FL Con Law Flashcards
1
Q
If the legislature abolishes a cause of action a reasonable alternative must be provided UNLESS
A
(1) the legislature can demonstrate a compelling public necesity for abolition of the right AND
(2) no alternative method of meeting such a public necessity exists
2
Q
Impairment of obligation of contract
A
Both FL and Feds prohibit state laws retroactivel yimpairing obligtion of contracts
3
Q
Test for impairment of obligation of contract
A
If a law substantially impairs rights under an existing contract, it will be valid only if:
(1) it serves an important and legitimate public interest and
(2) it is reasonably and narrowly tailored to meet that interest
4
Q
Procedural requirements are often deemed by courts to…
A
apply retroactively
5
Q
Right to jury trial
A
There is a constitutional right in Florida to jury trial in all proceedings where the right existed for that action at the time of the first constitution in 1845.
6
Q
Separation of powers
A
One branch of government can’t exercise any powers pertaining to another branch
7
Q
The Florida supreme court has exclusive jurisdiction to…
A
Promulgate rules of practice and procedure in all courts and to supervise the administration of al lcourts.
8
Q
Access to courts
A
Courts shall be open to every person for redress of any injury and justice shall be administered without sale, denial, or delay
9
Q
General Law
A
applies uniformly statewide to all people or circumstances
10
Q
Special laws
A
relate to specific persons or things or specific part of the state
11
Q
What additional requirements are there for special laws?
A
(1) must be given prior public notice in newspaper of general circulation in affected areas OR
(2) be approved by referendum in affected area
12
Q
Which subjects require uniformity of the laws? (VIDEOTAPE JLC)
A
Venue (change of)
Incorporation
Divorce
Elections
Occupations (regulation of)
Taxation
Adoption
Punishment for crimes
Evidence (rules of)
Juries
Lien creation
Conditions to bring civil/criminal suit
13
Q
General Law of Local Application
A
uses a classification scheme (based upon e.g. population) to restrict its application to particular localities. It does not require notice or referendum.
14
Q
What must a general law of local application have?
A
Some nexus between the classification scheme and the purpose of the act. The subject matter must be reasonably related to the classification.
15
Q
Who qualifies as an elector
A
18 years of age, permanent resident of FL, registered as elector
if adjudicated mentally incompetent, not qualified until disability removed
if convicted of felony not qualified to vote until served all terms of sentence
16
Q
How to determine whether government action is forbidden establishment of religion
A
upheld only if
(1) primarily secular purpose
(2) primary effect neither advances nor inhibits religion
(3) law doesn’t produce excessive entanglement
17
Q
Time, place, manner restrictions
A
generally allowed if not content based
18
Q
Content based restrictions
A
govt must show they are narrowly tailored to serve a compelling vot interest
19
Q
Commercial speech
A
intermediate scrutiny - substantial relationship to important government interest
20
Q
Obsecenity
A
pruient and offensive under local community standards and
lacking any serious artistic, literary value (under national standards)
21
Q
Freedom of assembly
A
People retain the right to assemble peaceably and petition for redress of grievances
22
Q
Right to work
A
No person may be denied a job because of membership or non membership in a union.
23
Q
Right to strike
A
Both public and private employees have the right to collective bargaining but public employees do not have the right to strike.
24
Q
Right to bear arms
A
People have the right to bear arms ot protect themselves and the state but manner may be regulated. 3 day waiting period between retail purchase and delivery. COunties may impose add’l waiting period of 3-5 days and background check.
25
Due process rule statement
No person may be deprived of life, liberty, or property without due process of law
26
3 components to procedural due process
(1) notice and hearing
(2) appeal
(3
27
Impairment of contract
Laws impairing obligation of contract are virtually prohibited. Courts will balance the degree to which a party's K rights are stuatorily impaired against the degree of evil the state is attempting to remedy through the statute.
28
3 steps to analyzing impairment of contract
(1) is there state action?
(2) is there an existing contract
(3) does regulation substantially impair the contract?
if all 3 apply, state may only pass law if it serves important and legitimate govt interest and is narrowly tailored to further that interest
29
Access to courts
In FL, the courts are open to everyone to redress any injury and justice shall be administered without sale, denial, or delay.
30
Kluger doctrine
If legislature abolishes a cause of action, a reasonable alternative must be provided unless the legislature can demonstrate
(1) overpowering public necessity for abolishing the right and
(2) no altenrative method available to meet that necessity
31
Does a law providing for voluntary mediation violate kluger doctrine?
No- it doesn't deny the right of access to courts, simply provides another alternative
32
Does mandatory mediation violate kluger doctrine?
Yes
33
Unconstutional stuff under kluger
(1) severe caps on atty's fees can violate right of access if caps mean atty's won't take cases
(2) caps on damages may violate right of access to courts if limits dney ppl justice and ability to get damages for injuries
(3) mandatory mediation
(4) very high filing fees
34
FL privacy rights include
(1) right to terminate pregnancy
(2) right to reufse medicla treatment
(3) right of parents to direct upbringing of children
35
Sunshine law
Public records and meetings must be open to the public and duly noticed
36
Exemption to sunshine law
(1) law states a necessity justifying exemptio nand
(2) law is no broader than necessary to accomplish the goal
37
Limitation on lawyer contingency fees in med mal
30% of first 250k and 10% of damages above 250k
38
Separation of powers rule statement
The powers of state govt are divided into the legislative, executive, and judicial branch. No one belonging to one branch can exercise any power assigned to either of the others unless expressly provided for in the FL constitution.
39
Encroachment and delegation
Encroachment is when one branch of government usurps the
function of another. When one branch of government assigns its
responsibilities to another branch of government, it violates the
non-delegation doctrine.
40
Legislative encroachment rule statement
The legislature has the power to make substantive procedural rules
that prescribe duties and rights under the government. However, the
Florida Supreme Court has the power to adopt rules for the practice
and procedure in all courts.
41
Examples of substantive rules
minimum sentencing guidelines
3 strikes rule
42
examples of procedural rules
-civ & crim pro
-filing deadlines
-svc of proces rules
43
Legislative delegation
The legislature cannot delegate the power to make law or fundamental
policy decisions. The executive agencies may make rules, but
the statute must provide sufficient guidelines and standards so that
the agencies are merely implementing policy set by the legislature.
44
What can the legislature never delegate?
The legislature may not delegate to any agency the right to
define the elements of a crime, to create criminal penalties, or to
fashion equitable remedies.
45
Regular sessions
called annually and last for 60 days. Laws on any subject may be enacted by majority vote. May extend regular session or convene extra sessions by 3/5 vote
46
Special session
The governor may call special sessions by proclamation. Special
sessions are limited to 20 days. The proclamation must state the
purpose of the special session, and no other business may be acted
upon without a two-thirds vote. There is no limit to the number of
special sessions the governor can declare.
47
Test for whether law is vague
whether an average person will understand what is permitted and what is prohbited
48
test for overbroad
a law cannot prohibit constitutionally protected activities along with unprotected activities
49
Laws related to public weflare
The state has the power to regulate for the general welfare, health,
safety, and morals under the police powers. However, a law must be
related to those areas that the state is authorized to protect.
50
4 requirements for law to be valid
* Single subject (that is, a law may cover only one subject and matters
properly connected to that subject)
* Have an adequate title
* Text must be set out in the law
* Have an enacting clause
Note: a law may not be amended by reference to its title alone - original text must be set out in amending act
51
Governor veto power
The governor can veto a bill within 7 days after presentation. If the
legislature adjourns, the governor has 15 days to veto the bill. There’s
no pocket veto–if the governor doesn’t veto the law, then it automatically
becomes law.
52
Homestead rule statement
Florida law protects people from being forced to sell their primary
residence to satisfy most creditors. homestead property consists of contiguous
residential property owned by a natural person (up to one-half
acre within a municipality or 160 acres outside a municipality). The
homestead rules also cover up to $1,000 of personal property. In
probate, there is a $20,000 furnishings exemption.
53
homestead - natural person and heirs
Only a natural person can have a homestead exemption. The
homestead exemption shall pass to the surviving spouse or the heirs
of the owner.
54
homestead - timing
For homestead protection to apply against a particular creditor,
the homestead must be established before the creditor obtains a
judgment against the owner of the homestead and levies on the
property.
55
Exceptions to homestead protection
(1) taxes and assessments against prop
An owner can be forced to sell property to satisfy unpaid taxes and
assessments.
(2) mortgages on prop
(3) construction or mechanics lien
If an owner hires someone to work on homestead property in a way
that improves the value of the property or improves the property
generally, then the service provider can put a lien on the property
and force a sale of the property if they aren’t paid.
56
abandonment of homestead
Homestead protection may be forfeited if the homestead is
abandoned. Whether the owner has abandoned is a question of fact,
and the creditor bears the burden of showing that the property has
been abandoned.
Abandonment probably occurs if the owner leases the home out to
another for more than a year. That’s likely to be construed to show
intent to abandon the homestead.
Exception for military - may lease out prop while gone and retain homestead status if intend to return to home as primary residence once no longer deployed
57
Homestead proceeds
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. Only the amount of proceeds reinvested are
protected; a surplus will be considered as general assets of the debtor.
58
Restraints on homestead conveyance or devise
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 an antenuptial agreement (also knowns a prenuptial agreement).
Note: Restraints on homestead property apply only to solely owned
property. Real property owned by the decedent and surviving
spouse as tenants by the entirety is not subject to restraints—by right
of survivorship, a fee simple passes to the surviving spouse.
59
Rules on devise of homestead property
if the deceased was married but the sole owner of the homestead
(that is, a spouse lived with the deceased but did not own the
property) and dies with no will, the homestead passes intestate. The
surviving spouse gets a life estate with a vested remainder to the
lineal descendants (that is, they get the property after the surviving
spouse dies).
Some rules on devising or conveying a homestead:
* Spouse or Minor Children Survive: The homestead may not be
devised if the owner is survived by a spouse or minor child.
* No Minor Children Survive: If the owner is not survived by minor
children, the homestead may be devised to the spouse.
* No Spouse or Minor Children Survive: If no spouse or minor
children survive, the homestead may be devised to whomever the
owner chooses.
60
improper devise of homestead property - forced share
If the homestead is improperly devised and the decedent is survived
by a spouse and one or more descendants, the surviving spouse
takes a life estate in the property, and the descendants take a vested
remainder. In other cases, if the homestead is improperly devised, it
descends in the same manner as other intestate property.
61
Homestead - spousal election
A surviving spouse may choose to take a one-half interest in homestead property instead of a life estate. It will be held in tenancy in common with the lineal descendants surviving at the time of the decedent’s death (they get the other half). Both the spouse and lineal descendants get an immediate interest, which enables them to sell the property and divide the proceeds.
62
Chartered county
chartered county has all powers that aren’t inconsistent with
general and special laws or the Florida and U.S. Constitutions.
63
Nonchartered county
A noncharter county isn’t very powerful, although it may enact
ordinances as provided by general or special law. In other words,
it has only enumerated powers.
64
Municipality
Municipalities are established by legislative acts. They have home
rule powers, meaning that they can govern themselves by their own
ordinances. Municipalities perform traditional functions to protect the
health, welfare, safety, and morals of their citizens. Annexation and
merger procedures are provided by general or special law.
65
Municipality vs county
Municipality is creature of the state
County is political subdivision of the state
66
limits on municipal power - 5 areas where municipalities w/ municipal home rule cannot act
* State Preemption
* County Preemption (in some cases, see infra)
* Forbidden by County Charter
* Forbidden by City Charter
* Constitutional Limits
67
Hierarchy of govt
* Charter County beats City (that is, if it’s a regulatory law, see
supra)
* State beats County
* Florida Constitution beats State Statute
* Federal beats State
68
Eminent domain rule statement
Eminent domain is the sovereign power of the state to take private property to use for
public purpose as long as it provides full compensation.
69
taking vs regulation
A taking occurs when the government either takes title to private
property or substantially ousts the owner from the property. 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.
70
inverse conemnation
Even if there has been no formal exercise of eminent domain, a
property owner may have a cause of action for inverse condemnation
if the state has effectively deprived the owner of the use of the
property.
71
state liability for planning vs operational decisions
Traditionally, the state may be liable for negligence in its operational
decisions but not planning decisions.
An operational function is basically when the government is doing
something that private entities often do. If a private entity did it
and was negligent, it could be sued, so the state can be sued as well. But if the state is engaging in a planning function—that is, a
policy-making function—then it cannot be sued because it has not
consented to that type of suit.
72
ad valorem taxes
only local governments (that is, counties and municipalities) may levy
ad valorem taxes on real estate or tangible personal property other
than vehicles, boats, airplanes, and motor homes; the state cannot. counties, municipalisties, school districts and special districts have exclusive constitutional authority to tax the value of real and personal property. Each can impose ad valorem property taxes, so there can be multiple taxes on same property
73
revenue cap
The state can raise only a certain amount of revenue in any given
year. Specifically, 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—the same vote
required for a constitutional amendment—is required in both houses
of the legislature to raise or impose a new state tax or fee.
74
Tax rates
The constitution places a 10 mill cap on a school, county, and city
taxes on real estate or tangible personal property. Since each mill is
$1 per $1,000 of property value, the combined cap is $30 per $1,000
of property (or $3,000 on $100,000 of property). However, the 10
mill cap may be exceeded for the payment. Must be done uniformly
75
homestead property taxes
assessment of homestead prop can increase only up to 3 percent. The homestead tax exemption decreases the property value by
$50,000. Counties or municipalities may grant an additional $50,000
exemption to persons age 65 or older with incomes of $20,000 or
less.
76
exemptions from ad valorem taxes
Generally, property owned by federal, state, or county government
is immune from taxation. Property leased by the government for
government purposes is also immune.
Likewise, property owned by a municipality and used exclusively for
municipal or public purposes is exempt from taxation.
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.
77
Fees
Fees may be assessed on users of government facilities. Local governments
often use fees to supplement their revenues. Examples of fees
include the fee for parking in a government owned lot, the cost of the
meter for street parking, the payment to enter a park, and the tolls on a
toll road.
78
Fee restrictions
* The amount of the fee must be determined using a formula based
on the per capita cost of using the facility; the fee is based on the
cost of running the facility and the number of people who use the
facility. Users all pay the same fee or there’s another relationship between the per capita use and the fee.
* There should be no surplus. The fee should cover the cost of
running the facility; it shouldn’t generate a profit.
* The fee must be applied toward the facility.
79
unfunded mandates
An unfunded mandate is when the state government tells a local
government (such as a county or municipality) that they have to
do something, but the state doesn’t provide any money to fund it.
Counties and municipalities cannot be bound by laws requiring them to
spend funds unless the legislature has determined that the law fulfills
an important state interest and at least one of the following applies:
Funds have been appropriated and are probably sufficient to
fund the expenditure
* 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
* The law requiring the expenditure has been approved by at least
two-thirds of each house
* The expenditure is required to comply with a law that applies to
all persons similarly situated, including the local government or
* The law is required either to comply with a federal requirement
or to be eligible for a federal entitlement that contemplated actions
by counties or municipalities
80
finance bonds
The state must balance its budget and raise revenue to pay general
operating expenses. The state can borrow by issuing bonds, which
act as IOUs, but only for certain purposes.
81
Public purpose and capital improvements
To be valid, a bond must have a public purpose, but that phrase is
broadly defined. For example, anything that promotes tourism has
been considered to be a public purpose.
Also, the bond must pay for a capital project, such as roads, airports,
or buildings. The state cannot borrow to pay ordinary operating
expenses.
82
revenue bond
A revenue bond is paid off using revenue from the underlying
project. For example, the government issues a bond to build a
toll road and uses the money from the tolls to pay off the bond.
Bondholders may not look to funds raised from general taxation or
other nondesignated sources for repayment.
Both state and local governments can issue revenue bonds. In either
case, no referendum is required because revenue bonds are paid
back from sources besides taxes (that is, taxpayers won’t be required
to pay for them).
83
general obligation bond
General obligation bonds pledge the full faith and credit of the
government, and they are paid off through taxes (that is, the general
taxing power is used to repay the loan).
The state government may issue these bonds, but most general
obligation bonds must be approved by the electors. This is because
the taxpayers will be paying for them.
84
local govts and general obligation bonds
Local governments can issue general obligation bonds too. A referendum
is required if the bonds mature more than 12 months after
issuance. If the bonds will be paid off within 12 months, then the
government is probably paying off the bonds using current revenues
(that is, money it already has). If repayment takes longer, it will probably
be paid off using future taxes so there must be a referendum before
the bonds are issued.
85
Miranda rule statement
A statement made in response to custodial police interrogation is not admissible into evidence unless the police first administered Miranda warnings advising the person of their rights. Whether a person is in custody is determined by whether a reasonable person would feel free to leave. Whether there is an interrogation is determined by whether the police did or said anything designed to elicit an incriminating response.
