Essays - Constitutional Law

Question 1

STEPS for ANALYSIS

1. Does the plaintiff have standing?
2. Is the law valid on its face? Does it meet General and Procedural requirements for validity? Does it have only ONE SUBJECT?
3. Has it followed Procedural requirements – General vs. Special law and need for Vote? Does it involve Sunshine laws, notice, publication, and right to access records?
4. Does it involve a personal right impacting life, liberty, property, or other fundamental right in the Florida Declaration of Rights? If so…
   
   1. Equal Protection: Protected classes and/or impacting a Fundamental right – Strict Scrutiny; All others – Rational Basis
   2. Due Process – Impacting “all”
      
      • Substantive – Fundamental right deprivation – Strict Scrutiny
      • Procedural – Notice and a hearing – Rational basis

Answer 1

THEN….

5. if First Amendment Right Violation?
6. Is it Content-based vs. Time/Place/Manner
7. Location/Place significance; and availability of alternative location
8. Other Freedoms to consider - Work, Religion, Privacy (marriage, procreation, contraception, free from governmental interference generally)
9. Is it a conflict/issue between County vs. Municipality
10. Does it involve Taxation? Improper Ad Valorem tax?
11. Revenue vs.General Bonds? Revenue bonds do not require a referendum and can be paid by non-governmental sources; general bonds require a referendum if (a) serving a public purpose and (b) over 12 months
12. Laws. Cannot benefit a private interest or corporation - Tax benefits or credits, law changes, must have a valid public purpose
13. Does it involve personal property and thus subject to Homestead Act?

Question 2

Validity. For a law to be valid in Florida it must be

(1) General.

• Constitutional,
• clearly written (not vague),
• not overbroad and
• for a legitimate public purpose. (for the general welfare, health, safety, and morals of the public,)

Answer 2

(2) Procedural Requirements

• It must deal with only one subject, (to prevent hiding of dissimilar legislation)
• which must be described in its title.
• It must contain an enacting clause. “Be it enacted by the legislature of the State of Florida.” …
• It must also be properly signed by the Governor, or if not signed or vetoed, becomes law automatically
• And it must not conflict with any federal law.
• And in order for the legislature to pass a law it must be passed in a legislative session.
• Goes into effect on the 60^th day after the final adjournment of th session unless otherwise provided

Question 3

Single Subject. The Florida Constitution requires that all statutes enacted by the legislature contain only one subject. The single subject rule exists to provide notice and assure that each title adequately describes what is contained within the statute.

Answer 3

Each component part or aspect of a law must have some natural relation to an overall scheme. For example, can have an enabling act and a related tax provision to support it’s ongoing implementation

Question 4

Bills become law/Veto. Assuming that a bill is valid, when does it become a law because the Governor did not exercise his veto power?

When a bill is submitted to the Governor for signature or veto, the Governor has 7 days (or 15 days if submitted at the end of session) to exercise his veto power. If the Governor never exercises his veto power within this time, the bill becomes a law, either on its stated effective date, or 60 days from the end of the session

Answer 4

NOTE: Line item veto authority refers to the power of a governor to veto individual components (or lines) of a bill passed by the state legislature. FLORIDA and 44 other states allow LINE ITEM VETOS of state BUDGETS by the Governor (Unlike Federal Law, where President cannot line-item veto)

Question 5

Two Types of Laws. In Florida, there are two types of laws, general** and **special.

• General laws apply to the entire state, to all people. Can relate to one class (industry) but must apply statewide General laws are laws that cover everyone in the state even-handedly and only require passage of the Florida legislature.
  
  1. General laws can be of “local application,” if they apply to the whole state but are limited by population If the Act is a general law of local application it will be deemed valid. General laws of application are laws that are general laws that apply uniformly to an area such as one that has a minimum or maximum population requirement.
  2. HOWEVER, A general law of local application that has a FIXED IN TIME population minimum is invalid, TOO limited.

Answer 5

• Special laws apply only to specific persons, places, usually concern a single subject and /or are related to a single goal.
• Special laws must be enacted either (A) with prior notice (via publication in a newspaper of general circulation in each of the affected counties or (B) via referendum of the affected poprulation.. If it is deemed a special law, it will likely be unconstitutional as only certain persons have to vote by referendum and not all persons affected. WHY? Because subject to attack both as equal protection violations and improperly enacted special laws, if the proponent fails to give NOTICE (often by publication) and approval by referendum vote of the electors of the area affected.
• A special law, unlike a general law, is a law that only applies to particular geographic areas in the state. Special laws are permitted, so long as voters in the effective area are given notice of the proposed law and a referendum is held. Additionally, a special law (as well as a general law of local application, which does not require notice and referendum, but applies to certain areas based on a classification scheme such as population) cannot cover certain subject matter that the Florida Constitution expressly prohibits. Such prohibited subject matter includes taxation, elections, petit juries, conditions precedent to bringing civil or criminal claims, venue rules, and rules of evidence.

Question 6

Special Sessions. The Governor has the authority under the Florida Constitution to call a special legislative session. Special legislative sessions must be limited in scope, and in the absence of the requisite vote of the members of the House and Senate (2/3 vote), no new matters may be addressed during a special session, other than those for which the special session was called.

Answer 6

There are two main types of legislative sessions—regular and special (sometimes known as extraordinary). A regular session is the annual or biennial gathering of legislators, the starting date (and often, the length) of which is set by constitution or statute.

Unlike regular sessions, there is no specific timing for special (or extraordinary) sessions. They occur intermittently to deal with the specific issues or topics. Usually, the scope of a special session—that is, the topics that may be taken up—is limited to the issues specified in the notice calling for the special session.

There are no limits on the number of special session that may be called. Many factors can influence the number of special legislative sessions that occur in any year, including court decisions; federal government actions; length of or scope limits on regular legislative sessions; length or scope limits on special sessions; natural or other disasters; party control of the legislature and governor’s office; political culture of the state; redistricting; or state economy.

A special or extraordinary session is called either by the governor or the legislature. Who has the ability varies among the states. In Florida either the Governor or Legislature may call a special session.

Question 7

Principle of Uniformity. Some laws are so important that they are not subject to process for SPECIAL LAWS or “General Laws of Local Appliaction.” – including:

Answer 7

1. Offices and school boards
2. Taxation
3. Judicial procedure changes
4. Property and related rights – Disposal of public property, vacation of roads and grants of privilege as to a private corporation
5. Domestic relations and Estate related laws
6. Game Rights
7. Occupational rules for certain industries
8. Other subjects, when prohibited by law and passed by a 3/5s vote of the membership of each house.

Question 8

Right to Access Courts The Florida Constitution provides that the right to access to courts will not be infringed upon and that justice will be administered without sale, denial, or delay. When the legislature significantly burdens this right in a manner that amounts to abolishing a cause of action, a reasonable alternative must be provided unless the legislature can make the difficult showing that a public necessity exists and that no alternative can reasonably be established (Kluger v. White Test) The Florida Constitution declares that access to the judicial courts is to be available for every person to address all legal wrongs.

Answer 8

• Access to the courts may be limited if 1) there is a compelling public necessity, and 2) other reasonable means of redress are available.
• Impingement of this Fundamental Right would be subject to Strict Scrutiny.
• Cannot be forced into an administrative hearing in lieu of courts, although sometimes and administrative hearing may be considered a reasonable alternative, because it still allows plaintiffs to bring their actions before a quasi-judicial officer, and the law allows that any final order may be appealed. For example, ok if it is precedent, and court system can be access after pre-trial procedure, like funneling of medical malpractice cases to a review process before litigation filed. Alternative means of redress should be considered

Question 9

Right to Work. In Florida, the right to work is an enumerated right in the Florida Constitution Declaration of Rights. These rights are looked upon as fundamental rights. In Florida, one may not be granted or denied work based on their membership or non-membership to a union.

Answer 9

• In order for the city to overcome this fundamental right it must show that there is a compelling government interest in employing union workers and that the provision is narrowly tailored to meet this goal, and that it is the least restrictive alternative.
• Forcing Unionization this is not the “least restrictive alternative” under this test, because the city may make alternative provisions that can require quality such as employee reviews and strict guidelines for employment.

Question 10

Sunshine Laws & Private Party vs. State Actor.. Under the Florida Constitution, the Sunshine Law provides that public bodies are required to make public the records of any meetings between public figures, such as members of the legislature. The law does not apply to private entities.

Answer 10

However, when government becomes so intertwined in private activities, the private entity may be held to be a state actor, thus subjecting it to state regulations not applicable to private entities. When the government engages in activities in the private sector which amount to more than mere planning or administration, then the private entity will be considered a state actor. Generally, the government’s merely leasing property to a private entity is insufficient to result in the entity being regarded as a state actor. Check: agreed to indemnify the county , has a member of the county commission serving on its BOD.

Question 11

A state law that treats similarly situated people differently raises isues under The Equal Protection Clause, which is from the text of the Fourteenth Amendment to the United States Constitution. The clause provides “nor shall any State […] deny to any person within its jurisdiction the equal protection of the laws”. Also, the FL constitution provides that the state cannot take life, liberty or property without due process and equal protection of the law.

• Strict scrutiny applies to suspect classes and fundamental rights. IN Florida, categories requiring strict scrutiny are to protect discrimination based on sex, religion, ethical or race backgrounds (and in FL, disability). “Florida’s constitution prohibits laws discriminating of people based on their gender, race, national origin or physical disability, unless the law meets strict scrutiny review.”
• Other classifications, such as age, need to meet the much more deferential rational basis test. Here, the burden is on the movant to show that the ordinance or law is not rationally related to a legitimate government purpose. This burden lends a presumption to the validity of the law and is difficult to overcome. If there is no suspect class, fundamental right or quasi-suspect class involved, the law must generally bear a rational relationship to a legitimate government purpose.
• Florida does not apply intermediate scrutiny.

Answer 11

EXAMPLE answer from 2018:

The entire law may be challenged on the ground that it violates the equal protection clause, in that it applies only to State employees and not to others. The plaintiff in such a lawsuit could be a State employee angry about the restrictions, or it could be anyone else angry they are not getting the benefits.

Strict scrutiny applies only to discriminations against suspect classification–such as race, national origin, alienage, or physical handicap, under the Florida provision. Here, no such classification is at issue, so if strict scrutiny applies it will be because the law infringes on a fundamental right–discussed section by section.

Instead, rational basis scrutiny would apply–which means that the challenger must show that the law is not rationally related to a legitimate government purpose. As for the classification between state and non-state-employees, the Government can easily satisfy the rational basis standard: It has a legitimate interest in protecting and promoting its workforce and protecting the public fisc (from high insurance premiums) and the law is rationally related to that by promoting a healthy workforce (good in itself and means less in the way of insurance claims

Question 12

Due Process. Florida’s constitution protects its citizens from invasion of their life, liberty or pursuit of happiness without due process of law. There are two types of due process, substantive and procedural.

Substantive due process analysis applies when a law affects fundamental rights, and, unlike in equal protection analysis, the law does not classify among people. In other words, the law affects all people, rather than a specific classification of people.

Answer 12

• Substantive due process requires that laws are fair, and are not infringing on life, liberty or property for all. To test substantive due process, the Court would utilize the rational basis test, unless dealing with a fundamental right, or a suspect class (FL:race, religion, national origin, or Physical disability)
• Procedural provides that that no one is deprived of life, liberty or property without due process, typically administrative procedures such as notice and a hearing.

Question 13

Right to Privacy. Florida has expressly protected its citizens right to privacy, a right which is included in the Declaration of Rights. “Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein.”

Answer 13

• This protection of privacy goes beyond the protections afforded by the US Constitution, and affords Floridians the right to be left alone. Of course, this right is not absolute and some activities may be regulated even though the regulation may infringe upon the right of privacy.
• Because the right to privacy is a fundamental right, laws and ordinances that affect it are subject to strict scrutiny. The burden is on the government to show that the regulation is narrowly tailored to achieve a compelling governmental purpose. Or Necessary to achieve a Compelling government interest, and there is no less restrictive alternative.

Question 14

Commerce Clause. The Commerce Clause refers to Article 1, Section 8, Clause 3 of the U.S. Constitution, which gives Congress the power “to regulate commerce with foreign nations, and among the several states, and with the Indians”.

Congress has often used the Commerce Clause to justify exercising legislative power over the activities of states and their citizens, leading to significant and ongoing controversy regarding the balance of power between the federal government and the states.

The “Dormant Commerce Clause” refers to the prohibition, implicit in the Commerce Clause, against states passing legislation that discriminates against or excessively burdens interstate commerce. Of particular importance here, is the prevention of protectionist state policies that favor state citizens or businesses at the expense of non-citizens conducting business within that state. If Congress has not enacted laws regarding a subject, a state may regulate local aspects of interstate commerce, but generally cannot favor its own citizens or business over those in another state,

Answer 14

However, a discriminatory law may be valid if it (a) furthers an important noneconmic state interest and (b) there are no reasonable nondiscriminatory alternatives available.

If the law is not outright or intentionally discriminatory or protectionist, but still has some impact on interstate commerce, the court will evaluate the law using a balancing test. Balancing Test = does it unduly burdens out of state commerce by imposing undue restrictions on certain group/trade.

The Court determines whether the interstate burden imposed by a law outweighs the local benefits. If such is the case, the law is usually deemed unconstitutional.

TWO EXCEPTIONS- (a) where congress specifically leglislated on the issue (and then it is “regular” commerce clause issue) and (b) **EXAM**Where the state is a market participant.

Question 15

Search & Siezure. 4th Amendment. Generally, The Florida Constitution as well as Federal Law protects citizens from unreasonable searches and seizures. The constitution is generally construed in light of the Federal Constitution, and expressly provides that citizens’ protection is coterminous with the outer limits of the Federal Constitution. A person is protected from government and seizures where she has a reasonable expectation of privacy in the place searched.

Answer 15

The Fourth Amendment to the United States of America states that Americans are constitutionally protected from unreasonable searches and seizures by law enforcement and government agencies.

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but on probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized”.

All searches must be done with a search warrant in place unless a search warrant exception exists. Any evidence of criminal activity cannot be used against an accused person if seized during a search conducted without a warrant or valid exception to the warrant requirement.

A search warrant is an order issued by a judge authorizing law enforcement to search property protected by the Fourth Amendment. Law enforcement officers are authorized to search for items specified in the search warrant.

Question 16

Warrants. Generally, a warrant is required for a search, seizure or arrest, subject to several exceptions. For instance, a warrant for arrest need not be used where a suspect is in public. Even when a suspect is arrested in public, police must have probable cause to arrest. Probable cause is a reasonable and genuine belief that criminal conduct is occurring or has occurred. It requires a reasonable evidentiary basis.

Both federal and Florida law protect individuals from illegal searches when they have a reasonable expectation of privacy. A legal search occurs when a law enforcement or government agent conducts a search of your property, information or conversation after obtaining a warrant first.

A warrant is a court order that authorizes law enforcement to conduct a search of a specific location and to seize specific materials at a specified time. To be valid under Florida law, a warrant must contain a signature by an impartial judge and a description of the specific persons to be searched or items to be seized. The warrant must also be supported by an oath or affirmation by law enforcement of the basis for probable cause and served by the officers or agents requesting the warrant.

Answer 16

EXCEPTIONS: There are a number of circumstances under which law enforcement may conduct a search without a warrant, however, including:

• Consent — if an individual has given the police permission to conduct a search without coercion, any items or evidence discovered can be legally seized
• Plain view search — evidence that is located in an area the police can access or that is clearly visible, such as the front seat of a car, can be legally seized
• Search incident to an arrest — the police have a legal right to protect themselves during an arrest by searching for weapons or evidence that might be destroyed
• Search of a vehicle during a traffic stop — if the police have reasonable suspicion that a vehicle contains something illegal, they can search the vehicle during a traffic stop
• Exigent Circumstances/Search for an emergency purpose — if law enforcement believes that taking time to obtain a warrant would jeopardize public safety or that evidence would be destroyed, a search may be conducted without a warrant
• Florida law also specifies that it is not necessary to issue a search warrant of a private dwelling if certain crimes or child abuse offenses are being committed therein.

Question 17

Self-Incrimination. Every criminal suspect has the right to remain silent, and the right to be from self-incrimination. Because of these rights, the U.S. Supreme Court decided in Miranda v. Arizona that a suspect must be given certain warnings when in custody and being interrogated.

Answer 17

A suspect is in custody when he has a reasonable belief that he is unable to leave the police officer. He is being interrogated if he is asked a question which a reasonable person would believe was attempting to elicit a response related to the crime. { Once the statement was given, it likely provided Officer probable cause to arrest Suspect in public, despite the lack of an arrest warrant.}

Question 18

Miranda. When in custody and subject to interrogation, a suspect must be provided with the warnings that (1) she has the right to remain silent; (2) anything she says can and will be used against her in a court of law; (3) she has the right to an attorney; and (4) if she cannot afford an attorney, the court will appoint one for her.

A suspect is in custody when he has a reasonable belief that he is unable to leave the police officer. He is being interrogated if he is asked a question which a reasonable person would believe was attempting to elicit a response related to the crime.

Suspects may validly waive their rights under Miranda if the waiver is provided knowingly and voluntarily.

Answer 18

EXAMPLES of IMPROPER WARNINGS

• officer failed to provide proper warnings because he said “You have the right to an attorney if you want to talk before I question you.”
• Officer can argue that he attempted in good faith to convey the warnings, as in Miranda - police need not give a verbatim warning. Unfortunately for the Officer, Miranda also requires, however, that the substance of the warnings be adequately conveyed. Here, officer’s warning did not inform the suspect that if he cannot afford counsel, one will be provided for him at public expense. Thus, the statements he gives in response to any custodial interrogation are to be suppressed.
• Officer may argue that suspect was not actually in custody at the time of the confession. Suspect has a strong argument that a reasonable person would not feel that he had the ability to leave.
• Officer also may argue that he has the right to initiate friendly contact with the suspect and ask him general questions to determine whether probable cause exists.
• Officer may also argue that the Suspect provided a valid waiver of his Miranda rights, so the confessions are admissible.

Question 19

Search incident to arrest. When a suspect is lawfully arrested, an officer may search, incident to that lawful arrest, the suspect’s person and his grabbing area., based upon the need to preserve evidence and the need to protect officers from any weapons a suspect may have on his person or in his grabbing area.

Answer 19

Search incident to a lawful arrest, commonly known as search incident to arrest (SITA) or the Chimel rule, is a U.S. legal principle that allows police to perform a warrantless search of an arrested person, and the area within the arrestee’s immediate control, in the interest of officer safety, the prevention of escape, and the preservation of evidence.

Question 20

Search incident to arrest - applies to Cars When a suspect is lawfully arrested, an officer may search, incident to that lawful arrest, the suspect’s person and his grabbing area., based upon the need to preserve evidence and the need to protect officers from any weapons a suspect may have on his person or in his grabbing area.

ALSO - Inventory search of the vehicle. Officers may lawfully search vehicles when searching is a typical business practice of the law enforcement unit.

Probable cause to search vehicle. If an officer has probable cause to search a vehicle, he may search any part of the vehicle that may contain evidence of that crime. An officer may not, however, search containers that could not reasonably hold the evidence (such as searching a lunch box when the officer has probable cause to think the suspect has a bazooka).

Officer may also argue that the cocaine was the lawful search under the automobile exception. The automobile exception allows certain limited searches due to the transitory nature of automobiles. Indeed, a person has less expectation of privacy in her vehicle than in her home, due to the transitory nature of vehicles. Similarly, an officer has significant concerns regarding the potential destruction of evidence should a vehicle leave the scene of a potential crime. Still would need probable cause.

Answer 20

Automobile Searches

A person is deemed to have a lesser expectation of privacy in his or her vehicle than his or her home. One of the main reasons for this is that a vehicle is “readily mobile”, unlike a house or office. Thus, where an officer believes that contraband may found inside a vehicle, the driver would be long gone in the time it took for the officer to obtain a search warrant based on his or her observations. This would also afford the suspect more than sufficient time to destroy or discard any incriminating evidence in his or her possession. The reduced expectation of privacy is also based on the fact that automobiles are not typically a repository for personal items and effects, the same way a home or office is.

If, during a traffic stop, the officer observes contraband in plain view (e.g. from a vantage point where the officer had a right to be), then the officer can seize that item without a warrant. This may justify a more thorough search of the vehicle, including the passenger compartment and perhaps the trunk.

If the officer has probable cause to believe that contraband will be found in a particular location, the search of those areas will likely be justified. Probable cause can be based on what the officer sees (plain view), what he or she smells, or statements made by one or more occupants of the vehicle (e.g. that drugs or other contraband may be found inside. Probable cause to search a certain part of the vehicle does not necessarily mean that the officer has probable cause to search the occupants. To justify a search of the occupants, the officer must have probable cause to believe that narcotics or other illicit items will be found on their person.

As many of you are likely aware, a police officer can conduct a search of the vehicle, including any containers therein, if he or she detects the odor of burnt or fresh marijuana emanating from inside. In this instance, the police may also search the vehicle’s occupants without a warrant.

If an occupant of the vehicle is arrested, the officer may not, as a matter of course, search the person’s vehicle. Being arrested for driving on a suspended license would not, in and of itself, justify a search of the vehicle’s passenger compartment or trunk. A search of the vehicle would, however, if the area searched was within the arrestee’s immediate grabable area, the officer had reason to believe that evidence connected to offense of arrest could be found therein, the person consented to the search (see below), or the search was done pursuant to impoundment inventory protocols.

Vehicle inventory searches do not invoke Fourth Amendment protections because they are not, at least in theory, done for the purpose of ferreting out evidence of a crime. Rather, the purpose of an inventory search is to account for the arrestee’s personal belongings, prior to the vehicle being impounded so that those items can, at some point, be returned. They are also done to protect the officer from an assertion that certain items were lost or stolen during the inventory process.

Question 21

Terry Stop

In Terry v. Ohio, the United States Supreme Court detailed the circumstances in which a law enforcement officer may conduct a brief, investigatory stop or detention of a person without a warrant (remember, the Fourth amendment precludes not only unlawful searches, but also seizures.)These brief detentions have come to be known as “Terry stops”. To justify a stop, the officer must have reasonable suspicion that the person being detained is involved in some form of criminal activity. “Reasonable suspicion” is a lesser standard than “probable cause” (which the officer must have in order to effectuate a full-blown arrest). While probable cause is not not required to conduct a stop, an officer’s “mere hunch” of involvement in criminal activity is not enough. An uncorroborated anonymous tip is never enough to warrant to warrant a Terry stop.

Answer 21

Search p/o Terry stop = Pat down only. The officer may also conduct a pat down of the detained person’s outer clothing if the officer has reasonable suspicion that the person is in possession of illegal contraband or a weapon. If the officer can identify an item, through a pat down of the outer clothing, as contraband (based on his or her training and experience), then a more intensive intrusion, such as reaching into the pockets, would be justified. This is known as the “plain feel” doctrine. Depending on what is found, the officer may, at that point, develop probable cause to make an arrest. If, on the other hand, the officer does not suspect that the person is in possession of weapons or narcotics, and fails to develop probable cause that a crime has been committed, the officer must allow the person to leave.

Question 22

STANDING - The first issue is whether the Plaintiff has standing to bring a lawsuit. At the federal level, legal actions cannot be brought simply on the ground that an individual or group is displeased with a government action or law. Federal courts only have constitutional authority to resolve actual disputes (see Case or Controversy).

1. The plaintiff must have suffered an “injury in fact,” meaning that the injury is of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent
2. There must be a causal connection between the injury and the conduct brought before the court
3. It must be likely, rather than speculative, that a favorable decision by the court will redress the injury

The case also must be RIPE and not MOOT.

Answer 22

RIPENESS: refers to the readiness of a case for litigation; “a claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.” the Superme Court cannot issue mere Advisory Opinions.

MOOTNESS: Legal actions cannot be brought or continued after the matter at issue has been resolved, leaving no live dispute for a court to resolve. In such a case, the matter is said to be “moot”.

However, a court will deny hearing a case if it includes an issue that is not considered moot because it involves the public interest or constitutional questions and is likely to be repeated and otherwise evade review or resolution.

Question 23

To avoid issuing advisory opinions, courts wait until policies have been formalized and can be felt in concrete ways.

Answer 23

When considering a question of RIPENESS, a federal court considers two main factors (i) the fitness of an issue for judicial decision (whether it relies on uncertain or contingent future events that may not occur) and (ii) the hardship (risk of proviking enforcement) to the parties of withholding court consideration.

Question 24

Violations of First Amendment (Freedom of Speech or Assembly)

Federal law and the Florida Constitution protect the right to Free Speech as a fundamental right. Freedom of speech and press.FL Constitution provides “Every person may speak, write and publish sentiments on all subjects but shall be responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech or of the press.”

Answer 24

Generally, a restriction of speech or assembly by the government must meet strict scrutiny. The Government must be able to show that a law/restiction was necessary to achieve a compelling state interest.

However, the government may regulate speech in public forums with reasonable time, place and manner regulations. Public (not private) property that has been historically been open to speech related activities is a public forum.

Question 25

The President may sign, veto or pocket veto a piece of leglistation passed by Congress. Every Act of Congress must be approved by the Presiident before taking effect, unless passed over the disapproval by a 2/3rds vote in each house. The President has 10 days (except Sundays) to exercise his vetor power.

If no action is taken, the bill becomes law if Congress is still in session, and it is automatically vetoedif Congress is NOT in session.

Answer 25

The President must either sign an Act in full or veto in full. a “line-item veto” (signing some parts and vetoeing other parts” is unconstitutional.

In 1998 the U.S. Supreme Court ruled the act to be unconstitutional in a 6–3 decision in Clinton v. City of New York. The court found that exercise of the line-item veto is tantamount to a unilateral amendment or repeal by the executive of only parts of statutes authorizing federal spending, and therefore violated the Presentment Clause of the United States Constitution. Thus a federal line-item veto, at least in this particular formulation, would only be possible through a constitutional amendment.

Question 26

1. SECTION 1. Political power.
2. SECTION 2. Basic rights.
3. SECTION 3. Religious freedom.
4. SECTION 4. Freedom of speech and press.
5. SECTION 5. Right to assemble.
6. SECTION 6. Right to work.
7. SECTION 7. Military power.
8. SECTION 8. Right to bear arms.
9. SECTION 9. Due process.

Answer 26

1. SECTION 10. Prohibited laws.
2. SECTION 11. Imprisonment for debt.
3. SECTION 12. Searches and seizures.
4. SECTION 13. Habeas corpus.
5. SECTION 14. Pretrial release and detention.
6. SECTION 15. Prosecution for crime; offenses committed by children.
7. SECTION 16. Rights of accused and of victims.
8. SECTION 17. Excessive punishments.
9. SECTION 18. Administrative penalties.
10. SECTION 19. Costs.
11. SECTION 20. Treason.
12. SECTION 21. Access to courts.
13. SECTION 22. Trial by jury.
14. SECTION 23. Right of privacy.
15. SECTION 24. Access to public records and meetings.
16. SECTION 25. Taxpayers’ Bill of Rights.
17. SECTION 26. Claimant’s right to fair compensation.
18. SECTION 27. Marriage defined.

Question 27

“Municipality Home Rule” As provided in FL State Constitution, municipalities shall have the governmental, corporate, and proprietary powers to enable them to conduct municipal government, perform municipal functions, and render municipal services, and may exercise any power for municipal purposes, except when expressly prohibited by law.

Expenditures to Encourage Business Development/Expand Economic Activity:

(8) (a) The Legislature finds and declares that this state faces increasing competition from other states and other countries for the location and retention of private enterprises within its borders. Furthermore, the Legislature finds that there is a need to enhance and expand economic activity in the municipalities of this state by attracting and retaining manufacturing development, business enterprise management, and other activities conducive to economic promotion, in order to provide a stronger, more balanced, and stable economy in the state, to enhance and preserve purchasing power and employment opportunities for the residents of this state, and to improve the welfare and competitive position of the state.
(b)  The governing body of a municipality may expend public funds to attract and retain business enterprises, and the use of public funds toward the achievement of such economic development goals constitutes a public purpose. The provisions of this chapter which confer powers and duties on the governing body of a municipality, including any powers not specifically prohibited by law which can be exercised by the governing body of a municipality, shall be liberally construed in order to effectively carry out the purposes of this subsection.
(c)  For the purposes of this subsection, it constitutes a public purpose to expend public funds for economic development activities, including, but not limited to, developing or improving local infrastructure, issuing bonds to finance or refinance the cost of capital projects for industrial or manufacturing plants, leasing or conveying real property, and making grants to private enterprises for the expansion of businesses existing in the community or the attraction of new businesses to the community.

Answer 27

Permitted Economic development incentives include:

a.  Direct financial incentives of monetary assistance provided to a business from the municipality or through an organization authorized by the municipality. Such incentives include, but are not limited to, grants, loans, equity investments, loan insurance and guarantees, and training subsidies.
b.  Indirect incentives in the form of grants and loans provided to businesses and community organizations that provide support to businesses or promote business investment or development.
c.  Fee-based or tax-based incentives, including, but not limited to, credits, refunds, exemptions, and property tax abatement or assessment reductions.
d.  Below-market rate leases or deeds for real property.

AD VALOREM TAX RELIEF is only available for Improvements to real property for new business or expansion, for community and economic growth, not to repair old property., To provide an economic development expemption, the municipality has to obtain permission from voters in a special vote.

Question 28

. Basic rights.—All natural persons, female and male alike, are equal before the law and have inalienable rights, among which are the right to enjoy and defend life and liberty, to pursue happiness, to be rewarded for industry, and to acquire, possess and protect property. No person shall be deprived of any right because of race, religion, national origin, or physical disability.

Answer 28

Like the federal equal protection clause that requires strict scrutiny of governmental classifications based on race or national origin,7 this sentence in the Florida Constitution imposes a duty on the government to demonstrate that a classification based on race, religion, or physical handicap is narrowly tailored to further a compelling state interest.8 An amendment of this sentence, therefore, is an unambiguous vehicle for providing greater protection to individuals who are members of any newly enumerated group.

Question 29

FL Constitution article X allows governments in the state to have the pwoer to take private property provided that the taking is for a public purpose and for just compensation.In many instances tenants are also entitled to compensation in addition to the landowner, if their lease is affected by the taking.

In Florida, eminent domain power can be exercised by the state, county and municipal governments. Administrative agencies such as school boards, the Florida Department of Transportation, railroads, and utility companies also have eminent domain powers.

Florida has an Eminent Domain bureau which provides legal advice to governmental agencies on the legal requirements for the proper exercise of the eminent domain power and legal strategies for minimizing the cost of the litigation. The bureau presently represents the university boards of trustees in the acquisition of land for expansion of state university campuses, the Board of Trustees of the Internal Improvement Trust Fund in the acquisition of lands for conservation, and the Department of Transportation in the acquisition of lands for transportation facilities and expansion of existing roadways.

After identifying every parcel of land that will be needed to complete the project, the Government obtains an appraisal. The appraisal is performed by an independent real estate appraiser hired by the Government. The appraiser determines that value of land and all improvements on the land (e.g. buildings, fences) for parcels that will be completely acquired by the Government.

Where only a portion of an owner’s property will be taken, the appraiser will value both the land being acquired and any diminution (reduction) in the value of the owner’s remaining lands caused by the project. The appraiser will also determine the value of any easements being acquired, whether temporary (e.g. the right to come onto the property during the construction of the project only) or permanent. The appraiser will also determine other compensable losses suffered by the property owner such as business damages. Examples of business damages include lost rental income, and lost sales and profits.Once the Government identifies and values the property to be taken, the affected landowners are notified.

If negotiations fail to reach a settlement, the Government can commence a condemnation proceeding in accordance with Florida Statute Section 73.021 in the Florida Circuit Court with jurisdiction over the property’s location, or the Government may choose to modify the project to avoid taking the owner’s property. If a lawsuit is commenced, the Government is required to pay the owner the value of the property being taken as determined by the Government’s appraiser upfront. The subject of the lawsuit then is typically focused on the additional compensation due the property owner to obtain full and fair value. Eminent domain actions in Florida are decided by a twelve (12) person jury.

Answer 29

ATTACHING A CONDEMNATION ACTION:

1. What is the legilative power/basis for the taking? Was it proper?
2. Is the purpose for the taking for the public good ( Health, safety or welfare) or to spur business growth or economic development? Note state can also justify taking if for creating public recreation, for parks, open land.
3. Was the taking reasonably necessary - ie no other alternative? (ie could have gotten other land, or undertaken a partial accession, used a less restrictive alternatives such as an easement )
4. Was just compensation paid? Right to appraisal and hearing should available. Amount of compensation is a jury question, and the FL law provides that the proper calcuation of property value is hte fair market value at the time of the taking.

Question 30

When the government limits or deprives a citizen’s private property rights to such a degree that the property owner loses an essential element of those rights, a “taking” may have occurred. That taking will not be permitted without the payment of full compensation to the citizen suffering the loss. - Does the action effectively deprive the owners use of property for residential neoghborhood or other purposes?

The government may “take” property either (A) Directly - by instituting condemnation proceedings or (B) Indirectly without filing a formal eminent domain action. The property owner’s remedy for an indirect taking may be an “inverse condemnation” case, a legal action in eminent domain filed by the property owner as opposed to one initiated by the government, to prove that the government’s action resulted in a loss of the use and enjoyment of your property.

Inverse (or reverse) condemnation is defined as the property owner’s action against a government defendant to recover the value of property that has been taken, even though no formal exercise of the power of eminent domain has been attempted by the taking agency. Furthermore, even if the property is not actually damaged, but a property owner’s use of the property is restricted as a result of government action, the property owner may be eligible for compensation .

Answer 30

Whether there is a taking is a legal decision for the court/judge, but the Amount of compensation, adequacy, is a question of fact for a jury. Leasholds, easements, personal property, franchises and contracts have been upheld as acompensable property interests.

EXAMPLES:

Flooding caused by Government Action

One of the most common causes of inverse condemnation is flooding. When a public project, such as highway construction, results in a diversion of water onto private property, the owner may have an inverse condemnation claim. It is essential to show a degree of permanency. However, permanency of flooding is established if it is “reasonably expected to continually reoccur in the future.”

Removal of Ground Support

Sometimes a nearby government construction project can lead to damage to your property by removing ground support. This can lead to damage to pipes, foundations, trees, or landscaping damage for which you must be compensated. The loss of ground support may require the installation of retaining walls or may make the property completely unusable.

Question 31

Separation of Powers - one branch of governmnet may not perfom the function of another brnach. Thus, an executive branch agency cannot act like a court and provide final hearings. Also may lead to a delegation issues - delegated functions cannot exceed power of the branch of government.

Answer 31

Administrative hearings - Penalties may also be an issue - either because they create a violation of Due Process (access to courts, right to jury trial, no right to appeal) or improper property taking (undue fees/fines)

Question 32

FL may enact legislation or create alternative dispute resolution methods (like an administrative Board or agency) that limit a legal cause of action or shorten a statute of limitation.

Rationale must be justified depending on nature of limitation - by either the rational basis test, or by strict scrutiy, where law must generally meet a compelling state interest,

Kluger doctrine - law invalid if there is no ability to redress injury.

An “unreasonable” statute which abolishes a cause of action may still be constitutionally valid if there is a COMPELLING PUBLIC INTEREST and there is no reasonable alternative available (typically laws won’t meet this standard)

Answer 32

Reasons why the law or action may otherwise be Unconstitutional: TRY -

1. Could violate a right to procedural Due Process - ie Access Courts, Right to Jury … also Invalid if law Fails to provide a reasonable alternative to a lawsuit or
2. May be a taking of property or denying a right to a benefit or to compensation
3. May violate Equal Protection laws if it penalizes one class more than another
4. Could violate Separation of Powers principles in FL Constitution, if an agency or administrative body is undertaking to make court-like decisions without recourse to appeal. Could also violate delegation of powers rules.
5. Law may exceed state police powers - health, safety and welfare of citizens.
6. Only Supreme Court of Floirda can set procedural rules for the court, so legislature cannot change altogehter the criminal (or civil) process rules.

Question 33

Article IV, section 7(a), of the State Constitution authorizes the Governor to suspend any state officer not subject to impeachment or any county officer on any of the following grounds: malfeasance, misfeasance, neglect of duty, drunkenness, incompetence, permanent inability to perform official duties, or commission of a felony.

The Florida Senate has the exclusive responsibility to sit in judgment of the merits of a suspension once presented with the governor’s order. The Senate may remove from office or reinstate the suspended official. Senate Rule 12 outlines the process adopted by the Senate.

Municipal officers; suspension; removal from office.—

(1)  By executive order stating the grounds for the suspension and filed with the Secretary of State, the Governor may suspend from office any elected or appointed municipal official for malfeasance, misfeasance, neglect of duty, habitual drunkenness, incompetence, or permanent inability to perform official duties. Needs to state specific grounds for suspension,
(2)  Whenever any elected or appointed municipal official is arrested for a felony or for a misdemeanor related to the duties of office or is indicted or informed against for the commission of a federal felony or misdemeanor or state felony or misdemeanor, the Governor has the power to suspend such municipal official from office.
(3)  The suspension of such official by the Governor creates a temporary vacancy in such office during the suspension. Any temporary vacancy in office created by suspension of an official under the provisions of this section shall be filled by a temporary appointment to such office for the period of the suspension. Such temporary appointment shall be made in the same manner and by the same authority by which a permanent vacancy in such office is filled as provided by law. If no provision for filling a permanent vacancy in such office is provided by law, the temporary appointment shall be made by the Governor.
(4)  No municipal official who has been suspended from office under this section may perform any official act, duty, or function during his or her suspension; receive any pay or allowance during his or her suspension; or be entitled to any of the emoluments or privileges of his or her office during suspension.
(5)  If the municipal official is convicted of any of the charges contained in the indictment or information by reason of which he or she was suspended under the provisions of this section, the Governor shall remove such municipal official from office. If a person was selected to fill the temporary vacancy pursuant to subsection (3), that person shall serve the remaining balance, if any, of the removed official’s term of office. Otherwise, any vacancy created by the removal shall be filled as provided by law. For the purposes of this section, any person who pleads guilty or nolo contendere or who is found guilty shall be deemed to have been convicted, notwithstanding a suspension of sentence or a withholding of adjudication.
(6)  If the municipal official is acquitted or found not guilty or is otherwise cleared of the charges which were the basis of the arrest, indictment, or information by reason of which he or she was suspended under the provisions of this section, then the Governor shall forthwith revoke the suspension and restore such municipal official to office; and the official shall be entitled to and be paid full back pay and such other emoluments or allowances to which he or she would have been entitled for the full period of time of the suspension. If, during the suspension, the term of office of the municipal official expires and a successor is either appointed or elected, such back pay, emoluments, or allowances shall only be paid for the duration of the term of office during which the municipal official was suspended under the provisions of this section, and he or she shall not be reinstated.

Answer 33

NOTE - May be on exam because of 2020 suspension of Sheriff Scott Isreal for his failure to act and negligence in the Broward County School Shooting, where he had 21 interactions previously with shooter and did not determine he was a threat, and also his failure to confront the shooter during the active attack. Highly publicized. There is a website which lists all the suspensions of officials with reasons, (including cases similar to Property Appraiser case in BarBri text)

Question 34

ANALYSIS STEPS - Creditor cannot attach if:

1. Does the creditor yet have standing to sue (enforceable lein / judgement)
2. Has homestead established prior to creditor claim?
3. Is it in individual name, or is there a spouse with an interest?
4. Within 1/2 acre in a municipality or 160 acres outside of city (or pro-rata share of property)
5. Intent to be a permanent homestead, even if occasional absence or travel will not be considered “abandoning.”
6. Even if sold, can use proceeds to buy a new homestead (but better to segregate funds and use to buy new property within a reasonable time period). {Cannot put funds into an existing second property? but What if paid off mortgage for second house…arguably ok}
7. EXCEPT - Cannot use funds solely to defraud creditors, if lein previosuly existed. Plus, homestead does not apply to alinmony, child support, tax claims and certain repayments for federal and state benefits. Also, Lien for mortgage loan / debt and for improvements on the property itself are exempt.

Also, Homestead exemption carries with it a restriction on the power to devise - cannot devise if D is survived by a spouse or minor children. If property is owned by tenants by the entirety, though, that will pass by the right of survivorship .

Answer 34

In Florida, when a certified copy of a judgment is recorded in the official county records, it becomes a lien on all of the defendant’s real property in that county for 10 years. Absent the application of a homestead exemption, a creditor would be able to place a lien on any property in the county.

A judgment lien “runs with the land” burdening it until the judgment is paid or the lien expires under the statute of limitations of ten (10) years. Since it is attached to land it does not have to be specially filed as a claim in a decedent’s estate within 90 days of the Notice of Administration of an estate.

Mortgage liens attach only to the property for which a loan was granted, and is not a general lien that can be paid off with any other property sale.

Question 35

the Jurisdiction of all of the Floirda courts is established by Article V of the Florida Consistition, which provides that the Supermem Court has exclusive jurisdiction to promulgate rules relating to practice and proecdure, and neither the circuit court nor other branches of government can create alternative courts for administrative hearings. Procedural rules do not including quasi-judicial bodies . Constitution allows for 5 district courts of appeal, 20 circuit courts, and 67 county courts and only those courts

Answer 35

Cannot appoint magistrates either. Circuit and county judges are without authority to either elect or delegate their constitutional duties to magistrates. Only the Legislature has authority to establish a Boad of Magistrates with quasi-judicial power.

Question 36

Violations of Sunshine Laws

The Sunshine Law provides that all meetings of a state or local government public body at which official acts are taken, or at which public business is discussed, must b e open and noticed to / available to the public, with opportunity to be heard, (including records of proceedings).

Answer 36

Florida courts have held that meetings and agreements amongst politicians or commissioners which led ot an agreement to voite MAKES VOID the approval of the agenda items. There must be another duly noticed public meeting and the items should be reconsidered for approval by the city commission.

Question 37

A local government may issue general obligation bonds to finance and refinance capital projects unless the city charter expressly prohibits them .

Answer 37

However, if the bonds are payable from Ad valorem taxes and mature more than 12 months after the issuance, approval must be by a vote of the electors. There must be a referendum and election.

Question 38

Revenue Bonds - Revenue bonds are payable from revenue sources other than ad valorem taxation and municipal funds, and municipal full faith and credit is not pledged. No referendum needed if self-funded but still must meet statutory requirements.

Bonds must be payable solely from revenue reived from the sale, operation or lease of the project.

Answer 38

*ALSO* - Revenue bonds require a valid public purpose. Can serve a government health, safety or welfare purpose and cities have constitutional “Home power rule” to issue revenue bonds for a valud city/public purpose. Economic growth and development would be considered acceptable, as would a Capital Expenditure project to help infrastructure (airport, civic center, stadium)

Question 39

FL Right to Privacy: The Florida Constitution expressly grants to every natural person the right to be left alone and free from governmental intrusion into her private life. Considered a fundamental right and is more protective than federal law.

Answer 39

Strict Scrutiny would apply - necessary to serve a compelling state interest, and no less restrictive means available. Generally proposals would be found unconsistitional under strict standard.

Question 40

Prohibition against Aiding Private Corps Florida Constition has a prohibition against any subdivision of the state using ists taxing powers r credit to aid a private corporation or business entity.

Answer 40

Proposal must benefit the Public to commit public funds. Constitution allows a county to pay for bonds from revenues derived from the operation or leasing of capital projects.

Question 41

Taxes that are based on value are called ad Valorem taxes.]

In Florida, the real estate tax bill is a combined notice of ad valorem taxes and non-ad valorem assessments. The tangible tax bill is only for ad valorem taxes.

Ad valorem taxes are paid in arrears (at the end of the year) and are based on the calendar year from January 1 – December 31. The Property Appraiser(link is external) assesses the value of a property and the Board of County Commissioners, School Board, Cities, and other levying bodies set the millage rates.

A millage rate is the rate of tax per thousand dollars of taxable value. To determine the ad valorem tax, multiply the taxable value (assessed value less any exemptions) by the millage rate and divide by 1,000. For example, $100,000 in taxable value with a millage rate of 5.0000 would generate $500 in taxes.

The Property Appraiser certifies the values and exemptions on the tax roll. The Tax Collector merges the ad valorem and non-ad valorem tax rolls and mails a tax bill to the owner’s last address of record.

Answer 41

FL Constitution -only the state (as opposed to local governments) may levy an ad valorem tax on intangible property such as notes, bonds and other obligations for the payment of mondey bu the tax may not exceed 2 mills.

Question 42

In Florida, there is a Constitutional Right to Work. No person may be denied a job because of membership or nonmembership in a labor union , unfairly discriminatory and violation of Due Process

Answer 42

Subject to Strict Scrutiny as a Fundamental Right

Question 43

STANDING - Actions By or Against Counties must be filed in CIRCUIT COURT.

Answer 43

Although county courts have jurisiction over violations of municpal and county ordinances, an issue with the validity of the ordinance itself must be filed in the circuit where the law has impact.

Question 44

Regulations as a Taking

Regulations that decrease the value of property do not necessarily result in a taking even if they deprive the owner of the highest and best use of the property, as long as they leave an economically viable use for the property and substantially advance a legitimate governmental interest. The Courts will balance (a) the social goals to be promoted, (ii) diminution of value to the owenr, and (iii) the owners’ reasonable expectations sought to be promoted.

Answer 44

Generally a regulation will be found to be a taking only if it unjustifiably reduces the economic vlaue of the property- if it greatly reduces values, and only slightly promotes public welfare.