Con Law (Grossman)

Question 1

Elements to get Homestead Protection

Answer 1

1) Primary Residence owned by a natural person
–can only have 1 at a time
–aka your legal residence

2) Must be filed w/ clerk’s office BEFORE any creditor claim

3) Acreage limit
–0.5 acre of continguous land inside a municipality
–160 acres of continguous land outside a municipality

Question 2

Exception to Homestead Protection: Supercreditors

Answer 2

1) Mortgage

2) Property Taxes

3) Mechanic’s lien (i.e., any work done on the property)

Question 3

What is Homestead Protection?

Answer 3

Your primary residence is protected from a forced sale by creditors.

Also includes $1000 of personal property.

Question 4

Abandonment of Homestead

Answer 4

You abandon your homestead if:

1) You leave the property; AND

2) express an intent not to return.

Question 5

Ad Valorem Taxes

Answer 5

Property taxes and taxes on tangible personal property.

–Only pay to the LOCAL county government.

–No state income tax in FL

Question 6

Devising your Homestead

Answer 6

You cannot devise your homestead if there’s a surviving spouse or a minor child.

Rule: The surviving spouse gets a life estate and the minor child gets a remainder.

Question 7

Homestead Exemption from Property Taxes

Answer 7

Two $25,000 exemptions taken off the market value of your property.

Question 8

What is the rate at which property taxes are taxed?

Answer 8

The millage rate.

–Must be applied uniformly across all households.

–Represents the tax rate per $1000 of a property’s assessed value.

Question 9

Portability of Property Taxes

Answer 9

When you move from one homestead to another, as long as you properly file for the new homestead, you can take the old property tax value and apply it to the new homestead.

Question 10

Restrictions on Speech in a Non-Public Forum or Limited Forum

Answer 10

To be valid, the restriction must be VIEWPOINT NEUTRAL and reasonably related to a legitimate government interest.

–Remember: you have less rights in a non-public forum

Question 11

Restrictions on Speech in a Public Forum or Designated Public Forum

Answer 11

To be valid, the restriction must be CONTENT NEUTRAL and substantially related to an important government interest.

Question 12

Time, Place and Manner Restrictions

Answer 12

The government can regulate the conduct associated with speech by reasonable time, place and manner restrictions.

–If in a public forum or designated public forum, apply INTERMEDIATE SCRUTINY and must be content-neutral.

–If in a non-public forum or limited forum, apply RATIONAL BASIS and must be viewpoint neutral.

Question 13

Right to Freedom of Speech and Press

Answer 13

Protected under the 1st Amendment.

Regulations that infringe on this right are often unconstitutional unless they fall into a category of speech that the Government can regulate (i.e., unprotected speech, such as false commercial speech, fighting words, obscenity, etc.) or survive strict scrutiny (the govt. must show that the regulation is necessary to achieve a compelling state interest).

Question 14

Content-Based Regulations

Answer 14

Apply strict scrutiny. (Government trying to stop the message from getting out completely)

To be valid, a content-based restriction must be necessary to achieve a compelling state purpose AND must be narrowly tailored to achieve that purpose.

Question 15

Content-Neutral Regulations

Answer 15

Apply intermediate scrutiny. (These come in the form of time, place and manner restrictions)

To be valid, a content-neutral regulation must be substantially related to an important government interest and leave open alternative methods of communication.

Question 16

Elements for Standing

Answer 16

1) Injury in Fact

2) Causation

3) Redressability

–Note: Taxpayers generally don’t have standing. (unless claim relates to the establishment clause)

Question 17

Injury in Fact

Answer 17

Requires a particularized injury (one which affects P in an individual way) AND a concrete injury (one that exists in fact).

—-This is 1 of 3 elements for standing.

Question 18

Causation

Answer 18

Requires a causal connection between the injury and the conduct complained of.

–This is 1 of 3 elements for standing.

Question 19

Redressability

Answer 19

Requires a showing that a decision in P’s favor will be capable of remedying her grievance.

–This is 1 of 3 elements for standing.

Question 20

Adequate and Independent State Grounds

Answer 20

Although a state court decision may involve a federal question, the Supreme Court will not take jurisdiction if the state court judgment can be supported on an adequate and independent state ground.

–To do so would be tantamount to rendering an advisory opinion.

Question 21

Political Question

Answer 21

Federal courts cannot hear cases involving political questions.

A political question is a matter assigned to another branch by the Constitution or is incapable of a judicial answer.

Question 22

Abstention

Answer 22

The federal court may abstain, or refuse to hear a particular issue, when there are undecided issues of state law presented.

–A federal court may abstain if the meaning of a state law or regulation is unclear.

–Courts generally decline cases involving probate or family law.

Question 23

Ripeness

Answer 23

This bars a court’s consideration of a claim before it has fully developed.

–Generally, a court may not review or grant a declaratory judgment of a state law before it’s enforced or when there is no real threat of enforcement.

Question 24

Mootness

Answer 24

If the matter has already been resolved, then the case will be dismissed as moot.

–An actual case or controversy must exist at all stages of the litigation.

Question 25

Case or Controversy

Answer 25

The jurisdiction of federal courts is limited to "cases" and "controversies". A case or controversy is a real and substantial dispute that touches the legal relations of the parties having adverse interests and that can be resolved by a judicial decree of a conclusive character. --No advisory opinions (but state courts can give) --Declaratory judgments determining the legality are ok

Question 26

Federal Court Jurisdiction Acronym

Answer 26

Federal court jurisdiction RAMPS up: R - Ripeness A - Abstention and Adequate State Grounds M - Mootness P - Political Question S - Standing (injury in fact, causation, redressability)

Question 27

Sunshine Law

Answer 27

The government cannot act, meet, pass or discuss any law if it deprives the public from knowing what is going on.

Question 28

Flowchart for arguing whether a proposed bill may become law (issues to consider in looking at the contents of a new law after it’s already been validly passed)

Answer 28

1) Standing - does P have standing to challenge the law? (must have a distinct injury) 2) Equal Protection - are people being treated differently? 3) Substantive Due Process - is the govt. taking away or restricting a right? 4) Procedural Due Process - is the govt. taking away a property right w/o notice + hearing? (Discuss the Takings clause) 5) Speech - is the freedom of speech being regulated in any way? (Content-based vs content-neutral) 6) Religion - is the freedom to exercise one's religion being restricted in any way? (Free Exercise vs Establishment)

Question 29

Flowchart for arguing whether a proposed bill may become law (issues to consider BEFORE even getting into the contents of the bill)

Answer 29

1) What power does the state or local govt. have to pass the law? (Must draw from the police power) 2) Formalities of the Bill 3) Separation of Powers 4) Types of Laws 5) County acting? (chartered vs. non-chartered)

Question 30

Right to Jury Trial

Answer 30

No Florida law may deny you your right to a jury trial.

Question 31

Right to Access to Courts

Answer 31

In Florida, no law may deny you your right to access the court system. All citizens of Florida are entitled to access the courts without denial, sale or delay. If the law denies access to the courts in some manner, the government must provide a reasonable alternative. If the law does not provide a reasonable alternative, then the goverment must show that there is a PUBLIC NECESSITY and no other reasonable means of addressing that necessity.

Question 32

Religion (Analysis under the Establishment Clause)

Answer 32

The government cannot pass a law which seems to establish a religion. 1) Law must have a secular purpose (non-religious); 2) Must not promote or inhibit religion; and 3) Must not be any excessive entanglement with religion (this refers to the payment of money, i.e., as a sponsor or subsidy).

Question 33

Analyses concerning issues w/ Religion

Answer 33

1) Free Exercise Clause - The government must remain neutral as to a person's practice of religion. -The government cannot intend to stop you from practicing. 2) Establishment Clause - The government cannot seem to establish or promote a religion.

Question 34

Religion (Analysis under the Free Exercise Clause)

Answer 34

Each citizen has the right to practice his or her own religion in any way they choose. --Government must remain neutral as to your practice of religion. --If government is intending to stop you from practicing, that's a violation of the Free Exercise Clause. --If a bill/law is neutral as to religion but it will affect your practice, that is constitutional. --You cannot break the law in the name of your religion.

Question 35

Right of Free Speech

Answer 35

Under the due process clause, speech is a fundamental right. You can't ban speech, but you can regulate it. ASK: Is what the Government doing a content-based regulation or a content-neutral regulation?

Question 36

What are the Fundamental Rights?

Answer 36

1) Right to Interstate Travel 2) Right of Free Speech 3) Right to Vote 4) Right to Privacy 5) Right to Work (FL Specific) 6) Right to Access to the Court System (FL Specific)

Question 37

Procedural Due Process

Answer 37

This is triggered if the Government tries to take away a person's property rights (i.e., govt. employment, benefits, licenses, etc.) Requires notice and a hearing. The Florida Constitution provides the rights of procedural due process consistent with the U.S. Constitution: No person shall be deprived of life, liberty or property without due process of law.

Question 38

Right to Work

Answer 38

Can't have any law that restricts or punishes a person for his decision to become a member of a union or not to become a member. --This is a FL-specific fundamental right. --Subject to strict scrutiny.

Question 39

Substantive Due Process

Answer 39

The Government is taking away or restricting a right from all citizens. (taking away a liberty) --If it's a fundamental right, apply STRICT SCRUTINY. --If it's a non-fundamental right, apply RATIONAL BASIS. Due Process Clause: No person shall be deprived of life, liberty or property without due process of law.

Question 40

Right to Privacy (under Florida Law)

Answer 40

In Florida, this right is very broad. All you should say for a Florida essay: "The right to privacy means the right to be left alone from any government intrusion." --Any provision of a bill that looks like it's affecting the way a person lives his daily life can be argued violates the right of privacy in Florida. --Subject to strict scrutiny.

Question 41

Right to Privacy (under Federal Law)

Answer 41

Think CAMPER: C - Contraception A - Abortion M - Marriage P - Procreation E - Education (right to private education) R - Raise your family

Question 42

Equal Protection: What classifications are subject to Strict Scrutiny? (under Federal Law)

Answer 42

Protected Classes: Race, Alienage, National Origin (RANO) Rule: Government has the burden of showing that the law is necessary to achieve a compelling state interest and is narrowly tailored to achieve that interest.

Question 43

Equal Protection (analysis under Florida Law)

Answer 43

Group of people being treated differently. Whether it's constitutional is determined by the level of scrutiny. --Strict Scrutiny: Race, Religion, Nationality, Physical Disability. --Intermediate Scrutiny: Gender.

Question 44

Equal Protection: Rational Basis Review (under Florida and Federal Law)

Answer 44

Default review for everyone else not part of one of the protected classes. Rule: P has the burden to show that the law is not rationally related to a legitimate government interest.

Question 45

Equal Protection: Intermediate Scrutiny (under Florida and Federal Law)

Answer 45

Protected class: Gender Rule: Government has the burden to show that the law is substantially related to an important government interest.

Question 46

Equal Protection: What classifications are subject to Strict Scrutiny? (under Florida Law)

Answer 46

Protected classes: Race, Religion, Nationality, Physical Disability. Rule: Government has the burden to show that the law is necessary to achieve a compelling state interest and is narrowly tailored to achieve that interest.

Question 47

Where does a county get the power to make their own laws?

Answer 47

Each county has a HOME RULE POWER which allows them to make rules or laws for themselves without having to go through the State. Charter County: Very broad power. Can pass laws not inconsistent with any general laws. Non-Charter County: Power is very narrow. Only get the power to make laws from what a general or special law allows them to do.

Question 48

Types of Laws

Answer 48

1) General Law - applies to the entire state uniformly 2) Special Law - applies only to a group of people or a certain geographic area 3) General Law of Local Application - applies only to areas with specific populations (e.g., areas where the population is over 65 years old, median income over $100K, etc.)

Question 49

General Law

Answer 49

Applies to the entire state uniformly.

Question 50

Special Law

Answer 50

Applies only to a group of people or a certain geographic area.

Question 51

General Law of Local Application

Answer 51

Applies only to areas with specific populations (e.g., areas where the population is over 65 years old, median income over $100K, etc.)

Question 52

Charter County

Answer 52

Very broad power. Can pass laws so long as they are not inconsistent with any general laws. (i.e., cannot be preemepted by Florida state laws)

Question 53

Non-Charter County

Answer 53

Power is very narrow. Only get the power to make laws from what a general or special law allows them to do. (granted by the Florida Legislature)

Question 54

Separation of Powers

Answer 54

One branch may not encroach on another's powers. The Florida Constitution expressly incorporates that powers be separated between the three branches of government: the executive, legislative and judicial branches.

Question 55

Formalities of a Bill

Answer 55

1) Title 2) Enactment Clause 3) Valid Purpose (must be reasonably related to public welfare) 4) Single-subject Rule 5) Vagueness (bill must be clearly worded so that an avg. person can understand) 6) Not overbroad

Question 56

What power does the State have to pass a law?

Answer 56

The police power. --Can pass any law for the health, safety and general welfare of its citizens. --As long as it doesn't conflict with a federal law. --Also applies to local governments.

Question 57

How does a Florida bill become a law?

Answer 57

For a Florida bill to become a law, it must pass each house by majority vote. Then, the governor either must sign the bill or not veto it within 7 days of presentment.

Question 58

Types of Legislative Sessions

Answer 58

1) Regular sessions 2) Special sessions

Question 59

Regular Sessions

Answer 59

The normal, scheduled time the legislators meet. (typically last 60 days)

Question 60

Special Sessions

Answer 60

Called by the governor. Only allowed to meet to clear up a single issue. (can last up to 20 days) --Can only pass laws in the "purview of the special session proclamation"

Question 61

Takings Clause

Answer 61

The Florida Constitution provides an ever greater protection than the 5th Amendment to the U.S. Constitution. Under the Florida Constitution, no person shall be deprived of their property without fair compensation and the government may only take their property upon a showing of public necessity. --Additionally, property cannot be distributed to any private entity after it's taken. --This applies to issues of real property and NOT personal property.

Question 62

Double Jeopardy

Answer 62

A citizen cannot be punished for the same crime more than once. Jeopardy attaches at the outset of any trial or upon sentencing. Jeopardy bars prosecution for the same crime in the same jurisdiction, unless the second crime has independent elements from the first crime.

Question 63

Unreasonable Search and Seizure (involving a vehicle)

Answer 63

A search or seizure without a warrant is presumptively unreasonable. However, a search may be valid in a vehicle if the officer has probable cause that there is contraband in the vehicle or if there is an exception to the warrant requirement that applies, such as exigent circumstances or the plain view doctrine.

Question 64

Standing to Challenge a Search and Seizure of Property

Answer 64

A citizen will have standing to challenge the search and seizure of their property if they have a reasonable expectation of privacy in the thing to be searched or seized. This provision in the Florida Constitution is written in conformity with the U.S. Constitution's 4th Amendment.

Question 65

When are you afforded your Miranda Rights?

Answer 65

Only if what you are saying to the police is the result of a CUSTODIAL INTERROGATION. --Always define "CUSTODY and "INTERROGATION"

Question 66

Custody

Answer 66

You are in "custody" if, based on an objective standard, a reasombale person would beliebe they are not free to leave.

Question 67

Interrogation

Answer 67

This is when a cop is trying to elicit criminal information.

Question 68

Can you waive your Miranda Rights?

Answer 68

Yes, as long as the waiver was knowing, voluntary and intelligent. --I.e., you knew what you were doing, you volunteered the information (perhaps before cop could even give warning), and you were not subject to coercion.

Question 69

Analysis for a Search and Seizure

Answer 69

The Florida Constitution expressly guarantees the right of persons against unreasonable search and seizure. 1) The search must be done by a GOVERNMENT AGENT or someone acting under the direction of the government actor. 2) A SEARCH is looking anywhere where you have a reasonable expectation of privacy. 3) There needs to be PROBABLE CAUSE (more likely than not that criminal activity is afoot). --If these elements are met, a WARRANT is needed to conduct a search.

Question 70

Search

Answer 70

A "search" is looking anywhere you have a reasonable expectation of privacy. --A cop needs probable cause + a warrant to conduct a search.

Question 71

Warrant

Answer 71

Must be issued by a NEUTRAL MAGISTRATE and must specify the SCOPE OF THE SEARCH (i.e., who and where may be searched).

Question 72

Exceptions to obtaining a warrant

Answer 72

1) Exigent Circumstances 2) Stop and Frisk 3) Search Incident to a Lawful Arrest 4) Plain View Doctrine 5) Consent 6) Lack of agency

Question 73

Exigent Circumstances

Answer 73

A cop does not need a warrant if there's EXIGENT CIRCUMSTANCES (i.e., an emergncy). Two big areas to look for: 1) Suspect trying to flee 2) Suspect trying to destroy evidence

Question 74

Stop and Frisk

Answer 74

If a cop has REASONABLE SUSPICION that criminal activity is afoot, he can stop you to talk to you. He can only frisk you if he has ADDITIONAL SUSPICION that you have weapons on your person.

Question 75

Search Incident to a Lawful Arrest

Answer 75

If lawfully arrested, the copy may search anywhere on your person or within your wingspan without a warrant.

Question 76

Who can consent to a search?

Answer 76

Someone who has ACTUAL or APPARENT AUTHORITY to the Premises (i.e., how much control do you have over the premises).

Question 77

Bonds

Answer 77

Florida government issues bonds as a way to raise money (i.e., asking people to loan them money to build a capital project). Two types: 1) General Obligation Bonds ----The capital project being built does not generate revenue by itself. ----A referendum is required for the project. ----Backed by the full faith and credit of the State (i.e., promise to pay back from State tax revenue). 2) Revenue Bonds ----If the project (the public purpose) generates revenue. ----Revenue used to pay back bond (i.e., tolls, admissions, etc.) ----No referendum is required to issue this type of bond.

Question 78

General Obligation Bonds

Answer 78

----The capital project being built does not generate revenue by itself. ----A referendum is required for the project. ----Backed by the full faith and credit of the State (i.e., promise to pay back from State tax revenue).

Question 79

Revenue Bonds

Answer 79

----If the project (the public purpose) generates revenue. ----Revenue used to pay back bond (i.e., tolls, admissions, etc.) ----No referendum is required to issue this type of bond.

Question 80

Public Nuisance

Answer 80

Ask: Is this thing affecting the community at large? --If a private person sues, they must show some sort of SPECIAL HARM.

Question 81

Private Nuisance

Answer 81

Ask: Does this thing interfere with the use and enjoyment of the person's land?

Question 82

Inverse Condemnation

Answer 82

The economic value of the property has been so significantly reduced that it's basically worthless.

Question 83

Eminent Domain

Answer 83

The Government can take private property for PUBLIC PURPOSE as long as they pay FULL COMPENSATION. --Full compensations = FMV --Public Purpose = anything the government can argue for the overall public good (i.e., increases taxes, saves community, tourism) even if technically a private person is benefitting directly (very broad) --Watch out for inverse condemnation