Fluent Essays

I will conclude myself:  you have to write about 700 words answering the questions: Question 1: Identify and explain two potential features of preferred stock that are considered venture-capital friendly. In other words, explain two preferred-stock features that you would object to if you were representing an entrepreneur.  Question 2: Why are most Silicon Valley startups c-corporations rather than LLCs?  and other 700 word answering the questions:  question 1 : Why does Congress have the authority to regulate a private employer’s actions, such as prohibiting an employer’s ability to choose which employees to hire and fire based on race?  Question 2: Describe Congress’ Spending Powers. What limits have the courts applied to Congress’ Spending Powers with respect to joint federal-state program funding? Why do those limits exist? Im studying in the university and my grades are very high.....I will be very grateful if you could keep on that grades :) cause I still dont know you but Im sure you will do a great job and I have some more projects I sent you. its two different subjects so pay attention and dont mix it up. you can write even more then 1500 words (I will be happy!). the works is relying on the stuff that I sent you the first part of the project is about the subject of venture capital and the second part is about into to us system law. The Client is Israeli But I think the paper is on US law. 1 SUPREME COURT OF THE UNITED STATES 5 U.S. 137 Marbury v. Madison Mr. Chief Justice MARSHALL delivered the opinion of the Court. [In the last weeks of his administration, President John Adams nominated the plaintiff, William Marbury, to serve as a justice of the peace, a low-level judicial officer. The Senate confirmed him, and all that remained to be done was for Secretary of State John Marshall to deliver a physical document, called a commission, to Marbury. President Adams, knowing that his political party would soon lose both the presidency and the majority of the House and Senate, rushed to nominate as many judges as he could. He nominated Marshall, the man who was to deliver the commission to Marbury, to serve as Chief Justice of the United States Supreme Court. In the end-of-administration rush, Thomas Jefferson succeeded Adams as President before the physical proof of confirmation, called a commission, was delivered to Marbury. James Madison, the defendant in this case, was the successor to Marshall as Secretary of State. Madison refused to deliver the commission, thus preventing Marbury from becoming a justice of the peace. Marbury petitioned the United States Supreme Court to issue an order, called a writ of mandamus, which would have forced Madison to deliver the commission. Madison responded that the United States Supreme Court did not have the power to order him to deliver the commission. Chief Justice John Marshall, the very same man who neglected to deliver the commission, proceeded to write perhaps the most famous opinion in United States history.] . . . The peculiar delicacy of this case, the novelty of some of its circumstances, and the real difficulty attending the points which occur in it require a complete exposition of the principles on which the opinion to be given by the Court is founded. . . . In the order in which the Court has viewed this subject, the following questions have been considered and decided. 1. Has the applicant a right to the commission he demands? 2. If he has a right, and that right has been violated, do the laws of his country afford him a remedy? 3. If they do afford him a remedy, is it a mandamus issuing from this court? 2 [I.] The first object of inquiry is: 1. Has the applicant a right to the commission he demands? [Madison argued that Thomas Jefferson, the new President, could withdraw the commission, since it had never been delivered.] [Marbury’s] right originates in an act of Congress passed in February, 1801, concerning the District of Columbia. After dividing the district into two counties, the eleventh section of this law enacts, that there shall be appointed in and for each of the said counties such number of discreet [sic] persons to be justices of the peace as the President of the United States shall, from time to time, think expedient, to continue in office for five years. It appears from the affidavits that, in compliance with this law, a commission for William Marbury as a justice of peace for the County of Washington was signed by John Adams, then President of the United States, after which the seal of the United States was affixed to it, but the commission has never reached the person for whom it was made out. In order to determine whether he is entitled to this commission, it becomes necessary to inquire whether he has been appointed to the office. For if he has been appointed, the law continues him in office for five years, and he is entitled to the possession of those evidences of office, which, being completed, became his property. The second section of the second article of the Constitution declares, The President shall nominate, and, by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, and all other officers of the United States, whose appointments are not otherwise provided for. The third section declares, that He shall commission all the officers of the United States. An act of Congress directs the Secretary of State to keep the seal of the United States, to make out and record, and affix the said seal to all civil commissions to officers of the United States to be appointed by the President, by and with the consent of the Senate, or by the President alone; provided that the said seal shall not be affixed to any commission before the same shall have been signed by the President of the United States. 3 These are the clauses of the Constitution and laws of the United States which affect this part of the case. They seem to contemplate three distinct operations: 1. The nomination. This is the sole act of the President, and is completely voluntary. 2. The appointment. This is also the act of the President, and is also a voluntary act, though it can only be performed by and with the advice and consent of the Senate. 3. The commission. To grant a commission to a person appointed might perhaps be deemed a duty enjoined by the Constitution. He shall, says that instrument, commission all the officers of the United States. The acts of appointing to office and commissioning the person appointed can scarcely be considered as one and the same, since the power to perform them is given in two separate and distinct sections of the Constitution. . . . Some point of time must be taken when the power of the Executive over an officer, not removable at his will, must cease. That point of time must be when the constitutional power of appointment has been exercised. And this power has been exercised when the last act required from the person possessing the power has been performed. This last act is the signature of the commission. . . . The commission being signed, the subsequent duty of the Secretary of State is prescribed by law, and not to be guided by the will of the President. He is to affix the seal of the United States to the commission, and is to record it. . . . It is therefore decidedly the opinion of the Court that, when a commission has been signed by the President, the appointment is made, and that the commission is complete when the seal of the United States has been affixed to it by the Secretary of State. . . . The discretion of the Executive is to be exercised until the appointment has been made. But having once made the appointment, his power over the office is terminated in all cases, where by law the officer is not removable by him. The right to the office is then in the person appointed, and he has the absolute, unconditional power of accepting or rejecting it. 4 Mr. Marbury, then, since his commission was signed by the President and sealed by the Secretary of State, was appointed, and as the law creating the office gave the officer a right to hold for five years independent of the Executive, the appointment was not revocable, but vested in the officer legal rights which are protected by the laws of his country. To withhold the commission, therefore, is an act deemed by the Court not warranted by law, but violative of a vested legal right. [II.] This brings us to the second inquiry, which is: 2. If he has a right, and that right has been violated, do the laws of his country afford him a remedy? The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws whenever he receives an injury. One of the first duties of government is to afford that protection. In Great Britain, the King himself is sued in the respectful form of a petition, and he never fails to comply with the judgment of his court. In the third volume of his Commentaries, page 23, Blackstone states two cases in which a remedy is afforded by mere operation of law. In all other cases, he says, it is a general and indisputable rule that where there is a legal right, there is also a legal remedy by suit or action at law whenever that right is invaded. . . . The Government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right. . . . Is the act of delivering or withholding a commission to be considered as a mere political act belonging to the Executive department alone, for the performance of which entire confidence is placed by our Constitution in the Supreme Executive, and for any misconduct respecting which the injured individual has no remedy? 5 That there may be such cases is not to be questioned, but that every act of duty to be performed in any of the great departments of government constitutes such a case is not to be admitted. . . . By the Constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character and to his own conscience. To aid him in the performance of these duties, he is authorized to appoint certain officers, who act by his authority and in conformity with his orders. In such cases, their acts are his acts; and whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political. They respect the nation, not individual rights, and, being entrusted to the Executive, the decision of the Executive is conclusive. The application of this remark will be perceived by adverting to the act of Congress for establishing the Department of Foreign Affairs. This officer, as his duties were prescribed by that act, is to conform precisely to the will of the President. He is the mere organ by whom that will is communicated. The acts of such an officer, as an officer, can never be examinable by the Courts. But when the Legislature proceeds to impose on that officer other duties; when he is directed peremptorily to perform certain acts; when the rights of individuals are dependent on the performance of those acts; he is so far the officer of the law, is amenable to the laws for his conduct, and cannot at his discretion, sport away the vested rights of others. The conclusion from this reasoning is that, where the heads of departments are the political or confidential agents of the Executive, merely to execute the will of the President, or rather to act in cases in which the Executive possesses a constitutional or legal discretion, nothing can be more perfectly clear than that their acts are only politically examinable. But where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured has a right to resort to the laws of his country for a remedy. If this be the rule, let us inquire how it applies to the case under the consideration of the Court. The power of nominating to the Senate, and the power of appointing the person nominated, are political powers, to be exercised by the President according to his own discretion. When he has made an appointment, he has exercised his whole power, and his discretion has been completely applied to the case. If, by law, the officer be removable at the will of the President, then a new appointment may be immediately made, and the rights of the officer are terminated. But as a fact which has existed cannot be made never to have existed, the appointment cannot be annihilated, and consequently, if the officer is by law not removable at 6 the will of the President, the rights he has acquired are protected by the law, and are not resumable by the President. They cannot be extinguished by Executive authority, and he has the privilege of asserting them in like manner as if they had been derived from any other source. The question whether a right has vested or not is, in its nature, judicial, and must be tried by the judicial authority. . . . . . . [III.] It remains to be inquired whether, 3. He is entitled to the remedy for which he applies. This depends on: 1. The nature of the writ applied for, and 2. The power of this court. [III.A.] 1. The nature of the writ. Blackstone, in the third volume of his Commentaries, page 110, defines a mandamus to be a command issuing in the Kings name from the Court of Kings Bench, and directed to any person, corporation, or inferior court of judicature within the Kings dominions requiring them to do some particular thing therein specified which appertains to their office and duty, and which the Court of Kings Bench has previously determined, or at least supposes, to be consonant to right and justice. Lord Mansfield, in 3 Burrows, 1266, in the case of The King v. Baker et al., states with much precision and explicitness the cases in which this writ may be used. Whenever, says that very able judge, there is a right to execute an office, perform a service, or exercise a franchise (more especially if it be in a matter of public concern or attended with profit), and a person is kept out of possession, or dispossessed of such right, and has no other specific legal remedy, this court ought to assist by mandamus, upon reasons of justice, as the writ expresses, and upon reasons of public policy, to preserve peace, order and good government. 7 In the same case, he says, this writ ought to be used upon all occasions where the law has established no specific remedy, and where in justice and good government there ought to be one. In addition to the authorities now particularly cited, many others were relied on at the bar which show how far the practice has conformed to the general doctrines that have been just quoted. This writ, if awarded, would be directed to an officer of government, and its mandate to him would be, to use the words of Blackstone, to do a particular thing therein specified, which appertains to his office and duty and which the Court has previously determined or at least supposes to be consonant to right and justice. Or, in the words of Lord Mansfield, the applicant, in this case, has a right to execute an office of public concern, and is kept out of possession of that right. These circumstances certainly concur in this case. Still, to render the mandamus a proper remedy, the officer to whom it is to be directed must be one to whom, on legal principles, such writ may be directed, and the person applying for it must be without any other specific and legal remedy. 1. With respect to the officer to whom it would be directed. The intimate political relation, subsisting between the President of the United States and the heads of departments, necessarily renders any legal investigation of the acts of one of those high officers peculiarly irksome, as well as delicate, and excites some hesitation with respect to the propriety of entering into such investigation. Impressions are often received without much reflection or examination, and it is not wonderful that, in such a case as this, the assertion by an individual of his legal claims in a court of justice, to which claims it is the duty of that court to attend, should, at first view, be considered by some as an attempt to intrude into the cabinet and to intermeddle with the prerogatives of the Executive. It is scarcely necessary for the Court to disclaim all pretensions to such a jurisdiction. An extravagance so absurd and excessive could not have been entertained for a moment. The province of the Court is solely to decide on the rights of individuals, not to inquire how the Executive or Executive officers perform duties in which they have a discretion. Questions, in their nature political or which are, by the Constitution and laws, submitted to the Executive, can never be made in this court. But, if this be not such a question; if so far from being an intrusion into the secrets of the cabinet, it respects a paper which, according to law, is upon record, and to a copy of which the 8 law gives a right, on the payment of ten cents; if it be no intermeddling with a subject over which the Executive can be considered as having exercised any control; what is there in the exalted station of the officer which shall bar a citizen from asserting in a court of justice his legal rights, or shall forbid a court to listen to the claim or to issue a mandamus directing the performance of a duty not depending on Executive discretion, but on particular acts of Congress and the general principles of law? . . . [III.B] This, then, is a plain case of a mandamus, either to deliver the commission or a copy of it from the record, and it only remains to be inquired: Whether it can issue from this Court. The act to establish the judicial courts of the United States authorizes the Supreme Court to issue writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States. The Secretary of State, being a person, holding an office under the authority of the United States, is precisely within the letter of the description, and if this Court is not authorized to issue a writ of mandamus to such an officer, it must be because the law is unconstitutional, and therefore absolutely incapable of conferring the authority and assigning the duties which its words purport to confer and assign. The Constitution vests the whole judicial power of the United States in one Supreme Court, and such inferior courts as Congress shall, from time to time, ordain and establish. This power is expressly extended to all cases arising under the laws of the United States; and consequently, in some form, may be exercised over the present case, because the right claimed is given by a law of the United States. In the distribution of this power. it is declared that The Supreme Court shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the Supreme Court shall have appellate jurisdiction. It has been insisted at the bar, that, as the original grant of jurisdiction to the Supreme and inferior courts is general, and the clause assigning original jurisdiction to the Supreme Court contains no negative or restrictive words, the power remains to the Legislature to assign original jurisdiction to that Court in other cases than those specified in the article which has been recited, provided those cases belong to the judicial power of the United States. 9 . . . If Congress remains at liberty to give this court appellate jurisdiction where the Constitution has declared their jurisdiction shall be original, and original jurisdiction where the Constitution has declared it shall be appellate, the distribution of jurisdiction made in the Constitution, is form without substance. . . . When an instrument organizing fundamentally a judicial system divides it into one Supreme and so many inferior courts as the Legislature may ordain and establish, then enumerates its powers, and proceeds so far to distribute them as to define the jurisdiction of the Supreme Court by declaring the cases in which it shall take original jurisdiction, and that in others it shall take appellate jurisdiction, the plain import of the words seems to be that, in one class of cases, its jurisdiction is original, and not appellate; in the other, it is appellate, and not original. If any other construction would render the clause inoperative, that is an additional reason for rejecting such other construction, and for adhering to the obvious meaning. To enable this court then to issue a mandamus, it must be shown to be an exercise of appellate jurisdiction, or to be necessary to enable them to exercise appellate jurisdiction. It has been stated at the bar that the appellate jurisdiction may be exercised in a variety of forms, and that, if it be the will of the Legislature that a mandamus should be used for that purpose, that will must be obeyed. This is true; yet the jurisdiction must be appellate, not original. It is the essential criterion of appellate jurisdiction that it revises and corrects the proceedings in a cause already instituted, and does not create that case. Although, therefore, a mandamus may be directed to courts, yet to issue such a writ to an officer for the delivery of a paper is, in effect, the same as to sustain an original action for that paper, and therefore seems not to belong to appellate, but to original jurisdiction. Neither is it necessary in such a case as this to enable the Court to exercise its appellate jurisdiction. The authority, therefore, given to the Supreme Court by the act establishing the judicial courts of the United States to issue writs of mandamus to public officers appears not to be warranted by the Constitution, and it becomes necessary to inquire whether a jurisdiction so conferred can be exercised. The question whether an act repugnant to the Constitution can become the law of the land is a question deeply interesting to the United States, but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognise certain principles, supposed to have been long and well established, to decide it. That the people have an original right to establish for their future government such principles as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor 10 can it nor ought it to be frequently repeated. The principles, therefore, so established are deemed fundamental. And as the authority from which they proceed, is supreme, and can seldom act, they are designed to be permanent. This original and supreme will organizes the government and assigns to different departments their respective powers. It may either stop here or establish certain limits not to be transcended by those departments. The Government of the United States is of the latter description. The powers of the Legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may at any time be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested that the Constitution controls any legislative act repugnant to it, or that the Legislature may alter the Constitution by an ordinary act. Between these alternatives there is no middle ground. The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it. If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law; if the latter part be true, then written Constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable. Certainly all those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the Legislature repugnant to the Constitution is void. This theory is essentially attached to a written Constitution, and is consequently to be considered by this Court as one of the fundamental principles of our society. It is not, therefore, to be lost sight of in the further consideration of this subject. If an act of the Legislature repugnant to the Constitution is void, does it, notwithstanding its invalidity, bind the Courts and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory, and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration. It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each. 11 So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply. Those, then, who controvert the principle that the Constitution is to be considered in court as a paramount law are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only the law. This doctrine would subvert the very foundation of all written Constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that, if the Legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the Legislature a practical and real omnipotence with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure. That it thus reduces to nothing what we have deemed the greatest improvement on political institutions -- a written Constitution, would of itself be sufficient, in America where written Constitutions have been viewed with so much reverence, for rejecting the construction. But the peculiar expressions of the Constitution of the United States furnish additional arguments in favour of its rejection. The judicial power of the United States is extended to all cases arising under the Constitution. Could it be the intention of those who gave this power to say that, in using it, the Constitution should not be looked into? That a case arising under the Constitution should be decided without examining the instrument under which it arises? This is too extravagant to be maintained. In some cases then, the Constitution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read or to obey? . . . It is also not entirely unworthy of observation that, in declaring what shall be the supreme law of the land, the Constitution itself is first mentioned, and not the laws of the United States generally, but those only which shall be made in pursuance of the Constitution, have that rank. 12 Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument. The rule must be discharged. California Judicial Branch Page 1 of 6 FACT SHEET January 2014 California Judicial Branch The California court system—the largest in the nation, with more than 2,000 judicial officers, approximately 17,000 court employees, and nearly 8.5 million cases—serves over 38 million people. The state Constitution vests the judicial power of California in the Supreme Court, Courts of Appeal, and superior courts. The Constitution also provides for the formation and functions of the Judicial Council, the policymaking body for the state courts and other agencies. Supreme Court The Supreme Court of California is the state’s highest court. Its decisions are binding on all other California courts. The court conducts regular sessions in San Francisco, Los Angeles, and Sacramento; it also occasionally holds special sessions elsewhere. Membership, qualifications One Chief Justice and six associate justices are appointed by the Governor, confirmed by the Commission on Judicial Appointments, and confirmed by the public at the next general election. A justice also comes before the voters at the end of his or her 12-year term. To be eligible for appointment, a person must have been a member of the State Bar of California or a judge of a court in this state for at least 10 years. Jurisdiction The Supreme Court has original jurisdiction in proceedings for extraordinary relief in the form of mandamus, certiorari, and prohibition. The court also has original juris- diction in habeas corpus proceedings. The state Constitution gives the Supreme Court the authority to review decisions of the state Courts of Appeal. This reviewing power enables the Supreme Court to decide important legal questions and to maintain uniformity in the law. The court selects specific issues for review, or it may decide all the issues in a case. The Consti- tution also directs the high court to review all cases in which a trial court has pro- ADMINISTRATIVE OFFICE OF THE COURTS 455 Golden Gate Avenue San Francisco, CA 94102-3688 Tel 415-865-4200 TDD 415-865-4272 Fax 415-865-4205 www.courts.ca.gov California Judicial Branch Page 2 of 6 nounced a judgment of death. Under state law, these cases are automatically appealed directly from a trial court to the Supreme Court. The Supreme Court adopts rules governing the conduct of judges, both on and off the bench, and the conduct of judicial candidates in their campaigns. These rules are known as the Code of Judicial Ethics. The Supreme Court has discretionary review of decisions by the Commission on Judicial Performance to admonish, censure, or remove a judge for misconduct. The Supreme Court also reviews the recommendations of the State Bar of California concerning the disciplining of attorneys for misconduct. The only other matters coming directly to the Supreme Court are appeals from decisions of the Public Utilities Commission. The Supreme Court received 9,237 filings during fiscal year 2011–2012. Decisions of the Supreme Court are published in the California Official Reports and are available online at www.courtinfo.ca.gov/opinions.htm. Courts of Appeal Established by a constitutional amendment in 1904, the Courts of Appeal are Cali- fornia’s intermediate courts of review. California has six appellate districts (three of which have multiple divisions) and a total of 105 justices. The district headquarters are situated as follows: First Appellate District, San Francisco; Second Appellate District, Los Angeles; Third Appellate District, Sacramento; Fourth Appellate District, San Diego; Fifth Appellate District, Fresno; and Sixth Appellate District, San Jose. The Legislature has constitutional authority to create new appellate districts and divisions. Membership, qualifications Each district (or division, in the case of the First, Second, and Fourth Appellate Districts) has a presiding justice and two or more associate justices. Appellate justices are appointed by the Governor and confirmed by the Commission on Judicial Appointments. The same rules that govern the selection of Supreme Court justices apply to those serving on the Courts of Appeal. Jurisdiction Courts of Appeal have appellate jurisdiction in cases where superior courts have origi- nal jurisdiction and in certain other cases prescribed by statute. Like the Supreme http://www.courtinfo.ca.gov/opinions California Judicial Branch Page 3 of 6 Court, they have original jurisdiction in habeas corpus, mandamus, certiorari, and prohibition proceedings. There were 24,118 filings in the Courts of Appeal during fiscal year 2011–2012. The Courts of Appeal also receive appeals (technically, writ proceedings) from decisions of the Workers’ Compensation Appeals Board, the Agricultural Labor Relations Board, and the Public Employment Relations Board. Cases are decided by three-judge panels. Decisions of the panels, known as opinions, are published in the California Appellate Reports if they meet certain criteria. In general, an opinion is published if it establishes a new rule of law, involves a legal issue of continuing public interest, criticizes existing law, or makes a significant contribution to legal literature. During fiscal year 2011–2012, approximately 8 percent of Court of Appeal opinions were certified as meeting the criteria for publication. Superior Courts Prior to June 1998, California’s trial courts consisted of superior and municipal courts, each with its own jurisdiction and with its number of judges fixed by the Legislature. On June 2, 1998, California voters approved a constitutional amendment permitting the judges in each county to unify their superior and municipal courts into a single superior court with jurisdiction over all case types. The goal of court uni- fication is to improve services to the public by consolidating court resources, offering greater flexibility in case assignments, and saving taxpayer dollars. By February 2001, judges in all 58 counties had voted to unify their trial courts. Membership, qualifications The superior courts have1,7051 authorized judges and 342 (in terms of full-time equivalents) authorized commissioners and referees. The California Legislature determines the number of judges in each court. Superior court judges serve six-year terms and are elected by county voters on a nonpartisan ballot at a general election. Vacancies are filled through appointment by the Governor. A superior court judge must have been an attorney admitted to practice law in California or have served as a judge of a court of record in this state for at least 10 years immediately preceding election or appointment. 1 In 2007, AB 159 (Stats. 2007, ch. 722) created an additional 50 judgeships, pending appropriation by the Legislature. Funding has been delayed for these judgeships, so although the 50 judgeships are included in the total number of authorized judgeships, they are ineligible to be filled until funding is provided. California Judicial Branch Page 4 of 6 Jurisdiction Superior courts have trial jurisdiction over all criminal and civil cases. During 2011– 2012, 8.5 million cases were filed in these courts. Court System Agencies The Constitution also provides for agencies concerned with judicial administration: Judicial Council, Commission on Judicial Appointments, Commission on Judicial Performance, and Habeas Corpus Resource Center. Their duties are described below. Judicial Council Chaired by the Chief Justice, the Judicial Council is the governing body of the Cali- fornia courts. The California Constitution directs the Judicial Council to provide policy guidelines to the courts, make recommendations annually to the Governor and Legislature, and adopt and revise California Rules of Court in the areas of court administration, practice, and procedure. The council performs its constitutional and other functions with the support of its staff agency, the Administrative Office of the Courts. New judicial members of the council and its committees are selected through a nomi- nating procedure intended to attract applicants from throughout the legal system and to result in a membership that is diverse in experience, gender, ethnic background, and geography. The 21 voting members of the Judicial Council consist of the Chief Justice, 14 judicial officers appointed by the Chief Justice, 4 attorney members appointed by the State Bar Board of Trustees, and 1 member from each house of the Legislature. The council also has approximately 11 advisory members who include court executives or administrators, the chair of the council’s Trial Court Presiding Judges Advisory Committee, and the president of the California Judges Association. Staggered terms, with one-third of the council’s membership changing each year, ensure continuity while creating opportunities for new participation and input. The council performs most of its work through internal committees and advisory committees and task forces. Commission on Judicial Appointments The Governor’s appointees to the Supreme Court and the Courts of Appeal must be confirmed by the Commission on Judicial Appointments. The commission has three California Judicial Branch Page 5 of 6 members: the Chief Justice, the Attorney General, and the senior presiding justice of the Court of Appeal of the affected appellate district or—when a Supreme Court appointee is being considered—the state’s senior presiding justice of the Courts of Appeal. The commission convenes after the Governor nominates or appoints a person to fill a vacancy on either the Supreme Court or a Court of Appeal. The commission holds one or more public hearings to review the appointee’s qualifica- tions and may confirm or veto the appointment. No appellate appointment is final until the commission has filed its approval with the Secretary of State. Commission on Judicial Performance The California Constitution provides for a Commission on Judicial Performance, which deals with the censure, removal, retirement, or public or private admonishment of judges and commissioners for either misconduct or inability to perform their duties on account of permanent disability. The commission has authority to conduct proceedings against any California judge after it investigates cases of willful misconduct in office, persistent failure or inability to perform the duties of office, habitual intemperance, conduct prejudicial to the administration of justice that may be detrimental to the judicial office itself, or a disability of a permanent character that seriously interferes with performance of duties. Effective March 1, 1995, Proposition 190 (passed in the November 1994 election) authorized the commission to remove, retire, or censure a judge. Automatic Supreme Court review was eliminated, although the court is permitted discretionary review. All commission proceedings are required to be public after formal charges are filed. The commission is composed of 11 members: 1 justice of a Court of Appeal and 2 judges appointed by the Supreme Court, 4 members appointed by the Governor (2 attorneys and 2 nonattorney public members), 2 public members appointed by the Assembly Speaker, and 2 public members appointed by the Senate Rules Committee. Appointments are for four-year terms. Habeas Corpus Resource Center The Habeas Corpus Resource Center handles state and federal habeas corpus pro- ceedings in capital cases and provides training and resources for private attorneys who take these cases. California Judicial Branch Page 6 of 6 California Attorneys State Bar of California The State Bar of California is a public corporation, established within article VI, the judicial article, of the California Constitution. The State Bar acts as the administra- tive arm of the Supreme Court in matters of attorney admission and discipline. With nearly 248,000 members, the State Bar of California is by far the largest state bar in the country. The State Bar’s Committee of Bar Examiners administers the bar examination and other requirements for admission to the practice of law and certifies qualified applicants to the Supreme Court for admission. The State Bar’s Board of Trustees formulates rules of professional conduct that, once approved by the Supreme Court, are binding on all California lawyers. The State Bar’s Office of Chief Trial Counsel investigates allegations of attorney misconduct and may initiate disciplinary proceedings in the State Bar Court, which may impose a reproval, or recommend to the Supreme Court that a lawyer be disbarred or suspended. Decisions of the State Bar Court are subject to review by the Supreme Court. Commission on Judicial Nominees Evaluation State law requires the State Bar’s Commission on Judicial Nominees Evaluation to review the qualifications of persons being considered by the Governor for appointment to the courts. Contact: Office of Communications, 415-865-7740 Additional resources: General court information, www.courts.ca.gov/courts.htm Supreme Court, www.courts.ca.gov/supremecourt.htm Courts of Appeal, www.courts.ca.gov/courtsofappeal.htm Superior courts, www.courts.ca.gov/superiorcourts.htm http://www.courts.ca.gov/supremecourt.htm http://www.courts.ca.gov/courtsofappeal.htm http://www.courts.ca.gov/superiorcourts.htm Intro to U.S. Law Prof. Betsy Candler Summer 2018 Class 4, July 18 - PM 1 Individual Rights – Equal Protection & Fundamental Rights 7 Cases: Loving Bowers Romer Lawrence Windsor Hollingsworth Obergefell Masterpiece Cakeshop Review is always substantive (even RB), just a question of how high a level of review the courts will give. Marriage Loving v. Virginia (1967) (invalidated) State laws that were invalidated: Boddie v. Connecticut (1971) (invalidated) Zablocki v. Redhall (1978) (invalidated) Treatment of Fed Soc Sec Act provisions: Califano v. Jobst (1977) (upheld) Bowen v. Owens (1986) (upheld) Same Sex Marriage Windsor (2015) (invalidated) Obergefell (2015) (invalidated) Lawrence v. Texas (2003) (invalidated) Hollingsworth v. Perry (2013) (standing issue – let invalidation remain) Loving v. Virginia (1967) Recap: VA statute attempting to prevent interracial marriages between a white person and a non-white person. Racial Integrity Act of 1924. 14th Am – EP Violation Impermissible race discrimination Equal Application is not a valid analysis deserving of lesser scrutiny. No legit purpose independent of invidious racial discrimination.” Here, also 14th Am – Due Process Clause violation. Marriage is one of the basic civil rights of man. Cites Skinner. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State. Lawrence v. Texas (2003) Protection for private, consensual, adult sexual activity Expressly overruled Bowers v. Hardwick Bowers (1986) held there was no fundamental right to engage in homosexual sodomy OR private consensual homosexual activity Even though the GA law addressed both same-sex and heterosexual activity, the Court limited its reasoning to homosexual sodomy. Based on the text, framers’ intent, and history/tradition, there is no right. Precedent for Obergefell Lawrence (2003) & Hollingsworth v. Perry (2013) & Windsor (2013) Hollingsworth: CA Prop 22 – marriage = a union between 1 man & 1 woman. 2008 – Cal Supreme Court invalidated Prop 22 based on CA Constitution’s EP Clause. Nov. 2008 – CA Prop 8 passed, amending CA Constitution to provide that only marriage between a man and a woman is valid or recognized by California.” This suit arose out of the challenge to Prop 8 as a 14th Am EP Clause violation. State officials did not defend Prop 8 at trial level Petitioners, official proponents of the measure, intervened to defend it. The district court held that Prop 8 violated the Constitution, Ninth Circuit affirmed. Court ruled that petitioners did not have standing. No merits ruling. Windsor (2013) Same day as Hollingsworth. Leading up to Obergefell (2015). Justice Kennedy wrote both the Windsor and Obergefell opinions. Both are 5-4 decisions. Swing Vote discussion from More Perfect. (31:49-33:55). Conservative: Voting Rights, Gun Rights, Class Action Liberal: Eminent Domain, Environmental Protection, Gay Marriage Windsor (2013) Edith Windsor, seeking a refund of the federal taxes paid on the estate of her wife, Thea Spyer, who died in 2009. $363,000 She didn’t get the same treatment as a man would have if he had sought the refund because of DOMA – Defense of Marriage Act. Federal law from 1990s defining marriage as between a man and a woman for federal regulations. Impacts over 1000 federal laws. Married in Canada, New York recognized her as married. Windsor (2013) Held: States have the authority to define marital relationships and DOMA goes against legislative and historical precedent by undermining that authority. DOMA denies same-sex couples the rights that come from federal recognition of marriage. The purpose and effect of DOMA is to impose a disadvantage, a separate status, and so a stigma on same-sex couples in violation of the Fifth Amendments guarantee of Equal Protection. Classification? Level of Scrutiny? Obergefell (2015) What Scalia warned everyone would happen … 4 states that had limits on same-sex marriage and legal ramifications – licensing and recognition of marriage from another jurisdiction. Adoption, marriage, surviving spouse on death certificate Petitioners filed these suits in United States District Courts in their home States. Each District Court ruled in their favor. On appeal to Sixth Circuit, consolidated and reversed, holding that states have no constitutional obligation to license same-sex marriages or to recognize same-sex marriages performed out of State.. Kennedy’s opinion for the majority. Reversed lower court. Dissents: CJ Roberts, Scalia, Thomas, Alito. Obergefell 14th Am Due Process Clause Violated here because the right to marry is a fundamental liberties, and it applies to same-sex couples as it does to opposite-sex couples. Marriage Is inherent to the concept of individual autonomy, Protects the most intimate association between two people, Safeguards children and families by according legal recognition to building a home and raising children, and Has historically been recognized as the keystone of social order. 14th Am Equal Protection Clause Violated here because same-sex couples should not be denied a right protected for opposite-sex couples. 1st Am Protects the rights of religious organizations to adhere to their principles, but it does not allow states to deny same-sex couples the right to marry on the same terms as those for opposite-sex couples. Obergefell Dissents 1) CJ Roberts Social policy and fairness are issues for legislatures. This decision would allow for a fundamental right to plural marriage. Concerned about sincere religious convictions that lead to opposition of gay marriage. 2) Scalia Constitutional revision by an unelected committee of nine (actually 5). Text and Framers’ Intent – no right to same-sex marriage. 3) Thomas Liberty is freedom from govt action, not entitlement to govt benefits. Dignity is innate, it does not come from our govt. DP Clause should not be used for substantive rights. 4) Alito Constitution is not applicable here. Leave marriage questions to the states. Not a Fundamental Right – not “deeply rooted in this Nation’s history and tradition.” Citing Glucksberg. Marriage Loving v. Virginia (1967) (state law criminalizing interracial marriages invalidated) Boddie v. Connecticut (1971) (state law with no exception or waiver for indigency for divorce filing fees invalidated) Zablocki v. Redhall (1978) (state law requiring proof of child support payments invalidated) Califano v. Jobst (1977) (Fed Soc Sec provision treating upheld) Bowen v. Owens (1986) (Fed Soc Sec provision treating divorced widowed spouses differently from widowed spouses upheld) Lawrence v. Texas (2003) (state law criminalizing sodomy invalidated) Hollingsworth v. Perry (2013) (standing issue – let lower court’s invalidation of Prop 8 remain) Windsor (2015) (Fed DOMA provision that defined marriage as between one man and one woman invalidated) Obergefell (2015) (state laws failing to provide for or recognize same-sex marriages invalidated) Equal Protection and Fundamental Rights Equal Protection: Is the classification already a suspect or a quasi-suspect class according to SCOTUS? Yes, suspect – race or national origin = Strict Scrutiny Yes, quasi-suspect – gender, legitimacy (may sexual orientation?) = Intermediate Scrutiny No, but I could argue that it should be Compare to the groups protected above: Discrete and Insular Minority, Immutable Characteristics, Prone to stigmatizing stereotypes, History of discrimination and political powerlessness. No = Rational Basis Review (age, income, mental disabilities) Still ask if there is a discriminatory purpose, can still consider over/under inclusivity (but not too carefully), Is the statute rationally related to a legitimate gov interest? (It can’t be arbitrary.) Equal Protection and Fundamental Rights Fundamental Rights: Is the liberty at issue already deemed a Fundamental Right? Yes = Strict Scrutiny Privacy, Travel, Voting, Marriage, Procreation No, but it should be … Argue why by comparing to those things that are and using the same standards. Look at its history and search for a tradition of protection of the right. Is it implicit in the concept of ordered liberty? Is it deeply rooted in the Nation’s history and traditions? No = Rational Basis Rational Basis Review Does the Law have a Legitimate Purpose? Romer v. Evans Actual Purpose Required or Conceivable Purpose Sufficient? Cases where Laws are Deemed Arbitrary and Unreasonable US Department of Agriculture v. Moreno Cleburne Types of Discrimination: Only Rational Basis Review Age Classifications - Massachusetts Board of Retirement v. Murgia Discrimination Based on Disability Wealth Discrimination Sexual Orientation Discrimination (?) Intermediate Review: Gender Classifications Early Cases Approving Gender Disc Emergence of Intermediate Scrutiny Frontiero v. Richardson Craig v. Boren US v. Virginia Gender Classifications based on Roles or Stereotypes - Rostker v. Goldberg Gender Classifications Benefiting Women as a Remedy (Affirmative Action) - Califano v. Webster Strict Scrutiny: Classifications Based on Race Race Discrimination and Slavery before the 13th and 14th Amendments - Dred Scot v. Sandford The Post-Civil War Amendments Strict Scrutiny for Discrimination based on Race and National Origin Proving the Existence of a Race or National Origin Classification Facial Classifications Race-Specific Classifications that Disadvantage Racial Minorities - Korematsu v. US Racial Classifications burdening both whites and minorities - Loving v. Virginia, Palmore v. Sidoti Laws Requiring Separation of the Races - Plessy v. Ferguson Initial Attack on “Separate but Equal” Brown v. Board of Education The Invalidation of Segregation in Other Contexts Facially Neutral, Discriminatory Impact - McCleskey v. Kemp, City of Mobile Racial Classifications Benefiting Minorities – Affirmative Action Emergence of SS as the Test - Richmond v. J.A. Croson Co. Fisher v. Univ. of Texas at Austin Fundamental Rights Fundamental Rights: Is the liberty at issue already deemed a Fundamental Right? Yes = Strict Scrutiny Privacy, Travel, Voting, Marriage, Procreation No, but it should be … Argue why by comparing to those things that are and using the same standards. Look at its history and search for a tradition of protection of the right. Is it implicit in the concept of ordered liberty? Is it deeply rooted in the Nation’s history and traditions? No = Rational Basis Interpretive Limits: How should the Constitution be interpreted? There is no agreement among Justices or Scholars. Narrowly Circumscribed Discretion vs. Substantial Discretion for the Court Narrowly Circumscribed = Limit judicial power because democracy means rule by electorally accountable officials. Originalism, Textualists, Framers’ Specific Intent, Framers’ Abstract Intent (Scalia). Substantial = Allow for evolution of the Text Spectrum