FL Con Law Flashcards
- Private Discrimination
In the absence of government or “state” action, the equal protection provision does not apply.
Thus, the equal protection provisions of the DOR, like those of the U.S. Constitution, are not implicated when the discrimination is the result of private action.
- Suspect Classifications
The strict scrutiny test is applied to state action that discriminates on the basis of race, religion, national origin, or physical disability.
Like federal law, Florida law does not view age as a suspect category—the rational-basis test is applied in those cases.
- Fundamental Rights
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 are recognized as “fundamental” in the DOR
Right to Work and Right to Bargain Collectively—Article 1, Section 6
- Prohibits agreements between employers and unions requiring employers to hire only UNION MEMBERS
- Employees have a right to collectively bargain through unions.
Efforts to abridge THE RIGHT TO WORK AND BARGAIN are subject to STRICT scrutiny.
• Public employees do not have the right to strike.
Freedom of the Press
Freedom of the press is a personal right, NOT a PROPERTY right.
Redress of Grievances
FL DOR provides people the right to:
1) ASSEMBLE PEACABLY,
2) instruct their representatives, and
3) petition for redress of grievances.
Individuals may petition ANY BRANCH of government.
Not an absolute right
RIGHT TO BEAR ARMS
- Subject to regulation of the manner of bearing arms
- Mandatory 3 DAY waiting period (excluding weekends and holidays) between the purchase and delivery of a retail gun.
EXCEPTION: people trading in an existing hand gun or people who have a concealed weapon permit
DUE PROCESS
DOR provides no individual shall
1) be deprived of life, liberty, or LAW without due process of law,
2) be put in jeopardy twice for the same offense, or
3) be compelled to be a witness against himself.
Procedural due process
PROCEDURAL DUE PROCESS = Protects an individual’s 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.
Substantive due process
Rights that are implicit in the concept of ordered liberty.
If the state passes a law that infringes a fundamental right…
the law will be constitutional only if it is
NARROWLY TAILORED to serve a
COMPELLING government interest.
HABEAS CORPOUS
• Must be freely given, without cost or delay
• May be suspended only when doing so would be essential to PROTECTING PUBLIC INTEREST
in the case of a rebellion or invasion
PRE TRIAL DETENTION
• Every person charged with violation of a city or county ordinance or a crime is entitled to pretrial release unless:
o Proof of guilt is EVIDENT;
o Presumption there of is great;
oPerson is charged with certain specific offenses (i.e.,a capital crimeor offense punishable by life in prison); or
No conditions of release sufficient to ensure defendant shows up at trial or that the integrity of the justice process will be preserved.
Prosecution for a Crime
- Except for persons in a militia, defendant cannot be charged with a capital crime without a PRESENTMENT or INDICTMENT by a GRAND JURY.
- Defendants may not be charged with other felonies without an indictment, presentment, or an INFORMATION filed under oath by an officer of the court.
- Any child (under age 18) may be tried for delinquency instead of a crime.
- A child must be tried as an adult upon request of the child or the state.
DOR : Rights of Defendants and Victims of a Crime
- Victims or next of kin are entitled to be present and heard, when relevant, unless presence would compromise the defendant’s constitutional rights.
- Defendant must be
- informed of the nature and cause of accusation,
- given a copy of the charges,
- given a speedy and public trial by an impartial jury in the county where the crime was committed,
- to be heard in person,
- to have counsel, and
- to have the right of cross examination of witnesses.
DOR : Excessive Punishments
- DOR prohibits excessive fines, cruel and unusual punishment, bills of attainder, forfeiture of estate, indefinite imprisonment, and unreasonable detention of witnesses.
- Essentially the same as interpretation of the Eighth Amendment to the U.S. Constitution.
- Bill of attainder is a legislative act that mentions a person by name and has the intent of punishing that person.
• Death penalty is authorized in Florida but must not apply to
defendants with mental challenges or who are under the age of 18.
DOR : Access to the Courts
o Open to every person for redress of any injury, and justice must be administered without sale, barriers, or delay.
o Right to access may be limited by legislature if there is a reasonable alternative or the legislature can show “OVERPOWERING PUBLIC NECESSITY” for abolition of the cause.
DOR: Trial by Jury
o All citizens have an absolute right to
> > trial by six jurors in most cases and
> > trial by 12 jurors in capital cases.
o EXCEPTIONS: Actions in EQUITY, civil commitment, and eminent domain
SUBJECT TO STRICT SCRUTINY
DOR - Right to Privacy
- DOR specifically protects a right to privacy.
- Covers the fundamental liberty interest that PARENTS have
- Covers the right to abortion—the courts apply STRICT scrutiny.
o If abortion regulation is invalid, state is not compelled to pay for abortions.
o The law may constitutionally require that the parents/guardians of a minor be notified before an abortion so long as the minor can obtain a judicial waiver of the notification.
DOR - Access to Public Records and Meetings
- 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.
- Applies to legislative, executive, and judicial branches of government; counties, municipalities, and districts; and each constitutional officer, board, and commission.
• Also covers meetings of any collegial public body of the executive branch of state government, collegial public body of a county, municipality, school district, or special district, at which
GOVERNMENT or public business is done
• 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.
DOR - Limitation on Attorney’s Fees in Medical Cases
In contingency-fee cases in the medical context,
the claimant must receive no less than 70% of the first $250,000
and
90% of any amount in excess of $250,000, excluding reasonable costs.
DOR - Marriage
• Florida statutes and state constitutional provisions define marriage as between one man and one woman, but same-sex couples may marry in Florida, and same-sex marriages from other states are recognized.
Composition of Legislature
• Legislature consists of a senate composed of ONE senator per senatorial district and ONE representative from each representative district.
Terms and Qualifications
1 ) Senators
2) 2. Representatives
1 ) SENATORS
o Election of senators is staggered—senators from odd-numbered districts are elected every FOUR YEARS in years that are multiples of four, and senators from even-numbered districts in even-numbered years that are not multiples of four.
o After reapportionment, senators are elected for TWO YEAR terms if necessary to maintain staggered terms.
2) REPRESENTATIVES
Representatives are elected for two-year terms onEVEN numbered years.
- Regular Sessions
o On the 14TH day following each general election, legislature convenes to organize and select officers.
o Regular session of the legislature cannot convene for longer than 60 days.
- Special Sessions
o The governor, by proclamation stating the purpose, may convene the legislature in special session.
o During a special session, legislature may only transact business related to the PROCLAMATION that the governor issued or something else if two-thirds of the legislature agrees.
o Unless extended by a three-fifths vote of each house, special session must not last longer than TWENTY (20) days.
o Special session may also be convened when the president of the senate and the speaker of the house jointly file a PROCLAMATION with the secretary of state or when twenty percent of legislators file a proclamation,
AND
THREE-FIFTHS (3/5) of each house vote to fix the day of the special session.
- Quorum
o MAJORITY of the membership of each house constitutes a quorum.
o Sessions of each house must be open to the public.
o 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, must be open to the public if those present intend to agree on current/subsequent taking of formal legislative action regarding pending legislation/amendments.
o Each house may punish a member for contempt or disorderly conduct and may expel a member by a 2/3 vote.
E. Bills and Laws
• Can originate in EITHER HOUSE
• Must be read in EACH house for THREE (3) consecutive days
»_space; UNLESS rule is waived by two-thirds 2/3 vote
• Law must only address a SINGLE SUBJECT and CANNOT be vague or overbroad.
F. Executive Signature or Veto
• Bill becomes law if the governor signs it or fails to veto it within SEVEN (7) CONSECUTIVE days after it is presented.
o Governor has 15 days to veto a bill before it becomes law when legislature recesses for more than THIRTY 30 days or for an indefinite period.
• If the governor vetoes part of a bill, the entire bill is deemed vetoed unless it is an APPROPRIATIONS BILL AND MUST DELIVER TO HOUSE IT ORIGINATED
o Governor may veto specific parts of an appropriation bill but may not veto any qualification or restriction without also vetoing the appropriation to which it relates.
• To override a veto, each house must reenact or reinstate the bill by a TWO THIRDS (2/3) vote of the membership.
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.
