ART. I - Individual Rights

Question 1

Where in the FL Constitution is FL’s counterpart to the U.S. Constitution’s Bill of Rights?

Answer 1

Article I of the FL Constitution

Question 2

With regard to equal protection, is the FL Constitution similar to or different from the U.S. Constitution?

Answer 2

The FL Constitution provides basic equal protection like the U.S. Constitution.

The standard of review (based on the class of persons subject to the alleged discrimination or the type of rights allegedly infringed) that applies under the U.S. Constitution applies under the FL Constitution.

Question 3

To whom does the FL Constitution’s equal protection clause apply?

Answer 3

It applies only to “natural persons, female & male alike.”

i.e. does not apply to corporations

Question 4

Does the FL Constitution’s equal protection clause prohibit state & private discrimination?

Answer 4

No—the FL Constitution’s equal protection clause only applies to state action.

Discrimination by private persons & entities is not constitutionally prohibited.

But note: this type of discrimination is prohibited by Federal Law.

Question 5

What RIGHTS are protected by the FL Constitution’s equal protection clause?

Answer 5

The clause protects inalienable rights:

(1) The right to enjoy & defend life & liberty;
(2) To pursue happiness;
(3) To be rewarded for industry;

AND

(4) To acquire, possess, & protect property

These rights are deemed FUNDAMENTAL, so they receive STRICT SCRUTINY

Question 6

What does “the right to acquire, possess, & protect property” include?

Answer 6

It includes all the incidents of property ownership—the collection of rights to use & enjoy property.

This includes the right to devise property as desired.

Question 7

What PERSONS are protected from discrimination under the FL Constitution?

Answer 7

Discrimination based on the following characteristics is forbidden:

(1) RACE
(2) RELIGION
(3) NATIONAL ORIGIN; AND
(4) PHYSICAL DISABILITY

STRICT SCRUTINY is applied to the above suspect classes.

All other classes receive rational basis review.

Age is NOT a suspect class in FL (like the U.S. Const.).

No intermediate scrutiny applied in FL, except in limited cases involving freedom of speech.

Question 8

What does the FL Constitution’s due process clause state?

How does it apply to private organizations exercising quasi-public functions?

Answer 8

The clause states that no person shall be deprive of life, liberty or property without due process of law.

Florida extends procedural due process to private organizations exercising quasi-public functions.

Question 9

What does the FL Constitution say about double jeopardy?

Answer 9

The FL Constitution states that:

(1) no person may be twice put in jeopardy for the same offense

or

(2) be compelled in any criminal matter to be a witness against himself/herself.

Question 10

In FL, does the privilege against self-incrimination extend to administrative agencies?

Answer 10

Yes—the right to remain silent extends to proceedings before administrative agencies that are essentially penal in nature

(i.e. license revocation hearing).

Question 11

What does the FL Constitution say about freedom of religion?

Answer 11

The FL Constitution:

(1) Forbids regulation & est. of religion by the gov’t
(2) Guarantees free exercise of religion to each individual
(3) States the religious freedom does not justify practices inconsistent with public morals, peace, or safety

** Note: The FL Supreme Court has held that the First Amend. to the U.S. Const. does not bar suits against churches for negligent supervision and/or hiring of clergy who sexually assault their parishioners.

Question 12

What does the FL Constitution say about freedom of speech & of the press?

Answer 12

The FL Constitution guarantees:

(1) freedom of speech,

&

(2) no state law may be passed abridging freedom of speech or of the press.

Question 13

How are free speech issues analyzed under the FL Constitution?

Answer 13

The same way that they are under the U.S. Constitution.

• Prior restraint
• Time, place, & manner
• Commercial speech
• Obscenity & vulgarity

Question 14

How can a defendant of a defamation suit be exonerated in FL?

Answer 14

If he proves that:

(1) the matter published is TRUE;

AND

(2) it was published with GOOD MOTIVES.

Question 15

Does the FL Constitution favor or disfavor public access to court proceedings?

Answer 15

There is a strong presumption in FAVOR OF public access to court proceedings.

Question 16

What does the FL Constitution say about freedom of assembly?

Answer 16

According to the FL Constitution, people retain the right to:

(1) assemble peaceably

&

(2) to petition for redress of grievances

(defense to SLAPP suits)

The FL Constitution also contains the additional right of the people to instruct their representatives.

Question 17

Is FL a “right to work” state & if so, what does the FL Constitution say about the “right to work”?

Answer 17

Yes – FL is a right to work state

This means that no person can be denied a job because of membership or non-membership in a labor union.

An employer may not deny a job to a union member, & a union may not negotiate a contract that would require employers to become union members or pay dues before, upon or after hiring.

Union shops, closed shops, & agency shops are PROHIBITED in FL.

Question 18

Who has the right to collectively bargain in FL?

Who has the right to strike in FL?

Answer 18

Both private & public sector employees have the right to collectively bargain.

Public employees do NOT have the right to strike.

Question 19

What level of scrutiny is applied to the right to work & collective bargain in FL?

Answer 19

These rights are fundamental

= STRICT SCRUTINY applies to governmental infringement of them.

Question 20

What does the FL Constitution say about military power?

Answer 20

That military power is to be subordinate to civil power.

Question 21

What does the FL Constitution say about the right to bear arms?

Answer 21

The FL Constitution states that:

(1) the people retain the right to bear arms to protect themselves & the state,
(2) but the manner may be regulated by law.

Question 22

Are licensing requirements permissible under the right to bear arms clause?

Does the Constitution have a waiting period before purchase?

Answer 22

Licensing requirements on guns do not violate the right to bear arms clause.

The FL Constitution mandates a 3-day waiting period (excluding weekends & holidays) between the retail purchase & delivery of any handgun.

“Purchase” means the transfer of money or other valuable consideration to the retailer

“Handgun” means a gun capable of being carried in one hand

Question 23

What restrictions may counties impose on the purchase of guns?

Answer 23

When any part of a transaction involving the sale of a firearm is conducted on property to which the public has a right of access, a county may elect to require:

(1) a criminal history check;

&

(2) waiting period of 3-5 days.

Question 24

What types of laws are prohibited by the FL Constitution?

Answer 24

(1) Bills of attainder
•Legislative acts referring to persons by name or clear inference in such a way to inflict punishment on them w/o trial

(2) Ex post facto laws
•A law that makes an action done before the passing of the law criminal & punishable

(3) Laws impairing the obligation of contracts

Question 25

What are the Constitutional limits on penalties issued by administrative agencies?

Answer 25

(1) Administrative agencies CANNOT act like a court & levy penalties or impose a jail

UNLESS

A statute expressly gives them the authority to do so.

(2) Administrative agencies CANNOT grant non-quantifiable damages (i.e. pain & suffering) (reserved to the courts).

However, they can grant quantifiable damages such as lost wages.

Question 26

What constitutional issue is raised when an administrative agency issues a penalty or damages award?

Answer 26

Separation of powers/encroachment on judiciary

Question 27

What does the FL Constitution say about imprisonment for debt?

Answer 27

Imprisonment for debt is prohibited unless FRAUD is involved.

**Note: “Debt” is considered to be an obligation arising out of a contract & does NOT include fines for criminal punishment, tort action damages, taxes, alimony, or child support

Question 28

What does the FL Constitution say about searches & seizures?

Answer 28

Express Guarantee

(1) Right of the people to be secure in their persons, houses, papers, & effects,
(2) against unreasonable searches & seizures,
(3) & against the unreasonable interception of private communications by any means.

FL Constitution’s provision on searches & seizures is in line with the Fourth Amendment to the U.S. Constitution.

Whatever interpretation the U.S. Supreme Court dictates for the Fourth Amendment, FL will follow.

Question 29

What does the FL Constitution say about habeas corpus?

Answer 29

The writ of habeas corpus is grantable freely as of right.

A solvent person may be charged a filing fee for filing the writ.

The writ is returnable without delay & may not be suspended unless a rebellion or invasion makes suspension necessary for the public safety.

Question 30

What does the FL Constitution say about pretrial release & detention?

Answer 30

FL’s Constitution contains an exception to the general rule that until adjudged guilty, every person charged with a crime or violation of a municipal or county ordinance shall be entitled to release on a reasonable bail.

Persons charged with CAPITAL OFFENSES or those punishable by life imprisonment may be denied bail if:

(1) the proof of guilt is evident;

or

(2) the presumption of guilt is great.

The court has discretion to deny bail if:

(1) the members of the community cannot be protected from risk of bodily harm;

or

(2) the presence of the accused at trial or the integrity of the judicial system cannot be assured by any conditions of bail.

Question 31

What are the requirements for the state to file criminal charges against an adult?

Answer 31

(1) Capital crimes
- Grand jury indictment required
(2) Other felonies
- Grand jury indictment or information filed under oath by prosecuting attorney required

Question 32

What are the rules for children with respect to criminal charges?

Answer 32

Children may be charged with delinquency

FL Constitution gives the Legislature authority to make a special provision for children charged with crimes.

Persons defined by the Legislature as children may be charged with an act of delinquency rather than with a crime, but NOT BOTH.

Children may also be tried without a jury, & other requirements applicable to criminal cases may be N/A to juvenile cases.

Question 33

When can a child be tried as an adult in FL?

Answer 33

Children may be tried as adults:

(1) upon their demand;

or

(2) by decision of the court on request of the State.

Question 34

What are the accused’s rights in a criminal trial?

Answer 34

These rights are waived if the accused does not demand them:

(1) Information of the nature & cause of the accusation;
(2) A copy of the charges;
(3) Compulsory attendance of witnesses;
(4) Confront accusers & adverse witnesses;
(5) Counsel;
(6) Testify or refuse to testify;
(7) A speedy & public trial;
(8) A fair trial.

Question 35

What are the rights of the victim of a crime?

Answer 35

Victims of crime or their lawful representative (next of kin in case of homicide) are entitled:

(1) to be informed, present & heard,
(2) when relevant, at crucial stages of criminal proceedings,
(3) as long as it does not interfere with the constitutional rights of the accused.

Question 36

How is excessive punishment defined & prohibited by the FL Constitution?

Answer 36

The following are expressly prohibited:

• Excessive fines
• Cruel & unusual punishment
• Indefinite imprisonment
• Unreasonable detention of witnesses

Question 37

What does the FL Constitution say about access to the courts?

Answer 37

The FL Constitution provides that:

(1) justice shall be administered
(2) to all citizens without denial or delay,

&

(3) that the courts are open to every person for redress of injury.

EVERY PERSON is guaranteed ONE RIGHT OF APPEAL from a final order.

Question 38

What is the exception to FL’s access to the courts general rule?

Answer 38

Exception:

If the legislature abolishes a cause of action, a reasonable alternative must be provided UNLESS:

(1) the legislature can demonstrate a compelling public necessity for the abolition of the right;

AND

(2) no alternative method of meeting such a public necessity can be established.

Question 39

Is the right of privacy included in the FL Constitution?

Answer 39

Yes; unlike the U.S. Constitution, the FL Constitution expressly includes the right of privacy.

Question 40

How is the right of privacy defined?

Answer 40

Every person has the right to be let alone & free from GOVERNMENTAL intrusion into their private life.

** This is a FUNDAMENTAL right, so STRICT SCRUTINY applies.

Question 41

What level of scrutiny applies to right of privacy?

Answer 41

This is a FUNDAMENTAL right, so STRICT SCRUTINY applies.

Question 42

Can a person’s access to public records, documents & meetings be limited by the privacy right?

Answer 42

NO

Informational privacy (subpoena of bank records)

Decisional privacy (abortions)

Court uses a balancing test:

Weighs the privacy of the:

(1) individual (expectation of privacy)

VS.

(2) the government’s need-to-know

Question 43

What does the right to public records include?

Answer 43

Every person has a right to inspect or copy:

(1) any public record made or received in connection with
(2) the official business of any public body, officer, or employee of the state or local government or person acting on their behalf,
(3) except those records made confidential by the constitution.

Question 44

How is the right to attend public meetings defined?

Answer 44

All meetings of a state or local government public body at which:

(1) official acts are taken,

OR

(2) at which public business is transacted or discussed,

MUST BE OPEN & the PUBLIC MUST BE GIVEN REASONABLE NOTICE of them.

Question 45

Does the FL Constitution limit lawyers’ fees in anyway?

Answer 45

The FL Constitution limits the contingency fee that a lawyer may charge a client in medical liability cases to:

(1) 30% of the first $250,000 in damages (excluding costs);

AND

(2) 10% of any damages above $250,000

** The limitation applies whether the damages are received by judgment, settlement, or otherwise, regardless of the number of defendants.