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Tuesday, June 8, 2010

Presumption of Constitutionality-US Ckt Court of Virginia

The approach of US Courts will be amply clear from the following observations of the Circuit Courts -Virginia. Blogger believes that it appears to be the practice all over US.

1, "We review arguments regarding the constitutionality of a statute de novo.
[ Shivaee v. Commonwealth, 270 Va. 112, 119, 613 S.E.2d 570, 574 (2005) (citing Wilby v. Gostel, 265 Va. 437, 440, 578 S.E.2d 796, 798 (2003))

2.When the constitutionality of a statute is challenged, we are guided by the principle that all acts of the General Assembly are presumed to be constitutional. 
[Va. Society for Human Life v. Caldwell, 256 Va. 151, 156-57, 500 S.E.2d 814, 816 

3.(1998)...."[W]here a statute is constitutional as applied to a litigant, the litigant has no standing to challenge the statute on the ground that it may be unconstitutional on its face, that is, as applied to a third person in a hypothetical situation."
[ Esper Bonding Co. v. Commonwealth, 222 Va. 595, 597, 283 S.E.2d 185, 186 (1981).]

4.As a general rule, "[a] party has standing to challenge the constitutionality of a statute only insofar as it has an adverse impact on his own rights.
County Court of Ulster County v. Allen, 442 U.S. 140, 154-55 (1979)

5.We conclude that appellant falls within the general rule that a party attacking the constitutionality of a statute must demonstrate that his own, rather than a third party's, rights are unconstitutionally infringed. Accordingly, appellant lacks standing to challenge facially the constitutionality of Code § § 18.2-266 and 18.2-269. Thus, we consider the constitutionality of the statutes only as they apply to appellant in this case. 
See DePriest v. Commonwealth, 33 Va. App. 754, 761, 537 S.E.2d 1, 4 (2000) 

6.("An individual may challenge the constitutionality of a law only as it applies to him or her.").   
AS cited in Yap v. Commonwealth, 49 Va. App. 622, 643 S.E.2d 523 (2007).

7. "However, when a court, in determining the constitutionality of a statute, departs from the express limitations of the Constitution and relies instead on implied constitutional restrictions, the legislative usurpation must be very clear and palpable to justify the court’s holding that an enactment is unconstitutional., Whitlock v. Hawkins, 105 Va. 242, 249, 53 S.E. 401, 403 (1906)."

As quoted in  
Marshall v. Northern Virginia Transportation Authority, 275 Va. 419, 657 S.E.2d. 71 (2008)

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