Con Law Flashcards
Fundamental RIghts & Test
Strict Scrutiny for race, religion, national origin, and physical disability. Must involve state action.
Strict Scrutiny
law will be upheld if there is a COMPELLING state interest that is accomplished by the LEAST INTRUSIVE MEANS.
Rational Basis
All non-fundamental rights claims. Law will be upheld if there is a LEGITIMATE state interest and the law is RATIONALLY/REASONABLY tailored to accomplish that interest.
equal protection
like the USC, the FLC provides basic equal protection. Under the FLC, strict scrutiny is applied to all fundamental rights and discrimination based on RACE, RELIGION, NATIONAL ORIGIN, and PHYSICAL DISABILITY.
state action
is required for all equal protection claims
freedom of religion, speech & press
same as USC
freedom of assembly
same as USc (peacefully assemble and redress grievances), but FLC adds right to instruct Reps.
organized labor
right to work & right to bargain collectively are fundamental rights and strict scrutiny applies. No one can be denied work because of membership or nonmembership in a union. Both public and private employees have the right to bargain collectively, but public employees have NO right to strike.
military power & right to bear arms
MP is subordinate to civil power. RTBA-licensing requirements do NOT infringe on right. FLC requires 3-day waiting period (excl. wknds & holidays) between “purchase” (transfer of money/value) and delivery of any “handgun” (capable of being carried in one hand). Does not apply to trades or to ppl w/ a concealed weapons permit (CCW). County may further restrict by requiring background checks and 3-5 day waiting period.
Due Process
USC 5th applies to FD & 14th applies to states provide gov’t shall NOT take a person’s life, liberty, or property w/o due process of law. DP contemplates fair process/procedure such as fair trial, which requires at least an opportunity to present objections to the proposed action to a FAIR, NEUTRAL decision maker. NO double jeopardy.
substantive due process
if it involves fundamental rights, strict scrutiny test applies. Otherwise, rational basis applies.
procedural due process
extends to private organizations exercising quasi-public functions (i.e. professional orgs).
searches and seizures
express guarantee under FLC, must be construed in conformity with SCOTUS’ interpretation of the 4th amend. Search warrant requires probable cause and sworn affidavit with specificity.
pretrial release and detention
right to bail. exception: capital offenses or crime punishable by life, if probability of guilt is great; or threat to public safety or integrity of judicial system.
prosecution for crime
capital crimes require grand jury indictment; other felonies can be either GJ or prosecution information. Juveniles: charged with an act of delinquency; bench trials; can be tried as an adult upon request of state or Def demand.
costs of criminal proceedings
only payable after conviction final and any appeals exhausted
habeas corpus
fee may be charged to solvent filer; no delays unless rebellion or invasion
imprisonment for debt/by administrative agencies
no person shall be imprisoned for failure to pay debt unless fraud is proved (b/c of K obligation). Debt does not include criminal fines, alimony, child support, taxes, tort damages. Admin. agencies may not punish by imprisonment and can only impose penalties as authorized by law.
excessive punishment
NO excessive fines, cruel or unusual punishment, forfeiture of estate, indefinite imprisonment, unreasonable detention of witnesses. NO death penalty for mentally challenged or for those 16 or younger at time crime was committed.
rights of accused
information of nature and cause of accusation, copy of charges, compulsory attendance of witnesses, confront accusers, counsel, testify or not, speedy and public trial in county where crime was committed, fair trial and jury selection (no preemptory challenges for exclusion based on race). These rights are WAIVED IF NOT DEMANDED.
victim rights
(or vic representative) to be informed, present, heard at all crucial stages, but NOT interfere w/ accused constitutional rights.
treason
1-levying war against the state or 2-adhering to or giving aid and comfort to enemies of the state. Requires 2 witnesses’ testimony re: same overt treasonous act or open court confession.
access to courts
the courts shall be open to every person for redress of injury, and justice shall be administered w/o denial or delay. If legislature abolishes a cause of action or restricts one’s access to the courts: a reasonable alternative MUSt be provided UNLESS there is a compelling necessity for abolition AND NO alternative method of meeting the public necessity can be established.
Trial by jury
exists for criminal proceedings and for civil proceedings where right was established by original FLC. NO right for civil commitment, eminent domain, or equitable proceedings.
number of jurors
6 member juries; except capital cases get 12 member juries.
right to privacy
FLC expressly grants; requires strict scrutiny, compelling state interests, and least restrictive means. (i.e. med treatment, pregnancy, parental rights). FLC allows parental notification before minor’s abortion if judicial process of waiver is available. Women have right to abortion, but no obligation on state to pay for service.
sunshine law
access to public records and meetings. Every person has right to access, inspect, copy public records; public meetings must be open and require notice to the public. Exemptions: permitted if: 1-law states a public necessity justifying the exception, and 2-law is no broader than necessary to accomplish the state purpose.
taxpayers bill of rights
legislature must provide to all taxpayers by law
limitation contingency fees in medical liability cases
30% of first $250k; 10% if over $250k; excluding reasonable costs
marriage
one man and one woman
executive branch
governor, lt. governor, and cabinet. Must all be 30 years old and FL residents for preceding 7 years.
governor
limited to 2, 4-year terms; runs on ticket w. lt. gov. except in primary elections; presides over cabinet.
governor duties
ensures laws are faithfully executed, commissions all officers; & transacts state business. MUST give recommendations at each legislative regular session. May activate militia, initiate judicial proceedings against officers, sign death warrants, request advisory opinion from FLSC, exercise limited clemency power, make appointments for vacancies (if elected office, remainder less than 28 months or otherwise provided by FLSC).
vacancy of office defined
defined by creation of office; death, removal, resignation, unexplained absence, succession of the incumbent, failure to maintain residency, failure to qualify w/i 30 days of term commencing.
Lt. Gov
performs duties assigned by gov and may become acting governor if gov is impeached/incapacitated
cabinet
1-AG, member of FL Bar; 2-CFO; 3-Commissioner of agriculture. If tie vote between Cabinet & Gov, Gov wins.
allocations of state government
all functions of state government are allocated among 25 departments and 7 constitutional commissions
Legislative branch members (max capacity)
40 senators and 120 house reps; Elections are in even # years
legislative requirements
21 yrs old & reside in district
legislative impeachment
can be for misdemeanors w/ 2/3 vote from House & Senate conviction
legislative procedures
majority=quorum; all session open except appointment/removal; 60 day regular sessions, extra session requires 3/5 vote; Gov may call special session; leg may compel witnesses and production of evidence w/ fines of $1k or imprisonment of 9 days while in session.
legislative bills
any bill can be introduced in either house; MUST be read by title on 3 separate days; APPROVAL=majority, becomes law if not vetoed by Gov.; GOv has 7 days to veto, but extended to 15 days if presented to Gov. after Leg. adjourns sine die or Leg. adjourns sine die 7 days after presenting bill to Gov.; 2/3 vote of each house overrides the veto; Gov. veto extends to entire bill; laws take effect w/1 60 days after final adjournment of session, as prescribed by law, or by joint resolution.
laws
cannot be vague (average person of reasonable intelligence will understand) or overbroad (cannot prohibit constitutionally protected activities), and should be reasonably related to public purpose (health, safety, morals, or welfare).
law is nullity unless
single subject (covers one subject and matters properly connected therewith); adequate title (subject briefly expressed in title); “set out” (amendments must include portions of original text, not just title); enacting clause-“be it enacted by the Legislature of the State of Florida.”
general laws
apply uniformly statewide, even if limited real applicability
general law of local application
limited to a geographic area established by population (minimum and maximum population figure required); distinguished from special law because it does not require notice or referendum. EXAM TIP: general laws that clearly apply to known, specific individuals or geographic areas and that exclude others are subject to attack both as violation of equal protection and as improperly enacted laws.
special laws
apply to specific persons, places, or entities; prior public notice OR approval by referendum required.
prohibited special laws
FLC prohibits special laws regarding certain subjects for statewide uniformity purposes
Retroactive laws
prohibited; no ex post facto or bills of attainder
laws affecting contracts
if a law substantially impairs rights under an EXISTING contract, law is valid only if: 1-important and legitimate government interest; and, 2-reasonably and narrowly tailored means of promoting interest. When the state is not a party to the K, balance the impairment of a party’s K rights vs. the evil FL is attempting to remedy through the statute.
FLSC justices & DCA judges
are appointed by the Gov for 6 yr terms, but retained by popular vote; same impeachment rules as legislature
circuit & county judges
elected by nonpartisan election or merit selection
Judges’ requirements
under 70, elector of state, resident of jurisdiction, FL Bar member-FLSC & DCA 10 years, Circuit-5 years, County-5 years if population of 40k or more, if less than 40k, no specified req.
FLSC jurisdiction Mandatory
death sentences; bond validations; DCA opinions declaring law or Constitution provision invalid; utility rates
FLSC jurisdiction Discretionary
appellate decisions regarding class of Constitutional officers, conflicting, construing Const. provision, “great public importance;” trial court decisions of “great public importance;” questions certified by federal courts; all writs except cert.; all court rules and procedures; admission and discipline of attorneys.
DCA mandatory jurisdiction
final orders and judgments not directly appealable to FLSC or circuit courts; interlocutory orders, and administrative actions
DCA discretionary jurisdcition
final review orders and nonfinal orders of circuit courts, nonfinal agency orders, and common law writs
circuit appellate jurisdiction
county court orders and agencies
circuit trial jurisdiction
probate, equitable matters, land, juveniles, felonies, tax, ejectment, common law writs, all other actions at law not cognizable in county court.
county trial jurisdiction
non-felony traffic, ordinances, misdemeanors, simplified dissolutions, small claims (15k, equity and real property, landlord/tenant
separation of powers
unlike USC, SOp is expressly incorporated in FLC. Encroachment occurs when one branch of Gov’t usurps the function/authority of another branch. Leg may DELEGATE administrative rule-making power to executive agencies w/ SPECIFIC standard and guidelines
Legislative delegation
Leg may DELEGATE administrative rule-making power to executive agencies w/ SPECIFIC standard and guidelines; cannot delegate power to make law or fundamental policy
4 types of local government
counties, municipalities, school districts, special districts
counties
political subdivision of state; either chartered or non-chartered
chartered counties
political subdivision of state; source of power is charter and have all powers not inconsistent w/ general or special law approved by vote of electors in that county and can enact ordinances not inconsistent w/ general law; if a chartered county ordinance conflicts w/ a municipal ordinance regarding a regulatory matter, county ordinance preempts; if conflict exists regarding the provision of services (i.e. police, fire), look to the supremacy clause in the charter to determine who prevails
non-chartered counties
source of power is general and special law; may enact ordinances as provided by general or special law; a municipal always prevails if a conflict exists between a municipal ordinance and a non-chartered county ordinance
municipalities
creatures of the legislature; can be established or abolished at the will of the legislature; may exercise any power for a “valid purpose” unless expressly prohibited by law; a valid municipal purpose relates to health, safety, welfare, and morals of its inhabitants.
school districts
free public education through secondary; run by state board of education; no public funds for private schools
special districts
created by general law, special act, local ordinance to perform specialized gov. services and functions such as fire control, hospitals, and water management districts; have powers expressly conferred upon them by the leg.
FL Budget
FL must balance budget; may not borrow money for ordinary operating expenses; MAY borrow money for capital improvements such as buildings, bridges, roads, and airports using revenue or general obligation bonds
revenue bonds
not backed by gov’t taxing power; payable solely from project revenue (i.e. tolls); NO referendum required; must be a public purpose (student loans, housing, conservation).
general obligation bonds
bonds finance capital projects and pledge “full faith and credit of the state”; payable from ad valorem taxes that mature more than 12 months after issuance; must serve a public purpose & there must be constitutional & statutory authority to issue the bonds. referendum REQUIRED; no vote required for pollution control, state roads & bridges, local roads, school construction, or refinanced bonds
ad valorem taxes
property taxes; ONLY LOCAL GOV’T can impose on real property or tangible personal property NOT exceeding 10 mils. Only state can impose on intangible property, NOT exceeding 2 mils. Millage rate = $1 for $1,000 value. No ad valorem taxes on motor vehicles, boats, trailers, or mobile homes, but license fees are okay
assessment of fees
local gov’t may supplement revenue through through the assessment of fees. Restrictions: 1-the amount must be pegged to the per capita cost of facility, 2-use of fee must be ear-marked and used for purpose charged
sales tax
reserved exclusively to state unless state gives local gov’t power to do so via general law
uniformity of taxes
all property must be taxed at a uniform rate within each taxing unit
just valuation of taxes
property must be assessed at a just valuation (fair market value) at the best and highest use for the immediate future
homestead in general
property is protected from levy by creditors of the owner; protects real property; protects personal property up to 1k; HS must be established before the levy of a judgment creditor; voluntary conveyance requires consent of spouse; cannot freely devise if survivors include spouse or minor children
homestead requirements
must be owned by a “natural person”; who makes or intends to make the property owned their primary/permanent residence; if in a municipality-can be up to 1/2 acre, limited to residence; if outside a municipality-can be up to 160 contiguous acres, including improvements
homestead exceptions
subject to forced sale for delinquent taxes and assessments on the property, mortgages on the property, mechanics liens for repairs or improvements on the property
restraints on homestead devise
do not apply to property owned as tenants in the entireties or as joint tenants with right of survivorship (such property will pass by right of survivorship). 1-if owner is survived by spouse or minor children, HS cannot be devised away from them; devise fails and spouse takes 1/2 undivided interest as tenant in common with lineal descendants. 2-if no minor children, HS must be devised to surviving spouse in fee simple absolute; other devise will fail and surviving spouse may elect to take a life estate w/ vested remainder in lineal descendants or surviving spouse can take 1/2 undivided interest as tenant in common w/ lineal descendants.
waiver of homestead
spouse may waive homestead interest via antenuptial agreement
abandonment of homestead
question of fact; if you leave HS property w/o an intent to return, HS protection is deemed abandoned and forfeited
sale of homestead
proceeds from HS sale remain protected if owner has a “good faith” intent to reinvest the proceeds in another HS w/i a “reasonable” period of time
eminent domain
USC prohibits gov’t from taking private property for public use w/o “just compensation”; FL requires “reasonably necessary public purpose” and “FULL compensation”’ regulation or exercise of police power is NOT a taking; whether there has been a taking is a question of law for a judge; full compensation is a fact for a jury.
eminent domain-inverse condemnation
where state action effectively deprives owner of use of property (airports, expressways)
eminent domain-sovereign immunity
suit may be brought against the state and agencies for operational decisions, but not planning decisions; damages capped at 200k/per person or 300k/per incident
amendments & revisions to FLC
must be approved by vote of at least 60% of the people voting on the measure; must be limited to a SINGLE SUBJECT; amendments imposing new tax or fee must be approved by 2/3 of voters. Changes may be proposed by: leg (joint res 3/5 of each house, not subject to gov’t veto); constitution revision commission (meets every 20 yrs; reports to people, not leg); people’s initiative (petition filed by Feb 1 of election yr w/ copy of proposal and signed by 15% of voters per district, w/ 1/2 of state districts represented; limited to single subject; reserved to the people); taxation and budget reform commission (established 2008; may propose const. amendments).
access to courts
FLC provides that courts are open to every person for redress of injury and that justice shall be administered w/o sale, denial, or delay.
