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Legislation
Rutgers University, Newark School of Law
Bell, Bernard W.

Legislation:
 
Tuesday, January 10, 2006- Administrative interpretation of statutes
 
Exercise No. 1:
Dictionary definition of motor vehicle
Ejusdem generis:
Look at other statutes to determine what the meaning of a motor vehicle is.
 
Park commissioner’s interpretation? The mayor’s?
 
Tuesday, January 24, 2006:
Exercise No. 2:
 
The NJ Right to Know Act:
FOIAA
 
Question 1: What entities does this apply to?
Public agencies: Definition on page five.
 
Question 2: General exemptions: pages 2-5
confidential records.
§1A2-biotechnology trade secrets
Inmates
§1A-5(k):
 
Question 3:
Billing records are not within the attorney client privilege unless the records reveal confidential information.
 
Question 4: NJ police officer diary after their shift.
Is this a government record?
Probably not.
 
Question 6: This actually occurred in Florida. Autopsy reports requests of a NASCAR driver. Exemptions. p.3
Newspaper:
North Carolina authorities: What is a law enforcement agency (page 6).
 
 
Question 8: meetings among departments. p.2 government records
 
 
Thursday, January 26, 2006
#9: Page 2: who is a constituency.
 
#10:
page 7: C. applies to inmates but not to everyone else.
12: anonymous requests.
 
#11: is this about access or limiting access?
(a)
Title says inmates, body says person convicted of indictable offense. First rely on the body, then refer to the text.
(b) defense exception. What kind of defense? Criminal, Civil, or both? Title says inmate.
 
 
12:: 1a3
 
#13:
Page 9: jeopardize any person or investigation…
Page 13: get a court to look at it and decide if the claim to the exception is justified.
471a7: Government Records Council. Not going to be biased, agency set up expressly for this purpose.
 
#14: page 8: ia-3(a) available prior to the investigation.
Victim record: victim’s rights agency (not police or law enforcement).
 
#15:
 
 
#16: page 5.
 
#17: right to know and insurance law. p.10 does not mention insurance investigators (ejusdem generis).
 
#18: p.9
1a(8).
 
#20: maximum charges.
1a(5)(b).
(c)
 
salary to a public school teacher
page 11.
 
p. 12: oral or written requests.
 
24:
1a-7 p. 14.
 
Attorney’s fees: p.13-14
Ia7(e) p. 18-19.
 
 
Tuesday, January 31, 2006
            Bills:
Substantive:
Appropriations: For one fiscal year (13 appropriation bills for each department of the government). Cannot include substantive matters in an appropriations bill.
Budget reconciliation:
 
Resolutions:
Joint resolutions: passed by both houses and signed by the president.
Concurrent: passed by both houses and not signed by the President (dealing with Congressional matters).
Internal: passed by one House.
 
Private bills: Only applies to one person (immigration or providing compensation to some individual).
 
Rules of judicial procedures:
 
Authorization part of the process.
 
 
Process:
Bill is introduced and submitted to a committee.
 
 
Open-rules
Closed-rules:
 
Tuesday, February 7, 2006
The relationship between money and legislation. Does money influence voting behavior.
 
APA procedures:
notice and comment.
Hybrid-rules.
 
Campaign finance. Four types of ways to limit campaign financing.
publicly financed elections.
Required disclosure.
Limit expenditures.
Limit contributions.
 
Buckley v. Leo:
soft-money:
 
Administrative Agencies and the promulgation of administrative laws:
quasi-legislative: specifying rights and obligations to the general public.
Legislative vs. Interpretative: Legislative has the force of law (must have a legislative authority) and the interpretive rule has no legal status of its own.
                                                               i.      The agency changes its mind: The rule is law and it must be changed. Not so if it is an interpretive rule.
                                                             ii.      Legislative rules can establish additional obligations.
 
Substantive vs. procedural:
                                                               i.      Legislative sub: APA
                                                             ii.      Legislative proc: non-APA
                                                            iii.      Interpretive Sub: non-APA
                                                           iv.      Interpretive Proc: non-APA
 
Formal rule making: notice and comments rule making.
Federal Register. Must include a brief statement of the purpose and the legal basis for the rule.
 
quasi-judicial: Article 1 courts adjudicate disputes.
 
 
 
 
Thursday, February 9, 2006- Retroactivity
Constitutional limitations on retroactive legislation: ex post facto clause (criminal statutes), bill of attainder clause (rarely applied clause), takings clause (regulatory taking doctrine imposes some restrictions on retroactivity), the contracts clause (not applied quite as literally as contained in the Constitution), and the due process clause of the 14th amendment.
How do we decide if a statute is retroactive?
presumption against retroactivity unless Congress explicitly provides otherwise.
Text: Scalia. Clear statement of legislative intent.
                                                               i.      Clear statement: even if there is a clear statement, what is retroactive? Is it procedural or substantive.
 
Presumption of protection of constitutional values: a clear statement forces the legislature to decide this issue clearly as opposed to leaving it up to the court to decide. p. 357-8
 
If a statute treats particular items in one way, other i

or in the pertinent legislative history) or implied (retroactive application may be necessary to make the statute workable or to give it the most sensible interpretation).
(2)   Ameliorative or curative statutes are category of statutes have been held retroactive.
(3)   Even if a statute may be subject to retroactive application a final inquiry must be made; will the retroactive application result in “manifest injustice” to a party adversely affected by such an application of the statute?
Holding: The amendment should be applied retroactively. The statute is curative (because it improved the previous statutory scheme, this is not the correct definition of curative, see p. 349) and would not result in manifest injustice to the adverse party.
 
Application of Santore: p. 349
The Santores signed adoption papers permitting another family to adopt Mrs. Santore’s child and later tried to revoke the adoption.
Statute 1: permitted adoption by written consent.
Statute 2: unintentionally repealed Statute 1 permitting adoption by written consent. The repealing Statute 2 was in effect when the Santores gave up the child for adoption.
Statute 3: retroactively corrected the repealing mistake of Statute 2 and reinstated the written consent procedure permitted by Statute 1.
The impact of statute 3 was challenged by the Santores in a habeas corpus action to get their child back. The court dismissed the challenge: “The Santores argue [that statute 3] retroactively interferes with their ‘vested rights’…by making effective Mrs. Santore’s consent to adoption, which was ineffective under the law existing when the consent was executed.” “Application of [statute 3] defeats no justifiable reliance interests…[because] Mrs. Santore intended to relinquish her child when she signed the consent and did not sign it in reliance upon the then defective provisions of [statute 2].” In other words, since Statute 2 did not permit adoption by written consent, Mrs. Salvatore could not reasonably rely on this statute not permitting adoption by written consent when she signed the consent form because she intended to give up the child. Is this fair? What about manifest injustice? What influence did the repeal by mistake of statute 1 have on the court’s analysis?
 
            Supreme Court: