FL CONSTITUTIONAL LAW Flashcards
FL Police Powers
The state can provide for the general welfare, health, safety and morals of its citizens.
Florida’s Equal Protection Clause
Same standards of review as Federal.
Strict scrutiny applies to classifications based on race, religion, national origin, or physical disability. It requires the government to prove that its act is necessary to achieve a compelling government interest and is narrowly tailored.
Intermediate scrutiny applies to gender discrimination, which requires that the law be substantially related to an important state interest.
Rational basis test applies when there is no suspect classification or fundamental right and the law will be upheld unless the government’s action is not rationally related to any legitimate government interest.
Why was a cap on medical damages in medical malpractice struck down?
On the grounds that it was a violation of equal protection because it treated plaintiff’s in medical malpractice differently than plaintiffs in other cases. The court found that the classification was arbitrary and capricious.
Fundamental Rights Examples
Marriage, travel and voting. (More under substantive due process in Federal outline)
Who does the right to vote apply to?
Only those qualified as electors. You must be older than 18, a permanent resident in Florida, and registered in a county in Florida. Those not mentall incompetent are not allowed to vote. Anyone convicted of a felony are not allowed to vote until they have completed their term, paid any fines, fees, or restitution ordered by the court.
What issue do we have when there is a fundamental right to all?
Substantive due process
What problem do we have when a fundamental right is denied to some?
Equal protection clause
Freedom of Religion
Florida’s constitution forbids regulation and establishment of religion by the government and guarantees free exercise. Religious freedom does not justify practices inconsistent with public morals, peace, or safety.
A specific provision states that no revenue of the state may ever be taken from the public treasury directly or indirectly in aid of any church, religious denomination or secretariat institute. (Likely unconstitutional under Fed law w/ respect to private schools.)
Lemon Test
The US Sup Ct recently said that Lemon should not be applied under the US Constitution. Florida has not yet ruled. You should still apply because the Lemon test doe snot provide less protection than the new test. A law will be upheld against Establishment Clause only if (i) it has a primary secular purpose (ii) its primary effect neither advances/inhibits religion, and (iii_ law does not produce excessive govt entanglement w/ religion.
Freedom of Speech and the Press (Prior restraints, time place manner restrictions, content based, commercial speech, obscenity)
Florida Constitution gurantees freedom of speech and no state law shall be passed abridging.
Strong presumption in favor of public access to court proceedings and records.
Prior restraints are subject to strict scrutiny (let the speech happen, then file suit).
Time, place, and manner restrictions are generally allowed as long as they are not content based.
Content based restrictions get strict scrutiny (must show that it is narrowly tailored to serve a compelling government interest).
Commercial speech is not as protected, it gets intermediate scrutiny (Naples doesn’t allow large McDonald’s sign, purpose of beautifying the neighborhood).
Obscenity is not protected speech (speech that is prurient and offensive under local community standards and lacking any serious literary, artistic, political or scientific value under National standards).
Freedom of Assembly
FL Constitution provides people retain the right to assemble peaceably and to petition for redress of grievances, just as US Const. Cannot give local officials too much discretion to prevent assemblies. FL also grants the people the right to instruct their representatives.
Right to Work
The Right of work may not be denied because of membership or non membership in labor unions. Both public and private sector employees have the right to bargain collectively but public employees do not have the right to strike. Laws abridging are subject to strict scrutiny. Frequent topic
Due Process
FL Constitution provides that no person may be deprived of life, liberty, or property w/o due process of law. Substantive and procedural due process are required. The constitution also protects against double jeopardy and self incrimination.
Procedural Due Process
Extends to actions by private organizations exercising quasi-public functions. You have the right to notice and a hearing before the govt takes your life, liberty or property. Sometimes there is a right to a jury trial in criminal cases and the right is preserved.
Substantive Due Process
Provides the direct protection of fundamental rights. (Property, liberty, privacy, vote, travel, and marry).
Exam Tip when you see a fundamental right issue
Think of Substantive due process — do the facts involve deprivation of fundamental right? Procedural Due process — Is the procedure used to deprive a fair one? Equal protection — is everyone being deprived or just a certain?
Prohibited Laws
Bills of Attainder, Ex Post Facto Laws, and Impairment of Ks
Bills of Attainder
A bill of attainder is a bill passed to punish someone.
Ex Post Facto laws
Retroactively makes an action criminal.
Impairment of contracts
Although laws impairing the obligation are virtually prohibited, the courts will balance the degree to which a party’s rights are statutorily impairs. Ask: (1) is there state action? (2) Is there an existing contract or simply a future contract? (3) Does the regulation substantially impair the contract? (State does something to change the intention and legal effect of the agreement)
If all three apply, the state may only pass the law if it serves an important and legitimate government interest and is narrowly tailored to further that interest.
Search and Seizure
Construed in conformity with the 4th amendment under the US Constitution.
Rights of Accused and Victims
Rights of Accused — information on charges, where did it come from, copy of the charges, compulsory attendance of witnesses, subpoena witnesses, confrontation of witness against you, right to counsel, speedy trial in the county where occurred, right to fair trial, and right to testify or refuse.
Rights of Victims — due process, reasonable protection from accused, prevent disclosur of confidential info, notice of proceedings, right to be hear, right to confer with prosecutor, right to be informed of disposition of case and release of offender, right to return of property, right to restitution, right to promptness in concluding case, and right to be informed of these rights
Excessive Punishments
Fl Constitution prohibits excessive punishment. This includes excessive fines, cruel and unusual punishments, the forfeiture of estates, indefinite imprisonment, and unreasonable detention of witnesses.
Administrative Penalties
No administrative agency shall impose imprisonment or penalties or award non-quantifiable common law damages. Can award quantifiable damages.
Access to Court
The Fl Constitution provides that the courts shall be open to every person for redress of any injury and that justice shall be administered without sale, denial or delay. (Court has also been using Equal Protection in this Analysis).
Under Kruger Doctrine, if the legislature abolishes a cause of action, a reasonable alternative must be provided unless
(i) overpowering/compelling public necessity and (ii) no alternative method to meet the necessity. Examples of Permissible (Take away actions from worker who are injured but provides workers compensation system).
Examples of Non-Permissible (severe caps on attorney’s fees, caps on damages, mandatory mediation or arbitration, very high filing fees)
Trial by Jury
There is a constitutional right to trial by jury in criminal proceedings. Compelling state interest and least intrusive means standard.
Right to Privacy
Every natural person has the right to be let alone and free from government intrusion except for (strict scrutiny) Examples - access to public records (Sunshine Laws), right to terminate pregnancies (with limitations), the right to refuse medical treatment, the right of parents to rear children.
Access to Public Records (Sunshine Law)
Public records and meeting must be open to the public and duly noticed. Exemption can be made if (i) the law states a necessity justifying the exemption and (ii) the law is no broader than necessary to accomplish the goal. Examples - employee’s personnel files and bar applications.
Separation of Powers
Protects more strongly in some ways than Fed Const. Powers of state shall be divided into the legislative, executive, and judicial, No one belong to one branch can exercise nay powers assigned to either of the other branches unless expressly provided for in the FL Constitution.
Encroachment
One branch of government usurps the function of another branch.
Legislative Encroachment
The legislature has the power to make substantive procedural rules that prescribe duties and rights under the government. However, the Fl Sup Ct has the power to adopt rules for the practice and procedure in all courts.
Substantive Procedural Rules
Rules involving substantive policies about rights. Ex) Minimum Sentencing Guidelines, Three Strikes Rule
Examples of Procedural Rules
Civil and Criminal procedure, Filing Deadlines, Service of Process Rules
Delegation
One branch giving some of its power to another branch
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.
Legislature Composition
The Florida legislature is bicameral and consists of a Senate and House of Reps. The 40 senators are elected for terms of 4 years and the 120 representatives are elected for 2 year terms. Each house determines its own rules of procedure and may punish a member for contempt or disorderly conduct by majority vote of the membership.
Regular Session
Are called annually and last for 60 days. Laws on any subject may be enacted in a regular session by a majority vote.
Legislature may extend or convene extra by 3/5 vote.
Special Session
The governor may call special session by proclamation.
Limited to 20 days.
Must state the purpose of the special session and no other business may be acted upon w/o 2/3 vote.
Requirements for Laws
A law must cannot be vague and must be clearly worded so that an average person will understand. The law cannot be over broad and prohibit constitutionally protected activities. The law must be related to public welfare. The law must meet constitutional requirements, which are (i) limited to a single subject (ii) has an adequate title (iii) the law is set out in the text and (iv) the law has an enacting clause.
Votes Required for Legislation
Either a majority vote, a 3/5 vote, or a 2/3 vote depending on the act.
majority- passage of bill in each house, joint resolutions, and reapportionment, to convict a state, county, or municipal officer.
For either a 2/3 or 3/5 (super majority) — 3/5 to extend a regular session, or to convene a special session, in each house to amend revise constitution, to add prohibit subject to special laws and laws of general application, in each house to raise tax rate on corp income, and in each house to create state trust fund.
2/3 to extend special session to new business to override gubranatorial veto, to convict state officer, to waive three readings of a bill prior to passage, for the house to impeach, to repeal the rules of practice and procedure.
Categories of Laws (gets tested)
General Laws — apply uniformly statewide to all ppl or circumstances.
Special laws — relate to or operate on specific persons or things or in a specific part of the state (ex, applies to some counties but not others) — must be given public notice or be approved by referendum in the affected areas.
General Laws of Local Application — a law that uses a classification scheme based on population or some other criteria so that its application is particular to localities. Does not require notice or referendum. Subject matter of the law must be reasonably related to the classification.
Subjects requiring uniformity throughout the state
MUST BE BY GENERAL LAW
CCREPLT PLARD
change of venue
conditions to bring civil or criminal proceeding (tested frequently)
regulation of occupations
Elections
punishments for crimes,
taxations,
petite juries,
lien creation,
adoption,
rules of evidence,
divorce
Executive branch
Governor, Lieutenant Governor, and a cabinet.
Governor
Faithfully execute the laws. Can veto a bill w/n 7 days after presentation. If legislature adjourns, has 15 days to veto the bill. NO pocket veto, will automatically becomes law.
Lieutenant Governor
Performs duties assigned by the governor, succeeds in the event of death, or impeachment.
Cabinet is composed of
ACC
Atty General,
Chief Financial Officer, and
Commissioner of agriculture
Homestead Exemption
FL law protect people from being forced to sell their primary residence to satisfy most creditors but there are some exceptions.
Only for natural person and only one homestead
Homestead property consists of contiguous residential property owned by a natural person. Up to 1/2 acre within a municipality or 160 contiguous acres outside the municipality (in rural area).
Exceptions: (i) taxes and assessments on the property, can be forced to sell to pay (ii) mortgages on the property (iii) construction/mechanics lien
Abandonment under Homestead
Homestead protection may be forfeited if homestead is abandoned.
Question of fact, creditor bears the burden.
Probably occurs if owner leases the home out to another for more than one year.
Proceeds under Homestead
Proceeds from the sale of the homestead will retain the status if the owner has a GF intent to reinvest in another homestead within reasonable time.
Restraints on Conveyance or Devise under Homestead
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.
If the deceased was married but the sole owner of the homestead and dies with no will, the homestead passes intestate — the surviving spouse gets a life estate with a vested remainder to the lineal descendants. (Can’t devise by will to someone else).
If no minor children the homestead may be devised to the spouse.
If no spouse or no minor children, the homestead may be devised to whomever they choose.
Improper Devise of Homestead Property
If the homestead is improperly devised, it will be devised under the homestead rules.
Special Election of Homestead
A surviving spouse may choose to take a one half interest in the property instead of a life estate. It will be held in tenants in common with the lineal descendants .
Local Governments - Counties (Types)
Chartered Counties — has all powers that aren’t inconsistent w/ general and special laws of the FL and US Constitution.
Non chartered Counties — isn’t very powerful, although it may enact ordinances as provided by general or special laws. Only has enumerated powers.
Municipalities
Established by legislative acts. They have home rule powers, meaning that they can govern themselves by their own ordinances. General power to protect health, safety welfare, EXCEPT (i) state preemption, county preemption (in some cases), forbidden by county charter, forbidden by city charter, constitutional limits.
City v County Conflicts
The result depends on the type of the county and the subject matter.
Charter v City (services) — dual referenda.
Non-Charter v City (services) — city wins
Charter v City (regulatory) — county wins
Non-charter v City (regulatory) — City wins
Hierarchy of Governments
Charter County beats City — State beats County — Florida Constitution beats State Statute — Federal beats State
School Districts
the Florida Constitution creates school districts and it provides that the government must provide adequate, uniform, and free schools.
School Vouchers
A school voucher is government money provided to parents to use to pay for private schools.
Eminent Domain
Is the sovereign power of the state ( and other govt entities by statute) to take private property to use for public purpose as long as it provides full compensation. Need (i) reasonable necessity (ii) public purpose and (iii) full compensation (FMV)(determined by jury) (iv) compensable rights (ppl other than landowners may be entitled to just compensation)
Inverse Condemnation
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.
Sovereign Immunity
By statute, the state has waived sovereign immunity (in some circumstances) and suits may be brought against state and local goats and their divisions. Limitations on sovereign immunity, is when the government is doing something that private entities often do. There must be an underlying duty to the individual for the state to be sued.
State Taxation
Ad Valorem Taxes — taxes are assessed based on the value of property. ONLY local governments may levy..
Revenue Cap — the state can raise only a certain amount of revenue in any given year.
Income tax — low for corporations, none for person.
Sales tax — 6%
Intangible Tax — state may level ad valorem taxes on intangible property.
Ad Valorem Tax
Counties, municipalities, school districts, and special districts, have exclusive constitutional authority to tax the value of real and tangible personal property. The constitution places a 10 mil cap on a school, county and city taxes on real estate or personal property. Each mil is $1 per $1000. The mileage must be done uniformly. Most property is assessed at just valuation (FMV). Homestead property can increase only up to 3% per year.
Exemptions from Ad Valorem
Generally, government owned property, property leased for government purposes, personal property, economic development zones, grandparent quarters, philanthropic property, homestead tax exemption, disabled veterans.
Fee Requirements
Fees may be assessed on users of government facilities. The formula for the fee must be based on the per capita use of the fee. There should be no surplus, it should cover the cost of running the facility, not a profit. The fee must be applied toward the facility.
Special Districts
Is a geographically defined unit of government that performs special functions. Established by referendum and the voters agree to tax themselves for special services.
Unfounded Mandates
State requires Local Government to do something without providing money. Not bound to follow unless legislature can show that it fulfills an important state interest.
Bond
An IOU from the state. Must have a public purpose (broadly defined) and has to cover a capital improvement (projects like airports).. Incidental private benefits are OK, balancing test. Validation is needed to issue a bond, meaning court must make sure it is properly issued.
Revenue Bond
Paid off using revenue from the underlying project. No need for referendum because revenue bonds are paid back from sources besides taxes.
General Obligation Bonds
Paid off through taxes.
State bonds pledging full faith and credit requires elector approval.
Local governments can issue if the bonds mature more than 12 months after issuance.
Operation of Judiciary
Justifies of Sup Ct and Ct of Appeals are appointed by Governor and then a retaining election.
Judicial Nominating Commission and Judicial Qualifications Commission
Nominating Commission identifies individuals for appointment to judgeships. The qualifications commission investigates and hears complaints about jducial misconduct and can recommend removal or reprimand.
Mandatory Jdx of Sup Ct
Death Penalty, bond validation, decisions by dist CT’s of appeal declaring statutes or constitutional provisions invalid
Discretionary jdx of Sup Ct
Decisions that affect officers of state, conflicting decisions btwn dist ct of appeals, dis ct of appeal on the validity of state statute or constitutional provisions, decisions that the dist ct of appeal have certified as of great public importance, bypass certification (case is bypassing lower court because it involves matter of great public importance), federal certifications (fed ct certifies question regarding meaning of FL law)
Administrative jdx of Sup Ct
Creates the rules of practice and procedure, jdx over the Fl Bar
Dis Ct of Appeals Mandatory Jdx
Mandatory jdx over final orders and judgments, final orders of state agencies and appeals of certain non final orders and Admin actions
discretionary jdx of Ct of Appeals
Final orders of circuit courts, no final orders from the circuit courts that depart from requirements of law for which no appeal is provided, and non final orders of state agencies if the review of the final order would not provide adequate remedy
Circuit Courts Jdx
Appellate jdx over final orders of local adm agencies, trial jdx when they have original jdx, when the amount is > $50k, or when there is an equitable remedy sought
County Courts jdx
TOM 5
Exclusive trial jdx over cases involving
Traffic infractions
Ordinance violations
Misdemeanors
50k or less
Public Officials
You cannot hold two positions at the same time. All meetings must be open and noticed to the public. There is a right of access to public records of any public entities (some exceptions). Serve terms of 4 years or less.
Amending the Constitution
Proposal by legislature, proposal by revision commission, proposal by constitutional convention, proposal by initiative, proposal by taxation and budget commission
Constitutional Amendment by Legislature
3/5 votes of members of each house to place on the ballet by joint resolution
Right to Privacy Rule Statement
The right of privacy is expressly included in the Florida Constitution.
Every natural person has the right to be let alone and to be free from governmental intrusion into his private life. Because it expressly provides in the Florida Constitution, Florida’s right or privacy is considered to provide more protection than the corresponding right under the US Constitution.
The right of privacy under the FL Constitution is a fundamental right. Therefore, strict scrutiny applies. Government interference is permitted only if there is a compelling state interest and the least intrusive means are used to achieve that state interest.
Right to Privacy (Subpoena Issue)
One could argue that a subpoena would constitute an unlawful seizure under the FL and US Constitution. The right to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, and against unreasonable interception of private communications by any means, is expressly guaranteed by the FL Constitution. The FL Constitution also provides that the guarantees against unreasonable search and seizure are to be construed in conformity with the 4th amendment to the US Constitution as interpreted by the US Sup Ct. Under the 4th amendment, most searches and seizures will be considered unreasonable unless they are pursuant to a warrant or fall within an exception. To be valid, a search warrant must be issued by a neutral and detached magistrate, be based on probable cause established from facts submitted by govt agent, and particularly describe the place to be searched and items to be seized. A subpoena on the other hand, may be issued upon a mere finding of reasonable suspicion.
Counterargument – The FL Sup Ct has made clear that the FL Constitution’s search and seizure provisions have not been displaced or affected by the constitution’s privacy provision. Further, a subpoena also satisfies procedural due process requirements.
