RETROACTIVE LEGISLATION

Question 1

CONTRACT CLAUSE—IMPAIRMENT OF CONTRACT

Answer 1

• K Clause limits ability of states to enact laws that retroactively impair K rights.
• Does not affect Ks not yet made

Question 2

Not Applicable to Federal Government

Answer 2

• No comparable clause applicable to fed gov, although an obvious K impairment would be forbidden by 5th Amend DPC

Question 3

Only Applicable to State Legislation

Answer 3

• Provision applies only to state legislation, not court decisions

Question 4

Basic Impairment Rules: Private Contracts

Answer 4

• K Clause prevents only substantial impairments of K (i.e., destruction of most/all of party’s rights under K)
• However, not all substantial impairments are invalid
• In determining whether legislation is valid under K Clause, use a 3-part test:
  1) Does legislation substantially impair party’s rights under an existing K?
• If it does not, legislation is valid under K Clause.
• If it does, it will be valid only if it:
  2) Serves an important & legitimate public interest; and
  3) Is a reasonable & narrowly tailored means of promoting that interest.

Question 5

Public Contracts—Stricter Scrutiny

Answer 5

• Public Ks (i.e., those in which the state/political subdivision is a party) are tested by the same basic test detailed above; however, they will likely receive stricter scrutiny, especially if legislation reduces contractual burdens on state.
• When applying the 3-part test, note:
  1) There is no substantial impairment if state has reserved power to revoke, alter, or amend either in the K itself/in a statute/law the terms;
  2) In determining whether the law serves as a legitimate public interest, note that the state cannot be obligated by K to refrain from exercising its police powers necessary to protect the health & safety of its residents; and
  3) To be narrowly tailored, the law should not constitute an unnecessarily broad repudiation of K obligations.

Question 6

EX POST FACTO LAWS

Answer 6

Two Ex Post Facto Clauses
- Neither state nor fed gov may pass an ex post facto law.
- An ex post facto law: legislation that retroactively alters the criminal law (not civil regulation, like denial of professional licenses) in a substantially prejudicial way that deprives a person of any right previously enjoyed for the purpose of punishing person for some past activity.

Question 7

What Is “Criminal”

Answer 7

If a law’s purpose is civil rather than punitive, it is not an ex post facto law unless its effect is so clearly punitive as to negate the legislature’s intention

Question 8

Retroactive Alterations

Answer 8

A statute retroactively alters a law in a substantially prejudicial manner if it:
1) Makes an act criminal that was innocent when done;
2) Prescribes greater punishment for an act than was prescribed for the act when it was committed; or
3) Reduces the evidence required to convict a person of a crime from what was required at the time that the act was allegedly committed.

Question 9

Distinguish—Procedural Changes

Answer 9

• Mere procedural changes in state law will not necessarily trigger the Ex Post Facto Clause.
• A modified law can be applied to a crime committed before the law’s modification if D had notice of the possible penalty & modified law does not increase burden on D

Question 10

Indirect “Application” to Courts

Answer 10

• Although the Ex Post Facto Clauses prohibit only retroactive legislation, SC has held that due process prohibits courts from retroactively interpreting criminal law in an unexpected and indefensible way
• EX. state SC’s abolition of CL “year & a day rule” (which prohibits prosecution for murder if vic dies more than a year after an attack) was not unexpected & indefensible b/c medical science has undermined the rule’s usefulness & the rule has already been abolished in most jurisdictions]

Question 11

BILLS OF ATTAINDER

Answer 11

• Legislative act that inflicts punishment w/o a judicial trial upon individuals who are designated either by name/in terms of past conduct.
• Past conduct acts to define who those particular persons are

Question 12

Two Clauses

Answer 12

• Fed & state govs are prohibited from passing bills of attainder.

Question 13

Two Requirements Preclude Finding of Bill of Attainder

Answer 13

• Provisions require judicial machinery for trial & punishment of crime & definition of criminal conduct in such general terms as not to include w/in definition a single individual/small group for punishment b/c of past behavior.

Question 14

Nixon Case

Answer 14

• Congress passed legislation to authorize gov control of presidential papers & tape recordings of former President Nixon.
• SC held that this was not a bill of attainder.
• The circumstances of the Nixon resignation made him a unique “class of one” as to the need to control his papers.
• The act was held “nonpunitive” & in pursuance of important public policy.

Question 15

Draft Registration Case

Answer 15

• Court upheld a fed statute denying financial aid for higher education to male students between ages of 18 & 26 who had failed to register for the draft.
• The law required applicants for the aid to file a statement w/ their institutions of higher learning certifying their compliance.
• Failure to register w/in 30 days of one’s 18th birthday was a felony, but regulations allowed men who failed to register in a timely manner to qualify for aid by registering late.
• Court found that this was not a bill of attainder.
• The law reasonably promoted nonpunitive goals & was not a legislative punishment taken on the basis of any irreversible act, since aid was awarded to those who registered late.
• Court also found the statute did not violate 5th Amend privilege against self-incrimination.

Question 16

DUE PROCESS CONSIDERATIONS

Answer 16

• DPCs of 5th & 14th Amends, retroactive legislation/ other governmental action may be, but is not necessarily, a violation of the Constit.
• The question of whether a retroactive law (that does not violate Ks, Ex Post Facto, or Bill of Attainder Clauses) violates due process is a substantive due process issue.
• If law does not relate to a fundamental civil right, the retroactive law should be upheld if it is rationally related to a legit gov interest