Con Law (Kaplan) Flashcards
What does the 10th Amendment state?
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
When is an equal protection claim triggered?
Equal protection is triggered where similarly situated persons are treated disparately, as all persons are equal before the law.
What types of discrimination does the FL Constitution forbid?
The FL Constitution forbids state discrimination based on based on RACE, RELIGION, NATIONAL ORIGIN OR PHYSICAL DISABILITY.
Discrimination based on these grounds is subject to STRICT SCRUTINY.
All other types of discrimination (i.e., age) are subject to RATIONAL BASIS SCRUTINY.
What is strict scrutiny?
This standard creates the highest standard for the state to overcome.
The government must prove that the law in question is (1) NARROWLY TAILORED to serve a (2) COMPELLING STATE INTEREST using (3) the LEAST RESTRICTIVE means possible.
What is rational basis review?
The challenger must prove that the state action is not RATIONALLY RELATED to a LEGITIMATE state interest.
—Here, the court examines whether a classification that treats one group of people differently from another has a rational basis.
—If no reasonable relationship exists between the proposed classification and the articulated legitimate state purpose of the statute, then it will be found to violate the Equal Protection clause.
What is the Declaration of Rights?
This is FL’s analog to the U.S. Constitution’s Bills of Rights, however they are not identical in many ways.
FL’s Declaration of Rights bestows more protection for Floridians than the Bills of Rights.
What types of state discrimination are subject to strict scrutiny?
FL’s Constitution forbids state discrimination based on race, religion, national origin, or physical disability.
What type of property rights does the FL Constitution protect?
It protects the right to acquire, possess, and protect property, including the right to devise property as desired.
In any challenge to govt restriction of these rights, the court will apply STRICT SCRUTINY.
What does the FL Constitution state about the freedom of speech and of the press?
It states that every person has a right to speak, write, or publish his views on all subjects. No law may be passed that restrains or curtails the liberty of either speech or the press.
–Laws dealing with free speech must not be UNNECESSARILY BROAD nor have a CHILLING EFFECT on speech. They must also be drawn with NARROW SPECIFICITY.
What is the proper analysis for free speech questions?
(1) Does the regulation by the state govt regulate the CONTENT of the speech or simply the TIME, PLACE, and MANNER of the speech?
(A): If content-based regulation, is the regulation of protected or unprotected speech?
–Protected speech = apply strict scrutiny
–Unprotected speech = apply test based on type of unprotected speech
(B): If time, place, and manner restriction, is the restriction applied in a PUBLIC FORUM or a NON-PUBLIC FORUM?
When are time, place, and manner restrictions constitutional?
(1) Must be content-neutral as to both subject matter and viewpoint;
(2) Must be narrowly tailored to achieve a significant govt interest; and
(3) Must leave open alternative channels of communication.
How does the FL Constitution treat the right to the freedom of assembly?
As a fundamental right, courts apply the strict scrutiny test to restrictions on the freedom to assemble. In addition, the FL Constitution specifically grants citizens the right to “instruct” their representatives.
What is the right to work under the FL Constitution?
The FL Constitution prohibits an employer from denying or abridging the right to work on the basis of membership or non-membership in a labor union.
–A union cannot negotiate a contract that would require workers to become union members or pay union dues.
–Workers are guaranteed the right, if they choose, to bargain collectively through a labor organization.
–Public employees have no right to strike.
A challenge based on alleged violation of these rights requires a court to apply the strict scrutiny test.
How does the FL Constitution protect the freedom of religion?
It prohibits govt restriction of a citizen’s right to freely practice his religion and prohibits govt “establishment” of religion.
–The court will apply the Lemon Test for establishment cases and strict scrutiny for cases involving govt restriction of the free exercise of religion.
NOTE: However, religious practices may be restricted if they are inconsistent with public morals, peace or safety.
When may religious practices be restricted by the state govt?
Religious practices may be restricted if they are inconsistent with public morals, peace or safety.
What is the Lemon Test?
In analyzing new legislation or a government program, ask:
(1) Does it have a SECULAR legislative purpose?
(2) Does it have the principal or primary effect or purpose of advancing or inhibiting religion; and
(3) Does the statute foster an excessive govt entanglement w/ religion?
What is the right to privacy?
The FL Constitution expressly identifies a right to privacy: Every person has the right to be let alone and free from govt intrusion into the person’s private life.
–However, this right is not intended to be an absolute guarantee against all govt intrusion into the private life of an individual.
–The right to privacy will yield to compelling govt interests that use the least restrictive means to further that interest.
–AKA, if the govt restricts the right to privacy, apply STRICT SCRUTINY.
When does the right to privacy apply?
Before the right of privacy attaches, a reasonable expectation of privacy must exist.
–The right of privacy has been held to protect:
(1) the disclosure of personal matters by the govt;
(2) to restrict govt inquiry of personal matters;
(3) to restrict govt intrusion into matters of personal medical decision-making (including abortion).
How does the FL Constitution protect procedural due process?
The right is intended to serve to ensure fair treatment in the course of legal proceedings when the rights granted by the Constitution are at stake.
It is generally applied to ensure a fair trial: D must be given (1) ADEQUATE NOTICE of the proceedings;
(2) a RIGHT TO BE HEARD in court;
(3) be given an opportunity to APPEAL an adverse decision; and
(4) be given in most, but not all, cases a right to trial by jury.
What is the right to access to the courts?
The FL Constitution provides that the courts shall be open to every person for redress of injury, and justice shall be administered w/o sale, denial, or delay.
–Any restriction that substantially bars access to the courts is unreasonable.
–Justice must be administered without the need for payment, though filing fees and similar charges are permissible, they must be reasonable.
What is the Kluger doctrine?
It provides that the legislature may not abolish a cause of action w/o providing a reasonable alternative unless it is shown there is:
(1) an overriding public necessity for the abolishment of the cause of action; AND
(2) there is no alternative method of meeting the public necessity.
Examples of violations: excessive court filing fees, statutes of limitation barring actions before accrual, posting an excessive bond prior to litigation.
What are ex posto facto laws?
Laws that have a retrospective effect and significantly diminish a right the party would have had under the prior law.
–The party need not have enjoyed the right; merely having access to it is sufficient to trigger the prohibition.
–These are prohibited laws.
What is a bill of attainder?
It is a legislative punishment of a group or individual w/o judicial trial. This is prohibited by the FL Constitution.
How do the FL courts treat laws impairing the obligation of contracts?
First, distinguish between PUBLIC or PRIVATE contracts.
–Public Contracts: Courts in FL allow almost no impairment of public contracts (contracts where the state or one of its subdivisions is a party)
–Private Contracts: Apply an intermediate scrutiny test - a law impairing the obligations of a private contract may be constitutional if it is REASONABLE and necessary to serve an IMPORTANT public purpose.
What is the right to access public records under the Sunshine Law?
Every person has the right to inspect or copy any public record made or received in connection w/ the official business of any public body, officer, or employee of the state, or persons acting on their behalf, except w/ respect to records specifically made confidential by the Constitution.
What is the FL Sunshine Law?
It states that all meetings of any COLLEGIAL PUBLIC BODY of the executive branch of state govt or of any collegial public body of a county, municipality, school district, or special district, at which official acts are to be taken or at which PUBLIC BUSINESS IS TO BE TRANSACTED OR DISCUSSED, shall be open and noticed to the public and meetings of the legislature shall be open and noticed and minutes kept, except w/ respect to meetings exempted or specifically closed by the Constitution.
–Note: In addition to the Constitutional protection, there are also additional statutory provisions that ensure open access to public records and meetings.
How can the legislature exempt certain records and meetings under the FL Sunshine Law?
By general law passed by 2/3 vote of BOTH houses.
–The law of exemption must set out with specificity the public necessity for exemption.
What is a writ of habeas corpus?
It is a fundamental right that protects against unlawful and indefinite imprisonment.
–It may be granted as of right and cannot be suspended unless necessary to ensure public safety.
What is the limitation that the FL Constitution places on attorney’s fees?
It limits the amount of fees attorneys may charge in medical malpractice cases to 30% of the first $250,000 in damages and 10% of any damages above $250,000.
What is the constitutional protection against eminent domain?
No private property may be taken except for a public purpose, with a showing of necessity and with full compensation therefor paid to each owner.
–Note: Unlike the US Constitution, here private property taken by eminent domain may NOT be conveyed to a natural person or private entity, even if to do so is for a public purpose.
What constitutes a “public purpose” under eminent domain?
Means “any conceivable public purpose”, even if the public benefit is indirect (e.g., it increases the amount of ad valorem property tax collected by the municipality)
What is the definition of a “taking”?
This occurs when the state has appropriated property for public use or deprived the owner of all beneficial use or enjoyment of the property.
–A temporary measure by the govt that restricts the use of the land is not a “taking”.
What is an inverse condemnation?
Occurs when the govt engages in conduct the result of which deprives an owner of the use of his property (like a zoning ordinance that substantially restricts the use of property) and does not properly compensate the owner for the deprivation.
What is the exception to the requirements of eminent domain under FL Law?
When the govt exercises its “police power” for the health, safety, welfare, and morals of the citizenry, no taking has occurred and no compensation need be paid.
–Thus, whether a taking requires compensation depends on its purpose (public purpose which requires compensation or as an exercise of police power, which does not require compensation)
What amendment deals with sovereign immunity?
The 11th amendment. This grants the state govt immunity from suits by citizens or the citizens of another state.
–This immunity does not extend to the political subdivisions of the state (e.g., counties, cities, etc.)
–The immunity of a state is a privilege which it may waive at its pleasure.
What types of claims does the state of FL (and its respective agencies/subdivisions) waive immunity to?
They are liable for tort claims in the same manner and to the same extent as a private individual, but liability CANNOT include punitive damages or interest for the period before judgment.
–Neither the state nor its agencies or subdivisions are liable to pay a claim or a judgment by any one person which exceeds the sum of $200,000 and cannot exceed $300,000 for all claims arising out of the same transaction or occurrence.
–Nevertheless, the state entity is not liable for “planning” activities, only “operational” activities.
–In such cases, claimaint must still establish that the state entity breached a duty of care owed to the individual.
