Law Exam
Law and Policy Lecture Week 6
Chris Beck
Lecture Notes 4 September 2016
Overview of Midterm and What will be on the Final
We will go further into malice for the
Copy right is essentially new and innovative that you created
Trademark would be a logo that you created
Constitution is inferred rights where the California Constitution is the one that is explicitly granted privacy
BILL OF RIGHTS WILL BE ON THE TEST
SURPREME COURT JUSTICES WILL BE ON THE EXAM
Rights that we will go through for the Miranda rights will be what is inferred by them not the actual rights
Then we will be looking at tort law for the final not criminal
Strict liability is important for terms of government and policy
Assault
Burglary: the unlawful entry into the dwelling f another with the intent to commit a felony or larceny therein
The breaking an entering into the dwelling of another
Intent was the robbery of the supplies
Robbery: unlawful taking of an item from another by force or fear
Essay: “likely to be charged with ____” due to the amount of facts that you have been provided so that no assumptions are made
We aren’t going through anymore TORTS FOR THE FINAL but you may want to know the torts for the essay
You’ve basically been wronged and we are looking at everything for to sue for
Lecture Notes
Thomas Jefferson was coming into office
John Adams and Thomas Jefferson and the Supreme Court Justice Midnight Appointments Marbury v Madison
John Adams appointed the Midnight Judges
Freedom of Establishment; Religion is important during this era as growing
Alexander Hamilton
New Yorker
Due to his political writings prior to join the army he was part of the last standing brigade of the revolutionary war
Then Hamilton caught the attention of George Washington and became one of his most trusted aids
George Washington did not have a political party (really though he would probably lean towards federalism)
Hamilton’s Federalist Papers
National Bank and Freedom of Religion
National Bank: the states were bankrupt after the war
Central bank central government that conducted the business of the states
The federal government would assume all the debts of the states
John Adams was an extreme federalist
The anti-federalists set up for two candidates to go for the federalist vote thus splitting the party and creating tension
Hamilton created the New York Post
Hamilton was Treasury of the United States
Jefferson: opposite desire of Hamilton
Wanted the power to remain within the states
Create their own laws with very little intervention from the federal government
Hamilton died due to a duel with Aaron Burr
This was right after Hamilton had written papers about Freedom of Establishment and Freedom of Religion
Had Hamilton not been killed perhaps we would have the modern system with church and state today sooner then the took 200 or 300 years to get to where we are today
Religion
First Amendment: Congress shall make no law respecting an establishment of religion or prohibiting the freedom of exercise thereof
Religion was very vague
The court lacked continuity when it came to the interpretation of the religion
Free Exercise Clause
Davis v Beeson
The term religion has reference to ones view has towards his creator and
Davis v Beeson set the standard for everything later until the 1960s
US v Sieger where the military is taking aim against the free exercise clause during the time of the Vietnam War
Whether the given belief is sincere
Not looking at your “creator” (creator established earlier) but what was behind
If given belief was filled with something sincere even if was not the traditional ultimate creator belief to the same degree that those who have the traditional belief would have
Consciences Case after Sieger
Wisconsin v Yoder
Free exercise clause only
Religion in which society has a whole has an interest
When it does affect the state or government have a tighter standard
Thomas v Review Board
Didn’t overrule Wisconsin v Yoder
They had issues with religious views and philosophical or conscientious
Chief Justice Warren B
Only beliefs deeply rooted in religion will be protected under the freedom of religion
Took away from the philosophical aspect away from the religion view
The philosophical view can be the same as the religious view
RULE FOR THE TEST: YOUR PHILOSOPHICAL AND RELIGIOUS VIEWS ARE PERCEIVED TO BE ONE IN THE SAME
Your view almost regardless of source or type is protected
Does not relieve you from everything
Courts cant find that your religious beliefs are fake false or not warranted in history or anything
In granting that right took away the requirements of office or statehood of needing to have a religion
Modern
In the past there were laws that prevented the clergy from running for office (higher belief or
McDaniel v Patty
Kooney v Babaloo v Haichalea
Belief Santeria and animal sacrifices
Animal sacrifices were allowed if it was for food
Santeria was just for sacrifice
Animal sacrifice was considered before and after the killing
Kosher just had a set standard for slaughter
They can’t look at how you view the animal before and after the sacrifice
Highest standard the Supreme Court has is a COMPELLING INTEREST
Laws of general application are generally not considered to violate free exercise!!! ON TEST
Freedom of Exercise Clause embraces two concepts: freedom to believe and freedom to act what you belief and what you do
What you belief and what you do
The freedom of exercise cannot touch belief
The court can only change what you do or the act of that belief when the court has a compelling interest (the state, society, people, court, etc. has a compelling interest)
The Santeria and animal sacrifice case general application no animal sacrifices period
Reynolds v US
Polygamy general applicability Supreme Court made it so that no polygamy is allowed it is not attacking a specific religion instead one group is just burdened or impacted by that
As long as the government is creating this blanket law then they are not targeting the specific group or religion
Rule: Laws of general application are generally not considered to violate free exercise
Standard: strict scrutiny is used evaluating laws that burdening religious freedom and looks for a compelling state interest
Establishment Clause
Law: Congress shall make no law abridging the practice of a religion
Concept for the Test: No national religion and will not favor one religion over another
Lemon Law (do the reading in the text for the idea that establishment of the Lemon Law) for a law to be considered constitutional under the
The state created an established religion (Christianity) by having all business closed on Sundays even though some people in these towns in the South where businesses were closed on Sundays essentially established a state law
Compelling interest by the Supreme Court
The Compelling Interest: PUBLIC SAFETY is always the biggest and easiest to sell
States using the police power to adopt the civil rights
How the states are able to use police powers are for public safety to ensure that all people are protected across the board
On Sabbath with not having business open then
Lemon v Kurtzman if a law to be considered constitutional under the Establishment Clause of the First Amendment, the law must have a legitimate secular purpose, must not have the primary effect advancing or inhibiting religion, and also must not result in an excessive entanglement of government and religion
Lemon Test: law is constitutional and does not violate the establishment clause or freedom of religion if it meets these three standards
Secular purpose
Neither advances or inhibits a religion
Does not foster an excessive government entanglement with religion
Public Schools with all different religious groups—Equal Access Act (Constitution codified this) this is if you give access to one group you have to give access to all groups
College campus with a larger purpose its more easily applicable
Elementary school and Middle school
If you let one group do it you can let any group do it
After school groups
Some government holidays off are absolutely permissible
With staffing when you have a majority of society taking a certain day off then functioning ceases
Especially with elective
If society were to change then the law would change
Reading bible cannot stand in public schools
In California teaching of religions can be allowed if the purpose is secular for example with the Enlightenment, middle east the historic significance of the topic
Public officials and stewards of the public trust
Ten Commandments cannot be displayed
Protection of Religious Exercise in Land Use and by Institutionalized Persons Act (RLUIPA) Title 42 Chapter 21C may be referenced/cited as “Religious Land Use and Institutionalized Persons Act of 2000” (RLUIPA)
Pub. L. 106-274, § Sept. 22, 2000, 114 Stat. 803, provided that: “This Act [enacting this chapter and amending sections 1988, 2000bb-2 and 2000bb-3 of this title] may be cited as the ‘Religious Land Use and Institutionalized Persons Act of 2000”
Rule (with Institutionalized Persons): even when you’re in prison you still have the right to practice religion
Government runs the prison therefore if they were not to let you practice the religion then they would be establishing a religion
Private Prison: government is who sends you there so you can still practice religion
Things can be done in reason: religious garb, dietary in reason, and practices within reason
Issues with RLUIPA and lawsuits are due to the lack of a good functioning definition of free exercise
General Rule: NO GOVERNMENT SHALL IMPOSE OR IMPLEMENT A LAND USE REGULATION IN A MANNER THAT IMPOSE A SUBSTANTIAL BURDEN ON THE RELIGIOUS EXERCISE OF A PERSON, INCLUDING A RELIIOUS ASSEMBLY OR INSTITUTION, UNLESS THE GOVERNMENT CAN DEMONSTRATE THAT IMPOSITION OF THE BURDEN ON THAT PERSON, ASSEMBLY, OR INSTITUTION
Is in furtherance of a compelling governmental interest; and
Is the least restrictive means of furthering that compelling government interest.
The issue with this and why there are still lawsuits regarding it is that we lack a good definition of free exercise
The government can or cannot say what is religious
Video
Theharbor.us Donate to Our Ministry Operation embrace video
The Harbor Church
In the video you see them describe that what they are doing as religious activity
The Planning Commission and how they presented their decision Beck quoted in the newspaper regarding this situation is that the planning commission that it “is not up to us to define what is or is not religious practice” which essentially they did 6-1 vote
Those who wanted the church to leave brought in crime statistics but didn’t make the nexus with crime statistics and those homeless people
Ralph M. Brown Act California Government Power Point Notes
Purpose
Promote transparency and public trust through:
Public Access to meetings
Public attendance and participation
Receipt of public comment
Similar to Bagley Keen Act (State of California) and Sunshine Laws
Elements Triggering Brown Act
Legislative Body
Something that has been appointed or created by anything that is less than the state here
Planning commission would be due to its ability to take a formal action on something
Tree Planting group would not
Meeting
Also includes:
Standing Committees
New members not yet seated
Legislative Body
Nearly every type of local government body
Elected and/or appointed advisory bodies
i.e. Planning Commissions, Design Review Committees, etc.
Also includes:
Standing Committees
New members not yet seated
Meeting
“Any congregation of a majority of the members of a legislative body at the same time and place, to hear, discuss or deliberate upon any item that is within the subject matter jurisdiction of the legislative body or the local agency…”
What is considered a meeting:
Workshops of the legislative body
Informal gatherings to discuss matters subject to jurisdiction of body
Serial Meetings
Serial meeting
A series of communications by individuals members or less-than-a-quorum groups, ultimately involving a majority of the body’s members
Example
Email forwarding
Phone calls from one member or another
What is NOT a meeting (usually)
Contacts with staff, constituents, or other no body members
Conferences
Community meetings or attendance at another body’s meetings
Ceremonial, celebratory, or social events
Ground breakings
City events
Holiday parties
**as long as the body’s business is not discussed
Time & Place
Regular time and location of meetings
Meet within boundaries of agency
Note and Agenda
Notice include time and location of meeting and a brief description of each item. Must be posted in publicly accessible place and on websites if they are available
Timing for posting: 72 hours before regular meeting, 24 hours before special
Items Not on Agenda
Generally, board cannot consider items
What if public brings up an item during public comment?
Public Comment
Items on agenda; other items
Subcommittee meetings
Special meeting exception
Only agenda items
Reasonable time restraints
Documents at Meeting
Generally, must include in posted items supporting documents
If documents are received at meeting or relied on they must be made available
Closed Meeting
Allowed for:
Real property negotiations
Labor related issues
Personnel issues
Litigation
Must make announcement of closed meeting and describe purpose on agenda
Report out of closed meeting
Common Violations
“The board has decided…”
Applies to local agencies in the state of California
It allows individuals to know ahead of time that a meeting is to take place and that the public can comment
Serial Meeting is where many people screw up due to the end all the groups are addressed
This is for greater encouragement for public participation with time and place along with notice and agenda
Provides enough information for the public to decide whether or not they want to come and the same place publicly accessible at the same place or regular place usually
Information items where the commissioners will give statements and information to others but no vote will take place in the end
Items on the agenda will result in a vote at the end of the meeting
Special meeting exception is what is on the agenda items and ONLY those items that will receive public comment and then a vote or decision will result
The special meeting can cut you off with discussing items not on the agenda
Reasonable time restraints usually 3-5 meetings
People can combine their time if you come with 5 people then each person would get 3 minutes and one person can stand for the group and speak for 15 minutes which a popular choice
Made available at the office or by staff of that board
Show me the agenda item and the board decision for this decision—these documents don’t exist
Video Notes: Board Video with Ventura
Loretta a woman who serves on the Ventura planning commission or Housing Authority to be appointed on addition to another planning committee
Housing Authority in Ventura and an appointment to the Housing Authority of Oxnard
To an additional planning commission or housing authority
Housing Authority in Oxnard
Steve Bennett
This video displays a common pitfall with “The board has decided…”
Michael Powers County Executive Officer
The result of this situation: emails that went back and forth that said the board was unanimously opposed and that these individuals were emailing about whether or not there was a conflict of interest
If you are going to take a board action then you need to agendize it and give the board an opportunity to hear it
Public Access
When at a hearing (meeting is what is meant when referred to as hearing)
Chairman will read exactly from the agenda about a decision
For the public to comment on the
The board to hear the public comments and that the board can see all the information on this item
Then the meeting is closed by the chair then the board will confer and decide
If an item is agendized in a subcommittee
When you then hear the meeting of the entire board on for example adoption of the budget
If subcommittee was created to discuss and decide on the public budget then the chair with the full board meeting does not need to accept to the public comment so long as with the subcommittee
“No as long as the decision was not significantly changed”—ON EXAM
California Public Records Request
State version
Freedom of Information Act
People are entitled to know what the government is doing or saying
No specific form or language required
You have 10 days to get an answer out
The records are “within reason” the records you can get
Within 10 days you need to give them a response (either items they can get, a reasonable approximation on how long it will take, and what they can get any exceptions)
What they are allowed to receive privileged information between attorney
The cost—not free but no set standard—the reasonable cost that it took for the documents “actual cost for the documents to be made” essentially paper (cost of the individuals getting the documents)
Semi-related to if you are suing a government entity and you are government entity code 954.4
You have to make a claim to the government agency within 6 months of your injury—have to bring this claim within 6 months to the entity about the injury and your request does not have to be a specific form or any guidelines with writing it
Threshold requirement 6 months
