendment, you can only look where you are allowed to look. Warrant: A warrant is a judicial order to effectuate something, arrest, seize, return. Included in a warrant, must be supported by probable cause, has to be issued by a neutral and detached magistrate (a judge), has to be an oath or affirmation (by the CASE BRIEFS 32 person applying for the warrant), has to plead particularity (plead the small thing you can, which will allow you to search the smallest of areas) • Valid arrest warrant and have probable cause that the person is there, the house can be searched. • Finite scope, can only look where the person could be hiding, nothing smaller than the size of a human. Fruit of the poisonous tree, all the seizures, if I don’t have a lawful right or take something unlawfully, everything that comes from this is inadmissible. • Exceptions: Found independently, then it could still be used. At whichever point the contact of the seizure is unlawful, it cannot be used as evidence against you. Warrant Exceptions SILO (Search Incident to a Lawful Arrest) – been arrested at your house and now the police can search your house. • Under this exception to the search warrant requirement, an arresting officer may search only the person arrested and the area within which that person might gain possession of a weapon or might destroy or hide evidence. • Elements: Search incident to a lawful arrest, custodial arrest in cuffs. Has to be lawful and has to happen at that moment: • Scope: Can search your person, can search anything within your wingspan or anywhere you reasonably were when you were arrested. If you are arrested in your car and then search your car, so long as you are not restrained, but you are not free to go. Search for an arrestee: when a police officer enters a dwelling for someone to arrest. Elements: need a valid warrant, must have probable cause the the subject is in the dwelling. If they something that is evidence to the crime for you are there, they can seize unlawful items from the house. Exigent circumstances (an emergency): you must have probable cause and it has to be an emergency. Have to prove that if you didn’t seize or do what you did that it would have been destroyed. Seize the items until you get a warrant to open it, to preserve the evidence. Hot pursuit, you can chase someone into a house, if the person is suspected of convicting a felony. Cars: If they have probable cause to search your car, they have to have a lawful reason to be at your car. If they pull you over and they believe your car has evidence to the crime, they can search your car. If they want to pull the compartments and door panels off, they need to have a warrant. Elements: car is stopped on a car or highway and is readily able to be used on the highway and the officer believes it is part of the crime or contains contraband they can search the car. Can only search the car when the person is not handcuffed, unless the search if for an arrestee. CASE BRIEFS 33 Plain view Doctrine, if the cop sees it and knows it’s illegal they can seize it. • 3 elements o Must observe from a lawful vantage o Must have a right of physical access o Nature of the object has to be apparent for search and seizure This doesn’t work when a cop is in a house looking for a missing person, and knows the person who owns the house is a stereo thief, the stereo cannot be seized because it is not illegal, must have a warrant for that. Inventory search, either your car is impounded or your arrested for a crime involving your car. Searched for contraband and to protect the entity that arrested you, so that when you get your car back, everything is inventoried for proof so you cannot say something is missing. Same as when you arrested, all items are inventoried. Consent searches, when you consent to a search. You don’t need to know that you have a right to say no to a search. There has to be actual consent and it has to be voluntary. Cannot coerce someone, can lean on someone but no coercion, based on the totality of the circumstances. You can set the scope of the search. Apparent Authority Doctrine: you appear to have the authority to let them do the search. Someone who the police believe the person has the the authority to grant access. Stop and frisk doctrine: you have to have a reasonable suspicion. Specific and articulable facts when taken together with rational inferences from those facts that reasonably warrant an intrusion. Have right to council for both 5th and 6th amendment • The 5th amendment applies when you are about to be arrested • The 6th applies once you have been charged. Once you initiate that right, the police cannot interrogate you unless your attorney is there, however this doesn’t not stop the investigation. • Exceptions: they can come to your cell and try to talk to you about a separate case, in which you need to invoke the 5th amendment right. They can ask you if you want to waive that right. If they waive that right under the 6th, they can invoke it at any time, in which all questioning will stop. Vicarious liability is where you are responsible for the torts of another person. Someone will try to show that you are responsible or have some level of responsibility over the person who committed the tort. Example, employee runs over a person during working hours, the business can be sued. Respondeat Superior – whenever some one is on the clock and they hurt someone, the employer is always sued. CASE BRIEFS 34 • At what point is the employer still responsible for the employee – still responsible, even if they made a mere deviation from their scope of work. • Not responsible if person has abandoned duties and completed tortious acts. • i.e. Tortiously injuring someone while on lunch break (not a deviation). • Tortiously injuring someone when you abandon work to go to a Dodgers game, the employer is not covered. The 3/5ths compromise – slaves were counted as 3/5 of a person for the representative process. Voting Rights Act Shelby County v Holder: • Voting rights acts passed in 1965 • Section 5 (added to the act to freeze any discriminatory requirements to cover jurisdictions, to guarantee the 14th and 15th amendments) • Section 4b (jurisdiction or states that included certain tests or devices to make citizens eligible for voting). o Supreme Court determined it was unconstitutional to continue with using the formula that was passed under congress under section 4b. o Didn’t rule on section 5, just concentrated on section 4b. • Section 2: Can’t do anything discriminatory • Section 4b: Here’s a formula to determine if you are • Section 5: If you are subject to 4b you have to get approval before you make changes to your laws 15th amendment (1870) is enacted, says you cannot stop people from voting based on their race, servitude, religion 19th amendment – women’s right to vote in 1920 24th amendment no poll taxes, 1964 26th amendment – set the age to 18 years to vote Voter ID Laws, very controversial – democrats don’t want it, republicans want it. To maintain voter integrity, Voter ID Laws is valid. Department of justice review. NOTE 2 Case brief on 9/6/2016: topic freedom of speech and freedom of press. Case brief -judges get their power: article 3 Brief the case of mulberry vs Madison Issue: Facts does the court have the right to rule over this case CASE BRIEFS 35 Rule: Article 3 sated they are there for appeal reason and not trial Application: No they can’t hear this trial case Conclusion: Asked to get out of the court room. -this changed the process of on the way the supreme court is able to use Marbury v Madison The Supreme Court announced for the first time the principle that a court may declare an act of Congress void if it is inconsistent with the Constitution. Legal priciple of judicial review came from this case. Any dispute can be taken directly to the Supreme Court, gave new jurisdiction to the Supreme Court. Judicial review – ability of the court system to look at a law and say whether its valid or not. Who sit on the 8 present supreme court now- What are the names of the justices on the current Supreme Court: 1. Ruth Bader Ginsburg 2. John Roberts Jr (Chief Justice) 3. Sonia Sotomayor 4. Clarence Thomas 5. Anthony Kennedy 6. Samuel Alito 7. Elena Kagan 8. Stephen Breyer 9. *Scalia died in February and was BFFs with Ginsburg Bill of rights Basics: -difference between a tort and a crime -civil side tort sued you have the right to person seeking something from a person -criminal system will file charges and retribution against a wrong doing to society -most commonly sued is negligence -negligence has the same elements Duty: there are duties in many ways parent/child – strict liability: something is so dangerous that if something happens you are liable Breached: you violated the duty Causation: direct ie you did it and you didn’t use care -negligence per say: if you violate a law or policy you are presumed negligent. -Stare decisis- laws and interoperation of laws are created from ????? CASE BRIEFS 36 Criminal law Common understanding -Assault vs Battery Assault: placing someone in the immediate harmful or threat Battery: unlawful touching of another -Robbery vs burglary Robbery: crime against person unlawful taking from another with fear or intimidation. Burglary: crime against property, unlawful entry into the dwelling of another with intent to commit larceny or felony. (what the person is doing in when they break in, it has to be a felony) Homicide: unlawful killing of another Felony murder: if you are engaged in a felony that leads to death. False pretense: Misrepresentation of material fact with the intend to defraud. Material fact something a reasonable person will take into consideration before making a decision. Bill of right: 1st: Speech religion press and assembly 2nd : right to bear arms 3rd no quartering act 4th freedom form unnecessary search and seizure 5th due process/ freedom of self-incrimination/ double jeopardy 6th right to speedy trial 7th 8th no excessive bail or cruel unuss 9th these right do not deny other rights 10th the right that are not reserved here are reserved for the states Final paper: write a new bill of a proposed law 10 pages and present as if you are presenting on the floor of congress to pass 9/6/16 Final paper: writing a law for any country other than the US. Introduction to the law and why we need it and give history of why it has come up. Look at syllabus page 6 CASE BRIEFS 37 Concurrence: Decent: Blackboard discussion: next week we don’t have to read the concurrence or the decent. Midterm: 50 questions, mostly multiple choice, a few true or false and a few open ended questions. Brief of NYT v. Sullivan: what I need to know – why is the 14th amendment so important in this case? you have freedoms that applies to federal government but this is a state. The 14th amendment applies the bill of rights to the states. -actual malice: a knowing and reckless disregard for the truth. -freedom of speech reference to the government -the policy behind freedom of speech and press is the speech behind the people -speech not protected: -Defamation: false statement about a person published to a third party -Liable: -Slander: -Defense against defamation is the truth, it can’t be defamation if it’s true. 9/13/16 Recap from last week. -freedom of speech and press are the same -Press now mean “media” -Freedom of speech can also be associated with actions (flipping off a cop) or inaction (kapernick) Limited issue public official: knowing to the public for a limited time. -normal person does not have to prove malice to sue anyone, a public official does. Near v. Minnesota (p.301) -Near is a biggest and is anti-everything, and ran a sat paper. He accused everyone in the city is ran by Jews and starts to get attention. And is arrested after time, he claims that he has freedom of press. -What came out of this: you can have freedom of press as long as it does not have any of the following three things: CASE BRIEFS 38 -You couldn’t publish any military info -Anything that was obscene -Or in sighted acts of violence -Know what the rule was for: -Schenck: WW1 -Brandenburg: KKK -Which came first: Schenck -without the first amendment all you have is information that is given to you by the government Testable from video -Shield Laws: laws designed to protect reporters privilege -Obscenity is not protected by speech laws – Justice potter Stewart does not know what obscenity is but he knows what it is when he sees it. -The Miller test: Miller v California (google it) do what you want but if it violates one of the other its wrong, nothing can pass the miller test except child porn. -Child pornography case Ferber case (google it) not protected: lacks Other peach that is not protected: intellectual property -Trademark: something that identifies you, logo, you have to file for it before you can use the R -Copyright: is something that you create. Song, book, poem. Put a little C at the end of it. -Patent: novel idea to do something, a new something. Patten pending just means that you filed for it. Most patent are dismissed or abandoned. Privacy: Row v Wade (abortion) it was ruled under privacy. It was a buildup of case -The supreme court found there was that there is an inferred right to privacy from the US Constitution. -The CA constitution Article 1 section 1 gives you the right to privacy CASE BRIEFS 39 9/20/16 The Basic -Legislative: Creation of Law -Judicial: Interpretation of law -Executive: Execution of laws What is law: a System of rules that a particular country or community recognizes as regulating the actions of this member and may enforce by the imposition of -source of American law: the constitution (delegates authority to create other laws) -Statute/ Act: Laws enacted by the legislature -Case law: Organic creating of law through judicial interpretation (common Law) -Administration Law law (lawish) regulation created by federal agencies/ entities “laws, like sausages, cease to inspire respect in proportion as we know how they are made” Career Miranda Rights: when detained people are informed about their right to not incriminate themselves (5th Amendment) Miranda Rights if you have an attorney and your rights have been read to you your confession stands. Coercion is illegal and not covered in Miranda Right Gideon v. Wainwright: establishes due process. Katsenback v. McClung: Congress gets to regulate congress the importace of this case they took the Congress claus: the biggest way that its there is with Due process. States Police powers: the states apply these versions about Under federal laws employers cant not discriminate based on: Google it They all fall under the 5th and the 14th -title 7 created the employment portion to civil rights, by arguing the congress clause Age discrimination and employment act: more than 20 workers in your office you cannot discriminate people over 40 Rehabilitation act: protection for people with disabilities section 504 requires reasonable accommodations Section 504 applies to all who have a federal funding. -Section 504: American legislation that garntees right to people with disabilities. Reasonable accommodation: Alteration of policy to accommodate a disability CASE BRIEFS 40 American with Disabilities Act: requires reasonable accomadtion, and makes everything accessible not just physical but tty (everything) A disability is a mental or physical health condition that substantially limits one or more major life activities. Employment litigation: (employee of federal) before any one sues you they have to get the right to sue you stature of limitation is 6 months. 10/4/16 Exam: -know the bill of rights -make sure you do the analyzes on all the things it could and could not be on the brief. Don’t leave any points on table. Final will be tort, what you can sue for. Final: Freedom of religion: Alexander Hamilton: -Never a president -Congress 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 -how the court has defined rule of religion: none, but this is what we have now -your religious and philosophical -Courts cannot question if it is really what you believe. -Laws of general applications are generally not considered to violate free exercise -freedom to believe, Absolute -Freedom to do, can be imposed by government General application -Strict scrutiny is used in evaluation laws burdening religious freedom and look for compelling state interest. 5t -No national religion and that there is no one religion that is favored -Lemon test: A law is constitution – does not violate – CASE BRIEFS 41 -does not foster Equal access law: if you give to one you must give to all. Some holidays are permisable: No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including religious assembly or institution unless the government can demonstrate that imposition of the burden on that person assembly or institution a. is in furtherance of a compelling government interest and b. is the least restrictive means of furthering that compelling government interest. Brown Act -promotes transparency and public trust -public access to meeting -public attendance and participation -Right to respond Go over the slides on the brown act for the test California public records act request, no specific form or language required and you have 10 days to reply With in reason: 10 days you only have to respond, give an apporx time they will receive Privalge information is off han No set cost, you can only charge the cost of giving it to them, so it comes down to paper If you are suing a government agency, you have to make a claim within 6 months of actual injury. You have bring the claim in within 6 months. 10/11/2016 Brown vs Board of education Overturned the segregation laws, separate but equal. Court established that segregation had negative effect on the children. 14th amendment equal protection claus, Courts in CA Superior court Chief justice: Tanya CASE BRIEFS 42 Must review case where death penalty had been imposed Pellet court Pellet distric Superior court can hear what ever they want. Federal courts: Federal jurisdiction Division jurisdiction: Different states over 75K Plaintiffs want to be in state court Defendants want to be in federal court Before we file a law suit you have to submit claim with in 6 months for government, they deny it and then you can sue. Starure of limitation: -evidence starts to diminish, witnesses forget, docs will fade – When you are looking at Stature of limitation -which state of limitation applies -when does the action accrue? When it happened, or when was it discovered or should have been discovered. -is there any tolling provision: Tolling pauses the statute of limitation. In CA you can shorten and lengthen the statute of limitation What cases can be heard in the CA Subject matter jurisdiction: what cases that court can hear And Personal jurisdiction: concern the ability of the state court to enter a -The court can hear cases as long at the defendant resided in CA, there with the intent to remain -Personally served while in CA, includes flying on a plane over CA -Defendant consent to CA jurisdiction -General appearance in CASE BRIEFS 43 -when the defendant has minimal contact with the, -plaintiff by submitted in that court has agreed to the jurisdiction of the court that Serving: -personal service, files proof of service once a person does it To sertve one you have to over 18 and a party of the case -Substitute service: reasonable and of age. Made a reasonable attempt to deliver and then hand it to someone -Can be served by mail, proof of serves still needs to be done -service by mail with an acknowledgement of receipts, if the person being served is willing to fill it out -Service by publication: serving someone by publishing in periodical or journal. You have to get a court order to get it, its called an over the counter that can be easy -Posting it also counts. Outside of CA you can serve by any methods that state allows Where do you file: venue? The actual county that you file Family law Every other case: Venue referees to the county where the action can be filed, General rule: -venue is proper in the county where any of the defendant reside at the commence of the -if the defendant does not reside in CA you can file in any county Personal injury: venue where the accident occurs (physical and not emotional) Government: mandatory in the county where the injury occurred Demurrer: opposing council is saying there is nothing there, a motion to dismiss Two types – Specific Demurer – Motion for judging on the pleading, when you ask the judge to make a motion based on the demurrer ie. there is nothing there The most common motion to strike punitive damages, damages to make an example of something. But rarely is it taken out. CASE BRIEFS 44 Pleadings a. Complaint/ Summons -who the parties are -why jurisdiction is proper -why venue is proper b.Defends -Demurrer -Answer: due 30 days after they were served, unless otherwise noted – the Two types of complains -pleading complain -forms complain cross complain ( sue each other) C. Discovery: the formal exchange of information between both sides of the law suit. -Tools: (1) Request for Production of Document s in the party (2) Form Interrogatories\ Special interrogatories.( in the party) (3) Deposition in the party (4) Admissions (5) Physical Exams (6) Subpoenas (not party of the case they send him subpoenas) Biggest No No is Resolving the case before the trial – Compulsory counter claim: I am suing you I think you did it and you are going to sue me since you think I did it but the judge will only go over the facts once. Strategic 10/18/16 CASE BRIEFS 45 6th amendment: commonly known as the fair trial. right for a fair trial, including right to face you accuser the 6th has the confrontation clause, you have the right to face your accuser. 911 example: when the victim of DV calls for help it is not testifying against accuser but seeking services -do not want to show up or cannot -the statement has to be non-testimonial -hearsay out of court statement offered for the truth of the matter asserted -General rule, hearsay is not allowed in court -there are some exceptions -admission by a party: statement by the party -dying declaration: john doe did this with his last breath -excited utterance: what falls out of your mouth as a reaction, no time to think -Statement against pecuniary interest when you use statement against yourself but in criminates themselves 5th amendment: Miranda rights, right not to incriminate yourself and spousal privilege 4th amendment: protected against illegal search and seizure. If you want to search someone you have to get a warrant. Judicial order to effectian 4 requirements: -must be supported by probable cause -issued by a neural and detached not representive -oath or affirmation, swear that someone has something to search -particularly: -exception to the warrants -search incident lawful arrest: I have arrested you in your house and now I can search -Element: custodial arrest, in cuffs, it has to be lawful, it has to be done right after the arrest -Scope: search person, anything with in your wingspan, anywhere near where I arrested you -if I aren’t you in your car I can search the car as long as you are not in restrains, if you are not free to go Search for an arrestee: valid arrest warrant, and probable cause that the subject is in that location. If you have a wareent you can look everywhere for the person, where the person lives, if you find any thing illegal you can claim it CASE BRIEFS 46 Excergent circumstances: you must have probable cause and it has to be an emergency. If they are at risk for flushing drugs, you can take the box and leave it in your backseat until you get the clear to look inside. Cars: they have to be they car and have to have evidence to -elements: on the highway or can be on the highway -scope: stay within your scope, if you are looking for guns you can’t look in a wallet If a cop can see it and its illegal, he can take it. Has to be observed from a lawful Have to have a right of access to it: you can see it without looking too hard The nature of the object Inventory search: I impond your car I can serach the car I get to search for invientory for your protection If I see something I can use it against it Consent searches: when you consent to a search. You don’t need to know that you have the right to say no. -there has to be actual consent -has to be voluntary -if you consent you can set the scoope Stop and frisk doctoring: you can stop and pat down someone just based on Specific and articular facts when taken together with rational facts Confession: they can’t be forced. Fruit of the poisonous tree: if I don’t have a rightful right to begin with, anything that you find that follows after that cannot be used against you. 6th amendment: has a right to council. The 5th applies when you are arrested and or waiting to be arrested. Once you have charged you now have a right to council. Once you get that right the police or anyone can interrogate you without your attorney present -they can ask you if you would like to waive their right, and can take it back when ever they want -if it has to do with another crime -if the govetment wants to get more information, they can send in an informant CASE BRIEFS 47 They can use it as long as they don’t as for it, it has to come up in conversation. They can question if it has to do with stopping any additional crimes. Ie. terrorism Civil (torts) Vicarious liability: when you are responsible for the torts of another person. If you lend your car to a drunk friend Respondeat Superior: 10/25/16 Voter rights Bush vs Gore The race was too close. Bush won and after the recount he was still ahead Bush won the last The FL supreme court was les conservative than the supreme court so Gore went to FL and Bush went more conservative The voice of the people was important in this election. Civil war changed 3/5th compromise slaves were counted 3/5 in census for the purpose of representation War and reconstruction period for the inclusive a 1870 15th amendment can’t stop people from voting based on race, religion or previous servitude 1920 19th women’s right to vote 24th No poll taxes 26th set the age to 18 to vote 1965 controls voting right act Three parts to the voting right act -You can’t do anything discrimination -Here’s the formula to if you are doing something discriminatory CASE BRIEFS 48 -You have to get permission before you change anything Voter ID law, the nun who had to turn away her sisters for not having ID Voter ID are valid in order to maintain voter integrity Shelby vs Holder Will be on the test: supreme court ruled section 4b unconstitutional, the checklist that eliminates people from being able to vote Review -Lemon test: has to pass all three to be constitutional. Statue must have a secular legislative purpose, its principle or primary effect must be one that neither enhances or advances religion, the statute should not foster an excessive government entanglement with religion. Essay: is a must and you must be able to use the IRAC rule Torts and crimes: tort is something you sue for crime is against society and are prosecuted for Civil Law: the biggest one is negligence Criminal court the people of CA decied to press charge Basic laws can either be torts of crimes Battery Burglary Robbery Homicide Felony murder rule Starttus decisus Know the who is the Obama candidate justice of supreme: Merreick Garland Know the bill of rights 1-10 Maubaury vs madision: Free speech defined expression without restriction Liable: written Slander: spoken The truth is the absolute defense to defamation. CASE BRIEFS 49 Near Vs Minnesota: the government cannot limit free speech in 1931 NYT vs US: to exercise prior restrain the government must show sufficient evidence that the publication will cause danger. NYT vs Sullivan requires a public official have to prove actual malice Limited issue public official, do not have to prove actual malice (honey Boo Boo) 14th applies the Bill of rights to the states Ohio vs Shank, at what point speech is no longer protected clear and present danger rule: yelling fire in a crowded theater. Obscenity, justice Potter Stuart I don’t know what it is, but I know when I see it Miller vs CA case set the standard test for obscenity Miller test: Only child porn is going to pass that test Shield laws: protection on reporters Trade mark: Logo Copy rights: something you create Patens: an idea US constitution right to privacy Roe vs Wade CA constitution states the right for privacy Employers cannot discriminate under the 9 Civil rights rules apply to federal govermetn States adopt the rules by state police powers Age discrimination act protects over 40 Right to reasonable accommodation Americans with disability Act: know it Miranda warning: know it Religion: Free exercise clause: example: anima sacrifice: reserves the right of American to accept any religious belief and engage in religious rituals. Establishment clause: congress shall make no law no religion will be favored over another and there is no one national religion Lemon test: short answer? is this allowed RLUIPA : Religious land use and internalized persons act: protects individual houses of worship and other religions from discrimination from zoning and landmarking laws Brown Act: transparency and public trust by CASE BRIEFS 50 Public access to meeting Public attendance and participation Receipt of public comment Public comment is allowed on any item on the agenda, before or during the bards consideration unless it is a subcommittee and has been previously heard. California public records>: anything is available for review. You can get copies if you pay for them California, you must set a claim within 6 months of injury to then be able to sue Civil procedure Supreme court state of CA reviews all death penalty case Stature of limitation, cut off time Which one applies When did the action happen? Are there any tolling provision (pause) I was in a coma or under the age of 18 Plaintiff like to sue in State court Defendants like to sue in federal court the courts are more controlled and less regulations Before a court can hear a case, they must have Subject matter jurisdiction: the authority of the court to hear cases of a particular type or cases relating to a specific subject matter. Personal jurisdiction: the court can hear the case if the defendant is in CA at the time of accident or was served in CA or if they consent to CA jurisdiction This only applies to defendant, the plaintive files and has already chose what state Who can serve: over 18 and no part in the case Know the different types of ways to serve Outside of CA you can serve in whatever way they allow in that state Venue is proper in any county where the defendant resided Venue is proper where any of the defendant resided in the commencement of the contract or accident Pleadings; complain is the document that start your law suit Doe pleading. You can amend you complain one time and after that you must ask for the courts permission CASE BRIEFS 51 Cross complain, if your lawsuit comes from the same event counter claims must be done at that time or cannot be done in the future Motion to strike, to remove from record Common required to strike punitive damages Anti-Slapp Motion: strategic law against public participation. Ie. yelp I write food sucks, the restaurant tries sue, I file an anti-slap motion its my first amendment right to make that statement and the business Slap back Motion: the restaurant Deposition when you sit with a court reporter they ask question like in court they have 30 days to respond When you have questions like a deposition any conversation that you have during the settlement, you can’t bring back up in trial Default motion, if you file a complaint and they don’t file motion with in the 30 days you can file for default motion so they can get they locked out Civil court 473 when you didn’t file with in the 30 days you can get an opportunity to file an explanation Warrants 4th amendment right against search and seizure Fruit of the poisons tree obtained anything obtained without a warrant, cannot be used against you. Warrant Demonstrate just cause Issued by a non-partial must be specific When warrants are not required A search incident to lawful arrest: police to perform a warrantless search of an arrested person, and the area within the arrestee’s immediate control, in the interest of officer safety, the prevention of escape, and the destruction of evidence. Inventory searches: for your protection, we will inventory Consent searches: first you need actual consent, actions count Second voluntaries requirement: you can’t lie to them but you can avoid telling them you they can say no CASE BRIEFS 52 Search for an arrested: Exigent Searches of cars and container Plain view doctrine: if you can see it while arresting , you have to see it from a lawful vantage, must have a the right of physical access, nature of object has to be apparent. Apparent authority doctrine, you think the person had the right to authorize the search Stop and frisk: you have to have a reasonable suspicion 5th amendment you have right to council, applies when you are about to be arrested 6th amendment: is not attached until you are charged or indicted. Attorney present when questioning once you ask for an attorney no more question. You can turn it on and off and they can ask you about another right Confrontation clause: you have the right to face your accuser under the 6th amendment Here say: out of court stamen offered for the truth of the matter asserted Strict liability when you engage in dangerous shit liability is assumes Vicarious liability: your negligence can make you liable, lending your car to a drunk person Respondent superior: employers are responsible for employee Mere deviation doctoring: the employer still responsible even if they make mere deviation Strict scrutiny: compelling government interest like vaccine, it has to be for the greater good to pass the law CASE BRIEFS 53