con law: jan 26 2010

ripeness.

mootness.

political questions.
cases where the congress should review the issue, not the court

justicability doctrines (keeping adjudication low) vs. merit questions (adjudicating questions) - justiciability is court created for court discretion.

political question doctrine has developed to make it less of an obstacle

baker v. carr - the case that made justice whittaker resign

the facts: tenn has not had a reapportionment of voting districts in 60 years. baker is a rep in memphis (shelby county), and his district has almost 10x the population than the rural districts, which still had more voting power. carr is the sec of st in tenn, and baker sues him ex officio. baker argues that the disproportionment has caused him to fail to receive the equal protection guaranteed under the 14th amd't. tenn argued that this was a political question for the legislature to decide.

the issue: is the challenge to the reapportionment of the tn legislature a political question barred by the justiciability limits on the court, or is it an equal protection question, which is well within the justiciability rights of the court?

the reasoning: Just b/c a suit seeks protection of a political right does not mean that it presents a political question. Nonjusticiability of a political question is primarily a function of the separation of powers and must be argued on a case by case basis.

Foreign relations: precedent says all foreign relations questions are political questions, but this is not true. It has been said that if there has been no conclusive governmental action then a court can construe a treaty and may find it provides the answer.

Dates of duration of hostilities: when there needs to be definable clarification for a decision, the political question barrier falls away.

Validity of enactments: with political questions, come the need to clarify policy, determine initial policy, to settle what is judicially discoverable and manageable standards to answering it. Unless one of these issues is undeniably tied into the case-at-bar, then there should be no dismissal for nonjusticiability on the ground of a political question's presence.

It's argued that this is a case which has not yet been considered: those which involve the Guaranty Clause and the guaranty of a republican form of gov't, which involves a political question.

Justice Brennan established the contours of the PQD in Baker v. Carr: (6 potential factors)

Prominent on the surface of any case held to involve a political question is found:

(1) a textually demonstrable commitment of the issue to a coordinate political department;

(2) or a lack of judicially discoverable and manageable standards for resolving it;

(3) or the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion;

(4) or the impossibility of a court's undertaking independent resolution without expressing lack of respect due coordinate branches of government;

(5) or an unusual need for unquestioning adherence to a political decision already made;

(6) or the potentiality of embarrassment to the gov't from multifarious pronouncements by various departments on one question.

the holding: The “political question” doctrine is based in the separation of powers and whether a case is justiciable is determined on a case by cases basis. In regards to foreign relations, if there has been no conclusive governmental action regarding an issue then a court can construe a treaty and decide a case. Regarding the dates of the duration of hostilities, when there needs to be definable clarification for a decision, the court may be able to decide the case.

The court held that this case was justiciable and did not present a political question. The case did not present an issue to be decided by another branch of the government. The court noted that judicial standards under the Equal Protection Clause were well developed and familiar, and it had been open to courts since the enactment of the Fourteenth Amendment to determine if an act is arbitrary and capricious and reflects no policy. When a question is enmeshed with any of the other two branches of the government, it presents a political question and the Court will not answer it without further clarification from the other branches. 

Guaranty Clause argument: the majority says that this is not guaranty clause. the dissent says that it is. they lose. who's right and how should we argue? we should make a strong argument for both sides -- the case is decided 5/4 with awfully long and brutal thunkulating on the US' part. so practice making the arguments of both sides of the opinion. 

takeaway: baker v. carr is not meant to tie 14th amd't to guaranty clause, nor to say that one will/will not always trump the other. 

however, baker does overrule colegrove v. green (where the court refused to hear or decide a case challenging the constitutional validity of IL's congressional districts which were not equally proportioned).


SIGNPOST! if you see a PQ, apply art I s. V: got to look at it to see if congress has the power to govern the issue presented.

nixon v. us

what's nixon's constitutional complaint? the language says that the senate will review and hear the matter. senate is a bright line thing -- 100 guys with seats looking at his case -- and nixon claims he didn't get this right to a fair trial (BOR 6)

what does the model of deliberation matter? (maj.)you got a senate moment because art. I s 3, cl. 6 says "senate shall have *sole* power to try all Impeachments" and this is not a run of the mill trial, it's an impeachment. "try" should mean that the senate can choose its subcommittee. if the issue had never reached the senate, then it wouldn't have had review, but it has been reviewed. (conc.) seperation of power is different from supremacy of an actor. there's a merit's question to the political question here: the senate has the textual authoritative power over Impeachment. this power can be abused unless there's a check point, and that check should be the judicial branch. 

bush v. gore

did the court need to put it's nose back into this issue?

would it have been impossible to live with a messier alternative i.e., hayes election?

breyer argues that this is a prudential question, not a political one.

clinton, in the aftermath, has called this case the modern dred scott.

"subtle wounds" for legal community: we don't need to know who would have won from florida, but the partisan affiliation of the 9 on the supreme court that they are 9 politicians with life appointments...

however, sandra day o'connor says, "It was a hard decision to make. But I do know this: there were at least three separate recounts of the votes, the ballots, in the four counties where it was challenged and not in one of the recounts would the election have changed. So I don't worry."

"political question is a doctrine to remind justices that sometimes, they have to lean away from their political bend"

why value the states? what's the rationale, beyond 10th amd't?

11th amd't (won't be tested on it)

chisholm v. GA (you have the right as a non-citizen to sue a state)

however, state sovereignty has regrown and 11th amd't has been inserted:

hans v. LA (can't sue the state) and ex parte young (but can sue employees of state gov'ts)

seminole tribe (congress can't abrogate 11th amd't/state sovereign immunity under art.I)

alden v. ME (ME can't be hauld into its own court as a party)

hibbs

theory: federalism doctrine question went on hiatus after renquist's death. however, the war and the national security put this as a secondary issue.

van valkenburg v. lutz

Van Valkenburgh v. Lutz

Facts: AP's bought land which was previously APE's for 15 years in a foreclosure sale. After APE cleared most of his belongings off the land which was foreclosed upon, but argued he still had the right to the traveled way to his remaining property, which were on property adjacent and behind the foreclosed land. AP built a fence blocking the right of way, which had been used for several years by APE's.

Rule: NY Law: "To acquire title to real property by adverse possession not founded upon a written instrument, it must be shown by clear and convincing proof that for at least 15 years there was an "actual" occupation under a claim of title, for it is only the premises so actually occupied "and no others" that are deemed to have been held adversely.

Issue: Under adverse possession, does a person have a right of traveled way through someone’s property?

Reasoning: The court ruled that there was a two ways that someone could obtain land through adverse possession: 1) by enclosing the land or 2) by cultivating or improving the land. The court ruled that the (D) did neither in this case. They did not cultivate all the land and they did not improve the land.

Dissenting: they did improve they land; they tilled it, plowed it, cultivated it, built on it, etc. They did use the majority of the property as they should have.

Notes:

There must be (1) an actual entry giving exclusive possession that is (2) open an notorious, (3) adverse and under claim of rights, and (4) continuous for the statutory period.

Ewing v. Burnet – there is a difference between being absent and abandoning property.

Entry and exclusive passion rule: title can come from adverse possession if the property is used for eth duration of the time needed in a manner that an average true owner would use it.

Notorius – Cave case where (D) had cave that went under (P) property. (P) sued. Could not have adverse possession because it was not notorious.

property: jan 26 2010 class notes

recap:

finders.

what are the interests of a private party who owns the real property on which the chattel is found? (hanna v. peale showed factual grounds on which we could decide who has superior claim to the chattel based on relationship of found and real property; relationship between the property and land owners)

what is the distinction between lost and mislaid property? policy concerns -- under factual circumstances, our policies would be better served by giving better title to finder for property that is lost, and for mislaid property our policies would be better served by giving title to whomever land owner the property is laid on. why? true owner might be more likely to get the property back (though this of course is speculative).

bailments (contractual transfer of possession but not title, and mutual understanding that the property will be returned)

disputes of who has rights to property and possession.

peet v. roth hotel.

what duties arise when a bailment is created?

previous cases had distinguished who was receiving the benefit, but the modern trend is to consider many circumstances formulating the standard of care applicable.

the winkfield.

"The wrongdoer, having once paid full damages to the bailee, has an answer to any action by the bailor."

who are the parties in interest? the postmaster, who is bailee for the mail

what is the gov't as bailee going to do with respect to the claims? bringing the claim on behalf of the parties whose mail was lost

claim is asserted against the owners of the winkfield on the basis of making the

tort claim for damages to the postal materials, and the claim was admitted, because there was a regulation that limited its

what's the problem? there's only so much money in the pot for all the claims. so part of the process is distinguishing the claims that will be allowed and which will not.

three classes of claims - (1&2) postmaster has been sued for value of lost packages, and so postmaster has standing as bailee. (3) no known value of unID parcels because no claims.

get to master of the roles on appeal to third type of claim...

reasoning: spins around jus tertii as both defense and offense. postmaster has a superior claim to the value inherent in the third class of parcels to anyone else except the true owners and therefore can assert the rights against a wrong doer to protect them.

why???

1) bailment where true owner has entrusted the postmaster with posession, and we know at some point in time, the true owner is going to come after the bailee for the property or value.

2) if you can forsee a situation where a loss might occur, it's better to put the liability of loss on you because you then will be responsible for protecting from the loss of property.

a possessor can recover against a wrongdoer who damages or destroys the chattel.

3) the bailor and bailee already have a relationship, so it is more efficient and easy to rely on this relationship for recovery.

relativity of title review

at some point in time, it will be too late to assert claim of ownership...

adverse possession. "possession ripens into title."

van valkenburge v. lutz

the property

time is important in adverse possession cases.

lutz bought and conveyed in 1912, and begins his truck farm probably around this same time. he builds charlie's house around 1920.

in 1937, the van valkenburgs move into the area.

spring of 1946, lutz (34 years) and van valkenburgs (9 years), when van valkenburgs buy lot 19 at auction for tax forclosure, and had the cops usher lutz off the property and then erect a fence on lot 19, even blocking lutz' way to his home.

1948 - lutz sues and wins rights to use traveled way to access his property even though he doesn't own it

what is this really all about? relationships and hurt feelings are the core of the cases we're looking at so far... this case, like pierson v. post, is really about the soul of the community...

how is prescriptive right different from ownership? lutz had some rights, at least to use the land, but not right to ownership

on appeal - was the occupation sufficient to establish title by adverse possession? did his use merit the land becoming his?

what must the lutz show to establish adverse possession? (1) actual possession (2) exclusive to adverse possessor (3) adverse or hostile (4) open&notorious (5) continuous for the statutory period -- in this case, adverse and claim of right is at question.

the dissent says that actions should speak louder than words.

why have a doctrine of adverse possession in the first place?