FL Con Law Flashcards
Article 1: Declaration of Rights > Fundamental Rights
Florida’s Constitution (“FLC”)
- State constitutions are restraints on government action.
- State will argue that it has the right to act under its Police Powers – Government has the power to provide for the general welfare, health, safety, and morals of the public. Action is taken by statute (state level), ordinance (local level), or executive order (emergencies)
The Declaration of Rights is Florida’s counterpart to The federal Bill of Rights, found in article one of the Florida constitution. Provides more protection than the rights given in the Bill of Rights in the US constitution.
- Equal Protection ^
- Religious Freedom
- Freedom of Speech, Press, and Assembly ^
- Right to Work
- Due Process ^
- Search and Seizure
- Access to Courts
- Right to Jury Trial
- Right to Privacy ^
- Access to Public Records and Meetings (Sunshine Laws)
These enumerated rights are fundamental and Cases involving these rights trigger Strict Scrutiny.
- Under the Strict Scrutiny tests, the law will be upheld only if the GOVERNMENT can show that it is NECESSARY to achieve a COMPELLING interest
Article 1: Declaration of Rights >
Equal Protection
The FLC provides equal protection of the law similar to the U.S. Constitution.
- The strict scrutiny test is applied to state action that discriminates on the basis of a suspect class (i.e., race, religion, national origin, or physical disability).
- If it does not involve a suspect class, then it must pass the rational basis test (i.e., the plaintiff must show that the Ordinance is not rationally related to a legitimate government interest).
Article 1: Declaration of Rights >
Due Process
Due Process
Like the U.S. Constitution, the FLC’s Declaration of Rights states that no person shall be deprived of life, liberty, or property without due process of law, be put in jeopardy twice for the same offense, or be compelled in any criminal matter to be a witness against himself.
- The right to due process encompasses both substantive and procedural due process.
Life and Liberty
- The right to enjoy and defend life and liberty is recognized as “fundamental” in the DOR, and violations are subject to strict scrutiny.
- Liberty impingements generally involve restraints on physical freedom, exercising fundamental rights, or freedom of choice or action.
Procedural DP
- Florida’s procedural due process guarantees every citizen the right to fair proceedings including proceedings in conformance with FL Rules of Procedure and a guarantee that judgment will be rendered only after consideration of issues presented by adverse parties. (Notice + Hearing)
Substantive DP protects fundamental rights that are implicit in the concept of ordered liberty from being affected by unwarranted Government encroachment
- Fundamental rights – F-VIP + FL DOR
Article 1: Declaration of Rights >
Search and Seizure
The Fourth Amendment to the U.S. Constitution guarantees the security of individuals from unreasonable search or seizure, without a warrant supported by probable cause. Florida is required, both by the Fourteenth Amendment and by the Florida constitution, to follow Federal constitutional standards on for search and seizure.
A search occurs when the government intrudes upon a person’s reasonable expectation of privacy
Religious Freedom
Article 1: Declaration of Rights >
Religious Freedom
The FLC prohibits the establishment or penalization of religion. To be valid under this clause, a statute must
- (1) have a secular legislative purpose,
- (2) have a primary affect that neither advances nor prohibits religion,
- (3) not foster “excessive entanglement” with religion, and
- (4) not authorize the use of public monies to directly or indirectly aid a sectarian institution.
Article 1: Declaration of Rights >
Right to Privacy
Every natural person (not corporations) have the right to be let alone and free from government intrusion into their private life.
In contrast to the US constitution, the right to privacy is expressly included in the Florida constitution and thus is considered to provide more protection than the corresponding right to privacy under the federal constitution.
- Standards of review are the same
Article 1: Declaration of Rights >
Pretrial Detention (Bail)
Every person charged with violation of a city or county ordinance or a crime is entitled to pretrial release on reasonable grounds UNLESS:
- proof of guilt is evident or presumption thereof is great.
- Person is charged with a capital offense (or one punishable by life imprisonment)
- If no release conditions can reasonably ensure defendant shows up at trial (flight risk) then the accused may be detained.
Reasonable Grounds
- There is a presumption in favor of non-monetary conditions. To determine reasonable grounds, the judge must evaluate the nature and circumstances of the crime, weight of the evidence, defendant’s ties to the community, etc.
- Excessive Bail Argument – required monetary amount contradicts the non-monetary presumption
Article 1: Declaration of Rights >
Right to Work
Cannot be denied job BASED ON MEMBERSHIP (or non-membership) in a UNION
- The right to work and to bargain collectively is it part of the Florida constitution ‘s declaration of rights and is, therefore, a fundamental right. Thus, strict scrutiny is applied to these cases
- “Florida is a right to work state, the right to work is a fundamental right which triggers strict scrutiny analysis…”
Public employees CAN’T go on strike
Article 1: Declaration of Rights >
Freedom of Speech, Press, and Assembly
Freedom of Speech – DOR provides that every individual may speak, write, or express sentiments on any subject but must be responsible for abuses
- Remedied through tort cases (e.g., defamation, libel, and slander)
- Apply federal standard generally for these tort cases in Florida
Compared to the 1st amendment, the DOR is at least as broad, or even broader, in terms of protection.
Freedom of the Press
- Freedom of the press is a personal right, not a property right.
Freedom of Assembly – Redress of Grievances
- DOR provides people the right to assemble peacefully, instruct their representatives, and petition for redress of grievances.
- Individuals may petition any branch of government.
- Not an absolute right.
Article 1: Declaration of Rights >
Right to Work
Cannot be denied job BASED ON MEMBERSHIP (or non-membership) in a UNION
- The right to work and to bargain collectively is it part of the Florida constitution ‘s declaration of rights and is, therefore, a fundamental right. Thus, strict scrutiny is applied to these cases
- “Florida is a right to work state, the right to work is a fundamental right which triggers strict scrutiny analysis…”
Public employees CAN’T go on strike
Article 1: Declaration of Rights >
Access to Public Records and Meetings
(Sunshine Laws)
Rule: Government officials cannot meet and discuss agenda items in private
- Every person has the right to inspect or copy any public record connected to
official business of any public body, officer, or employee of the state. Public body can also be a private corporation that does business with Public body. (e.g., company leases and operates a hospital that the county owns) - all meetings of public collegial bodies where action is taken or future actions of the body to be taken are discussed must be open and noticed to the public.
Gov’t Entities: Applies to legislative, executive, and judicial branches of government; counties, municipalities, and districts; and each constitutional officer, board, and commission.
Exception – Legislature may exempt records or meetings if law states with specificity the reason for the exemption and if the exemption is no broader than necessary to accomplish purpose of the law.
- e.g., meetings regarding blueprints of the capital building (security)
Constitutionality of State Action or Law >
Prohibited Laws
Prohibited Laws – Some areas of law are so important they must be uniform (general) throughout the state
Prohibited Laws: There shall be no special law or general law of local application pertaining to:
- Education
- Crime (punishment)
- Elections
- Court Rules (procedure, evidence, etc.)
- Gaming RIghts (hunting, fishing)
- Family (divorce)
- Law creating conditions precedent to bringing any civil or criminal proceeding.
- Law pertaining to the assessment or collection of taxes for state or county purposes.
A municipality may legislate certain violations (i.e., traffic offenses), but it lacks authority to impose a prison sentence unless authorized by the FLC or state statute.
Constitutionality of State Action or Law >
Vagueness & Overbreath
A law that is vague or overbroad is invalid.
- A law is vague when a person of reasonable intelligence cannot tell what is prohibited.
- A law is overbroad when it prohibits legitimate as well as illegitimate conduct.
Constitutionality of State Action or Law > Single Subject Rule
Single Subject Rule
Under the Florida Constitution (“FLC”), each law may embrace only one subject. While the rule applies solely to state statutes and not county charters, ordinances are required by statute to conform to this rule.
Constitutionality of State Action or Law >
Ex Pos Facto Laws
Ex post facto laws (i.e., retroactive laws) are prohibited by the FLC. A law only qualifies as an ex post facto law if it
- (1) makes an innocent action criminal,
- (2) makes a crime greater than it was,
- (3) inflicts a greater punishment than applied before, or
- (4) alters a legal rule of evidence.
Constitutionality of State Action or Law >
Double Jeapordy
Double Jeopardy occurs when
- (i) a person was prosecuted for the same offense in the same state,
- (ii) the same person was in jeopardy in that prosecution,
- (iii) parties in the current prosecution are identical to the original, and
- (iv) jeopardy attached.
Is the proper government branch exercising the power? > Seperation of Powers
Seperation of Powers
No person belonging to one branch may exercise any powers of the other branches unless expressly provided for in the FLC. No branch may encroach upon the powers of another or delegate its own powers to another.
- This doctrine is strictly construed by the Florida Supreme Court.
Legislative Power >
Sessions
Bill Passage
Legislative Sessions
Regular Session
- Limited to 60 days
- Can pass bills.
Special Session
- Under the Florida Constitution (“FLC”), the governor or heads of both houses may convene the legislature for a special session by proclamation.
- The proclamation must state the purpose of the session. Limits bills to be passed to the purpose stated. Members can vote to EXPAND subject by 2/3 vote of each house
- The special session may not exceed 20 consecutive days, unless extended by a three-fifths vote in each house.
- Acts/bills are properly passed by a simple majority vote in both houses.
Default Effective Date of Laws (Sometimes, the effective date won’t be on the Bill)
- 60 days after the entire session ends in which the bill was passed. Unless otherwise stated.
Executive Action After Bill Passage—Governor’s Approval (Sign) or Veto – Every bill the legislature passes must be presented to the governor for approval. If the governor signs it or fails to veto it within the prescribed time limit, the bill becomes law.
- If the legislature is in session when the bill is presented, the governor has 7 days to sign or veto it.
- If the legislature adjourns for an indefinite period or takes a recess of more than 30 days, the governor has 15 days to sign or veto the bill.
Effective Date
- Unless an effective date is included in the bill, the law will take effect on the 60th day after the session that enacted the law adjourns.
Veto override
- Each house must reenact or reinstate the bill by a 2/3 vote of the membership
Legislative Power >
TYPES OF LAWS
TYPES OF LAWS
1) General Law: Applies everywhere to everyone equally.
2) Special Law: Applies to a specific area or specific people or things Requirement to pass special law:
- 1) provide notice to affected people (via newspaper), OR
- 2) allow for referendum — Affected people vote (no notice)
3) General Law of local application: Uses classification scheme, including geographic boundaries or population numbers, so it applies only to a specific locality. (General law based on population. “any county with x amount of people”)
- no notice or referendum needed
Bonus: Prohibited Laws Some areas of law are so important they must be uniform (general) throughout the state
Prohibited Laws: There shall be no special law or general law of local application pertaining to:
- Education
- Crime (punishment)
- Elections
- Court Rules (procedure, evidence, etc.)
- Gaming RIghts (hunting, fishing)
- Family (divorce)
- Law creating conditions precedent to bringing any civil or criminal proceeding.
- Law pertaining to the assessment or collection of taxes for state or county purposes.
Legislative Power > Types of Laws >
Appropriation
Apportionment
Appropriation
- Laws making appropriations for salaries of public officers and other current expenses of the state cannot contain provisions on any other subjects.
Apportionment
Legislature
- Map of the districts for the house and senate are changed every 10 years.
- Legislature must apportion the state into no less than 30 and no more than 40 senatorial districts and no less than 80 and no more than 120 representative districts.
- If a resolution on apportionment is not reached, the governor must convene a special apportionment session, not to exceed 30 days, within 30 days, during which the legislature must adopt a joint resolution of apportionment.
Failure to Apportion
- If a special apportionment session adjourns without adopting a joint resolution of apportionment, attorney general and supreme court must make an apportionment.
Judicial Invalidation
- If supreme court determines that apportionment made by the legislature is invalid, the court must make its own apportionment within 60 days.
Executive Power
the Florida constitution provides for the existence of elected constitutional officers for both charter and non-charter counties. The election and suspension from office of these constitutional officers, including the Sheriff, is also defined by the Florida constitution; the power to suspend a constitutional county officer from office rests with the governor.
The constitution explicitly permits charter counties to transfer the duties of a constitutional county officer to another office or different structure.
While this argument will likely support the transfer of disciplinary authority over the sheriff’s department, actual authority over the Sheriff himself is not a duty of that office, but of the state level governor’s office.
Judicial Power
The Florida Supreme Court has the exclusive power to adopt all rules of practice and procedure of all Florida courts.
Medical Malpractice contingency cases
In contingency-fee cases in the medical context, the claimant must receive at least 70% of the first $250,000 and 90% of any amount in excess of $250,000, excluding reasonable costs.
LOCAL GOVERNMENT, ELECTIONS AND PUBLIC OFFICIALS >
- Power of Counties and Municipalities to Pass Laws
- Public Officials
- Voting and Elections
Power of Counties and Municipalities to Pass Laws
Chartered Counties – can pass any laws as long as they are not inconsistent with Florida general laws or special laws passed by referendum.
- Can be adopted, amended, or repealed ONLY upon vote of the electors of the county in a special election called for that purpose.
Non-Chartered Counties – cannot pass laws except what Florida statutes authorize it to pass.
- Only have the powers allocated to them by general or special law
- Limited power to create ordinances—may enact an ordinance consistently with general law, but only if it does not conflict with another general or special law or another municipal ordinance
Mnicipalities – May be established or abolished and their charters amended pursuant to either a general or special law
- Powers
- Governmental, corporate, and proprietary powers to conduct municipal government, perform functions, and provide services.
- May exercise any power for municipal purposes except when the law prevents it
- Cannot exercise power in a way that conflicts with state law or the constitution
Public Officials
Civil Service System
- Creation of civil-service systems and boards mandated by the FLC.
- Most state employees are subject to the system.
- Boards are authorized to prescribe qualifications, methods of selection, and tenure of
employees.
Terms of Office
- Generally, term cannot exceed 4 years.
- Exception: judges and the executive branch department heads, who may serve at the governor’s discretion.
Voting and Elections
Regulation of elections
- All elections must be by direct and secret vote.
- General elections are determined by a plurality of votes cast.
Electors
- Must be 18
- Must be a permanent resident of the state
Disqualification
- In Florida, no person convicted of a felony is qualified to vote or hold office until restoration of civil rights.
- Restoration of right to vote (felony conviction) – For persons with felony convictions other than murder or a felony sexual offense, the right to vote is automatically restored upon completion of all terms of their sentences, including parole and probation.
