3.06.2010

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Saturday, June 5, 2010

Presumption of Correctness

The following are the citations of Laws of Virginia and has been taken from the web-site.The following are some of the rules quoted without incorporating in other presumptions to explain the different colors in which the presumption of Constitutionally valid statute is concerned.[Blogger]

1. "When testing the constitutional validity of statutes, courts shall presume the statute to be valid."  Gray v.Commonwealth, 30 Va. App. 725, 731, 519 S.E.2d 825, 828 (1999).

 2."Consequently, the burden to show the constitutional defect is on the challenger."  Id. at 732, 519 S.E.2d at 828. 

3."Every act of the legislature is presumed to  be constitutional, and the Constitution is  to be given a liberal construction so as to sustain the enactment in question, if practicable." 

4. "When the constitutionality  of an act is challenged, a heavy burden of proof is thrust upon the party making the challenge.  All laws are presumed to be constitutional and this presumption is one of the strongest known to the law."  
Unpublsihed)
The exact observations from Mose [supra]are as follows:
"Every act of the legislature is presumed to be constitutional, and the Constitution is to be given a liberal construction so as to sustain the enactment in question, if practicable." Bosang v. Iron Belt Bldg. & Loan Ass'n, 96 Va. 119, 123, 30 S.E. 440, 441 (1898). "When the constitutionality of an act is challenged, a heavy burden of proof is thrust upon the party making the challenge. All laws are presumed to be constitutional and this presumption is one of the strongest known to the law." Harrison v. Day, 200 Va. 764, 770, 107 S.E.2d 594, 598 (1959). 
See: Source Link
The following presumption is same as the present one.[Blogger]
Presumption of Constitutional Valid Statute


It may be noted that this presumption of correctness, stated in this part is totally different from the presumption of correctness that is provided under  Section 2254(e)(1) [28 U.S.C. § 2254(e)(1).] that provides, in relevant part:
’In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.’
28 U.S.C.A. § 2254(e)(1) (2006); Demosthenes v. Baal, [1990] USSC 84; 495 U.S. 731, 735[1990] USSC 84; , 110 S.Ct. 2223, 109 L.Ed.2d 762 (1990) (per curiam) (cited in Michael v. Horn, [2006] USCA3 167; 459 F.3d 411, 414 n. 3 (3d Cir.2006)); White v. Horn, [1997] USCA3 281; 112 F.3d 105, 112 n. 7 (3d Cir.1997). A state trial court's determination of an individual's competency is entitled to a presumption of correctness. Smith v. Freeman, [1989] USCA3 1631; 892 F.2d 331, 341 (3d Cir.1989) (citing Maggio v. Fulford, [1983] USSC 105; 462 U.S. 111, 117[1983] USSC 105; , 103 S.Ct. 2261, 76 L.Ed.2d 794 (1983) (per curiam), and Sumner v. Mata, [1981] USSC 16; 449 U.S. 539, 546-47, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981)); see also Miller v. Fenton, [1985] USSC 246; 474 U.S. 104, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985).

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