WLIA Con law


Table of Contents

Administrative Stuff

Presenter\Class Details

The Obligatory Legal Disclaimers

Reminder: My purpose today is to help you gain a general familiarity with the law & public policy concepts related to GIS.

Legal Research Resources

Legal Tip – Some of the best legal resources are free!

GIS Data Policy

Book: Geographic Information Science – Mastering the Legal Issues

Book: Brown’s Boundary Controls and Legal Principals

Attorney-Client Privilege

Confidential Communications

Exception – There is no privilege

Effect of Privilege

This rule does not apply if the disclosure itself is privileged

Constitutional Law
The Constitution of the United States of America
Article I The Legislative Branch see
Article II The Presidency see explanation
Article III The Judiciary
Article IV The States
Hierarchy of Laws
Presidential Powers
Supremacy Clause Preemption
Contracts Clause Article 1, Section 10
Article IV Privileges and Immunities Clause
Full Faith and Credit Clause Article 4, Section 1
Justiciability RAMPS
Limitations on Jurisdiction of Federal Courts
The Nature of Judicial Review
Important Fundamental Rights
Substantive Due Process Analysis All Persons
Strict Scrutiny
Rational Basis
Equal Protection Analysis Some Persons
Rational Basis – A law will be upheld if rationally related to a legitimate gov. interest
Intermediate Scrutiny – A law will be upheld of it is substantially related to an important government interest
Strict Scrutiny – A law will be upheld of it is necessary related to achieve a compelling government interest
Procedural Due Process
State Action versus Private Action
Privileges and Immunities under Article IV, Section 2 —COMITY CLAUSE
Analyzing A State Law for Violations of The Article Iv Privileges and Immunities Clause and The Dormant Commerce Clause

To validly exercise its Commerce Clause power under the “substantial effects” test, Congress must now show
Commerce Power – Today, Congress can regulate
The Dormant Commerce Clause
Allowable Nonresident Discrimination
Reserved State Power in Taxation

Constitutional Amendments
The Amendments
First Amendment Freedoms – Freedom of Religion and Separation of Church and State- The Establishment Clause
Free Speech: Time, Place, and Manner Restrictions
First Amendment
Public Speaking Forums
Unprotected Speech Includes
“Content Neutral” Regulation of Time, Place, Manner Method
Prior Restraint
Commercial Speech
Freedom of Association
Who Can Sue and When – Taxpayer Standing
The Tenth Amendment – Authority Reserved for the States
11th Amendment
State Immunity
Immunity of State Governments
A State’s Immunity from Taxation
Immunity of the Federal Government
Voting Districts
Taxing Power
Power of Eminent Domain
Due Process
Scope of the Due Process Clause
Procedural Due Process
Property Interests
Type of Process Required
Economic Regulation
Substantive Due Process Versus Equal Protection Review
Equal Protection of The Laws
Proving Discrimination
Public Employment
Void for Vagueness
Privileges and Immunities Clauses
Private Nuisance
Strict Liability
Trespass vs. Nuisance
Professional Standard of Care
Products Liability – ₨ 2d Torts §402
Negligence Per Se
Assumption of the Risk
Intentional Tort
Elements of Intentional Torts
Trespass to Land
Defenses and Privileges to Intentional Torts
Products Liability
Proper Plaintiff
Proper Defendant
Manufacturing Defects
Design Defects
Absence of Warnings
Invasion of Privacy – Intrusion into Seclusion
Public Disclosure off Private Facts
Abuse of Process
Negligent Misrepresentation

Interference with Contractual Relations
Interference with Prospective Advantage
Injurious Falsehood Trade Libel
Independent Contractor
Joint Enterprise Partners and Joint Venturers
Statutory Law & Statutory Construction
Limits on Governmental Powers
Narrow Government Authority: Dillon’s Rule
Dillon’s Rule in Practice
Evidence Law
General Provisions of the Federal Rules of Evidence
Relevancy and Its Limits – Admissibility
Direct Evidence
Mode and Order of Examining Witnesses and Presenting Evidence
Writing Used to Refresh a Witness’s Memory
When a witness uses a writing to refresh memory, the Federal Rules of Evidence give an adverse party certain options. Unless otherwise provided by law in a criminal case, an adverse party is entitled to
Opinions and Expert Testimony – Acceptable Testimony
Testimony Admissibility
Testimony by Expert Witnesses Frye vs. Daubert
Bases of Expert’s Opinion Testimony
Opinion on an Ultimate Issue
Disclosing the Facts or Data Underlying an Expert’s Opinion
Court-Appointed Expert Witnesses
Public Records
Intellectual Property Law
The Origins of IP Law
Goals of Copyright Law
Basic Types of Copyrights
What Can Be Protected by Copyright?
When Copyrights Attach & Terminate for U.S. Works
What Rights Are Protected by Copyright Law?
Who Holds the Copyrights?
Enforcement of Copyrights Under Current Law
Civil Infringement Actions
Elements Of Proof of Direct Infringement
Proof That defendant Copied A Work
Degrees of Infringement
Contributory Infringement Liability
Vicarious Infringement Liability
Civil Remedies for Infringement
The “Fair Use” Defense
Copyrighting MAPS
Contract Law
Sources of Contract Law
The Uniform Commercial Code
Property Law
Covenants of Title
Valid Boundary Agreement Requirements
Boundary Disputes
Real Property contracts
Exceptions to the Statute of Frauds
Marketable Title
The Ad Coelum Doctrine
The Nature of Easements
Land Use Law
Foundations of Land Use Law
Condemnation Law and Urban Development
Zoning and Planning
Land Use Controls and the Scope of Regulation
Zoning Ordinance and Components
Zoning Map
Sign Controls
Architectural Review
Historic Preservation
Planning and the “Comprehensive Plan”
State Law Limitations on Local Authority – Dillon’s Rule
Physical Invasions
Total Regulatory Takings
Partial Regulatory Takings
Impact Fees – Require good maps – CWD
Temporary Takings and Moratoria
Land Use Takings Under State Law – Standing
Exactions, Dedication Requirements, and Impact Fees
Free Speech and Free Expression
Freedom of Religion
No religious veto
Search and Seizure
Substantive Due Process
Other Governmental Entities
Public Utilities
Adult Uses
Telecommunications Act of 1996
Subdivision Regulations
Streets and Public Improvements
Equitable Estoppel
Administrative Actions
Procedural Concerns
Creating a Record
Notice and Due Process Considerations
Annexation & Contiguousness
Litigating Against Local Governments
Hancock Amendment
Ruggles v. Collier, 43 Mo. 353 1869 re attempted delegation of a taxing power to the mayor of St. Louis
What is “police power”?
Municipal Right to Contract
Drafting Local laws
The Law Starter Kit
First Draft
The structure of a bylaw should address the following
The GeoSpatial Stuff
New Users in The Geospatial Sector
Economic Impact of the Geospatial Sector
Google Study Results
Open Records Laws
The Freedom of Information Act FOIA
State Open Records Act
Spatial Data Considerations
Select GeoSpatial Terms
What is the true cost and value of spatial data?
“Should spatial data be considered a public good, and therefore publicly available at no cost?
“What is the proper role for a government agency?
What is a Public Good?
Sometimes Free Costs Less
NonUniformity in Local Data Policies
Seven Keys to Data Sharing
Additional Resources
Can government agencies recover costs by selling public data?
NSGIC – “Geospatial Data Sharing – Guidelines for Best Practices” National States Geographic Information Council NSGIC, December 2, 2012. Part 1
NSGIC – “Geospatial Data Sharing – Guidelines for Best Practices” National States Geographic Information Council NSGIC, December 2, 2012. Part 2
Myth Number One “Organizations can pay for GIS operations through geospatial data charges.”
Myth Number Two “Data cannot be shared in the interest of homeland security and personal privacy.”
Myth Number Three “If we share our data, others may misuse it or blame us for mistakes.”
Data Sharing Options – Agencies have three basic choices
The Federal Information Reform Act FIRA
The Geospatial Data Makers Liability
Errors or uncorrected mistakes
Representations of Error-Free Data
Flawed Geospatial Data Policy
Unintended and inappropriate use
Government Perspective
Private Perspective
GIS Data as Evidence*
Can GIS data be used as evidence?
Problems Faced by GIS Data in the Courts
Technological Solutions to Legal Problems
Copyrights and the Value of Public Information
Federal Data Cost Schemes
Local Governments Now Are Offering Enhanced Access for a Price
How did you calculate the cost of that Data?
We’ll sell it to you, but you can’t use it
Big Data Meet Big Data License
No Privacy Rights in Public Data

Legal Research Resources

1.6.1 Google Scholar
1.6.2 Your Local Bar Association’s Law Library
1.6.3 Local University’s Law School’s Law Library
1.6.4 https://www.law.cornell.edu/
1.6.5 https://scholar.google.com/
1.7 Legal Tip – Some of the best legal resources are free!
1.8 GIS Data Policy
1.8.1 www.URISA.org
1.8.2 https://www.nsgic.org/public_resources/NSGIC_Data_Sharing_Guidelines_120211_Final.pdf
1.9 Book: Geographic Information Science – Mastering the Legal Issues
1.9.1 George Cho – Division of Health, Design and Science University of Canberra Australia
1.9.2 ISBN 0-470-85009-4 (cloth: alk. paper) — ISBN 0-470-85010-8 (pbk.: alk. paper)
1.10 Book: Brown’s Boundary Controls and Legal Principals
1.10.1 ISBN 13:978-1118431436
1.11 Attorney-Client Privilege
1.11.1 A client has a privilege to refuse to disclose, and to prevent any other person from disclosing, confidential communications made for the purpose of facilitating the rendition of professional legal services to the client – between himself or his representative and his lawyer or his lawyer’s representative; between his lawyer and his lawyer’s representative; by himself, his representative, his lawyer, or his lawyer’s representative to a lawyer or a representative of a lawyer representing another party in a pending action and concerning a matter of common interest therein; between representatives of the client or between the client and a representative of the client; or among lawyers and their representatives representing the same client.

1.12 Confidential Communications

1.12.1 A communication is confidential if it is not intended to be disclosed to third persons.
1.12.2 The privilege is limited to communications which the client either expressly made confidential or which he could reasonably assume under the circumstances would be understood by the attorney as so intended.
1.12.3 A representative of the lawyer is one employed by the lawyer to assist the lawyer in the rendition of professional legal services.
1.12.4 The traditional view, which protected only verbal communications, has been expanded to include spoken or written words and acts that intend to convey a message.
1.12.5 The client is holder of the privilege. Thus, the power to waive is his, and only he or his attorney or agent acting with his authority may exercise this power.
1.13 Exception – There is no privilege
1.13.1 If the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud;
1.13.2 as to a communication relevant to an issue concerning an attested document to which the lawyer is an attesting witness;
1.13.3 as to a communication relevant to a matter of common interest between two or more clients, if the communication was made by any of them to a lawyer retained or consulted in common, when offered in an action between any of the clients; or
1.13.4 as to a communication between a public officer or agency and its lawyers, unless the communication concerns a pending investigation, claim, or action and the court determines that disclosure will seriously impair the ability of the public officer or agency to process the claim or conduct a pending investigation, litigation, or proceeding in the public interest.
1.14 Effect of Privilege
1.14.1 A person who holds a privilege against disclosure waives the privilege if he voluntarily discloses, or consents to the disclosure of, any significant part of the privileged matter.
1.15 This rule does not apply if the disclosure itself is privileged.
1.15.1 A claim of privilege is not defeated by a disclosure which was -compelled erroneously; or
1.15.2 made without opportunity to claim the privilege.
1.15.3 Neither the judge nor counsel should comment upon a claim of privilege, regardless of whether such claims arise from the present proceeding or a prior occasion.
1.15.4 No inference may be drawn from the assertion of a privilege. It is permissible to draw an adverse influence from an assertion of the Fifth Amendment privilege in a civil case although it is not permissible to do so in a criminal case.

3 Constitutional Law

3.1 The Constitution of the United States of America see
3.1.1 Preamble “We the people”
3.2 Article I The Legislative Branch see
3.2.1 Section 1. Legislative Power Vested
3.2.2 Section 2. House of Representatives
3.2.3 Section 3. Senate
3.2.4 Section 4. Elections of Senators and Representatives
3.2.5 Section 5. Rules of House and Senate
3.2.6 Section 6. Compensation and Privileges of Members
3.2.7 Section 7. Passage of Bills
3.2.8 Section 8. Scope of Legislative Power
3.2.9 Section 9. Limits on Legislative Power
3.2.10 Section 10. Limits on States see explanation
3.3 Article II The Presidency see explanation
3.3.1 Section 1. Election, Installation, Removal
3.3.2 Section 2. Presidential Power
3.3.3 Section 3. State of the Union, Receive Ambassadors, Laws Faithfully Executed, Commission Officers
3.3.4 Section 4. Impeachment
3.4 Article III The Judiciary
3.4.1 Section 1. Judicial Power Vested
3.4.2 Section 2. Scope of Judicial Power
3.4.3 Section 3. Treason
3.5 Article IV The States
3.5.1 Section 1. Full Faith and Credit
3.5.2 Section 2. Privileges and Immunities, Extradition, Fugitive Slaves
3.5.3 Section 3. Admission of States
3.5.4 Section 4. Guarantees to States
3.5.5 Article V The Amendment Process
3.5.6 Article VI Legal Status of the Constitution
3.5.7 Article VII Ratification see explanation & The Signers
3.6 Hierarchy of Laws
3.6.1 Constitution
3.6.2 Acts of Congress or Treaty Most Recent Prevails
3.6.3 Executive Agreement Foreign policy
3.6.4 Executive Order Domestic policy
3.6.5 State Law
3.7 Presidential Powers
3.7.1 Commander in Chief
3.7.2 Appointment Powers
3.7.3 Emergency Powers
3.7.4 Clemency Powers
3.7.5 Issuance of executive orders which have the binding force of law upon federal agencies

3.8 Supremacy Clause Preemption
3.8.1 As a general rule, the Supremacy Clause impliedly prevents the states from regulating the activities of agents or instrumentalities of the federal government if the regulation will interfere with the government’s ability to carry out its federal functions.
3.8.2 Congress has the power “to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the U.S.” Thus, federal lands are subject to the authority of the federal government, except to the extent that Congress has ceded jurisdiction to the state.
3.9 Contracts Clause Article 1, Section 10
3.9.1 Prevents the STATES from retroactively impairing the obligation of an existing public or private contract
3.10 Article IV Privileges and Immunities Clause
3.10.1 Prevents economic discrimination by one state against “citizens” or “residents” of another state, unless the discrimination is closely related to a substantial government interest.
3.11 Full Faith and Credit Clause Article 4, Section 1
3.11.1 Every state shall give full faith and credit to the public acts, records, and judicial proceedings of every other state.
3.12 Justiciability RAMPS
3.12.1 Ripeness – Whereas mootness bars consideration of claims after they have been resolved, ripeness bars consideration of claims before they have fully developed. The court will consider fitness of the issues for judicial determination and hardship to the parties from withholding court consideration.
3.12.2 Abstention – The federal court may abstain, or refuse to hear, a particular case when there are undecided issues of state law presented. The abstention doctrine permits the state court to resolve issues of state law, thereby making a decision of the constitutional issue unnecessary.
3.12.3 The federal court may abstain if the meaning of a state law or regulation is unclear. In this situation, the state court might interpret the statute so as to avoid the constitutional issue.
3.12.4 Mootness – If a controversy or matter has already been resolved, then the case will be dismissed as moot. An actual case or controversy must exist at all stages of the litigation. The case will not be dismissed for mootness If the injury is “capable of repetition, yet evading review.” meaning that it is a practical impossibility for there to be adjudication or appellate review before the claims of the Plaintiff-Plaintiff become moot.
3.12.5 Political Questions – Federal courts cannot hear cases involving political questions. A political question is a matter as signed to another branch by the constitution or incapable of a judicial answer.
3.12.6 Standing – Article III requires a person litigating a constitutional question to show – Injury-in-Fact – The Plaintiff must show a direct and personal injury, actual or imminent, caused by the action that he is challenging. Where the Plaintiff has not suffered any personal injury or harm, he does not have standing.
3.13 Limitations on Jurisdiction of Federal Courts
3.13.1 Case or Controversy – Article III, Section 2 limits the jurisdiction of federal courts to “cases” and “controversies.”
3.13.2 A case or controversy is a real and substantial dispute that touches the legal relations of parties having adverse interests and that can be resolved by a judicial decree of a conclusive character.
3.13.3 The SCOTUS will not give advisory opinions to either the president or Congress concerning the constitutionality of proposed action or legislation.
3.13.4 State courts may be allowed to render advisory opinions.
3.13.5 The prohibition against advisory opinions does not preclude federal courts from granting declaratory judgments.
3.13.6 A declaratory judgment is a decision in which the court is requested to determine the legality of proposed conduct without awarding damages or injunctive relief. However, the Plaintiff must meet the case or controversy tests, as well as the “RAMPS” requirements explained below.
3.14 The Nature of Judicial Review
3.14.1 Organization of the Courts in the Federal System Federal Court System
3.14.2 Source of Federal Judicial Power – Article III, Section 1 provides that the “judicial power of the U.S. shall be vested in one SCOTUS and in such inferior Courts as the Congress may from time to time ordain and establish.”
3.14.3 Scope of Federal Judicial Power – Article III, Section 2 limits the jurisdiction of the federal courts to – cases, in law and equity, arising under the U. S. Constitution, federal laws, and treaties; cases affecting ambassadors, public ministers, and consuls; cases of admiralty and maritime jurisdiction; controversies to which the U.S. shall be a party; controversies between two or more states; cases between a state and citizens of another state; and cases between citizens of different states diversity of citizenship cases. $75,000

3.15 Important Fundamental Rights
3.15.1 Abortion -A woman has a protected privacy interest in choosing to have an abortion before the fetus is viable.
3.15.2 Family Structure – A fundamental right exists for related persons to live together. A zoning ordinance prohibiting members of an extended family from living in a single household has been subjected to heightened scrutiny and held unconstitutional.
3.15.3 Family Relations – Parents were held to have a protected liberty interest concerning the control of visitation with their children by others, including grandparents.
3.15.4 Sexual Orientation – The SCOTUS has applied a stringent form of rational basis scrutiny and held that a statue making it a crime for a person to engage “in deviate sexual intercourse with another individual of the same sex” furthered no legitimate state interest.
3.15.5 Right to Travel – The Privileges and Immunities Clause of Article IV, Section 2 and the Commerce Clause mutually enforce the right of every citizen to travel freely from state to state.
3.15.6 Durational residency requirements for dispensing government benefits are subject to strict scrutiny. The right to international travel is not absolute and may be subject to reasonable restrictions, and Congress may authorize the president to restrict travel to certain countries or danger areas.
3.15.7 Contraceptives – The SCOTUS invalidated a state law prohibiting the use of contraceptive devices, thus recognizing a right of marital privacy. The SCOTUS later expanded this and held that the right to use contraceptives belonged to single as well as married persons.
3.15.8 Marriage – The right to marry is deemed fundamental. Any substantial interference with that right must be necessary to further a compelling interest.
3.15.9 Private Education – Parents have a right to privately educate their children outside the public-school system.
3.15.10 Obscene Material – The right to possess obscene material in the privacy of one’s home is protected (except Child Porn). However, the government can severely restrict the sale, purchase, receipt, ‘transport, and distribution of obscene materials, both in stores and through the mail.
3.15.11 Right to Die – The right of a terminally ill or comatose person to choose to die is not presently a fundamental right. Nevertheless, a person has a well-established due process “liberty “interest in not being forced to undergo unwanted medical procedures, such as life-support.
3.15.12 Right to Vote – The fundamental right of U. S. citizens over age 18 to vote extends to all federal, state, and local elections, as well as to primaries. Strict scrutiny review is used to adjudicate restrictions on the right to vote. Government regulations of ballot-access by candidates-based upon age, duration of residency, or payment of filing fees-require only minimum rational basis scrutiny. Voter registration requirements and regulation of the time, place, and manner of casting ballots are valid so long as they do not impose an “undue burden” on the right to vote.
3.16 Substantive Due Process Analysis All Persons
3.16.1 Q. Does the law enacted by the government affect the rights of all persons or some persons with respect to a specific activity?
3.16.2 Fundamental Rights Implicated voting, travel, privacy, first Amendment, family rights
3.17 Strict Scrutiny
3.17.1 A law will be upheld only it is necessary related to achieve a compelling government interest
3.17.2 Burden of Proof – Government
3.17.3 Least Restrictive Analysis – Yes
3.17.4 No Fundamental Rights Implicated
3.18 Rational Basis –
3.18.1 A law will be upheld of it rationally related to a legitimate government interest
3.18.2 Burden of Proof – Challenger
3.18.3 Least Restrictive Analysis – No
3.18.4 Outcome – Law likely to be upheld

3.19 Equal Protection Analysis Some Persons
3.19.1 No Suspect Class Involved age, poverty, wealth, disability
3.20 Rational Basis – A law will be upheld if rationally related to a legitimate gov. interest
3.20.1 Burden of Proof – Challenger
3.20.2 Least Restrictive Analysis – No
3.20.3 Outcome – Law likely to be upheld
3.20.4 Quasi Suspect Class Involved gender, illegitimacy
3.21 Intermediate Scrutiny – A law will be upheld of it is substantially related to an important government interest
3.21.1 Burden of Proof – Government
3.21.2 Least Restrictive Analysis – Uncertain – probably not
3.21.3 Outcome – Law likely to be struck down
3.21.4 Suspect Class Involved race, alienage, national origin
3.22 Strict Scrutiny – A law will be upheld of it is necessary related to achieve a compelling government interest
3.22.1 Burden of Proof – Government
3.22.2 Least Restrictive Analysis – Yes – Outcome – Law likely to be struck down
3.23 Procedural Due Process
3.23.1 The procedural safeguards of Notice and a Hearing are available whenever there is a serious deprivation of any life, liberty, or property interest.
3.24 Commandeering
3.24.1 The Tenth Amendment does prevent Congress from interfering with a state’s lawmaking processes. Congress may not commandeer the legislative processes of the states by directly compelling them to enact and enforce a federal regulatory program. New York v. U.S. https://en.wikipedia.org/wiki/New_York_v._United_States
3.24.2 Holding: Congress may not commandeer the states to enact or enforce a federal regulatory program.
3.25 State Action versus Private Action
3.25.1 In order to show a constitutional violation either by the state or federal governments, the Plaintiff must first show that there is governmental action. Constitutional rights can be violated only by governmental actors, not by private actors. This is called the state action requirement.
3.26 Privileges and Immunities under Article IV, Section 2 —COMITY CLAUSE
3.26.1 Sometimes referred to as the Comity Clause Article IV, Section 2 provides – “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” This clause prohibits states from discriminating against nonresidents based upon the fact that they do not reside in the state with respect to rights and activities that are fundamental to the national union.
3.26.2 Corporations and aliens are not “citizens” for purposes of the Article IV Privileges and Immunities Clause.
3.26.3 The following have been held to be invalid forms of nonresident discrimination – a state statute requiring a nonresident commercial fisherman to pay a $2, 500 license fee to fish offshore, while a resident fisherman paid only a $25 license fee; a commuter tax applied to nonresidents who entered New Hampshire to work, while New Hampshire residents were exempt from the tax; a state statute imposing residency requirements on women seeking an abortion, which was held invalid because an individual has a fundamental right to seek medical care; and a state law requiring employers to give hiring preference to state residents.
3.27 Analyzing A State Law for Violations of The Article Iv Privileges and Immunities Clause and The Dormant Commerce Clause
Does the State Law Discriminate against Nonresidents?
No Yes
Dormant Commerce Clause If the law incidentally burdens interstate commerce, it violates the Dormant Commerce Clause if burden is excessive in relation to the benefit. If yes on its face, and the law burdens interstate commerce, it violates the if the dormant commerce clause unless –
the regulation serves a compelling state interest; and
the regulation is narrowly tailored to serve that interest.
Exceptions to this are –
Congressional approval; and
the market participation exception.
Note that simply helping residents to the detriment of nonresidents is not a valid interest.
Privileges and Immunities Clause The Article IV Privileges Immunities Clause does not apply. Privileges If yes with regard to activities fundamental to the national union, it violates the Article IV Privileges and Immunities Clause unless the regulation in question specifically targets a problem arising from such non-resident’s behavior no less discriminatory alternative could be achieved.
Activities fundamental to the national union means civil liberties or important economic activities i.e., the ability to earn a livelihood.
Corporations and aliens cannot use this provision; the Dormant Commerce Clause would apply instead.

3.28 To validly exercise its Commerce Clause power under the “substantial effects” test, Congress must now show –
3.28.1 that the regulated activity is “economic” in nature; and
3.28.2 that the regulated activity when taken cumulatively throughout the nation has a substantial effect on interstate commerce.
3.28.3 The Commerce Clause has been used as the vehicle to uphold laws aimed at barring racial discrimination in activities connected with interstate commerce.
3.29 Commerce Power – Today, Congress can regulate –
3.29.1 Channels of interstate commerce i.e., highways, waterways, and air traffic;
3.29.2 instrumentalities of interstate commerce i.e., cars, trucks, ships, and airplanes; and
3.29.3 activities that “substantially affect” interstate commerce.
3.29.4 Under the Affectation Doctrine, Congress now has the power to regulate any economic activity, whether carried on in one state or many, that has a substantial effect whether directly or indirectly upon interstate commerce. ☭
3.29.5 The affectation doctrine was expanded upon by the cumulative effect doctrine, in which the SCOTUS held that the federal commerce power permitted regulation of the amount of wheat a farmer could grow on his own land, for his own consumption, because his activity, together with that of other growers of wheat for their own consumption, had a substantial cumulative effect upon interstate commerce. https://en.wikipedia.org/wiki/Wickard_v.Filburn 3.30 The Dormant Commerce Clause 3.30.1 The Commerce Clause gives Congress the power to regulate interstate commerce. 3.30.2 Where Congress has not enacted legislation, the states are free to regulate local transactions affecting interstate commerce, subject to certain limitations. These limitations are generally known as the dormant Commerce Clause, or the negative implications doctrine. 3.30.3 If a state law discriminates on its face between in-state and out-of-state economic actors, the state must show that – the regulation serves a compelling state interest; and the regulation is narrowly tailored to serve that interest. 3.30.4 If a state law merely incidentally ☞ Burdens interstate commerce, the court will apply a balancing test and the law will be upheld unless the ☞ Burden imposed on interstate commerce clearly outweighs the local benefits   3.31 Allowable Nonresident Discrimination 3.31.1 The Privileges and Immunities Clause does not protect a nonresident against all forms of discrimination. The following types of nonresident discrimination have been upheld – a state statute requiring a nonresident to pay $225 for a recreational hunting license, while a resident hunter paid only a $9 license fee, because it is within a state’s police power to regulate recreational, noncommercial activities; and discrimination against nonresidents will be given special consideration if its purpose is the preservation of natural, state-owned resources. 3.32 Reserved State Power in Taxation 3.32.1 State Taxation of Interstate Commerce – As a general rule, state taxation of interstate commerce is permissible as long as the tax does not discriminate against or unduly ☞ Burden interstate commerce.
3.32.2 When State Tax on Interstate Commerce Is Valid It is not preempted by federal law It does not discriminate against interstate commerce There is a substantial nexus between the activity taxed and the taxing state There is a fair apportionment and relationship Various Types of State Taxes
3.32.3 Sales Tax -A tax upon the transfer of title of goods consummated within the state Valid if sale is consummated within the state Invalid if sale is made to buyer outside the state

3.32.4 Use Tax The ability of a state to collect a use tax usually depends upon whether the interstate seller, who receives goods from outside the state, has a sufficient nexus within the taxing state. Can be measured by either a flat annual fee or a graduated rate based in proportion on the amount of Business revenue derived from the taxing state Tax As a general rule, must “relate to the benefits” conferred by the taxing state upon the interstate business Net Applied by the state upon a company engaging in interstate commerce or on a nonresident engaged Income in business in the taxing state Tax Valid only as long as the tax is fairly apportioned, has a significant nexus, and is nondiscriminatory Flat Fee levied by the state upon drummers, or solicitors who solicit local orders and then fill them out-of-License state and ship them through interstate commerce Fee Generally unconstitutional
3.32.5 License Tax Valid on an itinerant salesperson when a state levies it upon a seller who actually sells and delivers the product within the state. Valid as nondiscriminatory only as long as the tax is fairly apportioned within equal application to local salespeople

4 Constitutional Amendments

4.1 The Amendments
4.1.1 Amendment I Religion, Speech, Press, Assembly, Petition 1791
4.1.2 Amendment II Right to Bear Arms 1791
4.1.3 Amendment III Quartering of Troops 1791
4.1.4 Amendment IV Search and Seizure 1791
4.1.5 Amendment V Grand Jury, Double Jeopardy, Self-Incrimination, Due Process 1791 s
4.1.6 Amendment VI Criminal Prosecutions – Jury Trial, Right to Confront and to Counsel 1791
4.1.7 Amendment VII Common Law Suits – Jury Trial 1791
4.1.8 Amendment VIII Excess Bail or Fines, Cruel and Unusual Punishment 1791
4.1.9 Amendment IX Non-Enumerated Rights 1791
4.1.10 Amendment X Rights Reserved to States or People 1791
4.1.11 Amendment XI Suits Against a State 1795
4.1.12 Amendment XII Election of President and Vice-President 1804
4.1.13 Amendment XIII Abolition of Slavery 1865
4.1.14 Amendment XIV Privileges and Immunities, Due Process, Equal Protection, Apportionment of Representatives, Civil War Disqualification and Debt 1868
4.1.15 Amendment XV Rights Not to Be Denied on Account of Race 1870
4.1.16 Amendment XVI Income Tax 1913
4.1.17 Amendment XVII Election of Senators 1913
4.1.18 Amendment XVIII Prohibition 1919
4.1.19 Amendment XIX Women’s Right to Vote 1920
4.1.20 Amendment XX Presidential Term and Succession 1933
4.1.21 Amendment XXI Repeal of Prohibition 1933
4.1.22 Amendment XXII Two Term Limit on President 1951
4.1.23 Amendment XXIII Presidential Vote in D.C. 1961
4.1.24 Amendment XXIV Poll Tax 1964
4.1.25 Amendment XXV Presidential Succession 1967
4.1.26 Amendment XXVI Right to Vote at Age 18 1971
4.1.27 Amendment XXVII Compensation of Members of Congress 1992
4.2 First Amendment Freedoms – Freedom of Religion and Separation of Church and State- The Establishment Clause
4.2.1 Where a government program prefers one religion or religious sect over others, strict scrutiny analysis will be applied.
4.2.2 Where the legislation or government program contains no religious or sect preference, the SCOTUS will follow the following three-part Lemon test – if the statute must have a secular legislative purpose; the principal or primary effect or purpose must neither advance nor inhibit religion; and the statute must not foster an excessive government entanglement with religion.
4.2.3 Religious Activities Conducted at Public Schools – As a general rule, religious activities conducted in public schools violate the Establishment Clause because their primary purpose is to promote religion.
4.2.4 Public School Curriculum – Anti-evolution laws prohibiting the teaching of Darwinian principles in public schools are unconstitutional.
4.2.5 Other Government Endorsement of Religion – Displays that celebrate the holiday season without favoring one religion over another are generally upheld. The government cannot permit the type of display that a reasonable observer would conclude constitutes an endorsement of religion. The context surrounding the display is a key factor in determining its validity.
4.2.6 Sunday Closing Laws have been upheld as a governmental action with a mere incidental benefit to religion.
4.2.7 Tax Deductions for Religious Institutions – The SCOTUS has upheld the validity of a property tax exemption for religious institutions as the equivalent of exempting other charitable organizations. However, an exemption from sales and use taxes available only for the sale of religious magazines and books violates the Establishment Clause as an endorsement of religion.

4.3 Free Speech: Time, Place, and Manner Restrictions
4.3.1 Reasonable regulation of the time, place, or manner of speech is allowed.
4.3.2 The government may place reasonable restraints on the time, place, and manner of speech in public areas, such as streets, sidewalks, and parks—places historically associated with expressive conduct e. g., picketing, leafleting, and broadcasting.
4.3.3 The focus is not on the “content” or “message” of the speech, but rather its “conduct” or “method.”
4.3.4 A three-part test is used to determine the constitutionality of time, place, or manner regulations of speech and assembly in public places. The regulation must –
4.3.5 be content-neutral as to both subject matter and viewpoint i.e., the regulation cannot prefer some messages over others;
4.3.6 be narrowly tailored to serve a significant important government interest; and
4.3.7 leave alternative channels of communication open.
4.3.8 This test is very much like the test for intermediate scrutiny under equal protection.
4.4 First Amendment
4.4.1 “Content Specific” Regulation
“Protected” Speech “Unprotected” Speech
Apply Strict Scrutiny
Clear and Present Danger
Child Pornography
“Fighting words”
Fraudulent commercial speech
4.5 Public Speaking Forums
4.5.1 Public Forum – Streets, sidewalks, public parks – Areas generally open to public
4.5.2 Limited Public Forum – School rooms – Opened by state on permanent/limited basis
4.5.3 Non-Public Forum – Most other public places – Military bases, city bus, government workplaces, airport terminals

4.6 Unprotected Speech Includes
4.6.1 Advocating Violence or Unlawful Action – The constitutional guarantees of free speech do not permit state regulation of the advocacy of the use of force or of violation of law,” except where such advocacy is directed to inciting or producing imminent lawless action and likely to incite or such action.”
4.6.2 Fighting Words – To fall within this category, the speech must be more than annoying or offensive; there must be a genuine likelihood of imminent violence by a hostile audience.
4.6.3 Obscene Speech – For speech to be considered obscene the following three-part MILLER test must be satisfied – the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest a national standard is not used; the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and the work, taken as a whole, lacks serious literary, artistic, political, or scientific value note that a national standard is used to determine this value.
4.6.4 Defamatory Speech – Constitutional restrictions apply to defamatory speech where the Plaintiff is either a public official or public figure, or where the defamatory statement involves a matter of public concern.
4.7 “Content Neutral” Regulation of Time, Place, Manner Method
4.7.1 Non-Public Forum- Regulation must be – Viewpoint Neutral Reasonably related to a legitimate government purpose
4.8 Prior Restraint
4.8.1 As a general rule, the government cannot suppress or restrain speech in advance of its publication or utterance.
4.8.2 There is a strong presumption against the constitutional validity of any system of prior restraint of expression.
4.8.3 There are some exceptional cases in which prior restraints are allowed, including –
4.8.4 a government agency can require prepublication review of writings related to employment of past or present employees where such a review is necessary to protect national security;
4.8.5 classified military information; and
4.8.6 any case involving a search and seizure is governed by the Fourth Amendment.

4.9 Press
4.9.1 The press has no greater freedom to speak than any ordinary member of the general public does. Also, the press has no special right of access to government information.
4.10 Commercial Speech
4.10.1 Commercial speech is protected by the First Amendment if it is not false or deceptive and does not relate to unlawful activity.
4.10.2 If commercial speech satisfies these requirements, government regulation of the speech must satisfy the CENTRAL HUDSON 3-part test – The regulation must – Directly advance A substantial government interest, and Be narrowly tailored to serve the substantial interest.
4.11 Freedom of Association
4.11.1 There is a close “nexus” between the freedoms of speech and association. The SCOTUS has acknowledged that “state” action which may curtail or have the effect of curtailing the freedom to associate is subject to the closest scrutiny.”
4.12 Who Can Sue and When – Taxpayer Standing
4.12.1 General Rule – state and federal taxpayers lack standing to challenge government expenditures because their interest is too remote
4.12.2 Exception – a federal taxpayer has standing to make an Establishment Clause challenge to an expenditure enacted under the Taxing and Spending power Flast v. Cohen. This rule applies to state and municipal taxpayers.
4.13 The Tenth Amendment – Authority Reserved for the States
4.13.1 The Tenth Amendment provides that the “powers not delegated to the U.S. by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. “The Constitution specifically prohibits any state from – making treaties with other nations; coining money; passing a bill of attainder; enacting an ex post facto law; impairing the obligation of contracts; laying any duty on imports or exports, except where necessary for executing its inspection laws; engaging in war; or maintaining a peacetime army.
4.14 11th Amendment
4.14.1 A STATE may not be sued in federal court by its own citizens or citizens of another state without consent
4.14.2 Exceptions State officials may be sued personally for money damages or enjoined for federal law violations enjoined for federal law violations A state may be sued by another state or by the U.S. Original Jurisdiction-Consuls, Public Ministers, Ambassadors Congress may waive a state’s 11th Amendment immunity under the Enforcement Clause of Section 5 of the 14th Amendment
4.15 State Immunity
4.15.1 The Eleventh Amendment recognizes the states and their governmental immunity. It applies not only to diversity suits but to federal question cases as well.
4.15.2 The concept of governmental immunity, or sovereign immunity, means that the government may not be sued without its consent.
4.15.3 Exceptions to the application of the Eleventh Amendment include – suits against state officials for abusing their power in enforcing an unconstitutional state statute; federal suits brought by one state against another state, or suits brought by the federal government against a state; and most suits for injunctions—e. g., a private citizen may sue to enjoin a state official from acting in violation of the Plaintiff ‘s federal constitutional rights.
4.15.4 A state may consent to suit in federal court if it clearly waives its Eleventh Amendment immunity and does so expressly and unequivocally or by voluntarily invoking a federal court’s jurisdiction.
4.16 Immunity of State Governments
4.16.1 The federal government, or one of its agencies or instrumentalities, may sue a state without its consent. In this case, the SCOTUS has original, but not exclusive, jurisdiction.
4.16.2 A state may be sued by a sister state without its consent. In this case, the SCOTUS has original and exclusive jurisdiction.
4.16.3 As a general rule, the Eleventh Amendment prohibits citizens of one state from suing another state in federal court. This rule has been extended to prohibit suits by a citizen of a state against his own state.
4.16.4 Some exceptions do exist to this rule. In particular -a state may be sued if it consents to the suit; and a state officer may be sued for injunctive relief on the theory that his allegedly unlawful conduct was beyond the scope of his authority.

4.17 A State’s Immunity from Taxation
4.17.1 A state now enjoys immunity from federal taxation If the tax is applied to either – unique state activities essential governmental functions.
4.17.2 Where a state engages in a proprietary business i.e., one similar in nature to a business operated by a private individual, then the state may be taxed to the same extent as the private citizen.
4.18 Immunity of the Federal Government
4.18.1 The federal government and its agencies are immune from suits by private individuals except where they allow themselves to be sued e. g., the FEDERAL TORT CLAIMS ACT.
4.18.2 The federal government and its agencies are immune from state taxation and state regulation. States may nevertheless collect a nondiscriminatory tax on persons who deal or contract with the federal government.
4.19 Voting Districts
4.19.1 A claim that a state has redrawn its electoral districts in a racially discriminatory manner is not a political question. However, a claim that a state has redrawn electoral districts to benefit one political party is a political question and, therefore, is no justiciable.
4.19.2 The SCOTUS has ruled that there are manage able judicial standards for deciding claims of race discrimination, but that there are no such standards for deciding when a political party has been unfairly advantaged when electoral districts are redrawn.
4.20 Taxing Power
4.20.1 Congress has the power to lay and collect taxes, duties, imposts, and excises to pay the debts and provide for the common defense and general welfare.
4.20.2 LEGAL TIP – A congressional act purporting to be a “tax” should be upheld as a valid exercise of the taxing power provided that it does, in fact, raise revenue the objective test or that it was intended to raise revenue the subjective test.
4.20.3 Congress has used its taxing power as a necessary and proper means of achieving a regulatory effect, Generally, as long as Congress has the power to regulate the activity taxed, the tax can then be used as a regulating device rather than for revenue-raising purposes.
4.20.4 As a general rule, the modern judicial trend is to uphold any tax as valid if it is, in fact, a revenue-raising measure.
4.21 Power of Eminent Domain
4.21.1 Although the Constitution does not expressly give Congress the power of eminent domain, the power to take property is “implied in aid of the other powers granted to the federal government.”
4.21.2 This power is limited, however. The Fifth Amendment provides, in part, that private property shall not be taken for public use without just compensation.
4.22 “Takings”
4.22.1 A regulation that denies the owner all reasonable economically viable use of his land.
4.22.2 “Public Use” Requirement
4.22.3 ☞ Burden on the government to show the measure is rationally related to any conceivable purpose
4.22.4 To qualify as a “public purpose” the property does not have to be held out for use by the general public

5 Due Process
5.1 Scope of the Due Process Clause
5.1.1 The Due Process and Equal Protection Clauses of the Fourteenth Amendment protect the rights of “persons,” and not merely “citizens.”
5.1.2 A Corporation is considered a “person” for purposes of due process and equal protection. Note, however, that a corporation is not entitled to the privilege against self-incrimination.
5.1.3 Aliens are considered “persons” for purposes of due process and equal protection.
5.2 Procedural Due Process
5.2.1 Both the Fifth and Fourteenth Amendments against the deprivation of life, liberty, or property without the due process of the law. Where there is a deprivation of one’s “life,” “liberty,” or “property” interests, the individual is entitled to fundamentally fair procedural safeguards e. g., some form of notice and a meaningful hearing within a reasonable time.
5.3 Property Interests
5.3.1 State may not revoke a driver’s license without a hearing
5.3.2 Property interest in a person keeping his job if employment is under a tenure system or there is a clear understanding, either express or implied, that the employee can be terminated only for “cause” Employment is a not???? a property interest where a police officer held his position “at the will of the public employer
5.3.3 Public property interest when a state refuses to renew a fixed-term contract
5.3.4 Due process is satisfied where the government sends a certified letter to prison to notify a Forfeiture inmate that property seized will be forfeited, because such an action is “reasonably calculated, of Property under the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections”
5.3.5 First Amendment and due process require that a licensing scheme for adult businesses provide applicants with “prompt judicial determination” of their claim that the government unconstitutionally denied a license, as opposed to mere prompt access to judicial review
5.3.6 As with any other constitutional right, procedural due process is not required where there is no “state action.
5.4 Type of Process Required
5.4.1 Once it is determined that there is a sufficient deprivation of life, liberty, or property, the next step is to decide what process is required.
5.4.2 In order to determine what procedural safeguards are necessary, the SCOTUS set forth the following factors to look at – the private interest that will be affected by the official action; the risk of an erroneous deprivation of this interest through the procedures used, and the probable value of additional or substitute procedures; and the government’s interest in streamlined procedures, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail.
5.5 Economic Regulation
5.5.1 The SCOTUS held that challenges to economic regulation are to be subjected to deferential rational basis scrutiny, with a challenger having the ☞ Burden of proving that a regulation lacks a rational connection to a legitimate government interest.
5.6 Substantive Due Process Versus Equal Protection Review
5.6.1 Applies where a law affects Applies where a law affects the rights of all persons with rights of some persons with respect to a specific activity respect to a specific activity
5.7 Equal Protection of The Laws
5.7.1 The Fourteenth Amendment provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” The SCOTUS has ruled that equal protection also applies to the federal government under the Due Process Clause of the Fifth Amendment.
5.7.2 The guarantee of substantive due process assures that a law will be fair and reasonable, not arbitrary; equal protection review is triggered where persons similarly situated are treated differently.
5.8 Proving Discrimination
5.8.1 Discriminatory intent—purposeful discrimination—must be shown to trigger strict or intermediate scrutiny. Mere discriminatory effect is insufficient. Discriminatory intent may be shown facially, as applied, or where a discriminatory motive exists.
5.8.2 Facial discrimination arises where a law, by its very language, creates distinctions between classes of ‘persons e.g., ”only white, male U. S. citizens may apply for positions with the state police department”.
5.8.3 Where a law that appears neutral on its face but in its application has a disproportionate effect on a particular class of persons, strict or intermediate scrutiny will apply only If the court finds a discriminatory purpose exists.
5.8.4 States may discriminate against aliens in activities where participation in the functioning of government is involved, under the “government function test.”

5.9 Public Employment
5.9.1 In general, an individual cannot be denied public employment based upon membership in a political organization unless the position is a high-level policy-making position.
5.9.2 An individual may be deprived of public employment for political association if – he is an active member of a subversive organization; such membership is with knowledge of the illegal aims of the organization; and he has a specific intent to further those illegal ends e. g., violent overthrow of the government.
5.10 Overbreadth
5.10.1 When a state has the power to regulate an area dealing with free speech, it must not do so “by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.”
5.10.2 Thus, the wording of a statute must be narrow and specific, and not overly broad so as to have a “chilling effect” upon protected speech.
5.10.3 The SCOTUS further explained that “there must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court for it to be facially challenged on overbreadth grounds.”
5.11 Void for Vagueness
5.11.1 The vagueness doctrine is closely related to the overbreadth doctrine. The SCOTUS has admonished that governmental regulations must be drawn “with narrow specificity.”
5.11.2 The following statutes have been ruled “void for vagueness” under due process inquiries – a statute making it a crime to “publicly mutilate, trample upon, deface or treat contemptuously the flag of the U.S.”; a municipal vagrancy ordinance defining vagrants to include “rogues and vagabonds, . . . lewd, wanton, and lascivious persons, . . . and persons wandering or straying around from place to place without any lawful purpose or objective”; and a city ordinance that defined loitering as “to remain in any one place with no apparent purpose” and gave police officers absolute discretion to issue dispersal orders to groups of two or more persons seen loitering in a public place if the officer reasonably believed that one of them was a criminal street gang member, and which made it a criminal offense to disobey such order.

5.12 Privileges and Immunities Clauses
5.12.1 The Fourteenth Amendment provides that no state shall make or enforce any law which abridges the privileges or immunities of citizens of the U.S.
5.12.2 The SCOTUS ruled early on that the Privileges and Immunities Clause of the Fourteenth Amendment had very limited application. Among the protected privileges and immunities of national citizenship are the rights – to travel from state to state; to petition Congress for redress of grievances; to vote for national offices; to enter public lands; to be protected while in custody of U. S. Marshals; and to assemble peaceably.
5.12.3 Corporations and aliens are not protected under the Fourteenth Amendment Privileges and Immunities Clause.

6 Torts
6.1 Private Nuisance
6.1.1 Substantial and unreasonable interference with plaintiff’s use and enjoyment of his property.
6.2 Trespass
6.2.1 Basis of Entry Damages Required? Intentional No Negligent Yes Reckless Yes Strict Liability Yes
6.3 Strict Liability
6.3.1 Did Defendant engage in a “strict liability” activity? – E. g., possession of animals with known dangerous propensities; abnormally dangerous activities; supplying of a product in a defective condition unreasonably dangerous
6.4 Trespass vs. Nuisance
Trespass Nuisance
One-time entry will suffice Repeated entry/ interference
Interference with landowner’s exclusive possession Interference with landowner’s use or enjoyment
Damages – actual injury to land not required Damages or injunction available
6.5 Professional Standard of Care
6.5.1 A person who is a professional or has special skill is required to possess and exercise the knowledge and skill of a member of the profession or occupation in good standing in similar communities.
6.5.2 A professional must also use such superior judgment, skill, and knowledge as he actually possesses.
6.6 Products Liability – ₨ 2d Torts §402
6.6.1 A commercial seller is strictly liable for any defective condition unreasonably dangerous existing at the time of sale.

6.7 Negligence Per Se
6.7.1 Breach of a statutory duty of care which creates a rebuttable presumption of negligence.
6.7.2 Plaintiff must be a member of the class of persons the statute was designed to protect, and
6.7.3 Plaintiff’s harm must be of the type the statute was designed to prevent.
6.8 Assumption of the Risk
6.8.1 Express Assumption of Risk – Plaintiff relieves Defendant of any legal duty either by contract, or by some overt language agreeing to waive liability and not sue This is a complete bar to recovery Implied Assumption of Risk – Plaintiff voluntarily agrees to encounter a known risk
6.8.2 This doctrine has been merged into “comparative fault” in most jurisdictions
6.8.3 Not a complete bar to recovery
6.9 Intentional Tort
6.9.1 E. g., battery, assault, intentional infliction of emotional distress, trespass to land, trespass to chattel, and conversion
6.9.2 Requisite act?
6.9.3 Requisite intent?
6.10 Negligence
6.10.1 Did Defendant owe Plaintiff a duty of care?
6.10.2 Did Defendant breach this duty of care?
6.10.3 Was there injury, harm, or damages?
6.10.4 Was there causation actual and proximate?
6.11 Elements of Intentional Torts
6.11.1 Voluntary Act – A Defendant is not liable in tort for acts that are not voluntary. Acts are not voluntary if they are a product of pure reflex or if the Defendant is unconscious when the act is performed.
6.11.2 Intent – All intentional torts require the Defendant to have a certain mental state when he performs the wrongful act. This mental state is called intent. For most intentional torts, intent is established If the Defendant either –
6.11.3 Desires that his act will cause the harmful result described by the tort; or
6.11.4 Knows that it is substantially certain that such a result will occur.
6.11.5 Causation – As to intentional torts, the Defendant Defendant’s act or a force set in motion by that act must cause the Plaintiff s injury.
6.12 Trespass to Land
6.12.1 ☀Trespass to land is an intentional act that causes a physical invasion of the Plaintiff ‘s land.
6.12.2 A Defendant need only act with intent to cause a physical invasion of a particular piece of land—not the specific intent to invade the Plaintiff ‘s land.
6.12.3 Intentional entry onto land is a trespass even though the Defendant does not realize he has crossed a boundary line, or has a good faith belief that his entry is lawful. In other words, mistake is not a defense as to a trespass action.
6.12.4 In order to bring an action for trespass, the Plaintiff must be in actual possession or have the right to immediate possession of that land.
6.12.5 The element of physical invasion is satisfied If the Defendant enters or causes an object or third person to enter onto the Plaintiff ‘s land, enters onto the Plaintiff ‘s land lawfully but then remains when under a legal duty to leave, or fails to remove an object from the Plaintiff s land when under a legal duty to do so.
6.13 Damages
6.13.1 Traditionally, nominal damages are recoverable where the Defendant trespasses but causes no real injury.
6.13.2 If the trespasser causes injury during the trespass, however, he is liable for that harm as well.
6.13.3 Where the Defendant acts willfully or maliciously, he may be liable for punitive damages.
6.14 Defenses and Privileges to Intentional Torts
6.14.1 Privilege
6.14.2 Defense of Others
6.14.3 Defense of Property
6.14.4 Consent
6.14.5 Authority
6.14.6 Necessity
6.14.7 Self-Defense


6.15.1 Duty – The element of duty is usually described as an obligation, recognized by law, requiring the Defendant to conform to a certain standard of conduct for the protection of others against unreasonable risk. Where the Defendant engages in conduct that is claimed to have injured the Plaintiff-Plaintiff, the issue can be framed as – did the Defendant have a duty to the Plaintiff to conform to a certain standard of conduct?
6.16 Professionals
6.16.1 Historically, Defendant Defendants who engaged in certain activities were held to a higher standard of care to the public or to their customers including – common carriers; innkeepers; and public utilities.
6.16.2 Professionals doctors, lawyers, accountants, etc. are treated differently from other Defendants in negligence. The customary practice of professionals in good standing sets the standard of care. If the Defendant deviates from that custom, he has breached his duty; if he has complied with that custom, he cannot be found to have breached his duty.
6.16.3 The effect of this rule is that a Defendant will be found to have breached the standard of care if he did not conduct himself as would a competent member of the profession with minimally adequate knowledge and expertise. If the Defendant is a specialist within a profession, the standard of care is applied according to the standards appropriate to that specialty.
6.16.4 Traditionally, the conduct of a Defendant with specialized skill or expertise was assessed for reasonable person breach of duty purposes with regard to the community in which the Defendant practiced his profession. Some jurisdictions apply a more modern, national standard, recognizing that technology permits communication and exchange of knowledge that transcends traditional geographic limitations.
6.17 Products Liability
6.17.1 Strict Products Liability in Tort – In general, strict products liability is invoked when a defective product, for which an appropriate Defendant is responsible, injures an appropriate plaintiff.
6.18 Proper Plaintiff
6.18.1 In general, if strict liability is otherwise applicable, any Plaintiff injured while using a defective product may recover damages from an appropriate defendant. This includes purchasers and consumers, as well as families, friends, guests, and employees.
6.19 Proper Defendant
6.19.1 Commercial suppliers at all levels of the distribution chain as well as commercial lessors, new home developers, and sellers of used goods are all potential defendants. Occasional sellers and those supplying services cannot be strictly liable but may be sued for negligence.
6.19.2 Retailers and commercial lessors are subject to strict liability for defects in new goods that they sell or lease. Commercial lessors are subject to strict liability for defective used goods leased, but there is a split in authority as to whether a retailer of used goods is strictly liable for defects in those goods.
6.19.3 Occasional or one-time sellers are not proper defendants for purposes of strict products liability because they are not in the position to further the goals of the tort—safer products and cost-spreading.
6.20 Defect
6.20.1 Almost all jurisdictions impose strict liability where a product is “in a defective condition unreasonably dangerous.”
6.20.2 Formulations of liability occur under three categories of defects.
6.21 Manufacturing Defects
6.21.1 A product manufactured in a form other than the manufacturer intended contains a manufacturing defect. All jurisdictions impose strict liability on the manufacturer and everyone else in the chain of distribution for personal injury or property damage to a Plaintiff caused by a manufacturing defect.
6.22 Design Defects
6.22.1 A product manufactured as the manufacturer intended, but that still presents a danger of personal injury or property damage to a plaintiff, suffers from a design defect.
6.22.2 Under the consumer expectation test standard, a product is in an unreasonably dangerous defective condition when it is more dangerous than would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics. Thus, a product is dangerously defective if a reasonably foreseeable purchaser would not have expected it to present the danger that resulted in his injury.
6.22.3 Many jurisdictions that apply the consumer expectation test expand “consumer” to include a nonpurchasing user. A product is thus considered defective and unreasonably dangerous if more dangerous than a reasonable user would have expected.
6.22.4 Under the danger-utility test approach, a product is defective if a jury determines that the danger it threatens the cost in human injury and property damage outweighs its utility to society. The danger-utility test balances the likelihood, nature, and potential severity of injuries caused by a product against the usefulness of the product, considering the availability and cost of safer alternative designs. A product’s design is usually defective under this test if an alternative design could have reduced the danger at about the same cost.
6.22.5 Under the hindsight-negligence test, a product is defective if a reasonable person, knowing of the danger it presented, would not have placed it in the stream of commerce. This test imposes constructive prior knowledge of the defect on the defendant, in effect presuming that the Defendant knew of the risk, whether or not he actually did know or reasonably could have known of it.
6.23 Absence of Warnings
6.23.1 A product may be considered dangerously defective when it is accompanied by an inadequate warning—for example, its message to the user fails to sufficiently describe the danger, fails to mention all dangers, or is inconsistent with the instructions for use of the product. A defendant’s failure to warn a Plaintiff that a product presents a threat of personal injury or property damage may be considered a defect. Where a Plaintiff establishes that the manufacturer of a product knew or reasonably should have known of a danger presented by the product and failed to take the precautions a reasonable person would have taken to warn adequately of that danger, the absence of such warning is sufficient to impose strict liability.
6.23.2 Certain products are regarded as so obviously dangerous that a warning is considered unnecessary, e.g., a sharp knife.
6.24 Disclaimer
6.24.1 The UCC enables a Defendant to disclaim or limit the applicability of all warranties by a sufficiently conspicuous writing.
6.24.2 The UCC provides that it is prima facie unconscionable for a seller to attempt to limit the remedies available for breach of warranty so as to exclude recovery for personal injuries where consumer goods are involved.
6.24.3 Where goods are sold “as is,” it is often implied that the seller is disclaiming any warranties, implied or express.
6.24.4 Federal law provides that a seller who gives a written warranty to a consumer may not thereby disclaim any implied warranties.
6.25 Invasion of Privacy – Intrusion into Seclusion
6.25.1 This form of invasion of privacy is present when a Defendant unreasonably intrudes into the plaintiff’s seclusion. To be actionable, the defendant’s intrusion must be one that would be highly objectionable to a reasonable person.
6.25.2 The wrongful conduct is an interference with the plaintiff’s seclusion, including physical intrusions placing a webcam in the plaintiff’s bathroom and non-physical intrusions i.e., photographing the Plaintiff in his backyard from off the property.
6.25.3 Seclusion refers to a plaintiff’s right to physical solitude or to the privacy of personal affairs or concerns. In circumstances where the Plaintiff has no reasonable expectation of solitude or pri­vacy, conduct by the Defendant that might otherwise be intrusive is not an invasion of seclusion e.g., eavesdropping on a conversation between the Plaintiff and another person as they walk down a public sidewalk.
6.26 Public Disclosure off Private Facts
6.26.1 A public display of private facts is present when a Defendant unreasonably discloses private facts about a Plaintiff to the public.
6.26.2 Disclosure is actionable if it would be highly offensive to a reasonable person and not of legitimate public concern.
6.26.3 The private facts must be disseminated to the public. Communicating them to a third person is not sufficient to constitute this tort as distinguished from defamation, where communication to a single third person is a sufficient publication.
6.26.4 Public disclosure of private facts is not actionable where the publication is newsworthy. This broad defense can apply to pictures published in newspapers as well as magazine articles on former celeb­rities and public figures. Private matters contained in public records are absolutely privileged.
6.27 Abuse of Process
6.27.1 Abuse of process exists where a Defendant intentionally misuses a judicial process whether civil or criminal for a purpose other than that for which the process is intended.
6.27.2 This tort also parallels malicious prosecution.
6.27.3 The Plaintiff need not show the defendant’s lack of probable cause, as proof of the defendant’s improper purpose serves the same function.
6.28.1 Intentional Misrepresentation Fraud – An intentional misrepresentation by a defendant, made with scienter, which is material and justifiably relied upon by a Plaintiff and which causes damages to the plaintiff, is actionable. An actionable misrepresentation is an assertion of a false past or present fact.
6.28.2 Scienter is present when the Defendant makes a misrepresentation knowing it to be false or recklessly possessing insufficient information as to its truth or falsity.
6.28.3 The element of causation is met if a defendant’s misrepresentation played a substantial part in inducing the Plaintiff to act as he did.

6.29 Negligent Misrepresentation
6.29.1 The traditional rule, followed by a majority of jurisdictions, is that negligent misrepresentations are not actionable. Many of these jurisdictions nevertheless allow recovery by resorting to legal fictions that permit their courts to find intent because a defendant’s honestly held belief in the truth of his assertion is unreasonable.
6.29.2 Many jurisdictions impose liability for negligent misrepresentation only in certain situations where a special relationship exists between the Defendant and the plaintiff, and the nature of the defendant’s activity justifies holding the Defendant liable for a failure to exercise due care e.g., accountants, title abstractors, or lawyers.
6.29.3 A Defendant is liable for a negligent misrepresentation only to – the person to whom the misrepresentation was made; and to any other specific persons or identifiable group of persons that the Defendant knew would rely upon the misrepresentation.

6.30 Interference with Contractual Relations
6.30.1 Virtually any type of contract may be the basis for this type of tort action. The contract must – be in force and effect; be legal; and not be opposed to public policy.
6.30.2 To be held liable for interference with a contract, the Defendant must be shown to have caused the interference. It is not enough that he merely has reaped the advantages of the broken contract after the contracting party has withdrawn from it.
6.31 Interference with Prospective Advantage
6.31.1 This tort protects the probable “expectancy” interests of the future contractual relations of a party, such as the prospect of obtaining employment or the opportunity to obtain customers.
6.31.2 Modern decisions hold a Defendant liable where his conduct is unlawful in itself or is malevolent, such as evincing a desire to do harm to the Plaintiff for its own sake.
6.31.3 Proof of the intentional interference and resulting damages establishes what the courts have called a “prima facie tort,” and cast upon the Defendant the ☞ Burden of avoiding liability by showing that his conduct was privileged.
6.31.4 The most common defense centers around the privilege of competition. In sum, it is not a tort to beat a business rival to prospective customers. Thus, in the absence of prohibition by statute, illegitimate means, or other unlawful conduct, a Defendant seeking to increase his own business may cut rates or prices, allow discounts, or enter into secret negotiations behind the plaintiffs back; refuse to deal with plaintiff; or threaten to discharge employees who do.
6.32 Injurious Falsehood Trade Libel
6.32.1 An injurious falsehood is a false statement made to another by the Defendant that causes economic injury to the plaintiff.
6.32.2 The false statement need not be defamatory, personally relate to the plaintiff, or cause others to shun the plaintiff’s company.
6.32.3 The false statement must be made to a third person.
6.32.4 The Plaintiff bears the ☞ Burden of proving the falsity of the challenged statement.
6.32.5 The Defendant must intend to cause others not to do business with the Plaintiff or to otherwise interfere with the plaintiff’s relations with others to the plaintiff’s economic disadvantage.

6.33 Defenses

6.33.1 Consent – A Defendant will not be liable for an injurious falsehood if speaking with the consent of the plaintiff.
6.33.2 Privilege – The same absolute and qualified privileges applicable to defamation are available to a Defendant in an injurious falsehood action. If the Plaintiff establishes that the Defendant acted with Common Law malice, conditional privilege will be lost.
6.33.3 If the defendant’s speech involves a matter of public concern or affects a Plaintiff who is a public official or figure, the constitutional principles applicable to defamation law may also be applicable to injurious falsehood. The commercial nature of this tort suggests that most cases would affect only matters of private concern, and thus not invoke constitutional limitations.
6.34 Independent Contractor
6.34.1 A Defendant generally is not liable for torts committed by someone he has engaged as an independent contractor, because the Defendant has no right to control the activity of the contractor.
6.34.2 In two situations, contrary to the general rule set forth above, a Defendant may be held vicariously liable for the torts of an independent contractor. These are applicable where 1 the contractor undertakes a duty the law does not permit to be delegated to another a “nondelegable” duty; and 2 a contractor engages in inherently dangerous activities, defined as any activity as to which there is a high degree of risk in relation to the particular surroundings, recognizable in advance as requiring special precautions.
6.35 Joint Enterprise Partners and Joint Venturers
6.35.1 Partners and joint venturers are vicariously liable for each other’s torts if those torts were committed in the course and scope of the partnership or joint venture.
6.35.2 A partnership is a legal relationship arising from an agreement between two or more persons to oper­ate a business for profit.
6.35.3 A joint venture is like a partnership, except it is of more limited scope and duration. A joint venture is present when two or more people engage in concerted activity for a common business purpose and each person has a mutual right to control the activity—for example, two people on a shared-expense auto trip.
6.36 Indemnity
6.36.1 Where one Defendant is only vicariously liable for the tort of another directly liable defendant, the first Defendant may recover the entire amount of any damages paid to the Plaintiff from the second defendant, who was actually responsible for the plaintiff’s injury.
6.36.2 Some courts also make distinctions between “active” wrongdoing e.g., a manufacturer who makes a defective product and “passive” wrongdoing e.g., the retailer who fails to discover the defect, attributing “more wrongfulness” to the former.
6.36.3 A Defendant who injures a Plaintiff may be liable when another Defendant subsequently injures the Plaintiff and aggravates the injuries the Plaintiff suffered from the first defendant. Courts generally permit the first Defendant to obtain indemnity from the second for the portion of additional damages imposed on the first Defendant attributable to the aggravating injury.
6.37 Statutory Law & Statutory Construction
6.37.1 Cannons of Statutory Constructions – Dozens of them Read together. Two interpretation – one is constitutional the other is not then the constitutional version wins Every word has to have meaning A list – all things fit in the list. Something left off the list then the legislature intended to leave it off the list. Plain meaning is not a cannon of construction Legislative Intent

7 Limits on Governmental Powers

7.1 Narrow Government Authority: Dillon’s Rule
7.1.1 Dillon’s Rule is derived from the two court decisions issued by Judge John F. Dillon of Iowa in 1868. It affirms the previously held, narrow interpretation of a local government’s authority, in which a substate government may engage in an activity only if it is specifically sanctioned by the state government. The following tenets have become a cornerstone of American municipal law and have been applied to municipal powers in most states: A municipal corporation can exercise only the powers explicitly granted to them Those necessarily or fairly implied in or incident to the powers expressly granted Those essential to the declared objects and purposes of the corporation, not simply convenient, but indispensable
7.1.2 State constitutions vary in the level of power they grant to local governments. However, Dillon’s Rule states that if there is a reasonable doubt whether a power has been conferred to a local government, then the power has not been conferred.
7.1.3 http://www.nlc.org/build-skills-and-networks/resources/cities-101/city-powers/local-government-authority
7.2 Dillon’s Rule in Practice
7.2.1 Dillon’s Rule allows a state legislature to control local government structure, methods of financing its activities, its procedures and the authority to undertake functions.
7.2.2 Thirty-nine states employ Dillon’s Rule to all municipalities: Arizona, Arkansas, Connecticut, Delaware, Georgia, Hawaii, Idaho, Kentucky, Maine, Maryland, Michigan, Minnesota, Mississippi, Missouri, Nebraska, Nevada, New Hampshire, New York, North Carolina, North Dakota, Oklahoma, Pennsylvania, Rhode Island, South Dakota, Texas, Vermont, Virginia, West Virginia, Washington, Wisconsin and Wyoming.
7.2.3 Is Dillon’s Rule a cannon of statutory construction? Nope, it is just short hand for the concept.

8 Evidence Law

8.1.1 “The visual nature of GIS proves to hold some substantial weight as evidence in court, as the maps and graphics produced exemplify the age-old adage ‘a picture is worth a thousand words’. The evidence is further legitimized in the eyes of the jury and judge in a courtroom because the actual methodologies used to model and calculate the results are specifically explained as having a basis in science. P.13
8.1.2 GIS is a great tool to use for litigation support, but one must be wary of the limitations in its use. As with any evidence presented in our legal system, one must ensure that the results from GIS analysis will stand up under examination in the court of law. Data and methodology validation requires that every process and data source used in the calculations of any evidence be well documented, and accuracy verified. Further, quality control must be performed on any outgoing data produced by GIS models. If documented and data checked properly, GIS applications in litigation support can make the difference in any court case. P.13
8.1.3 -Curley, Pat, “GIS Litigation Support Applications in the Courtroom”, 2002.
8.2 General Provisions of the Federal Rules of Evidence
8.2.1 The FEDERAL RULES OF EVIDENCE were adopted in 1978; before this time, the rules of evidence were governed by Common Law. The Rules were recently amended, and the changes went into effect on December 1, 2011.
8.2.2 Scope: The Federal Rules of Evidence apply in all federal civil and criminal cases, including bankruptcy proceedings.
8.2.3 The Federal Rules of Evidence do not apply to – preliminary determinations of fact by a judge; grand jury proceedings; probation and sentencing hearings; obtaining a warrant; bail proceedings; or other proceedings that Congress has exempted from the Federal Rules of Evidence.
8.3 Evidence
8.3.1 FRE 703 – Basis for an Expert Opinion – An expert may base her opinion on facts made known to her at or before the hearing if of a type reasonably relied upon by experts in the particular field.
8.3.2 FRE 106 – Completeness DoctrineWhere one party introduces part of a writing, the adverse party may introduce any other part of the introduce any other part of the writing, which, in fairness, ought to be considered.

Standard Definition When Applicable
Preponderance of the evidence
Enough evidence to tip the balance in favor of the fact
Most civil cases
Preliminary fact determinations by the court
Some criminal issues, such as –
statutes of limitations; and
voluntariness of a confession
Clear and convincing evidence The evidence must support a finding that the fact is significantly more likely to be true than to not be true —a “high probability of truth” Civil cases such as –
disbarment; and
the validity of a will or deed

Beyond a Reasonable doubt Any doubt that exists would not affect a reasonable person’s belief that the fact is true Criminal trials, as to each element of a crime as well as the absence of mitigating factors

8.5 Presumptions
8.5.1 A Presumption is a procedural device that shifts the ☞ Burden of going forward to the opposing party.
8.5.2 A Presumption may be defined as an inference that may be drawn when one set of facts basic facts establishes a very high probability of the existence of another set of facts ultimate or presumed facts, absent a contrary showing.
8.6 Relevancy and Its Limits – Admissibility
8.6.1 Evidence is relevant if – it has any tendency to make a fact more or less probable than it would be without the evidence; and the fact is of consequence in determining the action.
8.6.2 The Federal Rules of Evidence deal with twin concepts of relevance – Logical and Legal.
8.6.3 Rule 401 addresses logical relevance. In order for evidence to be logically relevant, it must have some logical tendency to prove or disprove a fact of consequence some probative value.
8.6.4 Rule 403 addresses legal relevance. In order for evidence to be legally relevant, it must be actually helpful to deciding the case.
8.7 Direct Evidence
8.7.1 Direct Evidence is evidence that, if believed, proves a fact or set of facts without the need to draw another inference. Evidence is considered to be circumstantial when, in order to prove one set of facts, an inference must be drawn from another set of facts.
8.7.2 Circumstantial Evidence is generally inadmissible to prove the non-existence of a dangerous condition by a lack of similar accidents.


Common Law Federal Rules
Mental Capacity
Witness must have capacity to accurately observe, remember, and relate the facts. Requirements of capacity to perceive and tell the truth are abandoned; questions of mental competence based on age, illness, use of drugs go to weight rather than admissibility.
Grounds for Disqualification
Felons, atheists, infants, mental incompetents, financially interested parties, and spouses of parties are disqualified. Every person is competent, except where the case turns on state law i.e., diversity cases, in which case the Erie doctrine requires the
state rule of competence to control.
Affirmation of Truthfulness
Witness must not only declare he will testify truthfully, but must show the mental capacity that he understands the obligation to tell the truth. Witness must declare to testify truthfully by oath or affirmation in a form designed to impress that duty on the witness’s conscience.

8.9 Impeachment
8.9.1 Who May Impeach a Witness – Any party, including the party that called the witness, may attack the witness’s credibility.
8.9.2 A Witness’s Character for Truthfulness or Untruthfulness
8.9.3 A witness’s credibility may be attacked or supported by – testimony about the witness’s reputation for having a character for truthfulness or untruthfulness; or testimony in the form of opinion about that character.
8.9.4 Evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked.
8.10 Mode and Order of Examining Witnesses and Presenting Evidence Cross-Examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility. The court may allow inquiry into additional matters as if on direct examination.
8.11 Writing Used to Refresh a Witness’s Memory
8.11.1 On Direct Examination, the examiner may jog the memory of a witness who has some knowledge of the purported testimony, but whose memory is incomplete, upon laying a proper foundation
8.12 When a witness uses a writing to refresh memory, the Federal Rules of Evidence give an adverse party certain options. Unless otherwise provided by law in a criminal case, an adverse party is entitled to – have the writing produced at the hearing; inspect it; cross-examine the witness about it; and introduce in evidence any portion that relates to the witness’s testimony.
8.13 Opinions and Expert Testimony – Acceptable Testimony
8.13.1 If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is – rationally based on the witness’s perception; helpful to clearly understanding the witness’s testimony to determining a fact in issue; and not based on scientific, technical, or other specialized knowledge within the scope of Rule702.

8.14 Testimony Admissibility

Perceptions such as speed and other measurements Legal conclusions e. g., schizophrenia, alcoholism, or testifying that an accident victim fractured his spine
Physical states such as intoxication or injury Evidence of the witness having a truthful character is admissible only after the witness’s character for truthfulness has been attacked
Personal emotions of others e. g., fear or sorrow.
Sensory descriptions e. g. taste, sound, or smell
Value of one’s own land
Sanity of the testator where the opinion is given by a subscribing witness of a will
8.15 Testimony by Expert Witnesses Frye vs. Daubert
8.15.1 A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if – the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue the testimony is based on sufficient facts or data; the testimony is the product of reliable principles and methods; and the expert has reliably applied the principles and methods to the facts of the case.
8.16 Bases of Expert’s Opinion Testimony
8.16.1 An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed.
8.16.2 However, If the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only If their probative value in helping the jury evaluate the opinion Substantially Outweighs Their Prejudicial Effect.
8.16.3 The opponent, however, is allowed to bring out such facts without this special balancing test.

8.17 Opinion on an Ultimate Issue

8.17.1 As a general rule, an opinion is not objectionable just because it embraces an ultimate issue.
8.17.2 There is, however, an exception to this rule. In a criminal case, an expert witness must not state an opinion about whether the Defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense.
8.18 Disclosing the Facts or Data Underlying an Expert’s Opinion
8.18.1 Unless the court orders otherwise, an expert may state an opinion—and give the reasons for it— without first testifying to the underlying facts or data, but the expert may be required to disclose those facts and data on cross-examination.
8.18.2 Experts may be properly cross-examined as to – qualifications; subject matter and basis of an opinion; and compensation.
8.19 Court-Appointed Expert Witnesses
8.19.1 On a party’s motion or on its own, the court may order the parties to show cause why expert witnesses should not be appointed and may ask the parties to submit nominations.
8.19.2 The court may appoint any expert that the parties agree on and any of its own choosing, but the court may only appoint someone who consents to act.

8.20.1 A statement is a person’s oral assertion, written assertion, or nonverbal conduct, If the person intended it as an assertion.
8.20.2 A declarant is the person who made a statement.
8.20.3 Hearsay is a statement that – the declarant does not make while testifying at the current trial or hearing; and a party offers in evidence to prove the truth of the matter asserted in the statement.
8.20.4 Any statement not made in court, regardless of who says it, is potentially hearsay if offered for the truth contained therein.

8.21 Public Records

8.21.1 Testimony—or a certification under Rule 902—that a diligent search failed to disclose a public record or statement if the testimony or certification is admitted to prove that the record or statement does not exist; or a matter did not occur or exist, if a public office regularly kept a record or statement for a matter of that kind.
8.21.2 Records of Documents That Affect an Interest in Property – The record of a document that purports to establish or affect an interest in property if – the record is admitted to prove the content of the original recorded document, along with its signing and its delivery by each person who purports to have signed it; the record is kept in a public office; and a statute authorizes recording documents of that kind in that office.
8.21.3 Statements in Documents That Affect an Interest in Property – A statement contained in a document that purports to establish or affect an interest in property If the matter stated was relevant to the document’s purpose—unless later dealings with the property are inconsistent with the truth of the statement or the purport of the document.
8.21.4 Statements in Ancient Documents – A statement in a document that is at least 20 years old and whose authenticity is established. The Federal Rules require the document to have been in existence for 20 years. Common Law required 30 years.
8.21.5 Reputation Concerning Boundaries or General History – A reputation in a community—arising before the controversy—concerning boundaries of land in the community customs that affect the land, or concerning general historical events important to that community, state, or nation.
8.22.1 To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must procure evidence sufficient to support a finding that the item is what the proponent claims it is.
8.22.2 Demonstrative evidence is a term of art given to certain types of evidence whose relevance depends on its ability to explain or simulate material facts in the case.
8.22.3 After the relevancy of a given piece of non-testimonial evidence is determined, it must be authenticated prior to being admitted into evidence. Authentication is accomplished by laying a foundation of preliminary evidence sufficient to sustain a finding that the matter is what it purports to be.

9 Intellectual Property Law

9.1 The Origins of IP Law
9.1.1 The U.S. Constitution, Art. I, §8, cl. 8 confers upon Congress the power to secure exclusive rights for “authors” to their “writings” for “limited times”
9.1.2 The Copyright Act of 1976 17 U.S.C.§101 et seq., as amended
9.1.3 The Copyright Act of 1909 for pre-1978 works
9.1.4 Common law for pre-1978 works and judicial precedents
9.2 Goals of Copyright Law
9.2.1 Promote scientific, literary, and artistic creativity
9.2.2 Recognize and protect property rights of creators, producers, and performers
9.2.3 Limit the extent and duration of such rights to prevent overly broad or perpetual monopolies in creative works
9.2.4 Provide means to enforce the rights and to deter theft of the rights
9.3 Basic Types of Copyrights
9.3.1 Common law pre-1978 – The author HELD perpetual exclusive right to any unpublished work; the common law right terminated upon publication of the work
9.3.2 Statutory pre-1978 – Federal statutory rights attached upon registration of the copy right or publication of the work with the proper formalities; rights could extend a maximum of 56 years
9.3.3 Statutory since 1978 – The author’s rights commence when the work is fixed in a tangible medium e.g., printed, painted, sculpted; essential rights do not require any formalities; rights generally survive until 70 years after the death of the author
9.3.4 NOTE – Federal copyright law preempts state law that would interfere with the federal scheme; state law may regulate aspects of contract and property rights outside the federal scope, and states maintain other intellectual property remedies e.g., unfair competition 
9.4 What Can Be Protected by Copyright?
9.4.1 Copyrightable, a work produced since 1978 must be – An “original work of authorship” Fixed in a tangible form or medium of expression Such works include written works e.g., books, articles, letters, Internet posts, and websites; musical scores and lyrics; dramatic works; accompanying pantomimes and choreography; pictorial, graphic, and sculpture works; movies and other audio visual works; sound recordings; and architectural works The originality requirement is satisfied if the work originated with the author i.e., the work was not copied from another The expression is protected i.e., the way the ideas are physically rendered
9.4.2 Not copyrightable – Ideas, including insights, facts, information, and statistics Purely utilitarian objects these would fall under patent law Items protectable under trademark law Mere compilations that lack any “minimal degree of creativity” e.g., entries in a telephone book or a bus schedule Oral presentations, speeches, vocal performances, and choreography not reduced to tangible form Titles, names, short phrases, slogans, and symbols & Typefaces
9.5 When Copyrights Attach & Terminate for U.S. Works
9.5.1 Copyright Act of 1976 – Statutory protection begins when the expression is fixed in a tangible medium; it extends until the death of the author or last surviving author—plus 70 years
9.5.2 NOTE – “Works for hire,” anonymous works, and pseudonymous works are protected for 95 years from publication or 120 years from the date of creation, whichever is shorter
9.6 What Rights Are Protected by Copyright Law?
9.6.1 Common law pre-1978 – The author’s right to exclude all others from any copying or publication of the unpublished work
9.6.2 Copyright Act of 1976 as amended – The copyright owners six exclusive rights – Reproduce the work in copies or phono records Derivative works – To prepare derivative works based on the work Distribution – To distribute copies or phono records of the work to the public by transferring ownership or by renting, leasing, or lending movies Display – To display the work publicly e.g., literature, music, drama, movies or scenes from movies, sculptures Digital Transmission Performance – A right applying to sound recordings only
9.7 Who Holds the Copyrights?
9.7.1 Common law pre-1978 – The author and author’s heirs
9.7.2 Copyright Act of 1976 – The authors or the employer of the author if the work is a “work for hire” i.e., commissioned or created within scope of employment, with parties expressly agreeing in writing the work is for hire
9.7.3 Persons who receive the legal rights by a transfer in writing, a license, or inheritance
9.8 Enforcement of Copyrights Under Current Law
9.8.1 The copyright owner under 17 U.S.C. § 501 et seq. has standing to sue a person or entity that exercises one or more of the six exclusive statutory rights without the owner’s permission; the copyright owner brings an infringement action in federal court and may seek damages, an injunction, or other equitable relief
9.8.2 The federal government under 17 U.S.C. § 506 has standing to criminally prosecute persons and entities for – infringement Fraudulent use of or removal of copyright notices Fraudulent representation of material facts in copyright registration applications
9.9 Civil Infringement Actions
9.9.1 Infringement – When a party exercises one of the six exclusive copyrights without the copyright owner’s permission.
9.9.2 Infringement liability may exist regardless of the defendant’s intent
9.10 Elements Of Proof of Direct Infringement
9.10.1 The plaintiff copyright owner must prove – Copyright at the time Defendant infringed the owner’s rights e.g., by copying, publicly performing, or creating a work derived from elements that were original in the owner’s work
9.11 Proof That defendant Copied A Work
9.11.1 Sometimes there is direct evidence that a person has intentionally copied a copyrighted work; in many other cases, the unlawful copying of the work is shown by circumstantial evidence of –
9.11.2 Access – defendant had prior access to the copyrighted work i.e., a reasonable opportunity to view, read, hear, or copy the work
9.11.3 Substantial similarity – The defendant’s work includes elements that are substantially similar to original elements in the copyrighted work
9.11.4 NOTE – A literal word-for-word or note-for-note copy, or a work that is “strikingly similar” to the copyrighted work, is strong evidence of an infringement
9.12 Degrees of Infringement
9.12.1 Proof of direct copyright infringement entitles the copyright owner to damages, either according to proof or within the statutory range 17 U.S.C.
9.12.2 The defendant may reduce his/her potential liability for statutory damages by proving that his/her infringement was innocent; an innocent infringement may be found if the defendant proves he/she was not awarded and had no reason to believe his/her acts were copyright infringements
9.12.3 The plaintiff may obtain substantially higher statutory damages by proving that the defendant’s infringement was willful; a willful infringement is found if the defendant engaged in copyright infringing acts, knowing the acts constituted copyright infringements
9.13 Contributory Infringement Liability
9.13.1 A person is liable for contributory infringement if he/she –
9.13.2 Knows or has reason to know about an infringing activity
9.13.3 Intentionally induces or materially contributes to that infringing activity
9.14 Vicarious Infringement Liability
9.14.1 A person is liable for vicarious infringement if he/she –
9.14.2 the right and ability to supervise or control the direct infringer’s activities
9.14.3 Fails to exercise the right and ability to prevent or halt the direct infringement
9.14.4 Profits directly from the direct infringement
9.15 Civil Remedies for Infringement
9.15.1 Upon proving copyright infringement, the plaintiff may obtain – Injunctive relief to block further infringement & damages – Attorneys’ fees to the prevailing party at the court’s discretion; prevailing plaintiff may receive fees only if the work had been copyright registered prior to the infringement

9.16 The “Fair Use” Defense
9.16.1 A defendant can avoid liability for infringement if the defendant’s activity constituted a “fair use” of the copyrighted work
9.16.2 Determining “fair use” involves balancing the interests of authors and rights owners against various legitimate interests of individuals or the public
9.16.3 The “fair use” doctrine does not have clear definitions and boundaries—the decisions are reached case by case
9.16.4 To decide whether a defendant’s use was a “fair use,” the trier of fact considers whether the defendant’s purpose was a public interest purpose, such as criticism, commentary, news reporting, teaching, scholarship, research, or other legitimate purpose
9.16.5 The trier of fact also considers – The purpose and character of the use e.g., commercial, nonprofit, or educational The nature of the copyrighted work e.g., whether the work is designed or expected to be quoted by others The amount and substantiality of the copied parts compared to the copyrighted work’s size or length e.g., a single line from a popular song may be proportionally larger and meaningfully more substantial than a whole page from a book The effect of the use on the potential market for or value of the copyrighted work. Whether the infringing work is a parody or satire
9.16.6 NOTE – The 1st Amendment freedoms of speech and the press have been raised as justifying types of “fair use,” but there is no general rule yet

9.17 Copyrighting MAPS
9.17.1 Not Protected – Public domain facts not protected Information on public domain maps Grid system, latitude & longitude Outlines of continents, nations, states, natural features, etc. Symbols, coloration Names, selections of cities & natural features
9.17.2 Protected – Selection & reconciliation of data Mason Nongeneric cartographic expression Mason New geographic data obtained by new field surveys Amsterdam Synthesis of data on prior maps Hamilton But not merely checking data on one prior map Rockford Map

10 Contract Law

10.1 Sources of Contract Law
10.1.1 There are two principal sources of contract law – Article 2 of the Uniform Commercial Code “UCC” State Common Law.
10.1.2 In deciding which source of contract law applies, first look for the subject matter covered by the UCC. If the UCC does not apply, then Common Law will apply.
10.2 The Uniform Commercial Code
10.2.1 The UCC governs “sales of goods.” If the UCC would apply to a contract, then UCC provisions will trump any contrary Common Law rules.
10.2.2 Sales are any transactions in which the seller transfers title of goods to the buyer.
10.2.3 Goods are broadly defined under the UCC to mean any “movable item.”
10.2.4 In hybrid cases, which involve both the sale of goods and a services contract, the question arises as to which source of contract law should apply.
10.3 Defenses
10.3.1 Infancy Infancy is the time period before a person reaches the age of majority. At Common Law, minors lacked the capacity to enter into a contract. The modern rule is that a minor may enter into a contract, but the contract is voidable at the option of the minor. However, in certain circumstances the contract may be ratified, or alternately, the minor may still be liable for the benefits received.
10.3.2 Mental Incompetence At Common Law, an insane person did not have capacity to enter a contract, and any contracts he made were void. Under modern rules, the bar for establishing mental incompetence is lower—a party need not be “insane” to invoke the doctrine—and the consequences of invocation depend on multiple factors.
10.3.3 Misrepresentation Misrepresentations are untrue statements or assertions that relate to existing facts. Misrepresentations do not relate to future conduct or actions, nor do they relate to statements based on a party’s mere opinion, guess, or supposition.

10.3.4 Exception Where one party disguises a fact as an opinion, then this will constitute a misrepresentation. Where a party holds himself out to have knowledge or special skill, and asserts an opinion on the basis of the skill or knowledge, then his assertions are held to relate to the underlying facts and, therefore, sufficient to establish misrepresentation.
10.3.5 Non-Fraudulent Misrepresentation The same remedies are available to the victim of either negligent or innocent misrepresentation, so the difference between them is merely descriptive i.e., what to call a particular misrepresentation but has no further legal consequence.
10.3.6 Duress At Common Law, the defense of duress was available in two circumstances – physical compulsion; and unlawful threat.
10.3.7 Undue Influence An aggrieved party may avail himself of the defense of undue influence when the circumstances reveal a vulnerable, but not incapacitated, party who succumbs to untoward bargaining tactics and pressures from the other party, where those pressures or tactics fall short of fraud or duress.
10.3.8 Unconscionability The defense of unconscionability may be available when a party uses inappropriate bargaining tactics to take unfair advantage of a vulnerable party. Unconscionability, however, focuses not only on the unfair process but also on the unfair results.
10.3.9 Public Policy The public policy defense is a claim that courts should not enforce a contract because doing so would violate or undermine some important public policy.

11 Property Law

11.1 Covenants of Title
11.1.1 3 Present Covenants of Title – Do NOT run with the land Covenant of seisin Covenant of right to convey Covenant against encumbrances
11.1.2 3 Future Covenants of Title – Do run with the land Quiet enjoyment General warranty Further assurances
11.2 Valid Boundary Agreement Requirements –
11.2.1 Parties uncertain/unaware of the true boundary
11.2.2 Express or implied agreement as to the location
11.2.3 Possession that conforms to the agreement
11.2.4 Remedy – Possession awarded as to the “agreed” line not the “true” line

11.3 Boundary Disputes

11.3.1 Boundary disputes may also be determined by methods other than adverse possession. An oral agreement to settle a boundary dispute is enforceable If the parties subsequently accept the line for a long period of time.
11.3.2 Long acquiescence perhaps for a period shorter than the statute of limitations may also be used as evidence of an agreement between the parties to fix the boundary line.
11.4 Real Property contracts
11.4.1 The Statute of Frauds requires a writing for a transfer of an interest in real property. The writing must be signed by the party to be charged and must include the following essential terms – description of the property; description of the parties; price; and any conditions of price or payment if agreed on.
11.5 Exceptions to the Statute of Frauds
11.5.1 The doctrine of part performance may be used to enforce an otherwise invalid oral contract of sale, provided the acts of part performance unequivocally prove the existence of the contract. To satisfy this doctrine, a showing of at least two of the following three facts must be made – payment of all or part of the purchase price; taking of possession; and making substantial improvements.
11.5.2 Equitable and, under the modern trend, promissory estoppel may also be used to prove an oral contract for the sale of land.
11.6 Marketable Title
11.6.1 All contracts for the sale of real property include an implied promise to convey marketable title.
11.6.2 Marketable Title is title that is reasonably free from doubt in both fact and law. Title is not reasonably free from doubt if it contains any of the following defects –
11.6.3 defects in the chain of title, such as adverse possession, the defective execution of a deed, or significant variation of the description of land from one deed to the next; encumbrances; encroachments; or zoning restrictions.
11.7 The Ad Coelum Doctrine
11.7.1 “Cujus est solum, ejus est usque ad coelum et ad inferos” or “[to] whomsoever the soil belongs, he owns also to the sky and to the depths.”
11.8.1 General Deed – The seller warrants that no title defects have occurred during his ownership of the property Warranty Deed The seller also warrants that there are no defects in the chain of title from which he derived title
11.8.2 Special Deed – The seller warrants that no title defects have occurred during his ownership of the property Warranty Deed However, the seller does not warrant that there are no defects in the chain of title from which he derived title
11.8.3 Quitclaim deed – The seller does not make any warranties. Instead, the grantor simply conveys whatever interest he may have.
11.9 The Nature of Easements
Affirmative Easement Negative Easement
Gives the holder the right to do something on the land of another Gives the holder the right to prevent a landowner from doing something on his land
Easement Appurtenant Easement in Gross

Requires a dominant and servient tenement Personal in nature, resulting in a servient but not a dominant estate
11.9.1 The Common Law recognized only the following four types of negative easements – light, air, water, and lateral land subjacent support.
11.9.2 A writing is always required to create a negative easement.

13 Land Use Law

13.1 Foundations of Land Use Law
13.1.1 “Land use law” is a term generically applied to regulatory activities governing physical planning and land development. Although traditionally and primarily a function of municipal government, land use law encompasses enactments by the federal government, such as the Clean Water Act, 33 U.S.C. §§ 1251 et seq., as well as by state government, regional commissions, and counties. The term embraces zoning, as well as subcategories or related regulations such as – subdivision controls; sign control; architectural review and historic preservation regulations; and environmental regulations.
13.2 Condemnation Law and Urban Development
13.2.1 In 2006, Missouri’s eminent domain laws underwent fairly extensive rewriting, primarily as a response to the United State Supreme Court’s decision in Kelo v. City of New London, Connecticut, 545 U.S. 469 2005, and the political firestorm that ensued. A few of the more relevant provisions of Chapter 526, RSMo, are summarized here. Because use of eminent domain can be a powerful tool in urban redevelopment, counsel is cautioned to review the revisions to Chapter 523, RSMo, in their entirety.
13.2.2 Under Chapter 523, the power of eminent domain is vested in -governmental entities or agencies whose governing bodies are elected or appointed by elected officials; private utility companies; public utilities; rural electric cooperatives; municipally owned utilities; pipelines; railroads; and common carriers.
13.3 Zoning and Planning
13.3.1 The planning and zoning process involves both substantive and procedural requirements applicable to adoption and enforcement of land use controls as well as planning techniques such as the comprehensive plan. This chapter deals with requirements attending adoption and use of zoning and planning tools, the scope of and limitations on regulatory authority, and the procedures involved in zoning reviews and appeals.
13.4 Land Use Controls and the Scope of Regulation
13.4.1 “Zoning” describes an exercise of local governmental police power regulating the use of land. The power is exercised in accordance with state enabling legislation. See, e.g., Chapter 64, RSMo counties; Chapter 89, RSMo cities, towns, and villages. Generally, the practice of zoning divides a jurisdiction into a series of land use districts or “zones” and establishes use, bulk and density limitations, and standards for land use and development occurring within each district. The zoning regulations or zoning ordinance comprises both a text and a map. The text establishes the types of districts and details the regulations and standards applicable to each zoning district. The zoning map depicts the location and boundaries of each zoning district.
13.5 Zoning Ordinance and Components
13.5.1 Zoning is the legislative division of a community into districts and the prescription and application in each district of regulations addressing structural and architectural designs of buildings and prescribing the use to which the buildings may be put. City of Kirkwood v. City of Sunset Hills, 589 S.W.2d 31, 36 Mo. App. E.D. 1979; City of Green Ridge v. Kreisel, 25 S.W.3d 559, 563 Mo. App. W.D. 2000. It is founded on the exercise of police power. As such, zoning is not unlimited, and restrictions must bear a substantial relationship to public health, safety, morals, or general welfare. State ex rel. Hous. Auth. of St. Louis Cnty. v. Wind, 337 S.W.2d 554 Mo. App. E.D. 1960. If there is a substantial relationship to the general welfare, the property owners’ future use may be restricted, and the ordinance may impose hardship and inflict economic loss. Hoffmann v. Kinealy, 389 S.W.2d 745 Mo. banc 1965; McCarty v. City of Kansas City, 671 S.W.2d 790 Mo. App. W.D. 1984. The zoning ordinance must rest on some rational basis of classification and apply to all persons alike falling within the designated classification. Flora Realty & Inv. Co. v. City of Ladue, 246 S.W.2d 771 Mo. banc 1952.
13.6 Zoning Map
13.6.1 In addition to depicting the district zones, the text of a zoning ordinance may provide rules for interpreting the zoning map. At the time of adoption or amendment of the zoning map, the jurisdiction may incorporate in the adopting or amending ordinance a legal description of the areas zoned.
13.7 Subdivision
13.7.1 Subdivision authority refers to the local government regulation of the partitioning of land. Section 89.3003, RSMo 2000 defining the term “[subdivision” as the “division of a parcel of land into two or more lots, or other divisions of land”. Primary regulatory objectives include obtaining assurances that development is served by adequate infrastructure—e.g., streets, sewers, and water—and establishing minimum standards for the conveyance of real property.
13.7.2 Although separate from zoning, many subdivision regulations expressly require compliance with zoning requirements. See Furlong Cos. v. City of Kansas City, 189 S.W.3d 157 Mo. banc 2006 42 U.S.C. § 1983 action for “truly irrational” denial of preliminary plat.

13.8 Sign Controls
13.8.1 Sign controls may be a species of zoning, see University City v. Diveley Auto Body Co., All S.W.2d 107 Mo. banc 1967, but also may be adopted by specific statutory authority independent of zoning regulations. See Ashley 61596, LLC v. City of Marthasville, Mo., No. 4 – 09CV545 HEA, 2010 WL 2696674, at 5 E.D. Mo. July 6, 2010 refusing to require compliance with zoning procedures under § 89.050, RSMo 2000, when enacting a billboard ordinance in accordance with express authority under § 71.288, RSMo Supp. 2010, for such regulations. Regulations governing the permissible location, type, size, height, illumination, and other attributes of signs and outdoor advertising may be included in the zoning ordinance or may be provided as “stand-alone” regulations. 13.9 Architectural Review 13.9.1 Architectural design review represents another species of zoning regulation that addresses aesthetics and exterior design of buildings and structures and may additionally regulate site design and landscaping. Although initially reluctant to recognize aesthetics as a basis for regulation, Missouri has since accepted architectural review and regulation as authorized to preserve property values. State ex rel. Stoyanoff v. Berkeley, 458 S.W.2d 305 Mo. 1970; see also State ex rel. Gannett Outdoor Co. of Kansas City v. City of Lee’s Summit, 957 S.W.2d 416 Mo. App. W.D. 1997 recognizing the importance of aesthetic considerations in billboard regulation. Often, a separate review board oversees design control regulation. Local establishing ordinances typically require that review boards include architects or other similar professionals demonstrating expertise in this area. 13.10 Historic Preservation 13.10.1 Historic preservation codes involve building regulation as well as planning and zoning. For example, historic preservation regulations may be used to limit or prohibit exterior building or landscape changes that are determined to be inconsistent or incompatible with the architectural character of a structure or an area exhibiting local historic value. Missouri’s Local Historic Preservation Act, § 253.415, RSMo 2000, authorizes creation by ordinance of local historic preservation commissions that may recommend to the local governing body the designation of local historic districts, provide technical assistance to owners of historic properties, and prepare a historic preservation plan for the community. See § 253.415. The Local Historic Preservation Act specifically authorizes the integration of the historic preservation plan with local zoning ordinances and building codes. The governing body may similarly provide for review by the historic preservation commission of plans for new construction, building alteration, and demolition within a designated local historic district. 13.11 Planning and the “Comprehensive Plan” 13.11.1 “Planning” describes a local government’s general policy to guide development of land uses within an area in relation to an overall long-range development plan. Section 89.310, RSMo 2000, authorizes any municipality in the state to “make, adopt, amend, and carry out a city plan,” also known as a “comprehensive plan” or a “master plan,” which constitutes a general guide to future development within the jurisdiction. Municipalities may also appoint a planning commission with the powers and duties set forth in Chapter 89, RSMo. 13.11.2 The city plan includes, among other things, the general location, character and extent of streets and other public ways, grounds, places and spaces; the general location and extent of public utilities and terminals, whether publicly or privately owned, the acceptance, widening, removal, extension, relocation, narrowing, vacation, abandonment or change of use of any of the foregoing; the general character, extent and layout of the replanning of blighted districts and slum areas. 13.11.3 Unlike zoning regulations, adoption of a master or comprehensive plan imposes no restrictions on the use of land. Conceptually, a comprehensive plan is “a guide to development rather than an instrument to control land use.” Bd. of Educ. of Sch. Dist. of Springfield, R-12 v. City of Springfield, 174 S.W.3d 653, 658 Mo. App. S.D. 2005 quoting State ex rel. Schaefer v. Cleveland, 847 S.W.2d 867, 871 Mo. App. E.D. 1992. The plan is made “with the general purpose of guiding and accomplishing a coordinated development of the municipality.” Section 89.350, RSMo 2000. 13.12 State Law Limitations on Local Authority – Dillon’s Rule 13.12.1 In Missouri, “Dillon’s Rule” governs basic questions of local governmental authority. Named for the judge who developed the rule at the turn of the century, Dillon’s Rule limits local authority to – those [powers] granted in express words; those necessarily or fairly implied in or incident to the powers expressly granted; those essential to the declared objects and purposes of the corporation—not simply convenient, but indispensable.” 13.13 Takings 13.13.1 The Takings Clause of the Fifth Amendment prevents governmental entities from taking private property for public use without payment of just compensation. Widespread confusion regarding many aspects of “takings” law under the Fifth Amendment to the U.S. Constitution was significantly resolved in Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 2005. The Lingle Court held that all federal takings must be analyzed as one of four types – 13.14 Physical Invasions 13.14.1 Under the Fifth Amendment, permanent physical invasions of private property are takings that require just compensation. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 1982 statute requiring landowners to allow cable facilities to be physically located on private property was physical taking. 13.15 Total Regulatory Takings 13.15.1 Imposition of land use regulations that prohibit “all ‘economically viable use[s]'” constitutes a per se taking of private property for public use and requires payment of just compensation, except for limited circumstances, such as when the prohibited use is a nuisance under common law. Lucas v. S.C. Coastal Council, 505 U.S. 1003 1992; see Palazzolo v. RL, 533 U.S. 606 2001   13.16 Partial Regulatory Takings 13.16.1 Partial regulatory takings require case-specific application of balancing factors. These situations involve governmental regulation of land that deprives a landowner of some, but not all, of the available uses of property. For example, in Penn Central Transportation Co. v. City of New York, 438 U.S. 104 1978, the city’s historic preservation law would not allow a developer to construct upward on a landmark train terminal. The Court’s analysis utilized a series of factors to determine whether the city’s regulation was a taking that required just compensation, and was thereafter dubbed the Penn Central test. The factors are – the economic impact of the regulation; the extent to which the regulation has interfered with distinct investment-backed expectations; and the character of the government action. 13.17 Moratoria – 13.17.1 Notably, a total denial of use for a limited period of time is not a taking of all economic value subject to a “per se” taking, but may require compensation under Penn Central, 438 U.S. 104. See § 2.26, infra. 13.18 Impact Fees – Require good maps – CWD 13.18.1 Development exactions or conditions that lack an “essential nexus” to a stated permissible governmental objective may also result in compensable takings. Nollan v. Cal Coastal Comm’n, 483 U.S. 825 1987. Even assuming that an essential nexus exists between a legitimate governmental interest and a permit condition, a “rough proportionality” between the condition imposed and the impact of the development must be shown. Absent such a showing, the condition constitutes a compensable taking under the Fifth Amendment. Dolan v. City of Tigard, 512 U.S. 374 1994. 13.18.2 Prior cases from several jurisdictions suggest that Dolan’s “rough proportionality” may be circumvented when the exaction is a condition of a development agreement between the local government and the applicant. See Leroy Land Dev. v. Tahoe Regl Planning Agency, 939 F.2d 696 9th Cir. 1991 determining that a contractual promise in a settlement agreement to restrict land use cannot result in a “taking” when the promise is voluntary and is supported by consideration. No definitive judicial determination of this question has arisen since Dolan, however. But see Bd. of Cnty. Supervisors of Prince William Cnty., Va. v. United States, 48 F.3d 520 Fed. Cir. 1995 distinguishing voluntary developer conditions in conveyance of property to county from Dolan “rough proportionality” but noting that county imposed no dedication requirement and that the conditions did not constitute a property interest. 13.19 A New Type of “Judicial” Taking? 13.19.1 A relatively recent four-Justice plurality of the Supreme Court recognized a new form of taking resulting from a “judicial” decision. In Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, 130 S. Ct. 2592 2010, the Supreme Court reviewed a state judicial application of Florida’s property law in declaring that the state’s creation of a 75-foot wide erosion control berm in a submerged public area of ocean shore owned by the public was not a taking even though it effectively terminated any future accretion rights of adjoining owners because their property no longer touched the “high-water line” and new land was placed where the shore line/property line once existed. 13.19.2 The Supreme Court held 8-0 that there was no taking because, under Florida common law, the property rights associated with shorelines did not prohibit artificial “avulsions” sudden changes in land previously submerged. But the four-Justice plurality opinion authored by Scalia, J. stated that a taking claim could have arisen directly from the court decision interpreting state property rights. Two Justices countered that there was no need to decide that issue, while two other Justices argued that due process analysis, not takings law, applies to judicial decisions because a judicial branch simply has no authority for a taking with compensation—a precondition to applicability of the Takings Clause. 13.20 Temporary Takings and Moratoria 13.20.1 The Supreme Court first recognized temporary land use regulatory takings in First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, California, 482 U.S. 304 1987. The Supreme Court expressly precluded expansion of the recognized temporary taking action beyond the facts in First English, which did not deal with the “quite different questions that would arise in the case of normal delays in obtaining building permits, changes in zoning ordinances, variances, and the like which are not before us.” Id. at 321. The Court revisited temporary takings in Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302 2002, in which it considered the facial constitutionality of a 32-month moratorium on development pending completion of a land use plan. The Court rejected a per se rule that delays of more than one year require compensation. “[N]ormal delays” even of more than a year are not unlawful unless they fail the balancing test set forth in Penn Central Transportation Co. v. City of New York, 438 U.S. 104 1978. 13.21 Land Use Takings Under State Law – Standing 13.21.1 Missouri courts hold that to have standing to sue for inverse condemnation, a plaintiff must own the property at the time the alleged property damage occurs. State ex rel. City of Blue Springs v. Nixon, 250 S.W.3d 365 Mo. banc 2008 13.22 Exactions, Dedication Requirements, and Impact Fees 13.22.1 Missouri courts have approved the conditioning of zoning approvals on reasonable dedications of property or payments relating to the development impact by the applicant. See Home Builders Ass’n of Greater St. Louis v. City of St. Peters, 868 S.W.2d 187 Mo. App. E.D. 1994 ordinance requiring subdivision developer to establish trust account to reimburse lot owners for costs and attorney fees in enforcing covenants was a proper use of city’s police powers in attempting to protect welfare of future buyers in subdivisions. The exactions must be “reasonably attributable,” however, to the impact of the proposed development. See – Home Builders Ass’n of Greater Kansas City v. City of Kansas City, 555 S.W.2d 832 Mo. banc 1977 if the establishment of a subdivision increases the city’s needs for recreational areas, the cost of meeting the increased need may reasonably be required of the subdivider 13.22.2 State ex rel Noland v. St Louis Cnty., 478 S.W.2d 363 Mo. 1972 the county planning commission could not condition approval of a preliminary plat on the landowner’s relocation, widening and paving of one road, and further lighting of two other roads because these improvements were not reasonably related to the proposed activities of the landowners 13.22.3 State ex ret Rhodes v. City of Springfield, 672 S.W.2d 349 Mo. App. S.D. 1984 the city’s act of imposing conditions only on certain lot owners to improve an unmaintained street and install curbs and gutters before reissuing building permits was arbitrary, capricious, and discriminatory when those conditions had not been imposed on other houses in the same subdivision 13.23 Free Speech and Free Expression 13.23.1 Political speech continues to enjoy the highest level of constitutional protection, including as applied in the zoning context. For example, communities may not wholly ban political signage on private property in a residential district, even on the basis of aesthetics or safety. City of Ladue v. Gilleo, 512 U.S. 43 1994. Although cities may regulate the size, number, and duration of temporary signs on private property and may require removal after some period of time, a prohibition on political signs more than 30 days before the election and required removal within 7 days of the election fails constitutional scrutiny as being content-based when only applied to “political” signs. Whitton v. City of Gladstone, Mo., 832 F. Supp. 1329 W.D. Mo. 1993, aff’d in part, rev’d in part, 54F.3d 1400 8th Cir. 1995. Further, to the extent a municipality permits illumination of commercial signage, the municipality must permit illumination of permanent political signage. Id. 13.23.2 Certain types of speech or expression enjoy a lesser degree of protection. For example, municipalities have a right to regulate the time, place, and manner of offerings of adult entertainment. City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 1986 upholding zoning ordinance prohibiting adult movie theaters within 1,000 feet of any residential zone, single- or multiple-family dwelling, church, park, or school where ordinance was seeking to control “secondary effects” of adult uses; see also, e.g., U.S. Partners Fin. Corp. v. Kansas City, Mo., 707 F. Supp. 1090 W.D. Mo. 1989; The Constitution “accords a lesser protection to commercial speech than to other constitutionally guaranteed expression.” 13.24 Freedom of Religion 13.24.1 The First Amendment provides two separate limitations on the government’s ability to regulate religion—the Free Exercise Clause and the Establishment Clause. Generally, a “neutral law of general applicability that incidentally impinges on religious practice will not be subject to attack under the free exercise clause.” Cornerstone Bible Church v. City of Hastings, 948 F.2d 464, 472 8th Cir. 1991 generally applicable zoning ordinance that limited central business district to only commercial uses did not violate free exercise. Missouri courts have held that – 13.24.2 the fact that a municipality exercises some control over the conduct of churches is not, per se, violative of a church’s right to the free exercise of religion; but rather a determination of whether such regulation is tantamount to an infringement of the free exercise of religion depends on the facts and circumstances of each case. 13.24.3 Lutheran Church v. City of Ladue, 997 S.W.2d 506, 508 Mo. App. E.D. 1999 Village Lutheran II city’s mere requirement that the church apply for a special use permit to add extension to building did not infringe on the free exercise of religion when the church voluntarily applied for a permit. The Village Lutheran II court cited Western Presbyterian Church v. Board of Zoning Adjustment of District of Columbia, 862 F. Supp. 538 D.C. Cir. 1994, as an example of when enforcement of zoning regulations would violate the protection of the Free Exercise Clause enforcement of zoning regulations to prohibit church from feeding homeless persons on its premises substantially burdened free exercise of religion because ministering to the needy was considered a religious activity. 13.25 No religious veto 13.25.1 Lemon v. Kurtzman, 403 U.S. 602, 612-613 1971. In the area of zoning, the Establishment Clause prevents the government from granting a religious organization a veto power over location or licensing of uses to which the religious organization may object. Larkin v. Grendel’s Den, Inc., 459 U.S. 116, 12^-27 1982 Supreme Court struck down, under Establishment Clause, statute that prohibited liquor licenses within 500 feet of churches when church objected to the license. 13.25.2 But the Establishment Clause does not prevent general zoning and other regulations that would prevent certain uses in the vicinity of churches. See Grendel’s Den, 459 U.S. at 121 “there can be little doubt about the power of a state to regulate the environment in the vicinity of schools, churches, hospitals and the like by exercise of reasonable zoning laws”; 13.25.3 see also People Tags, Inc. v. Jackson Cnty. Legislature, 636 F. Supp. 1345 W.D. Mo. 1986 zoning ordinances prohibiting location of adult bookstore and theater within 1,500 feet of school or church did not violate Establishment Clause when zoning ordinances did not give churches any direct power or authority to prevent operation of adult bookstores, but free speech and due process violations were found. 13.26 RLUIPA 13.26.1 In addition to limitations imposed by the Constitution, governmental entities must comply with limitations relating to religious uses imposed by statutes such as RLUIPA Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. §§ 2000cc et seq., and enabling authority under Chapter 89, RSMo, both discussed in § 2.45 below. 13.27 Search and Seizure 13.27.1 The Fourth Amendment to the U.S. Constitution generally prohibits the search or seizure of private property unless a warrant has been issued. 13.27.2 Exceptions to these principles exist when the premises or violation is observable from a place where a member of the public may remain or when emergency situations are presented. Notwithstanding expansive language contained in some national standard codes, the codes cannot authorize an unconstitutional search. 13.28 Substantive Due Process 13.28.1 Substantive due process claims involving local land use decisions require that the government action complained of be “truly irrational” and that it be something more than “arbitrary, capricious, or in violation of state law.” Chesterfield Dev. Corp. v. City of Chesterfield, 963 F.2d 1102, 1104 8th Cir. 1992 quoting Lemke v. Cass Cnty., Neb., 846 F.2d 469, 470-72 8th Cir. 1987 Arnold, J., concurring. This “truly irrational” standard, therefore, requires that the alleged action be so egregious or extraordinary as to shock the conscience. See Anderson v. Douglas Cnty., 4 F.3d 574, 577 8th Cir. 1993 county regulation that required CUP conditional use permit before “thin spreading” petroleum-contaminated soil on agricultural land was not truly irrational, even when a CUP had not been required for the practice in years past. 13.28.2 In Chesterfield Development, even the knowing enforcement of an invalid zoning regulation a “bad-faith violation of state law” was held not to be “truly irrational” for purposes of creating an additional federal cause of action. 13.28.3 The Supreme Court of Missouri appears to have applied the “truly irrational” standard in a manner somewhat more favorable to property owners. See Furlong Cos. v. City of Kansas City, 189 S.W.3d 157 Mo. banc 2006 denial of preliminary plat was truly irrational when city council ignored advice of staff and city attorney, gave applicant no reasons for denial or opportunity to correct, and subjected applicant to numerous, uncommon delays; 13.29 Other Governmental Entities 13.29.1 When two local governments are in conflict, Missouri courts have used various “tests” to determine which local government’s zoning laws “prevailed” over the other, including the “power of eminent domain” test and the “balancing of interest” test. Traditionally, if one of the municipalities is exercising power derived from the Constitution and the other municipality’s power is derived solely from statute, the municipality with the constitutional source of power would prevail. Because most cities derive their zoning power from statute other than charter cities, the practical effect is that most municipal uses of property are allowed, regardless of zoning laws. 13.30 Public Utilities 13.30.1 Public utilities are not exempt from zoning regulations, but specific restrictions may be preempted by PSC Public Service Commission regulation or other state law. 13.31 Adult Uses 13.31.1 Recently enacted statutory provisions, §§ 573.525­573.540, RSMo Supp. 2010, regulate sexually oriented businesses and alcohol sales established after August 28, 2010. Section 573.531.1, RSMo Supp. 2010. In addition to regulating nude and semi-nude activities and alcohol sales and consumption on site, these statutes provide that a sexually oriented business must be at least 1,000 feet from a preexisting school, house of worship, public library, public park, licensed daycare facility, residence, or other sexually oriented business and must close between the hours of midnight and 6 – 00 a.m. 13.32 Telecommunications Act of 1996 13.32.1 The TCA Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56, provides limitations on the ability of local government to regulate “placement, construction, and modification of personal wireless service facilities,” i.e., cell towers. 47 U.S.C. § 332c7A. The TCA provides that decisions on the placement, construction, and modification of personal wireless service facilities must be in writing, based on substantial evidence, and done within a reasonable period of time. Section 332c7Bii-iii. 13.32.2 The TCA also provides that local government regulation of personal wireless service facilities cannot “unreasonably discriminate among providers of functionally equivalent services; and … shall not prohibit or have the effect of prohibiting the provision of personal wireless services,” or regulate “on the basis of the environmental effects of radio frequency emissions . . . .” Section 332c7Bi and iv. The TCA provides for expedited review in federal district court for alleged violations. Section 332c7Bv.   13.33 Subdivision Regulations 13.33.1 Section 89.410, RSMo Supp. 2010, authorizes the planning commission of the municipality to recommend, and the council to ultimately adopt by ordinance, regulations governing the subdivision of land. The statute makes it clear that the municipality may impose various requirements on the subdivision of land, including requiring the following – The coordinated development of the city, town, or village The coordination of streets within subdivisions with other existing or planned streets or with other features of the city plan or official map of the city, town, or village Adequate open spaces for traffic, recreation, light, and air Distribution of population and traffic Posting of bonds, letters of credit, or escrows for subdivision-related improvements 13.34 Streets and Public Improvements 13.34.1 Under § 89.460, RSMo 2000, if the city has adopted a major street plan and subdivision regulations, the municipality – 13.34.2 shall not accept, lay out, open, improve, grade, pave or light any street, lay or authorize the laying of water mains, sewers, connections or other utilities in any street within the municipality unless the street has received the legal status of a public street prior to the adoption of a city plan; or unless the street corresponds in its location and lines with a street shown on a subdivision plat approved by the council or planning commission or on a street plan made by and adopted by the commission. 13.35 Equitable Estoppel 13.35.1 Equitable estoppel ordinarily is not applicable and usually cannot be invoked against a city in matters pertaining to the exercise of governmental functions, including matters relating to the enforcement of a change in zoning regulations. See 13.35.2 Equitable estoppel is normally not applicable against a governmental entity. The application of equitable estoppel against governmental entities or public officers is limited to exceptional circumstances where right of justice or the prevention of manifest injustice requires its application. 13.35.3 “Further, it is a well established principle in Missouri that a governmental unit is not estopped by illegal or unauthorized acts of its officers … it is recognized that a building permit for construction issued but unauthorized under the ordinance is void and a city is not estopped because its employee issued the license or permit.” 13.36 Administrative Actions 13.36.1 Generally speaking, acts of officers, boards of adjustment, and other nonlegislative boards of the governing body are typically administrative in nature and are subject to a different standard of review than legislative acts. As a result, an applicant seeking administrative approval is faced with different burdens and procedures in administrative proceedings.   13.37 Procedural Concerns 13.37.1 Administrative zoning proceedings are controlled by Chapter 89, RSMo, and to some degree by the Administrative Procedure Act, Chapter 536, RSMo. See – 13.37.2 Thus, an applicant should be familiar with limitation periods for any challenge, notification of interested parties, and other procedural requirements involved whether relating to filing for review with a board or council of the local government in accordance with local regulations, filing for judicial review, or appealing a decision of a local government. Similarly, an applicant should know whether a record is required to be made, whether a court reporter needs to be engaged, or whether formal, written findings and conclusions must accompany the decision. See generally State ex rel. Steak n Shake, Inc. v. City of Richmond Heights, 560 S.W.2d 373, 376 Mo. App. E.D. 1977 when hearing was required, duty to cause a record to be made fell on the parties desiring that their interests be reviewed. 13.38 Exhaustion 13.38.1 A party aggrieved by an administrative zoning decision must exhaust its administrative remedies before it can resort to an action at law or in equity. A party is not entitled to a writ of mandamus or declaratory judgment when there is an available adequate remedy—by way of administrative review—that has not been exhausted. Courts will routinely dismiss cases when exclusive remedies are not exhausted first. 13.39 Creating a Record 13.39.1 In Missouri, the hearing may be formal or informal, a record or a nonrecord hearing depending on the type of approval sought and local regulations and procedures. Generally, in matters of a quasi-judicial nature such as appeals before the board of adjustment or other boards of appeal, the local government will create a record. 13.39.2 In any case, all parties involved in record hearings should formally submit all exhibits, ordinances, and other documentation relied on in presenting their position. See Lussow v. Cnty. Comm’n of Franklin Cnty., 887 S.W.2d 815, 816-17 Mo. App.E.D. 1994 13.40 Notice and Due Process Considerations 13.40.1 Various application procedures require advance submittals to gain access to a review agency agenda. An applicant should also become familiar with requirements for support documentation and similar information and exhibits to ensure that the application will be deemed complete and be accepted for timely review. In some cases, the applicant retains responsibility for notice to surrounding owners and residents. For example, when a decision requires a public hearing, an applicant should, at a minimum, inquire as to notice and timing requirements and responsibilities. 13.41 Annexation & Contiguousness 13.41.1 To meet the test of contiguousness, an annexing municipality may present any competent evidence. See, e.g., City of Parkville v. N. Farms, 950 S.W.2d 882 Mo. App. W.D. 1997 legal description containing references that would allow location of the annexation area with reasonable certainty; City of Rolla v. Armaly, 985 S.W.2d 419 Mo. App. S.D. 1999 no new survey required when an existing legal description adequately demonstrates compliance with the contiguousness requirement. 13.42 Litigating Against Local Governments 13.42.1 A municipality has sovereign immunity from actions at common law tort in all but four cases – 1 where a plaintiff’s injury arises from a public employee’s negligent operation of a motor vehicle in the course of his employment § 537.600.11; 2 where the injury is caused by the dangerous condition of the municipality’s property § 537.600.12; 3 where the injury is caused by the municipality performing a proprietary function as opposed to a governmental function STATE EX REL. BOARD OF TRUSTEES OF THE CITY OF NORTH KANSAS CITY MEMORIAL HOSPITAL, 843 S.W.2d 353, 358 Mo. banc 1993; and 4 to the extent the municipality has procured insurance, thereby waiving sovereign immunity up to but not beyond the policy limit and only for acts covered by the policy § 537.610. 13.42.2 Government function – Acts performed by the municipality as an agent of the state, including the establishment and operation of schools and hospitals, the creation of municipal fire departments, and the exercise of legislative or judicial powers, have been found to be governmental functions 13.42.3 Proprietary function – Proprietary functions, on the other hand, are those performed by the municipality for profit or for the special benefit of the municipality. 13.43 Hancock Amendment 13.43.1 [A] municipal corporation possesses and can exercise the following powers and no others – First, those granted in express words; second, those necessarily implied or necessarily incident to the powers expressly granted; third, those absolutely essential to the declared objects and purposes of the corporation-not simply convenient but indispensable; fourth, any fair doubt as to the existence of a power is resolved by the courts against the corporation-against the existence of the powers. Merriam v. Moody’s Executors, 25 Iowa 163 1868 by Judge John Dillon St. Louis v. Bell Tel. Co., 96 Mo. 623, 10 S.W. 197 1888 13.44 Ruggles v. Collier, 43 Mo. 353 1869 re attempted delegation of a taxing power to the mayor of St. Louis – 13.44.1 Corporations [municipal] differ from individuals. They have no powers except such as are expressly granted in the charters, and such as are auxiliary or necessary to the proper exercise of the powers conferred; and all statutes or charters creating corporations are to be strictly construed. . .. They can exercise such powers and such only as contained therein. Dillon cited – St. Louis v. Bell Tel. Co., 96 Mo. 623, 10 S.W. 197 1888 13.44.2 First, those granted in express words; Second, those necessarily [or fairly] implied or necessarily incident to the powers expressly granted; Third, those absolutely essential to the declared objects and purposes of the corporation-not simply convenient but indispensable; Fourth, any fair [, reasonable] doubt as to the existence of a power is resolved by the courts against the corporation-against the existence of the powers.   13.45 What is “police power”? 13.45.1 Black’s – The inherent and plenary power of a sovereign to make all laws necessary and proper to preserve the public security, order, health, morality, and justice. It is a fundamental power essential to government, and it cannot be surrendered by the legislature or irrevocably transferred away from government. 13.45.2 A state’s Tenth Amendment right, subject to due process and other limitations, to establish and enforce laws protecting the public’s health, safety, and general welfare, or to delegate this right to local governments. 13.45.3 However, as we have consistently cautioned, even though a municipality is granted authority to enact an ordinance pursuant to its police power, the ordinance must still bear a rational relationship to the health, safety, peace, comfort, and general welfare of the inhabitants of the municipality, and it must conform with state law on the same subject. See Bezayiff v. City of St. Louis, 963 S.W.2d 225, 229 Mo. App. E.D. 1997; § 71.010. 13.45.4 “The issue of preemption may fairly be divided into two questions – Has the Missouri legislature expressly preempted the area? And, is the city’s regulation in conflict with state law?” Miller v. City of Town & Country, 62 S.W.3d 431, 438 Mo. App. E.D. 2001. 13.45.5 However, while preemption forbids a conflict with state law, it does not prohibit additional regulations by the locality. State ex rel. Hewlett v. Womach, 196 S.W.2d 809, 815 Mo. banc 1946. 13.46 Municipal Right to Contract 13.46.1 RSMo. § 432.070. No county, city, town, village, school township, school district or other municipal corporation shall make any contract, unless the same shall be within the scope of its powers or be expressly authorized by law, nor unless such contract be made upon a consideration wholly to be performed or executed subsequent to the making of the contract; and such contract, including the consideration, shall be in writing and dated when made, and shall be subscribed by the parties thereto, or their agents authorized by law and duly appointed and authorized in writing. 13.46.2 “In some circumstances, substantial compliance with the statute may be sufficient to create a valid contract. … Nevertheless, the records of a municipality must disclose authorization for the execution of a contract, and such authorizing record ‘must not be vague and uncertain but must sufficiently identify the subject matter under consideration with reasonable exactitude and specificity.’ …”   14 Drafting Local laws 14.1 The Law Starter Kit 14.1.1 Once you have determined that a change to your local laws is the appropriate way to address a particular need, it is advisable to consider the following points before sitting down to write a by­law – 14.1.2 Purpose – What is the proposed bylaw intended to accomplish? Discuss the purposes with those who have proposed the bylaw, and examine the manner in which the bylaw is likely to be applied. 14.1.3 Models – Have other similar bylaws been adopted in other communities? Determine if any other bylaws might serve as a useful model. Locate other sources for models or samples of local laws intended to achieve the same purposes. No such model or sample is likely to fit perfectly without alterations that take into account the unique circumstances of your community. Tailoring should always be done in consultation with town counsel. 14.1.4 Experts – Are there known experts in the field that may be contacted for guidance on how best to achieve the legislative objectives? 14.1.5 Legal considerations – Are there constitutional and/or statutory constraints within which you must proceed in drafting the text of the bylaw? Reduce these issues to writing, even if only for your own benefit. Once you have gathered the facts, researched the law, and created an outline, you are ready to write the first draft. An outline will help you get to the gist of the bylaw, though some find it helpful to begin by writing a rough text of the act as a means of capturing their thoughts on the matter. 14.2 First Draft 14.2.1 When preparing the first draft, be sure to address the following – 14.2.2 Scope – Consider whether the focus and scope of the proposed bylaw is sufficiently inclusive of other classes and situations for which a bylaw of broader scope would be more appropriate. Don’t let a bylaw suffer from too narrow an application when the matter it sets out to address is broader than the single situation that led to the proposed amendment. 14.2.3 Clarity – Have a non-lawyer—preferably someone who would be affected by the bylaw—read the draft version. Also run it by someone with talent in writing, grammar and spelling. Incorporate their feedback into revisions, particularly if the readers identify areas that need clarification. 14.2.4 Counsel – Discuss the proposed bylaw with town counsel for consistency with state and federal law, and to determine whether review and approval of the proposed amendment by state or federal agencies is required before it can become effective. 14.3 Structure 14.3.1 The following are some components of a well-written bylaw. Adherence to this structure will improve the bylaw’s chances for approval at town meeting. 14.3.2 Preamble – A bylaw’s “preamble” is often much longer than necessary, sometimes to the point that it adds ambiguity to otherwise straightforward text. If possible, avoid statements of intent, which are rarely necessary and should never be used to compensate for imprecise or careless drafting. Avoid the use of “whereas.” 14.3.3 Summary – Prepare a concise summary of the proposed amendment with an explanatory statement of what it is intended to accomplish and how it will be applied. This will be useful when the proposed amendment is being deliberated by town meeting or city council. 14.3.4 Anticipate objections – Anticipate what the bylaw’s opponents might think of the amendment. To the extent possible, try to address these issues in the draft. 14.3.5 Congruence with existing code – Organize the elements of the bylaw logically and in harmony with the organization of the town’s other bylaws. Adopt a consistent structure to the bylaw amendment so that it fits in with other parts of the municipal code, including numbering, formatting, positioning, and captioning. Drafting 14.4 The structure of a bylaw should address the following – 14.4.1 Definitions – Make sure that all terms used in the proposed amendment are either as defined elsewhere in the municipal code and used consistently with such definition, or are added in the definition section of the proposed amendment. The better approach might be to add any new technical term to the existing definitions section of the code. Never state a substantive provision of the bylaw in the form of a definition. Use the same words to mean the same thing throughout the code. 14.4.2 Applicability – Be clear and precise about the class of persons or entities for whom the proposed amendment creates rights and privileges or imposes duties and responsibilities. 14.4.3 Exclusions and exemptions – Specify any exclusions or exemptions to the applicability. 14.4.4 Administration – Specify which local government officer or agency is to administer and enforce the provisions of the bylaw. Include or refer to the powers and duties of the enforcement officer or agency, as well as any restrictions thereon. 14.4.5 Sanctions and remedies – Specify the penalties for violation of the bylaw and whether non-criminal disposition will be available. Specify who shall have standing to apply for enforcement of the bylaw and what remedies are available to one seeking enforcement. Where appropriate, include a mechanism for administrative review. Drafting 14.4.6 Severability clause – Consider whether it is desirable to include a severability provision—that is, whether, if the attorney general or a court should later determine that any provision of the bylaw is illegal or unconstitutional, the remaining provisions would continue to be in effect. Give this issue careful thought, since the loss of some provisions could defeat the whole intent of the bylaw. 14.4.7 Effective date – State the effective date of the bylaw or ordinance if it is to be later than provided by general law. Town bylaws ordinarily take effect only after the town meeting votes favorably on the bylaw, the attorney general approves the bylaw as provided in state law M.G.L. Ch. 40, Sect. 32, and thereafter the town clerk publishes it as required by state law. There is a difference, however, between the effective date of a general bylaw and the effective date of a zoning bylaw. The general bylaw takes effect when the foregoing three requirements have been met, while the zoning bylaw takes effect as of the date it was adopted by town meeting. 14.4.8 A bylaw that is written with precision and legal accuracy, but cannot be easily understood by those to whom it applies, will result in confusion, unintentional violations and unfairness. Good bylaw drafting is governed by the same principles that govern any form of effective written communication. 14.4.9 Be clear, concise, and readable. Do not abandon the use of words and expressions that serve you well in other written communications. Here are some guidelines for writing good bylaws – 14.4.10 Plain English – To the extent possible, use plain English. Minimize the use of technical or undefined terms and use words that are understandable to the general public. Avoid unnecessary and vague words. 14.4.11 Present tense – Use the present tense, third person singular. Don’t say, “The building commission shall be the enforcement officer.” Rather, say, “The building commission is the enforcement officer.” 14.4.12 Avoid the plural – If either the singular or plural can be used, use the singular. Don’t say, “Applicants must notify all abutters.” Rather, say, “The applicant must notify all abutters.” 14.4.13 Short sentences – Avoid sentences of more than twenty-five words, or with multiple subordinate clauses. Use short and direct sentences to express ideas positively. 14.4.14 Nominalization – Avoid making nouns out of verbs wherever possible. For example, say, “The administrator shall consider the application,” rather than, “The administrator shall give consideration to the application.” 14.4.15 Avoid pronouns – If you must use a pronoun, make sure the antecedent is clear. Don’t use the third person plural they as a singular gender-neutral pronoun; instead, repeat the noun. You rarely have to worry about gender-neutrality if you don’t use pronouns. Drafting 14.4.16 Adjectives and modifiers – Avoid misplaced or unnecessary modifiers. Place modifiers so there is no doubt about what they modify. 14.4.17 Active voice – The passive voice lacks a clear actor. When a bylaw imposes a duty or prohibition, the reader needs to know exactly to whom the duty or prohibition applies. For example, don’t say, “Rules shall be adopted.” Rather, say, “The Planning Board shall adopt rules.” 14.4.18 Redundancy – Avoid redundancies e.g., “unless and until,” “cease and desist”. Perhaps the worst of these is “authorize and direct,” an expression that combines a word that grants discretion authorize with one that is mandatory direct. 14.4.19 Consistency – Once you have introduced a term into the text, avoid the use of synonyms. Laws can and should be a bit boring, not great literature. Shall vs. may – Remember that the word “shall” is used exclusively to impose a duty to act. E.g., “The town manager shall submit a proposed budget to the finance committee on November 1 of each year.” Don’t use “shall” to indicate the future tense, to impose a duty not to act, to impose a limitation, or to declare a legal result rather than to give a command. Correspondingly, the word “may” should be used exclusively to grant discretion or authority to a particular actor. Where you wish to prohibit an action, the words “shall not” are misleading; the appropriate term is “may not.” The words “shall not” mean that a person does not have a duty to engage in the described action, while the words “may not” serve to deny the actor power or authority to engage in the action. Don’t say, “No person shall.” Rather, say, “A person may not.” 14.4.20 Punctuation – The use of a comma where not needed, or the absence of a comma where needed, can substantially alter the meaning of a sentence. Avoid large blocks of text, which readers may scan without comprehension and lose track of where the proposed amendment fits into the overall architecture of the code. Always use a comma after every word or phrase in a series, including the one before the “and” or “or.” Consider the use of an outline format and “white space” to help the reader. 14.4.21 Sectioning – Divide discrete thoughts into sections and subsections. Each time an act is required or prohibited, it should have its own section or subsection. 14.4.22 Acronyms – Avoid initials and acronyms whenever possible.   15 The GeoSpatial Stuff 15.1 New Users in The Geospatial Sector 15.1.1 Formerly prohibitively expensive software – capable of sophisticated GIS operations – is now available for $108. 15.1.2 This price, and the increasingly user-friendly nature of the GIS environment, puts the ability to query information within reach of many new groups of people and some average citizens. 15.2 Economic Impact of the Geospatial Sector 15.2.1 The Google Geospatial Industry Economic Impact Report, Google, 2013 What is the Economic Impact of Geo Services? – Prepared for Google by Oxera Consulting, Ltd. 15.2.2 Some of the more everyday uses for mapping and location-based services include local governments helping residents find their nearest community services, such as leisure facilities, schools, transport and recycling. 15.2.3 Spatial information is also increasingly being used to link consumers and businesses through location-based services, which combine geographic data from a mobile device with maps and other data to help link consumers to local services such as dentists, hairdressers and coffee shops. 15.2.4 From an economic perspective, these services help businesses and consumers connect with each other more easily, increasing welfare for consumers by reducing the cost of searching, and increasing competition and choice in many markets. 15.2.5 Geospatial services are economic friction reducers 15.3 Google Study Results 15.3.1 For the purposes of the study, this impact has been divided into three broad categories Direct Effects Consumer Effects Wider Economic Effects 15.3.2 “This report has adopted a number of approaches, and estimates that the Geo services sector generates $150-$270 billion of revenue globally. …broadly equivalent to the $140 billion of revenues from the global security services industry, or around one-third of the global airline industry’s revenues of $594 billion.” 15.3.3 This report estimates that the Geo services sector has a global GVA of $113 billion. 15.3.4 “…the industry is growing rapidly—at a rate of 30% per annum globally.” 15.3.5 Employment of cartographers/photogrammetrists, survey/mapping technicians, and geographers is predicted to grow faster than the average job growth in the USA, at 22%, 16% and 35% respectively between 2010 and 2020. 15.4 Externalities 15.4.1 In general, where the production or consumption of a service or good has an impact on a third party, the service or good can be said to give rise to externalities. 15.4.2 If third parties are positively affected by an economic activity – like Geospatial services – then it can lead to private consumers and firms under-consuming that service or good since they do not necessarily take into account the wider impact of their consumption. 15.4.3 Private consumption of Geo services has many positive externalities. For example, if the use of a personal navigation device linked to road traffic updates allows a driver to avoid an area of congestion, this benefits not only the driver but also those caught up in the congestion, since the driver does not add to the congestion and make it worse.   16 Open Records Laws 16.1 The Freedom of Information Act FOIA 16.1.1 The U.S.FOIA was passed in 1966 and has enjoyed considerable public support. Under the long established principle that a democratic society requires an informed citizenry, and in order to promote the federal government’s accountability to its citizens, the FOIA requires public agencies to open their records to private citizens. Such considerations as national security and privacy rights create some exceptions to the law, but federal agencies must allow private citizens to see most of the information held in their extensive files. 16.2 State Open Records Act 16.2.1 At the state level, Open Records Acts form the counterpart of the FOIA. Each state has its own law, however, which adds some confusion to legal issues at state and local levels. The intentions of these laws are clear – they are meant to lessen the possibility that the government will abuse its power. But the issue of accountability has become clouded with the rapid growth of information technology–and with the rapid rise in the value of public information. Two fundamental questions have arisen – How much public information do private citizens have the right too?  

17 Spatial Data Considerations

17.1 Select GeoSpatial Terms 17.1.1 Non-Rivalry – “the consumption of information does not diminish the capacity of another to use the information” 17.2 What is the true cost and value of spatial data? 17.2.1 How can the cost and value of spatial data be measured? 17.2.2 How do the policies determining cost and access ultimately affect the availability, quality, and use of spatial data? 17.2.3 “Private companies involved in capturing and producing spatial data must either sell their data or sell the services that are derived from those data to remain economically viable. 17.2.4 Some companies produce data themselves, while others as we have seen take government – provided data and add value to them. 17.2.5 End users may find this added value to be more attractive to be a more attractive alternative to the raw or unprocessed data provided by government sources. 17.2.6 Among the many ways to add value include making spatial data available in a greater variety of map projections, file formats, or by user-defined geographic areas. 17.2.7 Data may be supplemented with other related data and some vendors offer discounts for purchasing multiple datasets or for repeat purchases. 17.2.8 Vendors may add attribute values to support more attribute queries or add topological relationships to support more effective spatial queries. 17.2.9 The data are offered in a variety of media or downloadable more reliably or at a faster rate than via a government site. 17.2.10 These and other enhancements make the data easier to acquire and use. Consequently, users may be willing to pay for data that were originally free. Although users are paying for value-added data, this may translate into direct savings if they can release staff resources by minimizing, if not completely bypassing, the data preparation stage.“ Page 132. 17.2.11 “Hundreds of companies add value to government data, and then resell those data across a broad range of GIS markets in a service industry valued at US 5 billion annually. These companies are sometimes referred to as conversion firms, although they typically do much more than convert data; in many cases they create, customize copy, GIS ready data sets for particular client requirements.” Page 132 17.2.12 “The data provision network is an increasingly tangled web. However, given the escalating costs providing data, it makes sense for data providers to work closely with each other and with government agencies.” Page 133 17.3 “Should spatial data be considered a public good, and therefore publicly available at no cost? 17.3.1 Should spatial data be considered a critical value – added service that a government provides for its citizens, who should pay for that service? 17.3.2 Without free or inexpensive data, the many private companies founded on adding value and reselling those data would go out of business, jobs would be lost, and the entire GIS industry would suffer.” Page 133 17.4 “What is the proper role for a government agency? 17.4.1 Public agencies provide public goods, but what is this public good? The first economist to develop the theory of a public good, Paul Samuelson 1954, defined it as “[goods] which all enjoy in common in the sense that each individual’s consumption of such a good leads to no subtractions from any other individual’s consumption of that good.” This is known as nonrivalness. In addition, public goods are nonexcludable, meaning that no one can be effectively excluded from using the good. 17.4.2 A public good is generally perceived as something that a government agency is better equipped to provide than a private company, a national military force being the most frequently cited example. 17.4.3 Other examples, such as health care, highways, or education, are defended as public goods by some but questioned by others who believe that private entities can provide these services more efficiently and with higher quality.” Pages 133-134 17.4.4 “By definition, a public good involves costs and benefits outside the marketplace and these costs and benefits are only partially reflected in market prices and commercial transactions.” Page 134 17.4.5 “Tele Atlas and NAVTEQ maintain street data for many parts of the globe. In the United States, the data that they maintain originally came from the ten-year effort by the US Census Bureau to build the TIGER system during the 1980s. By 1990 this government effort had resulted in the first nationwide digital street map in the United States, but broadening consumer access would require an enormous investment by private industry. 17.4.6 The data may now be found online through mapping services such as ArcGIS Online, Yahoo!, MapQuest, and Google and on almost every handheld computer, mobile phone, and GPS receiver. 17.4.7 The small fee that may be paid to access those street data or to purchase the GPS receiver does not in any way match the public and private investment to create the data in the first place, nor do the fees pay for the update of those data.” P.134 17.4.8 “The time it takes for GIS professionals to acquire and process spatial data not only far outweighs the monetary outlay, but time spent on data acquisition translates into a significant portion of the overall cost of any GIS-based project.” P.134   17.5 What is a Public Good? 17.5.1 “As we have discussed before, public goods impose costs on and external benefits to individuals or organizations and their impact may be only partially reflected in the price that is paid. Digital spatial data have become critically important to society, yet there are huge costs involved in producing and maintaining the data. 17.5.2 In the United States, it is often argued that the taxpayers are already paying for the data through the public monies that are allocated to the data-producing agencies. 17.5.3 If the public were charged to use the data directly, would they be, in effect, paying twice? 17.5.4 In addition, free government data in the United States has spawned a multimillion-dollar industry through the emergence of companies that repackage and sell government data. As a result, many more organizations and individuals throughout society have access to spatial data, from the businessperson to the student researcher.” P.138 17.5.5 “Some argue that the benefits of abundant data not subject to copyright represent one of the best investments by the US government.” P.139 17.5.6 Advocates for the free model maintain that its benefits are not limited to GIS users, but extend to the whole of society through better resource management and informed decision making, improved human conditions, and a more sustainable environment.” P.139 17.6 Sometimes Free Costs Less 17.6.1 “During 2008, when Landsat data were commercially available, 19,000 Landsat scenes were sold. By early the following year, 200,000 free Landsat scenes had already been downloaded, two-thirds of which were from faculty, students, and researchers at universities and schools. During the years in which the USGS charged for Landsat, it cost the agency far more to prepare, process, and provide the purchased data than the revenue generated from Landsat sales. In addition, releasing the dozens of staff members providing customer sales support at the USGS EROS Data Center in Sioux Falls meant they could be reassigned to other tasks providing greater benefit to the wider GIS user community.” P.139 17.6.2 “He argues that providing access to spatial data for free is a good way to get people and organizations thinking about and working with spatial information, although he concedes that in most cases free data will be of fairly coarse resolution and smaller scale. The more experience we have working with spatial data, Thurston says, the more sophisticated our use of those data becomes and the greater the demand for more accurate and higher-resolution data.” P.140 17.6.3 “The better the data, the better the information products such as analytical models, economic forecasting, and environmental predictions derived from those data.” P.140 17.6.4 “Ball, on the other hand, observes that without the long history of access to free, public domain federal geospatial data, the geospatial market in the United States wouldn’t be as large nor would it be able to support the services it does through the technological innovation many take for granted today. By providing free data, commercial enterprises were able to improve the quality of, and add value to those data, providing a platform for the entire geospatial industry to build upon.” P.141 17.6.5 “Before the advent of online mapping sites, there was no business model for distributing data for free. However, the Internet and advertising revenue revolutionized that model and many web-based mapping sites emerged. Mapping is a key component of the local search market, with companies willing to spend a great deal of money to ensure their products appear at the top of search lists. To support those local searches competing companies invest considerable amounts in data and geospatial technologies’ which, in turn, benefit the companies providing those services. This, Ball refers to as the “economies of free.” P.141 key term 17.6.6 “Ball claims that long-standing barrier-free access to geospatial information has led to a great many commitments and investments by both commercial and public entities to create systems and solutions for their customers. Although these investments also create enormous value and tax revenue for the federal government, he doubts that any one in government has adequately analyzed the value of free geospatial data weighed against data-for-a-fee that was consequently used far less. Ball concludes that free federal data spurred free market competition – ‘If the data were locked up to begin with, the market would never have taken off. There wouldn’t be the level of investment in technology, and we’d be much the poorer in terms of both economic benefit and our knowledge of our world.’” P.142 17.7 NonUniformity in Local Data Policies 17.7.1 “In the United States, where national and state spatial data are freely available without prohibitive licensing restrictions, the situation within local government is much less uniform. The complexity, range of geographic areas covered, and diversity of organizational size in local government combine to produce a complex framework. This framework includes councils of government where multiple agencies—most commonly a group of cities and counties from one metropolitan area—collaborate on specific services and programs. The spatial data generation, access, and policies are even more diversified at this local level. Some local governments are using new online map service and portal technologies that allow citizen access to their data.” P.145 17.7.2 “Coupled with this was the growing awareness that to be fiscally and organizationally efficient, agencies—particularly those in the same governmental unit—should adopt an enterprise GIS approach and work together.” P.146 17.7.3 “As we have seen in our discussion of legal issues surrounding geospatial data, the local government framework in the United States is further complicated by the requirement to make the data available to citizens under the Freedom of Information Act FOIA. The interpretation of how this act applies to the provision of spatial data leaves many gray areas.” P.146-147   17.8 Seven Keys to Data Sharing 17.8.1 Context matters – Different institutions require different responses. Decisions about whether data sharing should be formal or informal may depend on where you are. No matter how badly you want to give away the data, if you work in “Tammany Hall,” you can’t. Some isolated systems may be able to rely on a hub-and-spoke model, while some complex multijurisdictional landscapes may require fairly sophisticated models to ensure that data is available in appropriate and fulfilling ways. 17.8.2 Attitudes vary – When asked whether they charged, some people asked, “Why would we?” When asked if they shared data, some people asked, “Why would we?” Some people saw the data as the source of their power. Some people saw giving it away as their source of power. Sharing scares some people. Some people have concerns about the risks involved—liability is a big concern. But some are suggesting that liability goes up when you charge. 17.8.3 Charging for data can cost more than you think – Be wary of the ripple effect. Sometimes when you think you are making money from your data, you are really costing more than you think. Charging for data can have primary, secondary, and tertiary economic effects that you should be aware of before you chose a restrictive access policy. 17.8.4 Bigger is better. Generally speaking, the larger organizations seemed more likely to share, to have developed metadata, and to be prepared to participate in a larger spatial data infrastructure. 17.8.5 Where there’s metadata, there’s data. – While not all data come with metadata, we found that folks who kept metadata almost always had lots of data and it generally seemed to be data worth getting. But many agencies admitted to using standards that were not FGDC-compliant. 17.8.6 Sometimes it’s all about who you know. – A number of institutions explicitly admitted to sharing data freely with people they know and trust, while making it difficult for others to gain access. It became clear in some places that almost everybody had studied at the same school, so that even if they weren’t classmates they shared the same favorite faculty. These personal connections seemed to really overcome some other limitations. It can also be about how you treat them. When you are working in a hub-and-spoke environment, you clearly need to treat the GIS dictator nice. If he or she shuts you out, it can be very hard to get back in. 17.8.7 Sharing is easy, not sharing is hard. – Just giving your data away can turn out to be the easier and more affordable route. Copying someone else’s shrink-wrap agreement and leaving your data on the Web page can be pretty simple. Dealing with lawsuits, chasing down “illegal data launderers,” and negotiating ironclad license agreements can be very hard and unrewarding work. Some agencies seem to spend more time and energy dealing with preventing “data theft” than they make in their cost-recovery charges. P. 53   18.1 Additional Resources 18.1.1 http – //www.colorado.edu/geography/gcraft/notes/legal/legal.html 18.1.2 These materials were developed by Margaret Lynch and Kenneth E. Foote, Department of Geography, University of Texas at Austin, 1995. These materials may be used for study, research, and education in not-for-profit applications. If you link to or cite these materials, please credit the authors, Margaret Lynch and Kenneth E. Foote, The Geographer’s Craft Project, Department of Geography, The University of Colorado at Boulder. These materials may not be copied to or issued from another Web server without the authors’ express permission. Copyright © 2000-2015. All commercial rights are reserved. If you have comments or suggestions, please contact the author or Kenneth E. Foote at ken.foote@uconn.edu. 18.1.3 Legal issues are becoming as important as any other in promoting or limiting the development of GIS technology. Certainly, legal considerations must now be kept in mind during the creation and implementation of large public and private GIS projects. Debate focuses on a number of key issues and questions. 18.2 Can government agencies recover costs by selling public data? 18.2.1 While many public agencies find GIS essential for coping with large amounts of information and for fulfilling their public roles, they also discover enormous costs in establishing information systems. Many see the solution to such costs in selling data services, but this solution conflicts with accountability standards. Citizens have a theoretical right of free access to information from public agencies. Requirements that they pay for information because it has become part of an expensive information system could subvert that right. At the same time, the information that agencies hold and create with GIS has become increasingly valuable to certain private individuals and companies who are able to generate great economic benefit from it. They are able to pay, if necessary, for data, but more to the point, their demand for information can burden public agencies. People interested in the economic benefits of GIS data make more requests for information, and they request entire–sometimes enormous–electronic datasets formed out of public records.   18.3 NSGIC – “Geospatial Data Sharing – Guidelines for Best Practices” National States Geographic Information Council NSGIC, December 2, 2012. Part 1 18.3.1 The National States Geographic Information Council NSGIC strongly believes that open sharing of geospatial data is in the best interest of our communities, states and nation. One of our goals is to make all non-sensitive geospatial data, produced or maintained using taxpayer funds, a part of the public record. 18.3.2 To realize this goal, NSGIC recommends that spatial data providers work to change any existing policies that inhibit geospatial data sharing. All states have public records laws that govern how data can be used. These laws require public access to government data and apply to local as well as state governments. NSGIC encourages data custodians to become acquainted with their state’s public records law and to work toward its broad, open interpretation. 18.3.3 Access to public records is an essential component of our democracy that keeps citizens informed and our government accountable. These records include geospatial data produced or maintained using taxpayer resources. For this reason alone, and with certain narrow exception, geospatial data should be made available to the general public in the format that government analysts use, including readable and GIS-compatible formats. 18.3.4 One such benefit is economic, because reference to the information contained in geospatial data greatly facilitates economic improvements. Public safety and economic development efforts are better served when these data are utilized with programs that generate more accurate information for communities and their developers, lenders, insurers, and emergency planners. 18.4 NSGIC – “Geospatial Data Sharing – Guidelines for Best Practices” National States Geographic Information Council NSGIC, December 2, 2012. Part 2 18.4.1 The government agencies and communities that produce geospatial data also realize direct benefits from easy public access to these data. Most obviously, by openly sharing geospatial data, government agencies and communities eliminate the need to pay staff and attorneys to develop or defend data sharing agreements. Savings can be realized by reducing the staff time consumed by geospatial data sales. Data sharing also saves time and eliminates cost for data acquisition. In addition, data quality increases as use of the data increases. This is being seen everywhere open data are used and customer feedback is welcomed. In fact, both public and private sector users of openly shared data benefit from these improvements in data quality. 18.4.2 Nearly all public agencies derive benefits from the analysis, reference and display of geospatial data. These benefits may be categorized as cost savings from more efficient operations; revenue enhancement from more thorough taxation or regulatory enforcement; and better, faster, and more intelligent delivery of services to the public. How can governmental GIS departments be assisted in meeting the fiscal challenges posed by the cost of producing and maintaining high quality data? Studies indicate that counties with open data policies increase the value of their land more rapidly than counties that do not have open data policies. 18.4.3 Because funding for geospatial operations has not been widely institutionalized, agencies sometimes look to data sales as an option for increasing revenues.   18.5 Myth Number One “Organizations can pay for GIS operations through geospatial data charges.” 18.5.1 Reality: Overhead costs associated with receiving and managing payments; bundling and delivering data; and follow up support to consumers can be significant. Even if adequately monetized and factored into the charge, these costs represent staff hours that could and should be utilized more efficiently to conduct core agency business. 18.5.2 Perhaps more significant is the loss of the following data sharing benefits – Improved data quality as it is vetted, corrected and improved by the community Greater opportunities to leverage resources by partnering or building upon related data Reduced duplication of effort and competition for scarce funds Increased numbers of complementary data resources that may support your mission Respect for your organization as a valued data producer Helping prevent the creation of duplicative data sets 18.6 Myth Number Two “Data cannot be shared in the interest of homeland security and personal privacy.” 18.6.1 Reality: Critical infrastructure, though important to protect, is generally visible and easily identified and located. Imagery can’t be put ‘back in the can’ after being publicly availability for years. Personal information maintained by the government about individual health, economics, education, etc. are required to be generalized and grouped so that information about specific individuals cannot be derived. In most cases, the public is not protected by limiting access to information that is visible, previously available, or significantly generalized. 18.6.2 If data are deemed too sensitive for public access, agencies can still produce and publish information about the data i.e. metadata. Metadata describes the data without revealing sensitive information. If the metadata is published, scientists, doctors and other appropriate users of the data can discover its existence and follow the procedures designated in the metadata to request access to and use of the data. 18.6.3 To aid agencies in assessing data sharing risks, The Federal Geographic Data Committee FGDC Homeland Security Working Group developed a decision tree that can be used to balance security risks with the benefits of data sharing. The FGDC Guidelines for Providing Appropriate Access to Geospatial Data in Response to Security Concerns explains the importance of maintaining a free flow of government information and provides a detailed method for applying the risk assessment decision-tree. The document is available at – http – //www.fgdc.gov/policyandplanning/Access%20Guidelines.pdf P.3   18.7 Myth Number Three “If we share our data, others may misuse it or blame us for mistakes.” 18.7.1 Reality: Since public data are created to support public business endeavors, data sharing is an exercise in accountability, not a liability concern. Governments are protected from liability for reasonable data errors. The value of data sharing to both the provider and the consumer far outweighs any risk. 18.7.2 Good data documentation and well drafted disclaimers and agreements will minimize data misuse and abuse. When data consumers are provided with metadata that fully describes the data’s intended purpose, completeness, accuracy, resolution, currency and use limitations, the opportunity for misapplication is minimized and the burden of appropriate use is shifted to the consumer. 18.7.3 If geospatial staff work with their legal advisors to develop effective documentation, their geospatial product deliveries can clearly articulate responsibilities and liabilities for both the data provider and the consumer from the start. Such documentation need not be lengthy, complex or overly legalistic. 18.7.4 Data consumers can be required to assent to a warranty waiver before being granted access to the data. Assent may be as simple as checking an acceptance box on a web site. 18.7.5 In other cases, a data provider may wish to consider the use of a more detailed agreement that clearly articulates the intended purpose and limitations of the data and the data consumer’s waiver of all warranties in connection therewith. Such agreements can be used to limit liability, thereby increasing an agency’s willingness to make the data more easily available. 18.7.6 Appropriate metadata, disclaimers and agreements used as data management best practices will inform the consumer of any data limitations. 18.8 Data Sharing Options – Agencies have three basic choices – 18.8.1 They can bear the full cost of information generation and distribution; 18.8.2 They can recover distribution costs; 18.8.3 They can attempt to generate income by charging more for information than the entire GIS has cost the agency. 18.8.4 The first choice preserves the principle of open access, but leaves agencies with burdensome costs and without any way of lessening the amount of resources they must devote in simply distributing information. 18.8.5 The second choice might represent a reasonable compromise, but what happens to citizens with no financial resources. They may have legitimate grievances against agencies but if an agency buries information in a massive database it can effectively bar access to the information that could be used to hold it accountable for wrongful actions 18.8.6 The third choice finds some support among people who see government GIS as a valuable source of public revenue, but its legality is debated. Public information is theoretically already owned by the people who demand to see it. The federal government has offered a partial solution to the tension between rights of access and agencies’ need to somehow control the costs of information distribution – 18.9 The Federal Information Reform Act FIRA 18.9.1 In 1986, the federal government amended the FOIA in an attempt to address problems created by electronic information. The Federal Information Reform Act provides guidelines for agencies wishing to charge fees for information. The law 1 sets limits on reasonable information requests and 2 allows distinctions based on the purpose of an information request. 18.9.2 For searches requiring less than two hours and for information requiring less than 100 duplicated pages no fee may be charged. Fee schedules for information beyond these limits may create a distinction based on the purpose for which information is requested. If the information from a public agency is used for commercial purposes, then the fees are higher than for information intended for non-commercial uses. Prices cannot be assigned to the requested data itself, no matter what the purpose, but agencies may charge different amounts for processing and duplication costs. Educators, non-commercial researchers, members of the press, and requesters who ask for information for public interest reasons are charged minimal fees. Commercial users must pay higher fees, and so are prevented from exploiting public agencies. 18.10 The Geospatial Data Makers Liability 18.10.1 These days, GIS professionals have become aware that they may be held legally accountable for the accuracy and reliability of the information stored in their databases, sold, or issued to the public. If harm is caused or economic loss sustained by a mistake made in a GIS dataset, or by a mistake not corrected once discovered, then those in charge of the GIS may end up in court. Or, if public policy is decided on the basis of a faulty GIS analysis–policy that causes harm or economic loss–then, again, those in charge may be held accountable, in this case not only for a simple mistake, but for the manner in which decisions were reached. Finally, data providers may be held accountable if the information they distribute leads to damage or loss even if that information was used for purposes for which it was never intended. 18.11 Errors or uncorrected mistakes 18.11.1 Relatively simple mistakes can have disastrous consequences when people depend on a map or chart for accurate representations of the real world. In Reminga vs. United States, the government was held responsible for an airplane crash when prosecutors proved that federal maps had inaccurately depicted the location of a broadcasting tower. In Indian Towing Co. vs. United States the federal government was found negligent for not maintaining a lighthouse marked on federal charts. In this case the lighthouse’s location was marked correctly, but the government neglected to inform navigators that it was no longer operating.   18.12 Representations of Error-Free Data 18.12.1 Sometimes errors in geographic data arise in unanticipated ways, giving the impression of error-free data, but still inadvertently misrepresenting reality. In Aetna Casualty and Surety Co. vs. Jeppeson and Co. the court found that an aeronautical chart published by Jeppeson and Co. had misled the flight crew in a fatal plane crash. The chart in question mapped out the instrument approach to an airfield using correct data from the Federal Aviation Agency, but in a way that obscured a simple–and fatal–error. Two views–from the side and from above–were drawn. The two charts were depicted together so that they appeared to be in the same scale, but in fact they were drawn in two different scales. The company was found liable. 18.13 Flawed Geospatial Data Policy 18.13.1 Faulty GIS data or analysis can lead to poorly designed regulations. Incorrect data entered into a GIS model for instance, might skew results of an analysis. A GIS analysis might also use correct data, but through poor reasoning or design lead agencies to establish flawed regulations. Questionable regulations have been successfully challenged in recent court cases. In Nollan vs. California Coastal Commission 1987 the court found that the CCC could not justify a requirement that land owners always provide a public easement to the beach when building on coastal property. The need for a public way to the beach was acknowledged in the case, but the necessity of an easement was not proved to have been created through the building of a single house on the coast. This case centers on an area of land use regulation that has become particularly contentious in the last decade, an area that may threaten some of the conservation policies established by local, state, and federal agencies. Regulations that effectively restrict an owner’s use of his land increasingly are considered a “taking” of private property by government. While governments may regulate land use for the common good, they may not, under the Fifth Amendment, create an undue burden on individual owners–may not take from them the value of their property disproportionately. The case discussed here demonstrates that GIS users must be careful in how they analyze even accurate data; successful challenges of entire policies along with the analyses that such policies are based on will have wider implications than cases in which simple errors have been proved. 18.14 Unintended and inappropriate use 18.14.1 Maps are designed for specific uses. Projections, scales, even different expectations of accuracy make individual maps appropriate for only particular uses. Sometimes, however, maps are used in ways never intended by their creators. For instance, in Zinn vs. State a USGS map was used by a state agency for defining property lines along a lake. Land below the Ordinary High Water Mark of all lakes in the state were designated public property. But in using a USGS map, the state incorrectly claimed private land, because their USGS map was not designed for determining such fine details as property lines. The state was held liable because it had used an inappropriate map to incorrectly take private property. 18.14.2 Public and private suppliers face different situations in questions of financial accountability. 18.15 Government Perspective 18.15.1 Even when government agencies have caused harm to individuals through errors or neglect, they may not always be sued or assessed for damages. The doctrine of sovereign immunity applied in the United States allows people to seek claims against the government only if the government itself agrees to be sued. However, most states have limited or abolished this doctrine so that governments at state and local levels may be held accountable for their actions. This does not mean that individuals will be able to sue government agencies in all instances. Existing legal doctrines may hold agencies accountable to the public, but not equally to individuals. It is understood, for instance, that actions undertaken by the government in the public good may occasionally harm individuals. Moreover, government agencies often cannot be held responsible for errors in public records that they are forced to provide under Open Records and Freedom of Information rules. If they were held accountable, many believe, public agencies would be overwhelmed by litigation based on data they could not restrict or control. 18.15.2 The changing application of sovereign immunity has not, as yet, greatly influenced the activities of government agencies providing geographic data to the public. However, in the face of uncertainty, some agencies are becoming cautious about how they distribute and share information. 18.16 Private Perspective 18.16.1 Private suppliers of data have always been liable for harm resulting from the information they distribute. Digital systems, however, are leading these providers into situations that expose them to new liabilities. Suppliers find it difficult to anticipate risks associated with new uses of data. For instance, 18.16.2 Private firms now routinely consult lawyers in bidding on contracts, particularly for infrastructure projects such as 911 mapping, automobile navigation systems, placement of cables or pipes underground, and so on. For all these examples, the accuracy of maps and data are vitally important. An address incorrectly linked to a phone number could leave a heart attack patient without an ambulance, a gas pipe left off a map of underground utilities could lead to an explosion when workers cut into it. Problems in such instances are not always caused by inherently wrong data, but by users choosing to adopt data already in digital form but not designed for their particular intended use. 18.16.3 Not so long ago, much attention was devoted to the possibility of data sharing among government agencies and private users. The idea, of course, was to share the costs of developing GIS datasets. One reason this receives less attention now is that people worry about being held accountable for data they have passed to others who may not use it correctly or in the intended way. 18.16.4 Many datasets are now issued with disclaimers, although it is unclear whether such disclaimers would clear the providers of all liability. 18.17 Privacy 18.17.1 Is there a “right” to check and appeal information held in GIS databases? 18.17.2 GIS databases hold all kinds of geographic information relevant to specific individuals. They may include tax and land records, property titles, data on construction or occupancy permits, data on residency or on water use. Sometimes that data might be incorrect and so may cause economic or social harm. How are the creators or keepers of the information to be held responsible for the accuracy of their information? At present, credit bureaus must provide reports to individuals in order to allow people the opportunity to rectify incorrect information. But other kinds of databases are not held to similar standards. This problem has not yet been resolved and it is becoming increasingly troubling as more and more data on private citizens is collected and stored on computers. The possibility of inaccuracies has always existed with paper documentation, but as information is distributed, and redistributed, and stored in ever greater quantities, the ability of individuals to know who may be holding and distributing incorrect data on them becomes a more complex problem. The solution will probably come in some form of legal safeguards. 18.18 GIS Data as Evidence
18.18.1 Geographic Information Systems are used to make decisions. GIS may, for instance, be used to place new roads or power lines, to build subway systems while avoiding existing underground utilities, to create a school or voting district, or to justify a conservation policy by forecasting environmental harm from planned land uses. Occasionally, legal conflicts develop over these decisions. Parents question school district boundaries; land owners dispute environmental policies; subway system builders might break utility lines marked incorrectly on a map generated with GIS. One or all parties in the conflict might then wish to bring data or analysis from a GIS into court as evidence in support of a case.
18.19 Can GIS data be used as evidence?
18.19.1 GIS data may sometimes be necessary to a legal case, but it does not always meet the legal standards of acceptable evidence. Information held or created in digital form encounters more problems when used as evidence in the courts than paper documents do. Computer systems introduce the possibilities of input errors, hidden inaccuracies caused by hardware or software problems, and flawed modeling concepts. In addition, digital information can be altered more easily and with less trace than information held on paper documents. These characteristics bring into question the reliability of information from GIS as evidence, and by extension the reliability of decisions based on GIS.

18.20 Problems Faced by GIS Data in the Courts

18.20.1 If GIS cannot be used to prove legal cases, then it loses much of its value. Agencies and companies that use GIS must be aware of the special problems encountered by digital information in the courts. For instance, unless it falls under certain business record or public record exclusions, computer-generated files are treated as hearsay as statements made outside of sworn testimony. Hearsay cannot be submitted as evidence. Legal contestants whose GIS records are admitted as evidence, usually through some exception to hearsay rules, still must overcome the sense that their records may be unreliable. The may have to prove, for example, the security of a hardware system or careful supervision of data input. They may also need to prove that data has not been altered after incorrect data was distributed. If they cannot, their case is significantly weakened.
18.21 Technological Solutions to Legal Problems
18.21.1 These problems have not prevented GIS from being used as evidence, but they have created sometimes unanticipated difficulties. Solutions to the problem have so far been through legal means. Now, however, some authorities suggest that solutions may more properly lie in technology. Technical markers automatically placed on alterations made to a dataset, for instance, could improve the reliability of digital data.
18.22 Copyrights and the Value of Public Information
18.22.1 Copyrights were created to protect the commercial value of creative work. Unlike other countries, the U.S. does not allow public information–information created and held by the government–to be copyrighted. Since the government is also required to allow access to its information, it retains no control over the value of information–value that has grown immensely with GIS and other information technologies. In Great Britain, in contrast, the government is able to sell information and thereby recover the costs of creating and maintaining it. In the U.S., the government’s lack of control has positive as well as negative consequences. While, for example, government accountability is promoted with freely available information, some of the nation’s potential economic benefit from public information is lost. The government must bear the full cost of maintaining its datasets even while commercial firms may gain free access to public information, repackage it, and sell it.
18.23 Federal Data Cost Schemes
18.23.1 “At the federal level, cost recovery through the selling of public data is a low priority.” P.5
18.23.2 “The US Geological Survey 2001 has entered into business relationships with private firms. However, ‘the principal purposes of the Business Partner Program are to increase the public distribution of USGS products and to relieve the USGS of some distribution workload, a requirement is that all data purchased through the Program be offered for resale either unenhanced or with added value. There are no copyright restrictions on USGS data. ’P.5
18.23.3 “Congress has generally discouraged government from entering the information business. In 1994, reaction to news that some state government had sold personal data led to the Driver’s Privacy Protection Act of 1994.” P.5
18.24 Local Governments Now Are Offering Enhanced Access for a Price
18.24.1 “A favorite mechanism is becoming “enhanced access” laws, whereby government agencies that invests in technology to better serve citizens that is “enhances access” can charge more for the enhanced access than simple reproduction costs. They can charge a fee that would recover the development and operation cost of the enhanced access.” P.5
18.24.2 “These laws seem to imply that local governments can “have their cake and eat it too” by allowing for government data to be profitably sold while simultaneously providing low cost access.” P.5
18.24.3 “Onsrud 1992 notes that ‘to date, little substantive evidence has been offered to show that economic and social equity principles or democratic principles have suffered due to governmental policies for charging fees for GIS data, products, and services.’” P.6
18.24.4 “Low-cost access also makes it less likely that local governments would try to limit use of public GIS data to public planners and officials, who could “paint pictures” in ways that further official policy objectives. Community groups and social activists could be priced-out of the data market and prevented from examining the information underlying the official pictures or from preparing their own alternative pictures. Inspection of the raw data upon which development plans or other decisions are based is essential to fairly critiquing them. Furthermore, the ability to create new charts, graphs, maps and tables is very useful in challenge plans and decisions in public forums.” P.6-7
18.24.5 “Do local governments come to optimize their systems for “revenue enhancement” rather than as “cost reduction”? Does the citizen / taxpayer pay a higher price, once to develop the most revenue-generating “enhanced” system paid in taxes, and again to access the system paid as user fee. In theory, the most optimally “enhanced” system would cost the most in taxes and have the highest access fees.” P.7
18.25 How did you calculate the cost of that Data?
18.25.1 “Charging presupposes a mechanism for determining what a reasonable price would be. In a national survey, Onsrud, Johnson and Winnecki 1996 found “a lack of consistency in the pricing approaches being used by those agencies pursuing revenue generation approaches and perhaps evidence lack of sound economic theory upon which to base a price under government data sales circumstances. Several of the pricing approaches seem irrational as applied to digital data and others would appear to be harmful to the economic well-being of the commercial sector in the community.” P.7
18.26 We’ll sell it to you, but you can’t use it
18.26.1 “Another concern is that government agencies try to restrict redistribution of data after it is purchased Haque, 2001, p. 261-2. This creates a monopoly for the local government agency as third parties cannot repackage and resell the data. Perritt 1995 argues that both legal and economic considerations weigh against public agencies constructing information monopolies over public data.” P.7
18.26.2 “If government wishes to engage in [proprietary activities] and become value-added electronic publishers, they should do so in a competitive marketplace without trying to extend inherently governmental monopolies into the private markets. If, on the other hand, governments want to act within the protections of governmental privileges and immunities like the traditional monopolies over public services, they should limit themselves to traditional maintenance and release of relatively basic content, leaving the value adding activities to others. In no event should governments establish or sanction monopolies over public information. p. 221” P.7
18.27 Big Data Meet Big Data License
18.27.1 Big Data Without Integration Is Broken Smart Data Collective The potential for Big Data depends upon the integration of data from a variety of sources. As this article points out, there are a number of technical issues associated with integrating such data sets. However, it is important to keep in mind that there are also issues associated with integrating various license agreements from different sources with unique licensing terms.

18.28 No Privacy Rights in Public Data

18.28.1 Ruling – No Pa. privacy right for home address philly.com Pennsylvania Supreme Court finds that the state constitution does not provide a citizen the right to privacy with respect to their home address. As the ruling suggest, a state or nation’s constitution must be considered with respect to location privacy. It is also worth examining this decision in light of the recent controversy regarding a New York newspaper’s decision to publish a map with the addresses of individuals who had gun permits.