Justiciability (2) M1 – Class 6

About last week’s material… What elements must be present for a case to be justiciable? What must a litigant prove in order to have standing? How can a case become moot?

Glossary / Jurisdiction Advisory opinions: a non-binding interpretation of the law by a court. While some state courts are able to issue advisory opinions, federal courts are prevented from issuing such opinions due to the Constitution’s case-or-controversy requirement. “Arising under”: the language used in Article III of the U.S. Constitution to designate the jurisdiction of federal courts over “federal questions”. It has become a common way to refer to the judicial test for determining federal question jurisdiction (see below). Case-or-controversy requirement: the rule limiting the jurisdiction of federal courts to adjudicate legal issues arising out of actual disputes between real parties. Concurrent jurisdiction: when multiple courts from different systems have the power to hear a case they are said to have concurrent jurisdiction. In the United States, this is a common occurrence involving federal courts and state courts. Such a situation can lead to forum shopping.

Glossary / Jurisdiction (2) Conflict-of-laws rules: principles governing what law to apply to resolve an issue in dispute when the laws of two or more jurisdictions connected to the case differ. Diversity jurisdiction: the power of the federal courts to hear a case in which the parties to the case do not share a state of citizenship and in which the amount in controversy exceeds $75,000. Federal question jurisdiction: a federal court’s power to hear a case when the powers enumerated in the U.S. Constitution or federal laws are involved. Forum: a place where a legal remedy is sought. Forum Shopping: the practice of choosing the court that will treat a litigant’s claim more favorably when concurrent jurisdiction exists between multiple courts. Minimum Contacts: principle giving the forum state jurisdiction over a defendant when he/she has a connection to that state. Minimum contacts may include having a legal address in the state, conducting business there, and visiting the state.

Glossary / Jurisdiction (3) Mootness: as federal courts only have authority to resolve actual disputes between real parties, a federal court cannot hear a case once the issue at hand has been resolved by other means. The matter is then said to be “moot”. Personal Jurisdiction: the authority of a court over the parties in a case. The court’s jurisdiction is established through the defendant’s presence in or contact with the territory of the given state, or through consent. Original jurisdiction: a court’s power to hear a case before review on appeal. The U.S. Supreme Court’s original jurisdiction is limited to those categories laid out in Article III, Section 2 of the U.S. Constitution. Original jurisdiction cases the U.S. Supreme Court hears usually involve territorial disputes between states.

Glossary / Jurisdiction (4) Ripeness: a doctrine limiting the federal judiciary’s jurisdiction to matured cases with an existing substantial controversy. Questions over ripeness arise when the harm or injury asserted in the claim has not yet occurred. If the threat of injury is too speculative, the court would be doing nothing more than issuing an advisory opinion, contrary to Article III’s “case or controversy” requirement. Thus, questions of ripeness turns on whether the potential injury is sufficiently likely, concrete, and imminent to constitute a “case or controversy”. Standing: a term referring to a party’s capacity to bring a suit in court. In order to do so, the plaintiff must demonstrate that s/he is sufficiently connected to the injury being addressed and that it is redressable. Thus, mere dissatisfaction with government policy cannot be grounds for a legal action at the federal level. In a situation in which a plaintiff does not have a sufficient stake in the matter, the party is said to lack “standing”. Subject matter jurisdiction: the power of a court to hear a case based on the nature of the issue and the type of remedy sought. Writ of certiorari: an order to a lower court to deliver the record in a case so that a higher court may review the case. A writ of certiorari is issued at the discretion of the higher court, and it is the main means by which the U.S. Supreme Court hears cases. Glossary / Jurisdiction (4)

1. The purpose of the case or controversy requirement of Article III is to ensure that federal courts do not issue advisory opinions but only judgments based on real and actual disputes involving litigants who have suffered an injury or will suffer an imminent injury. (42 words) 2. A case is not ripe when the issue is not ready for determination meaning that there is no matured or existing controversy nor have all avenues of appeal or review been exhausted prior to a federal court hearing the issue. (40 words) 3. Whereas mootness refers to an issue before a federal court which has already been resolved by other means, ripeness lies at the other end of the chronological spectrum and refers to an issue which has not sufficiently matured into an actual controversy. (42 words) 4. Standing refers to a litigant’s capacity to be heard before a federal court in order to obtain a remedy to redress the injury s/he has suffered at the hands of the wrongdoer. (32 words)

Case study 1 p. 55 Parties: Citizens against Aluminium (plaintiff) v. Alu. Ltd (defendant) Cause of action: Citizens action lawsuit / environment Courts: Federal courts have jurisdiction (cross- border pollution). Justiciability: At least one of the parties must have standing (injury, traceability, redressability). How is the injury to be addressed? An injunction to prohibit the factory from polluting the river and/or civil penalties (economic sanctions) on the defendant.

Video Flast v. Cohen (here) - until 3:36 - What was the issue? What was Cohen’s defense? What does standing imply? What were the steps of the suit? What was Warren’s judgement?

Answers Johnson’s War on Poverty / Congress passed the Elementary and Secondary Education Act (1965) = federal grants (taxpayer money) for all schools, including religious ones  alleged violation of the First Amendment. Cohen’s defense was that the taxpayers lacked standing  Frothingham v. Mellon (1923): the taxpayers did not have standing (their injury was small and indeterminable).

Answers (2) A person has standing if s/he has a personal stake (interest) in the outcome of the case. Flast lost in the district court and appealed directly to the USSC (leapfrog). The USSC reversed the lower court’s decision. Congress abused its power under the Taxing and Spending clause of the U.S. Constitution.

Parties: Mr. Applehorn (plaintiff) vs. the U. S Parties: Mr. Applehorn (plaintiff) vs. the U.S. government/Department of Treasury (the defendant). Court: the U.S. federal tax court (an Article I court) / complaint is about federal taxes. Standing: Test in Flast v. Cohen regarding challenges to tax legislation  Mr Applehorn does not have standing to bring this claim. The plaintiff must prove that the government has acted unconstitutionally by overreaching its powers outlined in the Constitution. As the government is responsible for the defense of the nation as expressed in Article I Section 8 (to raise and support armies; to provide and maintain a navy), it is constitutionally entitled to collect taxes for such purposes. Case 2 p. 55

Courts: Federal court (constitutional question / alleged violation of the 1st Amendment). Ripeness: The law does not come into effect until January 2018  their right to freedom of expression has not yet been impacted. Does this mean that they cannot challenge the law until after the law is effective? Standing: As the law has not yet become effective, the parties have not been prosecuted. Do they have standing to bring such a claim? Have they or will they suffer injury as a result of this act? Here the court must apply the judicial balancing test and consider the hardship caused to the parties if it denies review. Case 3 p. 55

Discretion of the U.S. Supreme Court The guardian of the Constitution (Marbury v. Madison, 1803) Original jurisdiction: controversies between states or between states and the federal government; Appellate jurisdiction: cases from federal and state courts; Certification of questions and leapfrog from a district court: very rare. Four Justices must agree to hear the case (1% of petitions are granted certiorari).

Grammar exercise p. 57 Suing Violated/has violated Is Hearing Appeals Affirms Be held Had simply been trying Has Rehearing / rehearing en banc denies

Comprehension of the facts Mr. Lyon = the decision of the Court of Appeals is erroneous + the USSC can clear up any misunderstanding regarding the Civil Rights Act and the Constitution. The Zoo has three options available. It can agree with Mr. Lyon that the USSC should grand certiorari in the matter; It can decide not to do anything; It can file a brief in opposition outlining why the USSC should not grant review. An amicus curiae is a friend of the court who, although not involved in the particular issue or case before the court, has an interested in the outcome of the case and can therefore file a brief in support of the USSC granting cert. The justices decide to grant certiorari in the matter and will review the case.

Discourse markers Once Unlike Even though Therefore Furthermore

Fill in the missing words Argument Dissenting Sittings Hands down Attorney Reversed Justices Affirmed Rebuttal Vacated Amicus curiae remanded Majority opinion

Parties: parents (plaintiffs) v. the state of Indiana (defendant) Federal or state courts (concurrent jurisdiction: state law + federal Constitution) – Justiciable issue? Standing The parents must prove that they suffered an injury (medical expenses, non-payment of wages for missed days from work to care for sick child)  straightforward. They must also establish traceability: the Religious Freedom Act was the cause of the injury  yes, for parents whose kids are less than one (no vaccine possible). Redressability  straightforward. Case 4

Mootness Is there still an existing and ongoing controversy between the parties? The children have all made a full recovery and will suffer no further injury as a result of this law. But exception = “capable of repetition yet evading review”. Political Question The court may decide not to review the matter = the issue is “too hot to handle” + it should be decided by the legislature. After a measles outbreak in California at Disneyland (2015), the personal belief exemption was repealed. Case 4 (2)

Homework Criminal Law – Introduction Read the lesson ps. 61-65. Complete the vocabulary exercises p. 66. Read the texts 2 and 3 ps. 70-73. Homework Criminal Law – Introduction