Part One. Tony's Manufacturing Business 1. In the case of New York v. Burger (1987), a junkyard is searched without any warrant and as a result, stolen car parts are found. The owner contends that the search is unconstitutional because it is a valid warrantless search. The Supreme Court held that the search is constitutional because it furthers statutory concerns against theft which overcomes the privacy interest provided that the government has substantial interest and the search must be necessary for the further regulation of such scheme.
The general rule is that illegal searches and seizures renders any evidence obtained inadmissible. The principle of exclusionary rule is based on the Fourth Amendment right of a person to be protected against unreasonable searches and seizures. Evidence that is illegally obtained by police officers are inadmissible in court because they are considered as the fruit of the poisonous tree and as such, the defendant may ask the court for the suppression of the evidence and the return of the items illegally seized.
However, evidence that are seized by private parties are not excluded from trial if the search was not at the direction of law enforcement officers (The Free Dictionary, 2010). In the case at bar, the search would have been valid if Tony , a private party , searched Martin's locker at his own volition and not under the command of the police officers. When Tony told the police officer that Martin might have been using illegal drugs and this use might have caused the car accident, the police had a probable cause to search Martin's car but instead they allowed Tony, a private party to do so therefore, the search was illegal.
2. a). Article I of the United States Constitution provides that Congress shall have the power to make all laws which are necessary and proper for execution of all the foregoing powers and all the other powers vested by the Constitution in the Government of the United States or in any Department or Officer thereof (US Constitution Online, 2010). Wetlands are areas that include swamps and marshes. They provide homes for many water animals and wildlife (DOI, 1996).
The authority to make laws is vested in the legislative department and as such, they have the discretion to to remove authority to designate wetlands from the states and give the sole authority to the Department of Interior. b). Eminent Domain is an inherent power of the state to take private property for public use upon payment of just compensation. The just compensation clause specifically requires that the taking of private property be for public use (Find Law, 2010). Taking is defined as the complete appropriation of the property.
The government must pay the person the fair market value of the property expropriated. Fair market value is defined as the highest price that somebody would pay for the property if it were in the hand of a seller who is willing to sell. There are times when the fair market value of the property is more than the price of the parcel of land and if there is a business, the owner is entitled to be compensated for the loss of the business resulting from condemnation. It is submitted that Tony's contention that the designation of his land as a wetland was unconstitutional taking without just compensation is of no merit.
The more appropriate remedy would be to ask for the just compensation of the property based on the fair market value (Larson, 2004). c). Search and seizure is a procedure used by police officers to check the people to whom they suspected of committing a crime and in order to protect the people from the abuses of the government, the Fourth Amendment to the United States Constitution, provides for the right of the people to be safe against unreasonable searches and seizures (Cornell University Law School, 2010).
The contention of Tony cannot be sustained because the act of collecting information is not tantamount to a search and as such, there is no violation of the Fourth Amendment. The Fourth Amendment discusses the limitation provided by law on the power of the police to make arrest and search the property, objects and contrabands. The Fourth Amendment is applicable only to searches if a person has a legitimate expectation of privacy. Search can be defined as the tactics used by police officers that infringes privacy.
On the other hand, Supreme Court ruled that a suspect has been seized if a person who is suspected of doing unlawful acts does not feel free to leave (Law Library- American Law and Legal Information, 2010). 3. a). Yes, Michigan’s maximum annual amount of hazardous waste that could be disposed in Michigan by a single company violates the United States Constitution. The United States Constitution do not provide for any environmental laws but it does however place a limitation on the Government when it provides that the Constitution is “for ourselves and our Posterity”.
This means that the government must take into consideration the effects of its actions today and tomorrow. If the government will take a step that will generates harm to posterity,no consideration nor protection from that harm will be required. On the other hand, if the government acts in a way adverse to the posterity then it is necessary to weigh the consequences of its actions. Therefore, the it is the duty of the government to avoid arbitrary and oppressive impacts upon the future and this obligation is independent of legislation.
The fact that laws have or have not been enacted does not change the fundamental need of the government to unreasonably display discrimination against the interest of posterity (Constitutional Law Foundation, n. d. ). b) Michigan is the 3rd largest trash importer in the country. As of 2001, Michigan has imported approximately 4 million tons from Canada, Illinois, New Jersey, Ohio and other states. The imported waste now comprises 20% of all waste disposed in Michigan.
The Michigan Department of Environmental Quality (MDEQ ) opposes the importation of waste from Canada but they believe that banning or limiting it would be a violation of the United States Constitution (Michigan in Brief, 2002). Even though the amount of landfilled waste in Michigan remains constant. The Michigan landfills almost as much as it did many years ago. Due to the sufficient capacity, no person can stop these privately operated landfills from accepting out-of-state waste.
In 1992, the Supreme Court ruled that the Michigan’s regulations that permitted the county solid waste management plans to restrict importation of out of state waste to the privately owned landfills violated the commerce clause of the Constitution. In the case of Philadelphia v. New Jersey (1978), the Supreme Court said that solid waste is an article of commerce that must is under the commerce clause of the constitution. c). Yes, Carl may bring a case to challenge the constitutionality of the hazardous waste laws which he believes is in violation of the constitution. In the case of Flast v.
Cohen (1968), the Supreme Court ruled that a federal taxpayer has a standing to challenge and sue a congressional appropriation if in addition to being a taxpayer, he alleges violations to the constitutional provision. 4. a). The Fourteenth Amendment to the United States Constitution provides that no person shall be deprived of life, liberty and property without due process. There are two aspects of due process the procedural and the substantive. Procedural due process provides that everybody must follow the legal procedures in order to guarantee the fundamental fairness in order to prevent subjective and impulsive actions (Devine, 2007).
The EPA can issue the regulation without holding any public hearing because the comment period provided for by the government is tantamount to giving notice and a chance to hear the public about the proposed rule. b). The US government can freeze the bank accounts of suspected of Clean Water Act Violations but there must be subsequent hearing. It would be useless to give notice prior to freezing the bank accounts because it would give the suspect a reasonable opportunity to dispose of the money.
The proposed regulation would be unconstitutional because it constitutes as a violation of right to privacy and unreasonable seizure of property without due process of law. 5. a). Yes. Tony can bring his case in Arizona. The doctrine of forum non conveniens provides that either party may request for a change of venue to a more convenient court that can hear the case. The court will take into consideration issues such as the place where the action takes place, the location of the witness, and the unfair burdens to the parties. Forum non conveniens is the Latin phrase for inconvenient forum.
Even though there are rules where lawsuits may be filed, there are instances when locations are inconvenient for the parties and as long as they show the incovenience, the judge will allow the transfer of forum (The Lect Law Library, 2010). b). If all of the other factors will weigh in favor of keeping the case in the place of jurisdiction where it was filed, the court may then choose as between the application of local law or the relevant foreign law. In the case at bar, the state law that will be apply is the Michigan law because that is where the contract was perfected.
The doctrine of lex contractus or the law of the place where the contract was made will be applied in determining whether or not a contract was formed properly. The constructions and interpretation of the contracts and other matter will be determined by reference to the appropriate law of the contract. The factors that may be relevant in the determination of the law must be applied and this includes whether or not the contract designated a law to govern its interpretation (Gilhams. com , 2008). c).
Appeal is a legal remedy wherein the aggrieved party seeks relief in a higher court. In order for an appeal to be heard, the aggrieved party must state valid grounds for appeal. In the case at bar, the contention of Carla that the jury should have believed her is not a valid ground for appeal (The Free Dictionary, 2010). The most common ground for appeal is error of the decision rendered by the lower court and a simple argument from Carla that the jury should have believed her does not suffice unless she backs her arguments with legal basis and facts.
Part Two. Regulation of Drive-Through Oil Change Businesses 8. The power of the Congress to enact regulations emanate from Article one of the United States Constitution. Only the legislative branch of the government is allowed to create laws. Article one of the United States Constitution states that “all legislative powers shall be vested in the United States Congress which consists of the Senate and the House of Representatives (Cornell University Law School, n. d. ). 9. a).
The First Amendment to the United States Constitution provides that Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for redress of grievances (Find Law, 2010). The right to free speech is grounded in private property rights and as such, the right of Gary to claim that the new regulation by the State of Michigan constitutes as a violation of his First Amendment right emanates from his business ownership.
The true test of freedom of speech in the society is not whether or not popular and responsible speech is protected from any kind of government assault but whether or not the vilest and most despicable speech receives this kind of protection. Freedom of speech is only present when there is a government prohibition from suppressing the most unpopular and irresponsible forms of speech (Hornberger, 2004). As the business owner, Gary has the right to tell his customers about any complaints or any other information about his business.
b). Gary's contention cannot be sustained. The Fifth Amendment to the United States Constitution provides that no person shall be deprived of life, liberty or property without due process nor shall private property be taken for public use without any just compensation (Find Law, 2010). The part where the law states that no private property shall be taken without any just compensation is a provision safeguarding the people from abuse against the state's inherent power of eminent domain.
In the case at bar, there was no physical taking of Gary's property for public use therefore he must not be compensated (The Free Dictionary, 2010). c). It is submitted that Gary's contention cannot be sustained. It is an elementary rule that federal laws prevail over state laws that pertain to the same subject matter (Newman, 1939). Article VI, paragraph 2 likewise known as the Supremacy Clause provides that the constitution and the laws of the United States shall be the supreme law of the land and the judges in every state shall be bound thereby (Cornell University Law School, n. d. ).
If Gary follows the new regulation imposed by Congress, he would not be in violation of the constitution because the power of the United States Congress is much superior than the power of the state and should there be conflict as in the case at bar, the federal regulation must prevail over the Michigan regulation. The legislative power of the state only prevails when there is no federal law that opposes it and if there is no exclusive federal control. 10. Gary's contention cannot be sustained. Taxes are the lifeblood of the state and its main purpose is to raise revenue for public use.
A problem is presented when the tax produces an effect of regulating or suppressing activities that have no relation to tax collection. The Supreme Court held in the case of McCray v. United States (1904) that the right of Congress to tax within its delegated powers is unrestrained and there is no lack of due process that can result from its exercise of power. According to the court, to question the motives and purposes of the legislature in exerting its power to tax would be tantamount to usurpation of legislative function in order to control the branch of the government in their performance of legal duties.
In the case at bar, Gary cannot seek relief from the courts to declare the tax law unconstitutional because it is a political question which only the legislative has the power to answer. It is not within the powers of the judiciary to question the purpose of the legislature which is a co-equal branch. To declare the law unconstitutional would be an encroachment of legislative power. References Constitutional Law Foundation. (N. d. ). Does the United States Constitution Provide Environmental Protection? Retrieved May 14, 2010, from http://www. conlaw. org/prearg4. htm Cornell University Law School. (2010). Fourth Amendment.
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