Legislative Advocacy (Legislation) – Instructor: Krishnan

 

Final Examination

 

William Mitchell College of Law - Spring 2003

 

 

Directions:

 

This is a twenty-four hour, open-note, open-book take home exam.  You may pick up the exam between May 5, 2003 and May 15, 2003.  There are two questions.  Each one is worth fifty per cent of the final grade.  For question one, the maximum number of words you may write in your response is fifteen hundred (1,500) words.  For question two, the maximum number of words you may write in your response will also be fifteen hundred (1,500) words.  Your answers must be typed, double-spaced, and you must use one inch margins (top, bottom, and sides).  The font size must be in New York style or Courier style.  Do not write your name on the exam; use your exam number, and please put it in the header of each page.  You are not to discuss this exam with anyone else or work on this jointly with others.  This is a solo project and any deviation of the kind will amount to academic misconduct.

 

The exam will be graded on your ability to synthesize the law we studied together with the theories and the public policy issues we covered as well.  Please remember to present all sides to every argument you make and keep the exam answer organized.  Please indicate on your exam if you are a graduating senior.

 

You will pick this exam up in student services, and it must be returned to this same place within the twenty-four hour time limit.  If you pick up the exam on a Friday and wish to return it on Saturday, please leave it at the security desk and make sure that one of the guards writes down the time the exam was returned and signs her/his name.  You will not be able to pick up the exam on a Saturday and return it on a Sunday.  Please instruct the security guard to make arrangements to have the exam returned to student services on Monday.  This exam must be returned with your answer packet.

 

Good luck and have a nice summer.

 

Question 1:

 

Homer S is a property developer in the city of Springfield.  Homer lives on two acres of land on Evergreen Terrace Road.  Homer has a house on this property where he lives with his wife and three children.  The house is located in a neighborhood, but aside from his house on his parcel of land, the rest of his property is barren. 

 

Homer is quite a rich man.  One day he wakes up and decides that other people who are not so fortunate should have the opportunity to live in a nice, affordable place as well.  He then decides that he will build a six unit, low-rent apartment complex on his own property.  He sets up a meeting with his attorney, Lionel H, who advises Homer that there are provisions within the Springfield City Charter that govern how property developers must proceed before beginning construction of apartment buildings.

 

Section 1, for example, of the City Charter reads as follows:

 

“Any property developer who wishes to start housing construction must receive a permit from the Springfield City Council.” [The City Council is made up of five elected officials who have the authority to make both legislative and administrative decisions].

 

Section 2 of the Charter reads:

 

“If ten or more residents of Springfield object to the Council’s issuance of a permit to a property developer, these ten or more residents may file a petition of objection with the members of the Council.”

 

Section 2, subsection (a) of the Charter reads:

 

“For purposes of this charter, a petition of objection is a written statement explaining why the residents oppose the issuance of the permit.  This written statement must be accompanied by ten or more signatures.”

 

Section 2, subsection (b) of the Charter reads:

 

“If the petition of objection is stamped, approved, and accepted by the Council, then the permit granted to the property developer will be stayed until the question of whether the developer should be granted a permit is put before the voters on a ballot in the next election, as a referendum.”

 

Section 3 of the Charter reads:

 

“The city of Springfield recognizes and accepts that all voter referendums emanating from within its city limits must comply to Article X of the State Constitution.”  [Article X of the State Constitution reads: “Voter referendums are permissible in this state only when challenging a legislative action.”]

 

 

As it turns out, Homer receives a permit from the City Council, but sure enough, a twenty person organization known as NOPE (Neighbors Opposing Project Endeavors), led by two of Homer’s neighbors, Ned and Mrs. Lovejoy, file a petition of objection against Homer’s proposed development.  The petition meets Section 2, 2(a), and 2(b)’s requirements and consequently Homer is temporarily stripped of his permit until the voter referendum is decided on in the next election.  When the election occurs, the residents of Springfield resoundingly reject Homer’s application to build a low-income housing complex on his property.  Subsequently, Homer is permanently stripped of his permit.    

 

Not surprisingly, Homer is extremely angry over this string of events, especially since he believes that the opposition to his project was motivated by animus towards racial minorities. (Homer, for example, heard Mrs. Lovejoy utter bigoted statements and he had obtained a NOPE flyer that said:  “keep our community pure and clean.”)  Note that there is no direct evidence that racial minorities would necessarily occupy Homer’s apartments, but in the neighboring city of Shelbyville, racial minorities did rent-out 40% of the units in a low-income housing complex that was built there last year. 

 

Homer wants his lawyer, Lionel H, to file suit.  Questions to consider:

 

  • Who would Lionel and Homer sue and under what theories?

 

  • Why might Homer oppose specifically the petition of objection process?  Why might NOPE or the city government embrace the petition of objection process?  When developing your answers to these two questions consider how the Charter’s language raises the issue of whether NOPE’s conduct constitutes political expression by a private group or whether NOPE’s conduct effectively amounts to state action.

 

  • What role, if any, does Article X (above) play here?

 

  • Discuss all of these questions, keeping in mind how the competing theories on democratic participation and interest group politics apply, as well as what the views might be of the relevant legal theorists we studied.

Question 2:

 

Marge is an employee at Springfield State University’s (SSU) biology laboratory.  As a full-time employee, one of the benefits Marge receives is a tuition break for any of her children who wish to attend SSU.  (Note this benefit is given to all full-time employees of the university.)  The annual tuition at this university is $20,000 per year; however children of university employees are required only to pay $4,000 per year. 

 

Marge has a very intelligent daughter named Lisa who would like to attend SSU.  Yet Marge is concerned because she has learned that there is a federal law on the books that, if applicable, might impose a tax liability on her that she would have difficulty affording.  The federal law is named TRUE (Tuition Reduction for University Employees), and three of the more relevant provisions within the statute specifically state that:

 

(1) “The entire discounted tuition that a state university employee pays to send her/his child to said university is taxable when that discounted tuition does not offset the annual costs incurred by the state university to educate the employee’s child.”

 

(2) “For the purposes of this law, any costs incurred by a state university to educate a state university employee’s child (who receives discounted tuition) will be deemed to be a financial benefit to that employee.”

 

            (3) “This law applies to all state universities in the United States.”

 

Lisa is hoping to attend SSU beginning in the fall of 2003.  The projected freshman enrollment for fall 2003 at the school has been way down.  The university wanted to have 3,500 first year students, but in fact only 2,500 are planning to come.  In a normal year, when 3,500 first year students do attend, the university incurs $5,000 in costs per student per academic year.  The money goes towards paying teachers’ salaries and providing educational equipment and meals to students.  However, this year because of the lower number of first year students attending, the costs that the university is incurring are down to $3,000 per student.   

 

Before TRUE became law, there was a report from the House of Representatives Economic and Educational Opportunities Subcommittee, which held hearings on this bill.  The report concluded that: “non-pecuniary benefits received by state university employees should not be taxable.”  In the other Congressional chamber, Senator Ned Flanders, an architect of the Senate’s version of the bill, gave a floor speech saying that whether state university employees are taxed on discounted tuition should depend on how:

 

“deeply in debt we are as a country.  If the government needs the money, then dog-digly-ogly, the government should be able to get this tax revenue from state university employees.”

 

In his speech, Senator Flanders also noted that there are other unrelated federal laws on the books that generally consider financial benefits to be taxable.

 

Drawing only on what we learned in class:

 

1.                  State the arguments for why Marge should not have to pay taxes to send Lisa to Springfield State University? 

 

2.                  State the arguments for why Marge should have to incur some tax liability?

 

3.                  What sources might you look to in support of your answer to question 1?  What sources might you look to in support of your answer to question 2?

 

4.                  What are the ramifications of looking at certain sources over others?   

 

-Please give detailed answers to these questions.  In discussing all of the questions, please keep in mind the institutional dynamics present between the courts and the legislative branch.  Also remember that how you answer these questions will be of interest to those who are trying to determine what role judges are supposed to play when evaluating the statutory decisions made by legislators.   

 

 

 

 

Answer Key Outline for Number 1:

 

I.          Need to identify and analyze the following points:

 

A.                 City Council – leg or administrative body?

i.                     what about its decision w/ regard to permits?

 

B.                 Need to identify and discuss petition of objection – is it an initiative, referendum – definitions between the two??? – is it neither?

 

C.                 Role of St. Paul Case – what lessons apply – what don’t

i.          ruling in that case?

 

D.                 How does Romer fit, if at all?

 

E.                  Applicability of Article X

i.                     Arguments that this is a leg action

ii.                   Arguments that this is a administrative action

 

F.                  Is action by NOPE – political expression by private individuals?

i.                     Relevance of First Amendment

ii.                   Does Buckley come into play here?

iii.                  Role of Equal Protection Clause

a.                   Analysis and relevance of Arthur v. Toledo; Reynolds, Arlington

 

G.                 Why NOPE’s action might constitute state action

i.                     Petition triggers formal state action – i.e., the automatic stay of the permit

ii.                   Petition mandated operative legal, state action

iii.                  If this is the case – then racial animus would be relevant – state action & the 14th amendment –

iv.                 Type of scrutiny that would need to be applied

v.                   How does Justice Wahl’s dissent play in here, from St. Paul case

 

H.                 Theories on democratic participation need to be discussed:

i.                     The topic of direct democracy needs to be discussed – chapter 5 of text cites the discussion of this – opinions of Framers, e.g., Madison and the various authors that the text cite (in the footnotes) should be mentioned, at least broadly speaking – plus there is the discussion in chapter 1 distinguishing between liberal theory, republican theory, and proceduralist theory

ii.                   How does Weber fit in here?

 

 

 

 

iii.                  The interest group literature and different scholarly viewpoints needed to be discussed here too

a.         see pages 48-65 for cites and relevant points of discussion (public choice theory, pluralism, criticisms of these camps, etc.)

 

-Note all of these more theoretical points needed then to be tied into the fact pattern

 

-What theories best capture how NOPE was acting – what about how the City Council responded?

 

-Homer’s decision to file suit, how does that play fit into what these advocates might say, in terms of the appropriateness of such a response?

 

-To what degree do we want the state government to be held liable for actions such as those undertaken by groups like NOPE? 


Question 2:

 

-Issue:  to what degree can outside sources be used to clarify a statute that has seemingly inconsistent language:

 

A.                 On one hand, taxes to be paid only if 4K doesn’t offset costs incurred by university

 

B.                 On the other hand, what about all financial benefits being taxable in other legislation?

 

Need to discuss and analyze these points – and apply them to facts of this hypo?

 

C.        What canons should be allowed?

 

a.         need to list different types of canon:

                        b.         mischief rule, golden rule, absurd results; literalism – heydon case

           

1.                  textual canons – word meanings, grammar, whole act rule

2.                  substantive canons – lenity, avoid constitutional problems, new federalism canons

3.                  extrinsic sources

 

a.       legislative background (perhaps draw in from Civ. Rights case study done during first two weeks of course

b.      committee reports

c.       hearings floor debates

d.      statements by sponsors / drafters

e.       post-enactment leg history

f.        leg inaction

g.       looking to other statutes – (see above)

 

D.        Is there an economic/public choice rationale for why courts may not want to delve into such an in-depth process of going beyond the words of a statute? 

 

E.         What differences exist between intrinsic v. extrinsic – how do norms, customs traditions apply?

 

F.         How does Scalia’s viewpoint come into play – legislative accountability

 

a.         contrast this view Roscoe Pound – imaginative reconstructivism; Fuller; Hart and Sacks

 

G.        need to discuss potential problems of looking at statements from one house / or just one member – problems of imputing intent to entire leg. body

 

           

H.        need to discuss tension between court as an activist body v. court as a passive deferential body – under what circumstances should courts intervene? –

 

a.         -discuss the role that Blanchard v. Bergeron plays here

 

I.                    -how can new textualism be employed in this case? – need to discuss how it’s different from old textualism

 

J.                   Other cases to consider where statutory interpretation rulings apply to this hypo:

 

a.         Holy Trinity Church

b.                  TVA Hill

c.                   Green v. Bock Laundry – we covered this together in class

d.                  Chisom

 

-what role should these cases/precedent play in how court interpret statutes? (see Flood, Landgraf)

 

K.                How has the statutory interpretation process evolved, and how has it affected the relationship between the courts and the leg. branch?

 

a.         Legal Process Era v. Post-Legal Process Era