Con Law Set #2

Question 1

Fundamental RIghts & Test

Answer 1

Strict Scrutiny for race, religion, national origin, and physical disability. Must involve state action.

Question 2

Strict Scrutiny

Answer 2

law will be upheld if there is a COMPELLING state interest that is accomplished by the LEAST INTRUSIVE MEANS.

Question 3

Rational Basis

Answer 3

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.

Question 4

equal protection

Answer 4

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.

Question 5

state action

Answer 5

is required for all equal protection claims

Question 6

freedom of religion, speech & press

Answer 6

same as USC

Question 7

freedom of assembly

Answer 7

same as USc (peacefully assemble and redress grievances), but FLC adds right to instruct Reps.

Question 8

organized labor

Answer 8

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.

Question 9

military power & right to bear arms

Answer 9

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.

Question 10

Due Process

Answer 10

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.

Question 11

substantive due process

Answer 11

if it involves fundamental rights, strict scrutiny test applies. Otherwise, rational basis applies.

Question 12

procedural due process

Answer 12

extends to private organizations exercising quasi-public functions (i.e. professional orgs).

Question 13

searches and seizures

Answer 13

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.

Question 14

pretrial release and detention

Answer 14

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.

Question 15

prosecution for crime

Answer 15

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.

Question 16

costs of criminal proceedings

Answer 16

only payable after conviction final and any appeals exhausted

Question 17

habeas corpus

Answer 17

fee may be charged to solvent filer; no delays unless rebellion or invasion

Question 18

imprisonment for debt/by administrative agencies

Answer 18

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.

Question 19

excessive punishment

Answer 19

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.

Question 20

rights of accused

Answer 20

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.

Question 21

victim rights

Answer 21

(or vic representative) to be informed, present, heard at all crucial stages, but NOT interfere w/ accused constitutional rights.

Question 22

treason

Answer 22

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.

Question 23

access to courts

Answer 23

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.

Question 24

Trial by jury

Answer 24

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.

Question 25

number of jurors

Answer 25

6 member juries; except capital cases get 12 member juries.

Question 26

right to privacy

Answer 26

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.

Question 27

sunshine law

Answer 27

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.

Question 28

taxpayers bill of rights

Answer 28

legislature must provide to all taxpayers by law

Question 29

limitation contingency fees in medical liability cases

Answer 29

30% of first $250k; 10% if over $250k; excluding reasonable costs

Question 30

marriage

Answer 30

one man and one woman

Question 31

executive branch

Answer 31

governor, lt. governor, and cabinet. Must all be 30 years old and FL residents for preceding 7 years.

Question 32

governor

Answer 32

limited to 2, 4-year terms; runs on ticket w. lt. gov. except in primary elections; presides over cabinet.

Question 33

governor duties

Answer 33

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).

Question 34

vacancy of office defined

Answer 34

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.

Question 35

Lt. Gov

Answer 35

performs duties assigned by gov and may become acting governor if gov is impeached/incapacitated

Question 36

cabinet

Answer 36

1-AG, member of FL Bar; 2-CFO; 3-Commissioner of agriculture. If tie vote between Cabinet & Gov, Gov wins.

Question 37

allocations of state government

Answer 37

all functions of state government are allocated among 25 departments and 7 constitutional commissions

Question 38

Legislative branch members (max capacity)

Answer 38

40 senators and 120 house reps; Elections are in even # years

Question 39

legislative requirements

Answer 39

21 yrs old & reside in district

Question 40

legislative impeachment

Answer 40

can be for misdemeanors w/ 2/3 vote from House & Senate conviction

Question 41

legislative procedures

Answer 41

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.

Question 42

legislative bills

Answer 42

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.

Question 43

laws

Answer 43

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).

Question 44

law is nullity unless

Answer 44

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.”

Question 45

general laws

Answer 45

apply uniformly statewide, even if limited real applicability

Question 46

general law of local application

Answer 46

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.

Question 47

special laws

Answer 47

apply to specific persons, places, or entities; prior public notice OR approval by referendum required.

Question 48

prohibited special laws

Answer 48

FLC prohibits special laws regarding certain subjects for statewide uniformity purposes

Question 49

Retroactive laws

Answer 49

prohibited; no ex post facto or bills of attainder

Question 50

laws affecting contracts

Answer 50

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.

Question 51

FLSC justices & DCA judges

Answer 51

are appointed by the Gov for 6 yr terms, but retained by popular vote; same impeachment rules as legislature

Question 52

circuit & county judges

Answer 52

elected by nonpartisan election or merit selection

Question 53

Judges’ requirements

Answer 53

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.

Question 54

FLSC jurisdiction Mandatory

Answer 54

death sentences; bond validations; DCA opinions declaring law or Constitution provision invalid; utility rates

Question 55

FLSC jurisdiction Discretionary

Answer 55

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.

Question 56

DCA mandatory jurisdiction

Answer 56

final orders and judgments not directly appealable to FLSC or circuit courts; interlocutory orders, and administrative actions

Question 57

DCA discretionary jurisdcition

Answer 57

final review orders and nonfinal orders of circuit courts, nonfinal agency orders, and common law writs

Question 58

circuit appellate jurisdiction

Answer 58

county court orders and agencies

Question 59

circuit trial jurisdiction

Answer 59

probate, equitable matters, land, juveniles, felonies, tax, ejectment, common law writs, all other actions at law not cognizable in county court.

Question 60

county trial jurisdiction

Answer 60

non-felony traffic, ordinances, misdemeanors, simplified dissolutions, small claims (15k, equity and real property, landlord/tenant

Question 61

separation of powers

Answer 61

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

Question 62

Legislative delegation

Answer 62

Leg may DELEGATE administrative rule-making power to executive agencies w/ SPECIFIC standard and guidelines; cannot delegate power to make law or fundamental policy

Question 63

4 types of local government

Answer 63

counties, municipalities, school districts, special districts

Question 64

counties

Answer 64

political subdivision of state; either chartered or non-chartered

Question 65

chartered counties

Answer 65

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

Question 66

non-chartered counties

Answer 66

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

Question 67

municipalities

Answer 67

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.

Question 68

school districts

Answer 68

free public education through secondary; run by state board of education; no public funds for private schools

Question 69

special districts

Answer 69

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.

Question 70

FL Budget

Answer 70

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

Question 71

revenue bonds

Answer 71

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).

Question 72

general obligation bonds

Answer 72

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

Question 73

ad valorem taxes

Answer 73

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

Question 74

assessment of fees

Answer 74

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

Question 75

sales tax

Answer 75

reserved exclusively to state unless state gives local gov’t power to do so via general law

Question 76

uniformity of taxes

Answer 76

all property must be taxed at a uniform rate within each taxing unit

Question 77

just valuation of taxes

Answer 77

property must be assessed at a just valuation (fair market value) at the best and highest use for the immediate future

Question 78

homestead in general

Answer 78

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

Question 79

homestead requirements

Answer 79

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

Question 80

homestead exceptions

Answer 80

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

Question 81

restraints on homestead devise

Answer 81

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.

Question 82

waiver of homestead

Answer 82

spouse may waive homestead interest via antenuptial agreement

Question 83

abandonment of homestead

Answer 83

question of fact; if you leave HS property w/o an intent to return, HS protection is deemed abandoned and forfeited

Question 84

sale of homestead

Answer 84

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

Question 85

eminent domain

Answer 85

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.

Question 86

eminent domain-inverse condemnation

Answer 86

where state action effectively deprives owner of use of property (airports, expressways)

Question 87

eminent domain-sovereign immunity

Answer 87

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

Question 88

amendments & revisions to FLC

Answer 88

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).

Question 89

access to courts

Answer 89

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.