Essay Constitutional Law - FL

Question 1

What is the scope of equal protection offered by the FL Constitution?

Answer 1

Florida’s constitution provides for equal protection of the law. State action is required; i.e., only governmental entities are restricted from discriminating. The same standards of review (based on the class of persons or the type of rights) that are used under the US Constitution are used. Strict scrutiny is applied to classifications based on race, religion, national origin, or physical disability, but not to age or other nonsuspect classifications. The strict scrutiny test requires the government to prove that its act is necessary to achieve a compelling government interest and is narrowly tailored to advance that interest. The rational basis test, used when there is no suspect classification or fundamental right, upholds the government’s action unless the challenger can prove that the action is not rationally related to any legitimate government interest.

Question 2

What does the strict scrutiny apply to and what is the test?

Answer 2

Strict scrutiny is applied to classifications based on race, religion, national origin, or physical disability, but not to age or other nonsuspect classifications. The strict scrutiny test requires the government to prove that its act is necessary to achieve a compelling government interest and is narrowly tailored to advance that interest.

Question 3

What does the rational basis test apply to and what is the test?

Answer 3

The rational basis test, used when there is no suspect classification or fundamental right, upholds the government’s action unless the challenger can prove that the action is not rationally related to any legitimate government interest.

Question 4

What is the scope of freedom of religion offered by the FL Constitution?

Answer 4

Florida’s constitution forbids regulation and establishment of religion by the government and guarantees free exercise of religion. However, it also states that religious freedom does not justify practices that are inconsistent with public morals, peace, or safety. The same standards of review that are used under the US Constitution are used.

Question 5

What is the scope of freedom of speech, press, and assembly offered by the FL Constitution?

Answer 5

The Florida Constitution guarantees freedom of speech and of the press and gives the people the right to peaceably assemble and petition for redress of grievances, just as the US Constitution does. But Florida also grants the people the right to instruct their representatives.

Question 6

What is the scope of freedom of organized labor offered by the FL Constitution?

Answer 6

The FL Constitution protects the right to work by providing that no person may be denied a job because of membership or nonmembership in a labor union. Public and private sector employees have the right to bargain collectively, but public employees do not have the right to strike. The right to work and the right to bargain collectively are fundamental rights.

Question 7

What is the scope of the right to bear arms offered by the FL Constitution?

Answer 7

The FL Constitution provides for the right of the people to bear arms, but the matter may be regulated.. The constitution mandates a three-day waiting period between the retail purchase and delivery of any handgun. Counties may impose an additional waiting period of three to five days and a criminal history background check.

Question 8

What is the scope of due process offered by the FL Constitution?

Answer 8

The FL Constitution provides that no person may be deprived of life, liberty, or property without due process of law. Substantive and procedural due process is required. Also, the constitution protects against double jeopardy and compelled self-incrimination.

Question 9

What is the scope of prohibited laws offered by the FL Constitution?

Answer 9

Like the US Constitution, the Florida Constitution prohibits bills of attainder and ex post fact laws. Also, laws impairing the obligation of contract are prohibited, but when the state is not a party to the contract, the courts balance the degree to which a party’s contract rights are statutorily impaired against the evil the state is attempting to remedy through the statute.

Question 10

What is the scope of imprisonment for debt offered by the FL Constitution?

Answer 10

The FL Constitution prohibits imprisonment for debt unless fraud is proved. A “debt” is considered to be an obligation arising out of contract and does not include fines for criminal punishment, tort action damages, taxes, alimony, or child support.

Question 11

What is the scope of protection against search and seizure offered by the FL Constitution?

Answer 11

The FL Constitution guarantees the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures and against the unreasonable interception of private communication by any means. These guarantees are construed in conformity with the Fourth Amendment to the US Constitution as interpreted by the US Supreme Court.

Question 12

What is the scope of pretrial release and detention offered by the FL Constitution?

Answer 12

The FL Constitution provides a general right to pretrial release on bail but contains exceptions: Persons charged with capital offenses or offenses punishable by life imprisonment may be denied bail if the probability of their guilty is great. Also, bail can be denied where the accused poses a threat to public safety or the integrity of the judicial system.

Question 13

What is the scope of rights of accused and victims offered by the FL Constitution?

Answer 13

Florida’s constitution sets forth numerous rights of the accused in criminal prosecutions (e.g., confrontation, counsel, fair trial, speedy trial). However, these rights are waived if the accused does not demand them. Crime victims are entitled to be informed, present, and heard, when relevant, at crucial stages of criminal proceedings, as long as this does not interfere with the accused’s constitutional rights.

Question 14

What is the scope of limitations on administrative action offered by the FL Constitution?

Answer 14

No administrative agency may punish by imprisonment. Administrative penalties are limited to those authorized by law.

Question 15

What is the scope of access to courts offered by the FL Constitution?

Answer 15

The FL Constitution provides that justice is to be administered to all citizens without denial or delay, and that the courts are open to every person for redress of any injury. It guarantees that right by allowing every person at least one appeal from a final order. If the legislature abolishes a cause of action, a reasonable alternative must be provided unless the legislature can demonstrate a compelling public necessity for abolition of the right, and no alternative method of meeting such a public necessity can be established (the Kluger Doctrine).

Question 16

What is the scope of the right to trial by jury offered by the FL Constitution?

Answer 16

There is a constitutional right to trial by jury in criminal proceedings and in civil proceedings where the right existed at the time Florida’s first constitution became effective in 1845.

Question 17

What is the scope right to privacy offered by the FL Constitution?

Answer 17

In contrast to the US Constitution, the right of privacy is expressly granted by the Florida Constitution. A person has a right to be free from government intrusion into her private life. This is a fundamental right. Although a woman’s right to decide to end her pregnancy falls under the right of privacy, the state’s interest in protecting a viable fetus is compelling and allows for restrictions. Also, the Florida Constitution specifically authorizes the legislature to adopt a general law requiring that the parent or guardian of a minor be notified before termination of the minor’s pregnancy, as long as the law provides for a judicial process for waiving the notice requirement.

Question 18

What is the scope of access to public records and meetings offered by the FL Constitution?

Answer 18

Every person has a right to inspect or copy any public record not made confidential by the Florida Constitution. The legislature may provide for exemptions from access to public records and meetings if the law states with specificity the public necessity justifying the exemption, and the law is no broader than is necessary to accomplish the stated purpose. All meetings of state or local public bodies at which official acts or business is transacted must be open and noticed to the public.

Question 19

What is the scope of the limitation on lawyer’s contingency fees in medical malpractice cases offered by the FL Constitution?

Answer 19

The FL Constitution effectively limits the contingency fee that a lawyer may charge a client in a medical liability case to 30% of the first $250,000 received in damages and 10% of any damages above $250,000.

Question 20

What does the FL Constitution say about the composition of the executive branch (including length of service)?

Answer 20

The executive power is vested in the governor. The constitution also provides for a lieutenant governor and a cabinet. All of these officers are elected to four-year terms. The governor may not serve more than two terms.

Question 21

What are the Governor’s duties as outlined in the FL Constitution?

Answer 21

The governor’s primary duties are to faithfully execute the laws, to commission required state and county officers, and to transact state business. He may initiate judicial proceedings in the name of the state against public officials to enforce compliance with the law, and may seek advisory opinions from the supreme court as to constitutional powers and duties. At each regular legislative session he must inform the legislature of the condition of the state. The governor also signs death warrants and has limited power to grant clemency (e.g., for a pardon, two cabinet members must approve).

Question 22

What are the Lieutenant Governor’s duties as outlined in the FL Constitution?

Answer 22

The lieutenant governor succeeds the governor in the event of death and becomes acting governor in the event of impeachment or incapacity. The lieutenant governor does not preside over the state senate but carries out duties assigned by the governor or provided by law.

Question 23

What is the composition of, and the duties of, the cabinet according to the FL Constitution?

Answer 23

The cabinet is composed of (i) the attorney general, (ii) the chief financial officer, and (iii) the commissioner of agriculture. The cabinet sits as a body in several capacities, e.g., as the state board of administration. In the case of a tie vote between the cabinet and the governor, the side on which the governor voted is deemed to prevail.

Question 24

What does the FL Constitution have to say about the composition of the legislature?

Answer 24

The constitution provides for 30-40 senators elected to four-year terms and 80-120 representatives elected to two-year terms. Membership is currently at the constitutional maximum numbers. Elections are held in even numbered years; half of the senators are elected at each election. Legislators must be at least 21 years of age and residents of the district they represent.

Question 25

What are the FL Constitution rules about reapportionment of legislature?

Answer 25

Senate districts and house districts may be continuing or overlapping. Apportionment is done by joint resolution on a one person, one vote basis in the regular session during the second year after a decennial census. A district must be contiguous, as nearly equal in population as practicable, and compact. Apportionment plans may not be drawn to favor or disfavor a party, incumbent, or racial or language minority. If apportionment is not accomplished during the regular session, a special session of up to 30 days is called. The supreme court validates the reapportionment by declaratory judgment. In an extreme case, the supreme court may do the reapportionment itself.

Question 26

What are the FL Constitution rules about legislative sessions?

Answer 26

During the annual 60-day regular sessions, laws on any subject may be enacted. The legislature may extend the regular session or convene extra sessions with a three-fifths vote. The governor may call special sessions by proclamation stating the purpose, and no other business may be conducted during the special session without a two-thirds vote.

Question 27

What are the FL Constitution rules about procedures of the legislature?

Answer 27

All sessions are open to the public except senate sessions considering appointment or removal of public officers (“government in the sunshine”). All committee and subcommittee meetings and prearranged meetings of two or more members of the legislature to agree on formal legislative action are open to the public unless closure is necessary for security. A majority of each house constitutes a quorum. Each house determines its own rules and may punish for contempt. Members may be expelled upon a two-thirds vote. Neither house may adjourn for more than 72 consecutive hours, except by concurrent resolution.

Question 28

What are the FL Constitution rules about procedures of the legislature as it pertains to legislative investigations?

Answer 28

While in session, each house may compel attendance of witnesses and production of evidence, and may punish noncompliance or other contempt by a fine of up to $1,000 and imprisonment of up to 90 days. When not in session, committees may be given similar power to compel, but punishment for noncompliance is by judicial power.

Question 29

What are the FL Constitution rules about procedures of the legislature as it pertains to the lawmaking process?

Answer 29

Any bill, including taxing and appropriations bills, may be introduced in either house. A bill must be read at least by title on three separate days in each house. Approval is normally by simple majority. A bill becomes law if the governor signs it or does not veto it within seven days (or 15 days if the legislature adjourns for 30 days or more). A two-thirds vote by each house overrides a veto. Laws take effect 60 days after final adjournment of the session in which enacted (or reenacted over a veto), on a later date fixed in the law, or on a date fixed by joint resolution.

Question 30

Does the governor’s veto always extend to the entire bill?

Answer 30

In all cases except appropriations bills, the governor’s veto extends to the entire bill, not merely to parts of it.

Question 31

What are the general FL Constitutional requirements for laws?

Answer 31

Laws must be constitutional, not vague (i.e., clearly worded, so that an average person will understand what is permitted and what is prohibited), not overbroad (i.e., does not prohibit constitutionally protected activities as well as unprotected activities), and reasonably related to the public welfare.

Question 32

What are the procedural requirements for laws according to the FL Constitution?

Answer 32

A law may cover only one subject (and matter properly connected to that subject), and the subject must be briefly expressed in the act’s title. The one subject limitation is to prevent the hiding of dissimilar legislation in a single enactment. A law may not be amended by reference to its title only; appropriate portions of the original text must be set out in the amending act. A law must include an enacting clause stating: “Be It Enacted by the Legislature of the State of Florida.” Laws failing to comply with these requirements are nullities.

Question 33

What are general laws and how do they apply?

Answer 33

General laws apply uniformly statewide. However, a law may be a general law because it is facially applicable statewide, although it currently may have only very limited real applicability. A general law may apply to one classified group if it is a reasonable classification based on some difference reasonably related to the subject matter of the law. A general law of local application is a law limited to a geographic area that is established by population. For a general law of local application to be constitutional, the subject matter of the law must be reasonably related to the population classification.

Question 34

What are special laws and how do they apply?

Answer 34

Special laws apply to known specific persons, places, or things. Special laws must be given prior public notice or be approved by referendum.

Question 35

What does the Florida Constitution require regarding laws about certain important subjects? What are those 22 subjects?

Answer 35

The Florida Constitution requires statewide uniformity as to certain important subjects, and thus prohibits special laws or general laws of local application with respect to:

a. Election, jurisdiction, or duties of officers, except officers of municipalities, chartered counties, special districts, or local government agencies.
b. Assessment or collection of taxes for state or county purposes, including extension of time therefor, relief of tax officers from due performance of their duties, and relief of sureties from liability.
c. Rules of evidence in any court.
d. Punishment for crime.
e. Petit juries, including compensation of jurors; except establishment of jury commissions.
f. Change of venue (civil or criminal)
g. Conditions precedent to bringing any civil or criminal proceedings or limitations of time therefore.
h. Refund of money legally paid or remission of fines, penalties, or forfeitures.
i. Creation, enforcement, or impairment of liens based on private contracts or fixing of interest rates on private contracts.
j. Disposal of public property, including any interest therein, for private purposes.
k. Vacation of roads.
l. Private incorporation or grant of privilege to a private corporation.
m. Effectuation of invalid deeds, wills, or other instruments, or change in law of descent.
n. Change of name of any person.
o. Divorce.
p. Legitimation or adoption of persons.
q. Relief of minors from legal disabilities.
r. Transfer of any property interest of persons under legal disabilities or of estates of decedents.
s. Effectuation of invalid deeds, wills, or instruments or a change in descent laws.
t. Hunting or fresh water fishing.
u. Regulation of occupations that are regulated by a state agency.
v. Any subject when prohibited by general law passed by a three-fifths vote of membership of each house. Such law may be amended or repealed by like vote.

Question 36

How may the veto power be used in relation to appropriation laws?

Answer 36

The governor may veto any specific appropriation in a general appropriations bill but may not veto any qualifications or restrictions without also vetoing the appropriation to which it is related. The veto power may be used only to nullify or suspend an appropriation; it may not be used to modify it.

Question 37

What does the FL Constitution say about the Operation of the Judiciary as it relates to the specifics of the court system in place?

Answer 37

The constitution vests the judicial power in a supreme court, district courts of appeal, circuit courts, and county courts. No other types of courts may be established, except that the legislature may establish a civil traffic hearing officer system to hear cases involving civil traffic infractions.

Question 38

What are the rules on the supreme court justices, including the number in total, the number needed for a quorum, the number needed for concurrence, and the location from which they come? In addition, what are the number that sit in each district court?

Answer 38

The supreme court has seven justices, at least one from each of the five appellate districts. Five justices constitute a quorum, and four must concur in a decision. District courts of appeal sit in panels of three.

Question 39

How does selection work for Supreme Court and DCAs?

Answer 39

Supreme court justices and DCA judges are appointed by the governor. At the expiration of an appellate judge’s six-year-term, the voters decide whether to retain her. If the vote is to retain, the judge serves another term. If the vote is not to retain, there is a vacancy that is filled by the governor from a list of three nominees of the Judicial Nominating Commission. Vacancies from death, resignation, etc., are also filled form among Judicial Nominating Commission nominees.

Question 40

How does selection work for Circuit and County Court Judges?

Answer 40

Circuit and county court judges are elected in nonpartisan elections unless the circuit and county opt to choose judges through merit selection. Vacancies are filled from among Judicial Nominating Commission nominees.

Question 41

What does the FL Constitution say about judicial qualifications?

Answer 41

Justices and judges must be electors of the state, residents of the territorial jurisdiction of the court at the time that they assume office, and under age 75. Supreme court justices and district court of appeal judges must have been members of the Florida Bar for the preceding 10 years, circuit court judges and county judges in counties with more than 40,000 residents for the preceding five years, and county court judges must be members of the bar, unless otherwise provided by law.

Question 42

What does the FL Constitution say regarding the the powers of the Judicial Qualifications Commission?

Answer 42

Judges may be removed or reprimanded by the supreme court upon recommendation of the Judicial Qualifications Commission. When a supreme court justice has been recommended for removal or reprimand, the seven most senior circuit judges sit as the supreme court. Note that members of this commission are ineligible for state judicial office while on the commission and for two years thereafter.

Question 43

What does the FL Constitution have to say about state attorneys and public defenders?

Answer 43

The constitution establishes the state attorney as the prosecuting officer in each of the 20 judicial circuits. The state attorney has a four-year term, must reside in her circuit, and must be a member of the Florida Bar for the preceding five years. She may not practice law privately. Each circuit also has a public defender with similar qualifications and term, and each county elects a clerk of the circuit court.

Question 44

What is the Appellate (Mandatory) Review jurisdiction of the FL s ct? (4 things)

Answer 44

The supreme court has mandatory (i.e., as a matter of right) appellate jurisdiction over final judgments involving (i) death sentences, (ii) bond validation proceedings as provided by statute, (iii) decisions by district courts of appeal declaring statutes or constitutional provisions invalid, and (iv) statewide utility rate decisions as provided by statute.

Question 45

What is the discretionary review jurisdiction of the FL s ct? (4 things)

Answer 45

District Courts of Appeal Decisions; Trial Court Decisions; Questions Certified by Federal Courts; and Writ Jurisdiction and Administrative Jurisdiction

Question 46

The supreme court may review decisions from the DCA when it concerns one of what five things?

Answer 46

(i) expressly affecting a class of constitutional officers;
(ii) conflicting with other district courts of appeal or supreme court decisions;
(iii) construing a provision of the Florida or US Constitution;
(iv) validating a state statute; or
(v) certified as involving an issue of great public importance

Question 47

The supreme court may review what decisions of trial courts?

Answer 47

Decisions of trial courts that are certified by the DCA in which the appeal is pending as involving an issue of great public importance.

Question 48

What is the scope of the supreme court’s discretionary review involving writ jurisdiction and administrative jurisdiction?

Answer 48

The supreme court may issue common law writs (e.g., habeas corpus or prohibition) except certiorari. It has exclusive jurisdiction to promulgate rules of practice and procedure for all courts; the legislature may repeal a rule by two-thirds vote, but may not amend or pass laws dealing with court practices or procedures. Finally, the supreme court has exclusive power to admit and discipline attorneys.

Question 49

What is the DCA’s Appellate (Mandatory) Jurisdiction?

Answer 49

District courts of appeal have jurisdiction over appeals as of right of final orders and judgments not directly appealable to the supreme court or a circuit court, over final orders of state agencies (except for those relating to state-wide utility rates or services), and over appeals of certain interlocutory orders and administrative actions.

Question 50

What is the scope of the DCA’s discretionary jurisdiction?

Answer 50

The DCAs have discretionary power to review final orders of circuit courts acting in their review capacity; nonfinal orders from the circuit courts that depart from the requirements of law and for which no appeal is provided; and nonfinal orders of state agencies where review of the final order would not provide an adequate remedy. The courts of appeal may issue common law writs.

Question 51

What is the scope of the Circuit Courts’ jurisdiction?

Answer 51

The circuit courts have appellate jurisdiction over orders of county courts and certain administrative agencies. The circuit courts have trial jurisdiction over all matters not allotted to the county courts, including: (i) probate and related matters; (ii) equitable matters not cognizable in county courts, such as juvenile cases; (iii) felony cases; (iv) tax assessment cases; and (v) actions of ejectment or involving title or boundaries of real property. The circuit court may also issue common law writs.

Question 52

What is the scope of the County Courts’ jurisdiction?

Answer 52

County courts have exclusive trial jurisdiction over nonfelony traffic offenses, ordinance violations, misdemeanors not joined with felonies, actions at law for claims not exceeding $30,000, certain equity and real property questions, and matters involving dissolution of marriage under the simplified dissolution procedure. They also have concurrent jurisdiction to hear landlord-tenant cases and real property lien foreclosures not exceeding $30,000.

Question 53

What is the rule of separation of powers regarding encroachment?

Answer 53

The state government is separated into executive, legislative, and judicial branches. One branch may not encroach on the functions of another branch.

Question 54

What is the rule of separation of powers regarding delegation?

Answer 54

The legislature, via statute, delegates to executive agencies the right to make administrative rules. The delegating statute must contain specific guidelines and standards so that the agency is merely implementing policies and not making them.

Question 55

What is the rule on multiple office holding?

Answer 55

No person may hold dual offices in state, county, or municipal governments, except a notary public, a military officer, a member of the Constitution Revision Commission, members of a constitutional convention or judicial nominating commission, and members of statutory bodies having only advisory powers.

Question 56

What is the rule on terms of office?

Answer 56

The constitution provides that public officers shall serve terms not to exceed four years unless otherwise specified therein. Important exceptions are state representatives (two years); and circuit, county, district, and supreme court judges (six years)

Question 57

What are the rules for someone to be elected as a public official? And when are elections held?

Answer 57

To qualify as an elector, a person must be at least 18 years old, a permanent resident of Florida, and registered to vote in a county. Persons adjudicated incompetent may not vote or hold office until the disability is removed. General elections are held in even-numbered years on the first Tuesday after the first Monday in November. A general election may be suspended or delayed due to a state of emergency or impending emergency. Other elections are held as required by law.

Question 58

What are the limitations on reelection in the FL Constitution?

Answer 58

Florida representatives, Florida senators, Florida’s lieutenant governor, Florida cabinet officers, and US Representatives and Senators from FL may not appear on the ballot for reelection if by the end of the current term the person will have served for eight consecutive years. (Note: the US S Ct has held that state-imposed term limits for members of Congress are unconstitutional)

Question 59

What is the rule on campaign and personal finances?

Answer 59

Elected public officials and candidates must disclose their campaign finances. Officials and candidates must make public disclosure of personal finances, including amount and source of income and net worth.

Question 60

What is the rule regarding public officers or employees who breach public trust for private gain?

Answer 60

They are liable to the state for that private gain. If convicted of a felony involving breach of public trust, public officers or employees are also subject to forfeiture of pension and retirement benefits.

Question 61

Who may be impeached? How are they impeached? What is the effect of that impeachment?

Answer 61

The governor, lieutenant governor, cabinet members, supreme court justices, and DCA, circuit court, and county court judges may be impeached. An officer is impeached (charged) by a two-thirds vote of the house of representatives and is convicted upon a two-thirds vote of the senate members present. Impeachment does not affect the civil or criminal liability of the officer, but conviction removes him from office.

Question 62

When may suspension by the governor occur?

Answer 62

State or county officers not subject to impeachment may be suspended by the governor. Grounds for suspension are misfeasance, malfeasance, neglect of duty, drunkenness, incompetence, permanent inability to perform official duties, or commission of a felony. Elected municipal officers may be suspended only if indicted for a crime. The governor issues an executive order alleging facts specific enough to provide notice and a reasonable opportunity to defend the charges. Removal from office of persons suspended by the governor occurs only upon a majority vote of the senate.

Question 63

When may legislators be removed?

Answer 63

They may be expelled only by a two-thirds vote of the house in which the legislator is a member

Question 64

What are chartered and nonchartered counties, and what is the effect?

Answer 64

Counties may be chartered or nonchartered. Chartering a county broadens local government power, but state laws preempt conflicting county laws. Where a county ordinance and a municipal ordinance conflict, the municipal ordinance prevails in nonchartered counties; in chartered counties, the charter will contain a supremacy clause that will settle the conflict. The county may preempt municipal ordinances as to regulatory matters (e.g., regulations of conduct), but county ordinances may not preempt municipal ordinances concerning provision of services regarding police, fire, housing, etc., absent approval by referenda by voters of both the municipality and the county.

Question 65

When may chartered counties preempt municipal ordinances and when may they not?

Answer 65

The county may preempt municipal ordinances as to regulatory matters (e.g., regulations of conduct), but county ordinances may not preempt municipal ordinances concerning provision of services regarding police, fire, housing, etc., absent approval by referenda by voters of both the municipality and the county.

Question 66

Every how many years are what officers of the county elected?

Answer 66

Every four years the voters elect a board of five commissioners, a sheriff, a tax collector, and other county officers.

Question 67

May a municipality transfer individual functions to the county? How so? May the county and municipal governments be consolidated? How so?

Answer 67

A municipality may transfer individual functions to the county by vote of municipal and county residents or by contract. County and municipal government may be consolidated by special law approved by the electors.

Question 68

What does the Florida Constitution require of the school system in general?

Answer 68

The Florida Constitution requires a uniform system of public education, free through the secondary level. Although public schools must be free, local government may impose an impact fee on new dwelling if there is a reasonable connection between (i) the need for additional facilities due to the growth in population generated by the new dwelling and (ii) the expenditures of funds collected and benefits to the new dwellings. Each county constitutes a separate school district, although contiguous counties may consolidate their districts upon a vote of the electors.

Question 69

Who/What is in charge at each level of the Florida education system?

Answer 69

The State Board of Education supervises the public education system. It operates the statewide school system. The Board of Governors heads the university system. There is a school board in each school district to supervise the schools and determine the rate of school district taxes. The state is prohibited from using public funds to support private schools.

Question 70

What does FL’s Constitution say about the state’s right to tax?

Answer 70

The FL Constitution limits the state’s right to tax. The most important limitation is that only local governments may levy ad valorem taxes on real estate or tangible personal property other than vehicles, boats, airplanes, and motor homes. (the state may levy ad valorem taxes on intangible property). Florida imposes a 6% sales tax on most goods and some services but has no personal income tax. Note the the Florida Constitution has a revenue cap: State revenues collected during a fiscal year may not exceed the revenues collected in the prior year plus an adjustment for growth. A two-thirds supermajority vote is required in both houses of the legislature to raise or impose a new state tax or fee.

Question 71

What are the rules regarding local government taxation of ad valorem

Answer 71

The county, municipality, and school district may each impose an ad valorem property tax up to the constitutional limit of 10 mills on real estate or tangible personal property. (A mill is $1 per $1,000 of value). The 10 mill cap may be exceeded for the payment of bonds or for up to two years if authorized by referendum. All property must be taxed at a uniform rate within the taxing unit. Property is assessed at a just valuation (fair market value) at the property’s best and highest use for the immediate future, except agricultural and noncommercial recreational land, land used for conservation purposes, and working waterfront properties, which may be assessed according to character or use. The assessment of homestead property is capped annually at the lower of 3% or the percent of change in the consumer price index.

Question 72

What are the exemptions to ad valorem tax?

Answer 72

Municipally owned property used exclusively for public purposes is exempt, but this exemption cannot be applied to property owned by a municipality and leased to a profit-making venture. Also, property the municipality owns beyond its borders may be taxed by the taxing unit in which the property is located. There is currently no ad valorem tax on personal property, although the constitution allows it. Philanthropic organizations are given exemptions. Also, by ordinance and referendum, exemptions may be granted to further economic development, but the exemption applies only to improvements made to real property (not the real property itself) and tangible personal property of a new or expanded business. There are numerous more exemptions for surviving spouses of first responders and veterans, for those over a certain age, etc.

Question 73

What are the rules on fees assessed on users of government facilities?

Answer 73

Fees may be assessed on users of government facilities. However, fees have restrictions as to amount and use: (i) The amount of the fee must be pegged to the per capita cost of the facility; and (ii) the use of the fee must be applied toward the facility. Special districts with their own limited taxing power may be established by referendum for special purposes e.g., flood control

Question 74

Counties and municipalities cannot be bound by state laws requiring them to spend funds unless the legislature has determined the law fulfills an important state interest and also one of what five things?

Answer 74

(i) Funds have been appropriated and are probably sufficient to fund the expenditure;
(ii) The legislature authorizes the county or municipality to enact a funding source not available as of February 1, 1989, that can be used to generate the needed funds;
(iii) the law requiring the expenditure has been approved by at least two-thirds of each house;
(iv) the expenditure is required to comply with a law that applies to all persons similarly situated; or
(v) the law is required either to comply with a federal requirement for eligibility for a federal entitlement that contemplated actions by counties or municipalities

Question 75

What is the rule for the state on its budget and borrowing?

Answer 75

The state must balance its budget. It may not borrow for ordinary operating expenses but may borrow for capital improvements (e.g., roads, airports, buildings). The state may borrow for public purposes by issuing revenue bonds or general obligation bonds.

Question 76

What is a revenue bond?

Answer 76

Revenue bonds designate and limit the source of funds from which repayment is made. These revenue funds are generally the rents, fees, tolls, or interest generated from the project for which the bond was issued. For repayment, bondholders may not look to funds raised from general taxation or other nondesignated sources.

Question 77

What are general obligation bonds?

Answer 77

General obligation bonds pledge the full faith and credit of the issuer to use the general taxing power to raise funds to repay the loan. The state government may issue these bonds, but if they are to be payable from ad valorem taxes and will mature more than 12 months after issuance, they must be approved by the electors (except for bonds financing pollution control, property acquisition for state roads, construction of state bridges, and certain other water projects, school construction, and local road acquisition and construction.)

Question 78

What is the rule on the ability of a state or any subdivision to pledge credit?

Answer 78

The state or any subdivision may not become a joint owner with or stockholder of, or give, lend, or use its taxing power or credit to aid in any corporation, association, partnership, or person. This does not prevent: (i) the investment of public trust funds in a private entity; (ii) the investment of other public funds in obligations of, or incurred by, the federal government; (iii) the issuance of revenue bonds by local governments for capital projects or industrial or manufacturing plants, as long as the revenue bonds are payable solely from revenue derived from the sale, operation, or leasing of the projects; or (iv) local governments from jointly owning an electrical energy generating or transmission facility with a private entity.

Question 79

What is homestead property?

Answer 79

The Florida Constitution gives certain protections to homestead property, which consists of residential property owned by a natural person of up to one-half acre within a municipality or 160 acres outside a municipality and personal property of up to $1,000. For homestead protection to be applicable, the homestead must be established before the judgment creditor’s levy on the property. Proceeds from the sale of the homestead retain homestead status if the owner has a good faith intent to reinvest in another homestead within a reasonable time.

Question 80

What is the effect of homestead status?

Answer 80

Homestead property is protected from levy by creditors of the owner, but is not protected from forced sale to satisfy obligations contracted for purchase, improvement, or repair (e.g., mortgages, mechanic’s liens), or taxes and assessments on the property. Equitable liens may be placed on homestead property for other debts if fraud is involved in inducing the loan

Question 81

What is the effect of abandonment upon homestead and how is it determined?

Answer 81

Homestead protection may be forfeited if the homestead is abandoned by the owner and family. Whether the owner has abandoned is a question of fact.

Question 82

What are the constraints of devise of homestead?

Answer 82

Homestead property may not be conveyed by one spouse without the other’s consent and may be freely devised only if there are no surviving minor children or spouse. However, this protection may be waived in a antenuptial agreement.

Question 83

What is the rule of eminent domain?

Answer 83

The state may not take private property except for a reasonably necessary public purpose that benefits the state in a tangible and foreseeable way and with full compensation paid to the owner.

Question 84

What is a “taking” in eminent domain?

Answer 84

“Taking” is defined as appropriating private property by legal authority and devoting it to public use or otherwise injuriously affecting it so as to substantially deprive the owner of all beneficial enjoyment for a substantial period. Mere regulation or exercise of the state’s police power does not constitute a taking (but may give rise to a statutory action for damages if the property is inordinately burdened). Whether there has been a taking is a question of law to be decided by a judge. If there is a taking, a jury decides the issue of full compensation. Fair market value of the property taken is the standard. There is no setoff for increases in value of an owner’s remaining property.

Question 85

What is “inverse condemnation” in eminent domain?

Answer 85

Even if there has been no formal exercise of eminent domain, a property owner may have an inverse condemnation cause of action where the state has acted to effectively deprive her of the use of her property (e.g., by constructing a noisy airport nearby).

Question 86

What sort of sovereign immunity is offered to state and local governments?

Answer 86

By statute, suit may be brought against state and local governments and their divisions. However, damages are capped at $200,000 per person and $300,000 per incident. Traditionally, the state may be liable for negligence in its operational decisions but NOT its planning decisions.

Question 87

What are the three miscellaneous constitutional provisions?

Answer 87

The Florida Constitution designates English as the official language of the state, reserves title to lands under navigable waterways, and sets the state minimum way.

Question 88

How may a FL Constitutional amendment be proposed by the legislature?

Answer 88

By joint resolution of three-fifths of each house, the legislature may place an amendment or revisions on the ballot. Revisions may cover the entire constitution. An amendment concerns one section.

Question 89

How may a FL Constitution revision be proposed by Revision Commission?

Answer 89

A 37-person Constitution Revision Commission meets every 20 years to consider changes to the constitution. The commission may propose a revision of the entire constitution or any part.

Question 90

How may a FL Constitutional amendment or revision be proposed by initiative?

Answer 90

The people may propose a revision or amendment by filing a petition by February 1 of the year in which the election is held. The petition must contain a copy of the revision or proposal and be signed by a sufficient number of electors in each of at least half the congressional districts in the state. The number of signatures needed in each district is at least 8% of the votes cast in that district in the preceding presidential election. An initiative proposal may concern more than one section but must deal with only one subject. This requirement has been more strictly construed than the legislative single subject rule. Note also that the legislature must provide by general law for the provision of a statement to the public regarding the probable financial impact of any amendment proposed by initiative.

Question 91

How may a FL Constitutional amendment or revision be proposed by Constitutional Convention?

Answer 91

The people may call a constitutional convention by filing with the custodian of state records a petition containing the declaration signed by electors in each of at least one-half of the congressional districts of the state. The total number of signatures must be equal to, at minimum, 15% of the votes cat in the state as a whole in the preceding presidential election. A convention may propose a complete revision.

Question 92

How does the approval of any proposed amendments and revisions to the FL Constitution work?

Answer 92

Any proposed amendment or revision must be approved by a vote of the electors. Normally, a proposal is considered at the first general election held more than 90 days after the convention’s proposal is filed with the custodian of state records. The chief purpose of the proposed amendment must be accurately represented on the ballot; otherwise, voter approval can be nullified by the courts.