FL CON LAW Flashcards
FL CON LAW
Declaration of Rights (DOR)
DOR -> Art. 1 -> FL Constitution -> Protects -> The Exercise of Individual Rights.
The DOR gives MORE Protection of Indiv. Rts. the Bill of Rights/U.S. Constitution.
Equal Protection of the Law
DOR ensures Equal Protection just like the EPC14th/DPC5th
-Legal Analysis is Identical
When a Statute/Ordinance operates to the disadvantage of a suspect class or impairs the exercise of a fundamental right, what level of scrutiny is used in FL?
Strict Scrutiny -> To be upheld the law must have a:
- compelling gov’t interest
- means must be necessary
- narrowly tailored
When does the Equal Protection Provision of the DOR apply?
EP Provision of the DOR applies when there is STATE ACTION (gov’t action)
Does Private Discrimination in FL trigger the EP Provision of the DOR?
NO.
- EP provisions of the DOR, are not triggered/implicated when the discrimination is the result of private action.
What does the FL DOR classify as a Suspect class?
RACE
ETHNICITY (NATIONAL ORIGIN)
RELIGION
PHYSICAL DISABILITY
What level of scrutiny is used for AGE?
In FL just as in Federal Law AGE is NOT a suspect class thus, Rational Review applies
What are the enumerated Fundamental Rights in the DOR
The rights to: (i) enjoy and defend life and liberty, (ii) pursue happiness, (iii) be rewarded for industry, and (iv) acquire, possess, and protect property - Religious Freedom - Freedom of Speech and the Press - Right to Assemble Right to Work Right to Bear Arms Due Process Search and Seizure Habeas Corpus Pretrial Detention Prosecution for Crime Rights of the Accused and Victims of Crime Excessive Punishments Access to the Courts/Trial by Jury Right to Privacy Access to Public Records and Meetings Taxpayer's Bill of Rights Limitation on Attorney's Feed in Medical Liability Cases Marriage
Religious Freedom right in the DOR
DOR provides that there must be no law respecting the establishment of religion or prohibiting or penalizing the free exercise thereof
- Like the 1st Amend. Establishment Clause/Free Exercise Clause
Does the DOR provide for limitation on Religious Freedom?
The DOR states that Religious Freedom shall not justify practices inconsistent with public morals, peace, safety, or convenience. If any of those are invaded then Reasonable Limitations are allowed.
The government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person is in furtherance of a compelling governmental interest (differs from Fed.)
Can FL give revenue to aid Religious Freedom?
NO, the Florida Constitution provides that:
- no revenue of the state or any political subdivision or agency thereof shall ever be taken from the public treasury directly or indirectly in aid of any church, sect, or religious denomination or in aid of any sectarian institution. Fla. Const. art. I, § 3.
How is Jurisdiction determined by the Court when there is a dispute allegedly implicating the Free Exercise Clause/Establishment Clause?
The Court must determine:
(i) whether the dispute is an ecclesiastical one about discipline, faith, or internal organization;
(ii) whether it concerns an ecclesiastical rule (of or relating a church), custom, or law; or
(iii) whether the case is one in which the courts should hold a religious organization liable for purely secular disputes between third parties and a particular defendant, albeit a religiously affiliated organization.
Who has standing to challenge the Establishment Clause?
FL Taxpayers
- a taxpayer has standing to challenge government spending on the grounds that it violates the Establishment Clause
Who has standing to challenge Legislation?
FL Taxpayers
- Florida courts grant taxpayers standing to challenge legislation.
Freedom of Speech and of the Press
DOR provides that every person may:
speak,
write, and
publish sentiments on all subjects
but must be responsible for the abuse of that right.
No law may be passed to restrain or abridge the liberty of speech or the press.
- The scope of the DOR protection of freedom of speech is the same as required under the 1st Amendment.
How does the Right to Freedom of Speech and of the Press in the DOR compare to the 1st Amendment?
Compared to the 1st Amendment - the DOR is AT LEAST AS BROAD, or even BROADER in terms of Protection (meaning the DOR provides possibly more protections)
What type of right is Freedom of the Press?
Freedom of the Press is a PERSONAL RIGHT (not a property right)
Imposing Prior Restraints?
Local governments may impose a prior restraint in the form of a PERMIT REQUIREMENT for those wishing to hold a march, parade, or rally.
Permissible Prior Restraints?
- Permit Requirement
- Permit Fees (NOMINAL FEE - less than $1000)
- Requiring one to obtain INSURANCE before engaging in speech
BUT Failure to provide an alternative means to the insurance requirement is unconstitutional.
Right to Assemble
The DOR provides:
- the people MUST have
1. the right to assemble PEACEABLY,
2. the right to instruct their representatives, and
3. the right to petition for redress of grievances. Fla. Const. art. I, § 5.
Right to Work
The DOR grants persons the right to work regardless of whether they are members of a labor union.
FL IS A RIGHT TO WORK STATE:
- As a right-to-work state,
Florida PROHIBITS an agreement between a labor union and an employer that requires the employer to hire only union members. Fla. Const. art. I, § 6.
Right to Bear Arms
The DOR provides that the right of the people to keep and bear arms in defense of themselves and of the lawful authority of the state must not be infringed,
- except that the manner of bearing arms may be regulated by law.
Right to Due Process
The DOR states that no person must 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 oneself.
Fla. Const. art. I, § 9. (Like the 5th Amendment)
Search and Seizure
Florida must follow the federal standards for search and seizure. Fla. Const. art. I, § 12.
Same as the 4th Amend. in the US Constitution
Is the Right to Assemble an ABSOLUTE RIGHT?
NO
- The constitutional guarantee of freedom of assembly is not absolute and is subject to reasonable police regulations in the public interest.
Does the DOR allow employees the right to collectively bargain through unions/to stroke if need be?
The DOR also recognizes the RIGHT of employees to collective bargain by and through a labor union.
- This right is FUNDAMENTAL;
- efforts to undermine that right are subject to strict scrutiny.
AND
The DOR also denies public workers the right to strike.
Does the DOR impose limitations when purchasing handguns?
The DOR REQUIRES
- a mandatory period of 3 DAYS, excluding weekends and legal holidays,
between the purchase and delivery at retail of any handgun.
Exceptions to the 3 DAY WAITING PERIOD:
- holders of a concealed weapons permit; or
- trade-in of another handgun. (Fla. Const. art. I, § 8; Fla. Stat. § 790.0655.)
How does FL define Due Process?
The term “due process” embodies a fundamental conception of fairness.
Florida courts have described it as
- a course of legal proceedings in accordance with those rules and principles established by law for the protection and enforcement of private rights.
- due process is a general principle of law that prohibits the government from obtaining criminal convictions brought by methods that offend a sense of justice.
Due process encompasses both substantive and procedural due process.
Procedural Due Process under the FL Constitution
Guarantees every citizen the right to have a course of legal procedure established in Florida’s judicial system for the protection and enforcement of private rights.
Protects and Individual’s right to FAIR PROCEEDINGS
- including:
- proceedings in conformance with FLProcedure
- and
- a guarantee that judgement will be rendered ONLY after consideration of issues resented by adverse parties
Like the Federal - PDP- Notice and Hearing
Substantive Due Process under the FL Constitution
Rights that are IMPLICIT in the concept of ORDERED LIBERTY.
- if FL passes a law that infringes on a fundamental right
- The law will only be upheld if it can pass the Strict Scrutiny Analysis
then courts will review the law under a strict scrutiny test and uphold it only when it is narrowly tailored to serve a compelling state interest.
SDP - prevents the government from engaging in conduct that shocks the conscience or interferes with fundamental rights; that is, rights that are implicit in the concept of ordered liberty.
The fundamental rights that are protected from encroachment by the government as part of the constitutional guarantee of substantive due process are those rights flowing from either the U.S. Constitution or the Florida Constitution.
Writ of Habeas Corpus
WRIT OF HABEAS CORPUS
-a right that must be freely grantable (given), without cost, or delay
and it MUST NEVER BE SUSPENDED,
unless
- suspension is essential to public safety in the case of
rebellion or invasion (rare)
Fla. Const. art. I, § 13.
Pretrial Detention
EVERY PERSON
- charged with a CRIME/VIOLATION/ORDINANCE
MUST be entitled to PRETRIAL RELEASE on reasonable conditions,
unless
(i) charged with a capital offense or an offense punishable by life imprisonment,
and
(ii) the proof of guilt is evident or the presumption is great.
Nevertheless, the accused may be DETAINED if conditions of the release cannot
- reasonably protect the community from further injury,
- assure the presence of the accused at trial, or
- assure the integrity of the judicial process.
(i.e. - witness tampering or fleeing)
Fla. Const. art. I, §14.
Prosecution for Crime
The DOR grants some protection for persons being prosecuted for a crime:
i) No person must be tried for a CAPITAL CRIME
WITHOUT
PRESENTMENT or INDICTMENT by a GRAND JURY,
or
for ANOTHER FELONY without such presentment or indictment or an information under oath filed by the prosecuting officer of the court,
except persons on active duty in the militia when tried by court martial
Fla. Const. art. I, § 15.
Rights of the Accused and Victims of Crime - Rights of Defendants
Rights of the Accused
Rights of Defendants
Upon demand, the defendant must be informed of
- the nature and cause of the accusation;
- be furnished a copy of the charges; and
- have the rights to have compulsory process for witnesses,
- to confront adverse witnesses at trial,
- to be heard in person, by counsel or both,
- and to have a speedy and public trial by impartial jury in the county where the crime was committed.
Fla. Const. art. I, § 16.
Excessive Punishments
The DOR PROHIBITS:
- excessive fines,
- cruel and unusual punishment,
- bills of attainder,
- forfeiture of estate,
- indefinite imprisonment, and
- unreasonable detention of witnesses.
No administrative agency, except the Department of Military Affairs in an appropriately convened court martial, may impose a sentence of imprisonment.
The prohibition against cruel and unusual punishment is to be construed in conformity with decisions of the United States Supreme Court that interpret the prohibition against cruel and unusual punishment provided in the Eighth Amendment to the U.S. Constitution.
Access to the Courts
The courts are OPEN to EVERY PERSON for
- redress of any injury, and
justice must be administered without
- sale, denial, or delay.
Fla. Const. art. I, § 21.
Right to Privacy
Florida’s right to privacy is BROADER IN SCOPE than the right of privacy implied under the federal constitution. (FL protects more then the Fed. in the right to Privacy)
The DOR specifically provides a right to privacy; that is, the right to be left alone and free from governmental intrusion into a person’s private life.
Fla. Const. art. I, § 23.
Specific rights classified under the fundamental right of privacy in Florida include:
- ABORTION
- LIBERTY INTEREST IN PARENTING (i.e. a parents right to implement a curfew for their child - not the city)
The Florida Supreme Court has specifically held that the fundamental right of privacy guaranteed by the Florida Constitution extends to minors.
The Florida Constitution grants the right to privacy, and all challenges are subject to strict scrutiny
Access to Public Records and Meetings
Pursuant to the Florida Constitution,
every person has the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state.
This includes the legislative, executive, and judicial branches of government; counties, municipalities, and districts; and each constitutional officer, board, and commission.
Fla. Const. art. I, § 24(a). This right is also codified by the Florida Public Records Law. See Fla. Stat. § 119.07.
The meetings of any public decision-making body (e.g., collegial public body of any branch of state government) at which official acts are to be taken or at which public business is discussed, as well as any meetings of the legislature, shall be open and noticed to the public. Fla. Const. art. I, § 24(b). This right is also codified by the Florida Sunshine Law. See Fla. Stat. § 286.011.
The Florida Sunshine Law provides that no resolution, rule, or other formal action taken at a meeting that is not open and properly noticed to the public will be considered binding. Fla. Stat. § 286.011(1).
Case law interpreting the Sunshine Law interprets “meeting” broadly and extends to cover any informal discussions or meetings with members of the decision-making body unless it can be clearly demonstrated that the meeting is purely social in nature. See, e.g., Miami Beach v. Berns, 245 So. 2d 38 (Fla. 1971).
Taxpayer’s Bill of Rights
The DOR requires the Florida legislature to prescribe a Taxpayer’s Bill of Rights, which the legislature has done.
Fla. Const. art. I, § 25.
Limitation on Attorney’s Fees in Medical Liability Cases
In any medical liability claim involving a CONTINGENCY FEE,
- the claimant MUST RECEIVE
- NO LESS THAN
70% of the first $250,000 in all damages received by the claimant,
exclusive of reasonable and customary costs.
The claimant is entitled to 90% of all damages in excess of $250,000
exclusive of reasonable and customary costs.
Fla. Const. art. I, § 26.
Marriage
Florida define’s marriage as the legal union of only one man and one woman as husband and wife, but same-sex couples may now marry in all states.
In addition, all states and the federal government must recognize a same-sex marriage legally entered into in another state.
Marriage is a “fundamental right.” Consequently, any state regulation must withstand strict scrutiny by showing the law must be
necessary to promote a
compelling governmental interest and
must be narrowly tailored to advance that interest
Right to Petition Government
The right to petition has been extended to ALL DEPARTMENTS OF THE GOVERNMENT.
- The presentation of a complaint to the government concerning its conduct is central to the right to petition that government for the redress of grievances against it.
Pretrial Release
EVERY PERSON
- charged with a CRIME/VIOLATION/ORDINANCE
MUST be entitled to PRETRIAL RELEASE on reasonable conditions
unless
(i) charged with a capital offense or an offense punishable by life imprisonment,
and
(ii) the proof of guilt is evident or the presumption is great.
Nevertheless, the accused may be DETAINED if conditions of the release cannot
- reasonably protect the community from further injury,
- assure the presence of the accused at trial, or
- assure the integrity of the judicial process.
(i. e. - witness tampering or fleeing)
Rights of the Accused and Victims of Crime - Victims’ Rights
Victims’ Rights
Victims of crime or their lawful representatives, including the next of kin of homicide victims,
are entitled to the right to be:
- informed,
- to be present, and
- to be heard when relevant,
at all crucial stages of criminal proceedings,
to the extent that these rights do not interfere with the constitutional rights of the accused.
(i.e. when it might prejudice a jury)
Fla. Const. art. I, § 16.
What power does the Federal Government give to the States?
Any powers not specifically granted to the federal branches of government are left to the several states.
Among the authority vested in state governments is the “POLICE POWER”(10th Amendment)
—the ability of the states to regulate for the benefit of their citizens.
Florida’s state constitution is intended as a guide for the state’s exercise of its police power to, according to its preamble, “insure domestic tranquility, maintain public order, and guarantee equal civil and political rights to all.”
The Florida Constitution guarantees the separation and equality of the three branches of government.
Offenses Committed by Children
The DOR grants some protection for offenses committed by children:
When authorized by law,
- a child (under the age of 18) may be charged with a violation of law as an act of delinquency instead of crime
and tried without a jury or other requirements applicable to criminal cases.
A child MUST be tried as an adult upon request of the CHILD or the STATE.
Fla. Const. art. I, § 15.
What is a Bill of Attainder?
A bill of attainder is
- a legislative act referring to persons by name or clear inference in such a way as to
inflict punishment on them without judicial trial.
This would subject an individual to punishment without the opportunity to have a trial and is considered an excessive punishment and prohibited by the DOR.
Is the Death Penalty an excessive punishment in FL?
YES to some and NO to some
DP not allowed for:
- a defendant under the age of 17 or
- a defendant who is mentally challenged.
The death penalty is authorized in Florida and not excessive for those over 17 and not mentally challenged.
In any case in which an execution method is declared invalid, the death sentence remains in force until the sentence can be lawfully executed by a valid method.
Fla. Const. art. I, § 17.
Trial by Jury
ALL CITIZENS have an ABSOLUTE RIGHT to a jury trial consisting of:
- at least six jurors, or
- 12 jurors in capital cases.
The exceptions to this right are actions in equity, civil commitment, or eminent domain.
** Challenges to this right are subject to strict scrutiny**
Can Access to the Courts be limited by the Legislature?
The right to access MAY be limited if the legislature provides (only 2 Permissible ways)
1. A REASONABLE ALTERNATIVE to protect the rights of the people of the State to redress for injuries
or
2. if the legislature can show that there is an “OVERPOWERING PUBLIC NECESSITY” for the abolishment of the cause of action
and
no alternative method of meeting the public necessity is available.
Can FL limit the right to an Abortion?
The right to an abortion may be limited only if the regulation passes the STRICT SCRUTINY ANALYSIS
- (For Fed. Abortion Analysis the Undue Burden Test is used under the DPC of the 5th)
Even if the regulation is held invalid
- by failing Strict Scrutiny
the state is not required to pay for abortions.
FL MAY regulate a woman’s right to an abortion
- when the fetus is viable.
In other words, the state has a compelling interest in protecting the life of a viable fetus that, by definition, can live outside the womb - thus passing the Strict Scrutiny Analysis
Notwithstanding a minor’s right of privacy,
the legislature is authorized to require
that parents or guardians of minor children be
- notified before the minor terminates the pregnancy,
as long as a process exists for the minor to obtain judicial waiver of the notification.
Fla. Const. art. X, § 22.
The Florida Constitution grants the right to privacy, and all challenges are subject to strict scrutiny
Are juvenile curfews a violation of the parent’s Right to Privacy in FL?
Florida case law has repeatedly held that
juvenile curfews implicate fundamental parenting rights as well as the fundamental privacy and movement rights of minors,
and are therefore subject to strict scrutiny.
(holding that “strict scrutiny applies to juvenile curfew ordinances”).
The Florida Constitution grants the right to privacy, and all challenges are subject to strict scrutiny
When may the Legislature exempt records or meetings?
Legislature MAY exempt records or meetings if law states WITH SPECIFICITY:
(i) REASON FOR THE EXEMPTION - specifically state the public necessity justifying the exemption,
and
(ii) IF THE EXEMPTION IS NO BROADER THAN NECESSARY to accomplish the stated purpose of the law.
Fla. Const. art. I, § 24(c).
Composition and Members of the Legislature of FL
The legislature of the State of Florida consists of
- A SENATE - composed of 1 SENATOR ELECTED from each senatorial district
and - A HOUSE OF REPRESENTATIVES - composed of 1 MEMBER ELECTED from each representative district.
Fla. Const. art. III, § 1.
Terms and Qualifications for Senators
Senator Terms
—Elected for 4 YEAR TERMS
—those from ODD DISTRICTS
in the years the numbers of which are multiples of 4
—and those from EVEN DISTRICTS
in even-numbered years the numbers of which are NOT multiples of 4.
At the election following a reapportionment, some senators are elected for terms of two years when necessary to maintain staggered terms.
Fla. Const. art. III, § 15(a).
Senator Qualifications
—At least 21 YEARS OLD
—US Citizen
—Legal, permanent resident of Florida,
—A registered voter of the district from which elected.
Fla. Const. art. III, § 15(b), art. VI., § 2; Fla. Stat. § 97.041.
SENATORS ARE LIMITED TO 8 CONSECUTIVE YEARS
—but there is no limit on the maximum number of years that a person may serve during that person’s lifetime. Vacancies in legislative office must be filled only by election, not by appointment
Regular Sessions
On the 14th DAY
— following each general election,
the legislature convenes for the
EXCLUSIVE PURPOSE of organization and selection of officers.
REGULAR SESSION - MARCH - 1ST TUESDAY - AFTER 1ST MONDAY - On Both ODD/EVEN # YEARS
REGULAR SESSION CANNOT EXCEED 60 CONSECUTIVE DAYS
Fla. Const. art. III, § 3(b), (d).
Special Sessions
- The GOVERNOR
— by proclamation stating the purpose,
may convene the legislature in special session during which
only such legislative business may be transacted as is within the purview of the proclamation,
or of a communication from the governor, or
is introduced by consent of 2/3 of the membership of each house. - The President of the Senate and the Speaker of the House of Representatives,
by joint proclamation duly filed with the Department of State,
may convene the legislature in special session - When 20% of the members of the legislature file with the Department of State their certificates that conditions warrant the convening of a special session. The Department of State must then poll the members of the legislature and fix the day of such special session, upon the affirmative vote of 3/5 of the members of both houses.
SPECIAL SESSION SHALL NOT EXCEED 20 CONSECUTIVE DAYS
UNLESS
extended beyond such limit by a 3/5 vote of EACH HOUSE.
Quorum and Procedure of the Legislature
A MAJORITY of the membership of each house constitutes a quorum.
Sessions of each house must be public,
- and each house must keep and publish a journal of its proceedings.
All prearranged gatherings between more than two members of the legislature, or between the governor, the president of the senate, or the speaker of the house of representatives, to agree on the current or subsequent taking of formal legislative action regarding pending legislation or amendments MUST BE reasonably open to the public.
Each house may punish a member for contempt or disorderly conduct and may, by a two?thirds vote of its membership, expel a member. Fla. Const. art. III, § 4.
Investigations
EACH HOUSE - when in Session,
- may compel the attendance of witnesses and production of documents and other evidence related to any matter under investigation before it or any of its committees.
Any person who is: - NOT a legislative member and - has been guilty of disorderly or contemptuous conduct, has refused to obey a lawful summons, or has refused to answer lawful questions - may be punished by 1. a fine not exceeding $1,000, 2. 90 DAY imprisonment, or both.
When the legislature is not in session, committees may be delegated by law the above powers
EXCEPT FOR THE POWER TO PUNISH
Fla. Const. art. III, § 5.
Legislative Bills
ANY BILL MAY ORIGINATE IN EITHER HOUSE
- and after passage in one
- it may be amended in the other.
It must be read in EACH HOUSE on 3 SEPARATE DAYS,
unless this rule is waived by 2/3 vote.
PASSAGE OF A BILL requires a MAJORITY VOTE in EACH HOUSE.
Each bill and joint resolution passed in both houses MUST BE:
1. signed by the presiding officers of the respective houses and
2. signed by the secretary of the senate and
3. signed by the clerk of the house of representatives
during the session or as soon as practicable after its adjournment.
Fla. Const. art. III, § 7.
Executive Signature or Veto
Every bill passed by the legislature:
MUSTBE PRESENTED TO THE GOVERNOR FOR APPROVAL
and
will become law if the governor:
1. SIGNS IT; or
2. FAILS TO VETO IT
- within 7 consecutive days after presentation.
If during that period/on 7th day - the legislature adjourns sine die (for an indefinite period)/takes a recess of more than 30 days, The Governor has: - 15 CONSECUTIVE DAYS from the date of presentation to act on the bill.
- *In all cases except general appropriation bills, the veto extends to the entire bill**
- *May veto ANY SPECIFIC APPROPRIATION in a General Appropriation Bill**
Following veto, the Governor MUST transmit signed objections to the House where the Bill originated
- 2/3 vote in EACH HOUSE to:
REENACT
- Bill becomes law, veto notwithstanding
Each law (including those reinstated after veto) will take effect on the 60th after the session of the legislature that enacted the law adjourns, or as otherwise provided in the law.
Fla. Const. art. III, §§ 8, 9.
General Law
A “general law” applies UNIVERSALLY throughout the state.
(uniformly upon subjects as they may exist throughout the state, uniformly within permissible classifications, or relating to a state function or instrumentality)
