Distinctions - Con Law

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apgiering
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94348
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Distinctions - Con Law
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2011-07-18 10:13:16
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NY Bar Exam
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NY Bar Exam
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  1. When is a jury trial guarnateed in civil cases?
    The NY Constitution provides for a jury trial in all civil cases and permits a five-sixth verdict in civil cases.
  2. What are the due process and equal protection requirements of the NY Constitution?
    No person shall be deprived of live, liberty, or property without due process of the law; no person shall be denied the equal protection of the laws of NY or any subdivision thereof.

    Furthermore, no person, because of race, color, creed, or religion, shal be subjected "to any discrimination in his civil rights by any other person or by any firm, corporation or institution, or by the state or any agency or subdivision of the state."

    Although the NY Constitution does not explicitly refer to state action, there must be at least some cooperation, authority, and approval of the state where the challenged act is not taken directly by the state.
  3. Can there exist a blanket proscription of expression?
    No, the NY Constitution's guarantee of freedom fo expression precludes this.
  4. Can there be a divorce except by judicial proceeding?
    No.
  5. Is gambling prohibited by the NY Constitution Bill of Rights?
    Yes, except for a lottery conducted by the state to support education and pari-mutuel betting on horse races prescribed by law to afford the state "reasonable" revenue for hte support of government.

    No bingo, lotto, or similar games of chance are permitted except as approved by local governments and conducted by religious, charitable, nor nonprofit organizations so that the proceeds contribute to their support.
  6. Does the NY Bill of Rights forbid a statutory limit to tort recovery?
    Yes. The right of action to recover damages for injuries resulting in death shall not be abrogated and the amount recoverable shall not be subject to any statutory limit.
  7. Is human labor a commodity or an article of commerce?
    Under the NY Bill of Rights, no.
  8. Do employees have a right to organize and bargain collectively through representatives of their own choosing?
    Yes, under the NY Bill of Rights.
  9. Can the legislature establish a system of workers' compensation, which could exclude all other remedies for injuries and death, without regard to fault (with the exception of wilful actions or intoxication ont he part of the injured or dead employee)?
    Yes, under the NY Bill of Rights.
  10. What are local governments?
    Subdivisions of state governments (country, city, town, or village) with delegated powers.
  11. Does the NY Constiution require the legislature to provide for the creation and organization of local governments?
    Yes.
  12. Must statutory provisions relevant to entities like "special districts" or "school boards" mention them specifically?
    Yes.
  13. What does the Statute of Local Governments grant local governments the power to?
    • Adopt ordinances, including the licensing or regulation of occupations or businesses;
    • Acquire, equip, and dispose of property;
    • Operate recreational facilities;
    • Collect rents, charges, rates, and fees;
    • Adopt zoning regulations;
    • Perform comprehensive planning work; and
    • Issue bonds to finance local projects.
  14. How can the legislature repeal or impair the powers of local government?
    Only by a statute enacted with the governor's approval at its regular session in one calndar year and reenacted and approved in the following calendar year.
  15. When can the legislature act in relation to the property, affairs, or government of local governments by "general" law or by "special" law?
    • On request of two-thirds of the legislature or on request of its chief executive officer, concurred by a majority of such membership; or
    • On certificate of necessity from the governor, reciting an emergency situation, with the concurrence of two-thirds of the legislature;
    • NOTE: There is no need for local consent if the concern of the legislation is a matter of both state and local interest.
  16. Absent a violation of the home rule provision, does a local government have standing to challenge the constitutionality of a statute affecting its powers?
    No.
  17. Is the legislature required to provide for the maintenance and support of a system of "free common schools" available to all of the children in the state?
    Yes.
  18. What entity charters and controls institutions of secondary and higher education in the state?
    The University of the State of New York, continued in existence by the New York Constitution.
  19. Can the state give aid to parochial schools?
    No, there is a specific prohibition against state aid to parochial schools.
  20. Is there a duty on a local school district to ensure that each individual pupil receive a minimum level of education?
    No.
  21. Can the legislature provide for low income housing and nursing home accomodations, or for clearance, replanning, reconstruction and rehabilitation of substandard and unsanitary areas, or for both such purposes, and for recreational and other facilities incidental thereto?
    Yes. The NY Constitution makes housing a proper function of government.
  22. What can the legislature do despite provisions restricting the use of public funds to benefit private parties?
    • Make subsidies to local governments from general state funds, or authorize the state to contract indebtedness for these purposes;
    • Authorize loans by local governments and the state to housing or nursing home corporations that are regulated as to rents, profits, dividends, and disposition of their property;
    • Authorize local governments to make loans to owners of multiple dweelings for rehabilitation for persons of low income;
    • Grant tax exemptions up to 60 years; or
    • Grant the power of eminent domain to local governments and to public corporations or any regulated housing or nursing home corporation.
  23. What is a public corporation?
    Any corporate governmental agency, except a county or municipal corporation, or a hospital, organized pursuant to law to accomplish a permissible purpose.
  24. Is discrimination in public housing on the basis of race, color, religion, or national origin allowed?
    No, it is prohibited.
  25. Who provides aid, care, and support of the needy?
    Under the NY Constitution, these are "public concerns" to be provided by state and local governments as determined by the ieglsiature.
  26. What is the role of the state board of social welfare mandated by the constitution?
    It visits and inspects all public and private institutions that receive public funds and are of charitable, correctional, or reformatory character (except for institutions overseen by the Department of Mental Hygiene or the State Commission of Correction).
  27. Does the NY constitution direct the legislatiure to provide for the protection and promotion of the health of the state's residents?
    Yes, as a matter of public concern.
  28. Can the legislature deny aid to individuals who are admittedly needy, on the basis of criteria irrelevant to need?
    No.
  29. Does the NY Constitution mandate public assistance be granted in every instance or that the state meed the full needs of each public assistance recipient?
    No.
  30. Can local governments exercise the power of eminent domain, e.g., take private property for public use within their boundaries?
    Yes. The legisltaure may regulate this power when the subject properly lies outside the municipality's boundaries.
  31. Is a local government entitled to compensation for governmental property taken by the state?
    Yes, by statute. (At common law, local governments were not entitled to compensation.)
  32. What are the organizational rights of local governments and counties?
    Every local government, except a county wholly included within a city, is entitled to a legislative body, elected by the people of the territory. The elected officials pay appoint other officials as provided by law.

    Counties can form a government emplowered to transfer duties and functions within different units of government or abolish certain units. Such acts require approval by a majority of voers in a referendum conducted in the county.
  33. Can the legislature prohibit a local government from recouping a fair return on the value of the property used in their operation of public utilities?
    No. A local government can recoup a fair return, over the costs of operation and maintenance and proper reserves, in addition to the amount equivalent to taxes that such servicers, if privately owned, would have paid the local governments.

    NOTE: Nor can the legislature prevent the use of such profits to provide refunds to customers for lawful purposes.
  34. Can the legislature audit or allow private claims or accounts against the state?
    No. The legislature may only appropriate funds that were audited or allowed according to law.
  35. What are areas where the legislature is forbidden to enact private or local laws?
    • Changing the names of persons;
    • Laying out or altering roads or draining lowlands;
    • Locating or changing county seats;
    • Changing venue in civil or criminal cases;
    • Incorporating villages;
    • Electing boards of supervisors;
    • Selecting or empanelling grand or petit jurors;
    • Regulating interest rates on money;
    • Opening or conducting elections or designating voting places;
    • Creating, increasing, or decreasing fees, percentages, or allowances of public officers during their terms;
    • Granting any person or association the right to lay railroad tracks;
    • Granting any private corporation, association, or individual any exclusive privilege, immunity, or franchise;
    • Granting any exemption from taxation on real or personal property; and
    • Providing for bridge building by other than a local government or public agency of the state, except over waters forming a boundary of the state.
  36. What local laws does every local government have the power to adopt or amend?
    Those not inconsistent with the constitution or any general laws relating to its property, affairs, or government.
  37. Subject to (state) legislative authorization, in what subjects can local governments adopt local laws?
    • Officers and employees--duties, powers, qualificaitons, compensation, etc.;
    • Membership and composition of the legislative body of a city, town, or village;
    • Transaction of its business;
    • Incurring obligations consistent with statutes;
    • Presentation, ascertaining, and discharge of claims against it;
    • Acquisition, care, management, and use of its roads and transit facilities;
    • Levy, collection, and administration of local taxes authorized by statutes, and of assessments for local improvements consistent with statutes;
    • Compensation and working conditions of persons employed by contractors or subcontractors who perform work, labor, or services for it; and
    • Government, protection, order, conduct, safety, health, and well-being of persons or property therein.
  38. How can the state treasury expend funds?
    Pursuant to appropriation law, which must have been passed within two years and by two-thirds of each branch of the legislature.
  39. Can state money be given or lent in aid of any proviate corporation or association or private undertaking?
    No.


    NOTE: Exception for certain projects (constructing or rehabilitating industrial or manufacturing plants; constructing buildings for research and development, or purchasing related machinery and equipment; or improving employment opportunities in the state.
  40. Can the state's crediy be given or lent in aid of any private individual, public or private corporation or association, or private undertaking?
    No, except as to a fund or property held by the state for educational, mental health, or mental retardation purposes.

    NOTE: Exception for certain projects (constructing or rehabilitating industrial or manufacturing plants; constructing buildings for research and development, or purchasing related machinery and equipment; or improving employment opportunities in the state.
  41. Can the state give authorized loans to a public corporation for the purpose of making loans to nonprofit corporations that will construct or rehabilitate industrial or manufacturing plants, construct buildings for research and development, or purchase related machinery and equipment, or for the purpose of using such funds for such property to improve employment opportunities in any area of the state?
    yes. There is a limit on the loans of 40% per year of the cost of any such project, plus security interests in the property.
  42. Can the state contract debts in anticipation of receiving taxes, revenues, and proceeds from the sale of bonds?
    Yes. The state has broad powers of taxation and borrowing.
  43. When must anticipatory bond obligations be paid?
    Within two years (five years for housing bonds) of issue.
  44. When can the state contract "emergency" debts?
    To repel invasion, suppress insurrection, defend the state in war, or suppress forest fires.
  45. What is the procedure for contracting non-emergency debts?
    Must be approved by a referendum held no earlier than three months after passage of a bill but not at a general election where any other bill of law is being voted on.
  46. Can local government assess and collect property taxes?
    Yes.
  47. Can the legislature authorize improvement districts to impose property taxes?
    Yes.
  48. Can the legislature provide revenue to local governments?
    Yes, in the form of grants, sales tax, user charges, income taxes, and special assessments.
  49. For how long can local governments borrow funds?
    For periods no longer than the useful life of the object or purpose of the purchase or expenditure and in no event for longer than 40 years.
  50. What are the limits on local government fundraising for operating expenses?
    A given percent, from one and one-quarter to two, of the assessed value of real estate.
  51. What is the faith and credit pledge?
    A local government's indebtedness must have the local government's pledge of faith and credit, a promise to pay and use revenue powers to produce funds for payment of principal and interest. Faith and credit obligations differ from "revenue" obligations, which involve a limited pledge of specified funds. "Moral obligations" are not backed by any legally enforceable obligation to pay.
  52. Can the legislature set lower debt ceiling sthan in the NY Constitution?
    Yes.
  53. Can the legislature restrict a local government's power to levy taxes onr eal property for the payment of interest or principal of contracted indebtedness?
    No.
  54. Can a local government give or loan any money or property to, or in aid of, any individual or private corporation, association, or undertaking, or become the owner of stock or bonds of any private corporation or association or give or loan its credit to, or in aid of, any individual, public or private corporation, association, or private undertaking?
    No, subject to certain exceptions where the government provdes municipal facilities or services for care of the needy, inmates, or oprhans whether under private or public control.
  55. How are top public officers elected or appointed?
    According ot the constitution or statute. If no law exists, they serve at the will of the appointment body or officer.
  56. Which top public officers are elected in New York?
    The governor, lieutenant governor, comptroller, attorney general, and members of the legislature.
  57. How are the heads of the 20 civil departments permitted by the constitution in state government selected?
    Appointed by the governor with the advice and consent of the senate.
  58. How are civil service appointments and promotions made?
    In accordance with merit and fitness, which may be determined through the use of competitive exams, some of which favor veterans.
  59. Does the NY Constitution set restrictions on work hours and wage levels for employees of contractors or subcontractors performing public works?
    Yes.
  60. Do all employees have the right to bargain collectively?
    Yes. The Taylor Law specifically gives this right to public employees.
  61. What is the Taylor Law?
    It specifically gives the right to bargain collectively to public employees.
  62. What is the role of a Public Employee Relations Board ("PERB")?
    To supervise labor relations.
  63. Can public employees strike?
    No.
  64. Ca local governments adopt their own labor laws?
    Yes, if they are substantially equivalent according to PERB.
  65. Who is excluded from the definition of public employee?
    Employees of the judiciary, state militia, or persons designated as managerial or confidential, such as assistant district attorneys.
  66. Can the state and its subdivisions enter into contracts to carry out powers passed or delegated to them?
    Yes, aside from contracts of indebtedness.
  67. Can a government limit the discretion of future legislation?
    No.
  68. Which contracts require public competitive bidding?
    Those public work contracts costing local governments more than $20,000 and purchase contracts costing over $10,000, except for professional services.
  69. Can fraud or collusion void a public work or pruchase contract?
    Yes.
  70. Can government employees have substantial pecuniary interest in any contract with the government if they have power with respect to executing the contract?
    No, they are prohibited.
  71. What must a taxpayer show in order to have taxpayer standing?
    That the act is injurious or dangerous to the public interest. The plaintiff need not show direct injury to himself.

    Mere unlawfulness of an act by the government does not give a taxpayer standing to challenge the act.
  72. When is a "taxpayer's action" allowed?
    Against all agents of local government to prevent waste or injury, or to restore and make good any property, funds, or estate of a city, town, county, or village if the taxpayers share property assessed at $1,000 or more by the local government.
  73. What must a taxpayer who attacks as unconstitutional an expenditure of public funds or the validity of a statute demonstrate?
    Some special and direct injury to himself.

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