Con Law (Grossman) Flashcards
Elements to get Homestead Protection
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
Exception to Homestead Protection: Supercreditors
1) Mortgage
2) Property Taxes
3) Mechanic’s lien (i.e., any work done on the property)
What is Homestead Protection?
Your primary residence is protected from a forced sale by creditors.
Also includes $1000 of personal property.
Abandonment of Homestead
You abandon your homestead if:
1) You leave the property; AND
2) express an intent not to return.
Ad Valorem Taxes
Property taxes and taxes on tangible personal property.
–Only pay to the LOCAL county government.
–No state income tax in FL
Devising your Homestead
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.
Homestead Exemption from Property Taxes
Two $25,000 exemptions taken off the market value of your property.
What is the rate at which property taxes are taxed?
The millage rate.
–Must be applied uniformly across all households.
–Represents the tax rate per $1000 of a property’s assessed value.
Portability of Property Taxes
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.
Restrictions on Speech in a Non-Public Forum or Limited Forum
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
Restrictions on Speech in a Public Forum or Designated Public Forum
To be valid, the restriction must be CONTENT NEUTRAL and substantially related to an important government interest.
Time, Place and Manner Restrictions
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.
Right to Freedom of Speech and Press
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).
Content-Based Regulations
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.
Content-Neutral Regulations
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.
Elements for Standing
1) Injury in Fact
2) Causation
3) Redressability
–Note: Taxpayers generally don’t have standing. (unless claim relates to the establishment clause)
Injury in Fact
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.
Causation
Requires a causal connection between the injury and the conduct complained of.
–This is 1 of 3 elements for standing.
Redressability
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.
Adequate and Independent State Grounds
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.
Political Question
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.
Abstention
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.
Ripeness
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.
Mootness
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.
Case or Controversy
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
Federal Court Jurisdiction Acronym
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)
Sunshine Law
The government cannot act, meet, pass or discuss any law if it deprives the public from knowing what is going on.
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)
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)
Flowchart for arguing whether a proposed bill may become law
(issues to consider BEFORE even getting into the contents of the bill)
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)
Right to Jury Trial
No Florida law may deny you your right to a jury trial.
Right to Access to Courts
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.
Religion (Analysis under the Establishment Clause)
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).
Analyses concerning issues w/ Religion
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.
