FL Constitutional Law Flashcards
Article II
General Provisions
Article III
Legislature
Article IV
Executive
Article V
Judiciary
Article VI
Suffrage & Elections
Article VII
Finance & Taxation
Article VIII
Local Government
Article IX
Education
Article X
Miscellaneous (e.g. Homestead)
Article XI
Amendments
Article XII
Schedule
State Constitutions are a limitation on state powers. The state as sovereign has certain reserved powers known as police powers. In Florida, the state has the power to provide for the ____________, ___________, ____________, and _____________ of its citizens.
General welfare; health; safety; morals
Declaration of Rights
FL’s counterpart to the federal Bill of Rights is the Article I, Declaration of Rights. Some of these rights are more expressly articulated than those found in the U.S. Constitution.
- Right to privacy
- Right to work
- Right to access to courts
Equal Protection
FL’s Equal Protection applies ONLY to state action. The same standards of review based upon the class of persons subject to the alleged discrimination or the types of rights allegedly infringed that apply under the U.S. Constitution apply under the FL Constitution.
The FL Constitution expressly forbids discrimination based on ________, _________, ___________, or ___________. Thus strict scrutiny is applied to these cases. For non-suspect classes, the rational basis test is applied.
Race; religion; national origin; physical handicap
Strict scrutiny requires:
State shows compelling state interest is served
Rational basis requires:
π must show not related to achievement of legitimate state interest
All persons have inalienable rights including but not limited to, the right to enjoy and defend life and liberty, to pursue happiness, to be rewarded for industry and to acquire possess and protect property. These rights are fundamental, so ______________ is applied.
Strict scrutiny
Freedom of Religion
FL’s constitution forbids regulation and establishment of religion by the government and guarantees free exercise of religion to each individual. However, it also states that religious freedom does not justify practices inconsistent with public morals, peace or safety. Also no revenue of the state shall ever be taken from the public treasury directly or indirectly in the aid of any church, religious denomination or in aid of any sectarian institution.
Freedom of Religion - Lemon Test:
(1) Primarily secular purpose
(2) Primary effect neither advances nor inhibits religion
(3) Does not produce excessive entanglement with religion
Freedom of Speech and the Press
FL’s constitution guarantees freedom of speech and no state law may be passed abridging freedom of speech or of the press. There is a strong presumption in favor of public access to court proceedings and records. The free speech and press provisions of the FL Constitution have generally been analyzed in the same manner as the First Amendment of the U.S. Constitution.
Prior Restraint
Not favored by courts
Time, Place, Manner restrictions:
OK if content neutral. (non-content based) IF is narrowly tailored, serving compelling state interest
Commercial Speech:
Not as protected as political speech
Obscenity
Act is prurient, offensive, & no artistic value
Freedom of Assembly
The FL Constitution provides that the people retain the right to assemble peaceably and to petition for redress of grievances.
Right to Work
The right of a person to work shall NOT be denied or abridged on account of membership or non-membership in any labor union or labor organization. The rights of employees, by and through a labor organization to bargain collectively shall NOT be denied or abridged. Public employees shall have NO right to strike.
Due Process
No person shall be deprived of life, liberty, or property without due process of law, or be twice put in jeopardy for the same offense, or be compelled in any criminal matter to be a witness against oneself. Procedural due process in FL extends to actions by private organizations exercising a quasi-public function.
Procedural Due Process
= Fair Trial
Notice & a hearing
Right to appeal
Jury trial - can’t be taken away by legislature
Substantive Due Process
= Fundamental Rights
Rights to possess property, privacy, and jury trial
Prohibited Laws
No bill of attainder, ex opst facto law or law impairing the obligation of contracts shall be passed. But note that although virtually no degree of impairment of contract is permitted, where the state is not a party to the contract, the courts have balanced the degree to which a party’s contract rights are statutorily impaired against the evil the state is attempting to remedy through the statute.
Bill of attainder
One person
Ex Post Facto Law
Retroactive application
Impairment of Contract
Blank
Search and Seizures
This right shall be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court.
Excessive Punishments
The FL Constitution prohibits:
(i) Excessive fines
(ii) Cruel or unusual punishment
(iii) Forfeiture of estates
(iv) Indefinite imprisonment; and
(v) Unreasonable detention of witnesses
Article I
Declaration of Rights
Administrative Penalties
No administrative agency shall impose a sentence of imprisonment, nor shall it impose any other penalty except as provided by law. An administrative agency cannot award non-quantifiable common law damages (e.g., emotional distress) but may award quantifiable damages (e.g., back pay, attorney’s fees).
The courts shall be open to every person for redress of any injury and justice shall be administered without ________, ________, or __________.
Sale; denial; delay
If the legislature abolishes a cause of action, a reasonable alternative must be provided unless:
(1) The legislature can demonstrate ________________ and
(2) No alternative _____________
A compelling public necessity; ???
Trial by Jury
The right of trial by jury shall be secure to all and remain inviolate.
If you had right to jury in 1845, you have right to jury now. (Can waive right)
Right to Privacy
Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein. This section shall not be construed to limit the public’s right of access to public records and meetings as provided by law.
More protection in FL Constitution.
Standard: Government interference with the right of privacy is permitted ONLY if there is a compelling state interest and the least intrusive means are used to protect that interest.
Access to public records and meetings
Sunshine Act
All meetings open to public, must be duly noticed, can get the documents produced;
And all records can be open to public (most personnel records are available)
Exemptions: Must state reason & be broader than necessary
The powers of the state government shall be divided into ________, __________ ,and __________ branches. NO persons belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided in the constitution.
Legislative; executive; judicial
The concept of separation of powers as a check on overall governmental power is a tradition in the American system of government. Each branch of government has its duties. The legislative branch ______________, the executive branch ______________, and the judicial branch __________________________.
Makes laws; enforces law; interprets the laws and actions of the executive branch
When one branch of the government usurps the function of another branch, it is said to ________. When one branch of government delegates its responsibilities to another branch of government, it is said to violate the ________________.
Encroach; non-delegation doctrine
___________ prescribes duties and rights under our government and the legislature is responsible for enacting such policies; creates, defines, and regulates rights.
Substantive law
____________ concerns the means and methods to apply and enforce those duties and rights and the Supreme Court determines this type of law through the promulgation of rules;.
Procedural law
The legislature ______ delegate the power to make law or fundamental policy decisions.
Cannot
The executive agencies may make rules; however, the statute must provide __________________ so that the agencies are merely implementing policy determined by the legislature.
Sufficient guidelines and standards
The legislature may not delegate to any agency:
(1) The right to define the elements of a crime;
(2) Create criminal penalties; or
(3) Fashion equitable remedies
The legislature is bicameral and consists of a senate and a house of representatives. The ___ senators are elected for terms of 4 years and the ___ house members are elected for terms of 2 years.
40; 120
This is convened 14 days after each general election.
Organization Session
This is convened in the first week in March. Laws on any subject may be enacted in this session by a majority vote.
Regular Session
May be called by the Governor. Limited to 20 days, unless extended by a vote of 3/5, and no new business may be acted upon without the consent of 2/3 of the membership. May also be convened by legislators.
Special Sessions
Each house determines its own rules of procedure and may punish a member for contempt or disorderly conduct by majority vote of the membership. By a _____ vote of the membership the house may expel a member.
2/3
Requirements for a Law
(1) Cannot be vague
(2) Cannot be overbroad
(3) Must be reasonably related to public welfare
(4) Constitutional requirement
Constitutional Requirement for Law
(1) Must be limited to single subject
(2) Must have an adequate title
(3) Text must be set out
(4) Must have an enacting clause
Vote required for: Each house for passage of bills (including joint resolutions and reapportionment).
Majority Vote
Vote required for: Senate to convict a suspended state, county or municipal officer.
Majority Vote
Vote required for: Each house to extend a regular session.
3/5 Vote
Vote required for: Each house to convene a special session.
3/5 Vote
Vote required for: Each house to amend or revise the constitution.
3/5 Vote
Vote required for: Each house to add prohibited subjects for special laws and general laws of local application.
3/5 Vote
Vote required for: Each house to raise the tax rate on corporate income.
3/5 Vote
Vote required for: Each house, reaction of State Trust Funds
3/5 Vote
Vote required for: Each house to extend special session to include new business.
2/3 Vote
Vote required for: Each house to waive three readings of a bill prior to its passage.
2/3 Vote
Vote required for: Each house to override a gubernatorial veto.
2/3 Vote
Vote required for: House of Representatives to impeach.
2/3 Vote
Vote required for: Senate to convict an impeached state officer.
2/3 Vote
Vote required for: Each house to repeal rules of practice and procedure promulgated by Supreme Court.
2/3 Vote
Vote required for: Each house to increase or decrease the numbers of judicial offices recommended by Supreme Court.
2/3 Vote
Vote required for: Each house for state mandates on local governments.
2/3 Vote
Vote required for: Each house to increase State spending above revenue cap.
2/3 Vote
Apply uniformly statewide to all persons or circumstances.
General Laws
Relate to or are designed to operate on known, specific persons or things or in a specifically indicated part of the state.
Special Laws
No ________ shall be passed UNLESS notice of intention to seek enactment has been published in a newspaper of general circulation in the affected counties or the law is to become effective only on approval by referendum vote of electors of the area affected.
Special law
A ________________ is a law that uses a classification scheme - based upon population or some other criterion - so that its application is restricted to particular localities; is distinguishable from a special law in that it does not require notice or referendum.
General law of local application
Prohibited Special Laws and General Laws of Local Application
These MUST be uniform throughout the state. Examples: -Election -Taxation -Rules of Evidence -Punishment for Crimes -Petit Juries -Change of Venue -Conditions precedent to brining any civil or criminal proceeding -Creation of liens -Divorce -Adoption -Regulation of occupations
The governor is the __________ of the state, however, the constitution provides for a lieutenant governor and cabinet.
Chief executive
The ___________ ensures all laws are faithfully executed, acts as commander and chief, initiates judicial proceedings in the name of the state, has the power to appoint and possesses clemency power.
Governor
Governor has the power to veto a bill within ____________ after presentation. If the legislation adjourns, the governor has _______ to veto the bill.
7 days if in session; 15 days
The ____________ performs duties assigned by the Governor.
Lieutenant Governor
The ___________ is the chief legal officer.
Attorney General
The ____________ settles and approves accounts against the state.
Chief Financial Officer
The ____________ supervises matters pertaining to agriculture and consumer affairs.
Commission of Agriculture
All functions of the Executive Branch are allocated among not more than ___________.
25 departments
Homestead personal property exception
$1000
These exceptions shall inure (pass) to the surviving spouse or heirs of the owner:
(1) Natural person
(2) One Homestead
(3) Property inside municipality - up to 1/2 acre
(4) Property outside municipality - 160 contiguous acres
(5) Establishment before levy
(6) Exceptions from Protection
Three types of exceptions from protection:
(1) Taxes & assessments
(2) validly executed mortgage - if married BOTH sign
(3) construction/mechanics lien
Determined by intent of homesteader
Abandonment
Proceeds of Homestead
Intent to re-invest - reasonable period of time
Protection to extent re-invested - up to amount reinvested in new house
__________ of homestead property only apply to solely owned property. Real property owned by the decedent and surviving spouse as tenants by the entirety is not subject to these. It passes by right of survivorship in all cases.
Restraints
If homestead property owned by joint tenants by the entirety,
Own together, must be conveyed by both.
If mortgaged, need both signatures.
If there is no will, moves as fee simple to spouse.
If spouse or minor children survive the owner, the homestead:
May not be devised.
If the owner is not survived by minor children, the homestead
May be devised to spouse
If no spouse or minor children survive, the homestead
May be devised to whomever the owner chooses.
If homestead is improperly devised, it descends in the same manner as other intestate property. However, if the decedent is survived by a spouse and one or more descendants,
The surviving spouse takes a life estate in the property, with a vested remainder in the descendants.
Spouse may elect to take 1/2 interest in Homestead Property
In lieu of life estate
Surviving spouse may elect to take 1/2 interest as tenants in common with other 1/2 interest resting in lineal descendants surviving at time of decedents death (so can sell interest)
Most powerful county. Can do anything that doesn’t violate genera/special laws.
Charter County
Not as powerful county. Can enact ordinances as provided by general/special laws.
Non-Charter county
Either elected or appointed. Removed by governor suspending.
County Officers
County’s jurisdiction
Unincorporated Area
Created by legislative act & can be abolished by same.
Municipalities (Cities)
Powers of municipalities
Come from FL Constitution & statutes
5 instances when city may NOT act:
(1) State preemption
(2) County preemption
(3) Forbidden by county charter
(4) Forbidden by city charter
(5) Constitutional laws
Entities: Charter vs. City
Subject Matter: Services
Who wins?
Determined by dual referenda
Entities: Non Charter vs. City
Subject: Services
Who wins?
City wins
Entities: Charter vs. City
Subject: Regulatory
Who wins?
County wins
Entities: Non-Charter vs. City
Subject: Regulatory
Who wins?
City wins
Who wins?
Charter County vs. City
Charter County
Who wins?
State vs. County
State
Who wins?
Constitution vs. State Statute
Constitution
Who wins?
Federal vs. State
Federal
Sovereign Power of State (and other governmental entities by statute) to take private property for public purpose and for full compensation.
Eminent Domain
Eminent Domain taking must substantially oust the owner from his property. Distinguish taking from regulation. For a taking, government must show:
A reasonable necessity for its action
Property must be used for ____________ in eminent domain.
Public purpose
Airports, utilities, hospitals, and parks are deemed public.
Full compensation in eminent domain.
Fair market value
Others may be entitled to just compensation besides landowner.
Person with property interest
Inverse Condemnation
Property owner institutes action after government deprives owner of use of property.
Constitution and statute permit waiver of sovereign immunity. However, the statute provides a cap of __________ for any one person and ___________ for all claims arising from one accident.
$200,000; $300,000
Planning v. Operational
Operational function: Can sue
Planning function: Can’t sue
Underlying Duty
There MUST be an underlying duty to the individual. However, where no underlying duty exists, if the government entity undertakes to perform a particular as, it must do so with reasonable care.
State Taxation Limitations
Constitutional Amendments
No ad valorem state taxes
Revenues can’t exceed last year
State Corporate Income Tax?
Yes
State Personal Income Tax?
No
State Sales Tax
Where State gets most money
Pari-Mutual Taxes
Gambling industry - lots of money
Ad Valorem Taxation
Counties, cities, school districts, special districts may impose ad valorem taxes.
NOT STATE!!
Millage Rate Formula
$1000 value = $1 tax
Millage Rate Cap
Ten-mill cap
Must ad valorem taxes be uniform?
Yes
How often must ad valorem taxes be assessed?
Yearly
Just valuation for ad valorem taxes
“Best and highest use”
May leaseholds be assessed an ad valorem tax?
Yes
Agricultural Property (Recreational Property) ad valorem tax
Character or Use Test
Supreme Court Jurisdiction: Death Penalty
Mandatory
Supreme Court Jurisdiction: Bond Validation
Mandatory
Supreme Court Jurisdiction: Rate Decisions
Mandatory
Supreme Court Jurisdiction: DCA decisions invalidate a law
Mandatory
Supreme Court Jurisdiction: Officers of state
Discretionary
Supreme Court Jurisdiction: Conflicting decisions between DCA’s
Discretionary
Supreme Court Jurisdiction: Statute and Constitution validity by DCA
Discretionary
Supreme Court Jurisdiction: Great Public Importance (Certification) by DCA
Discretionary
Supreme Court Jurisdiction: Bypass Certification
Discretionary
Supreme Court Jurisdiction: Federal Certification
Discretionary
Supreme Court Jurisdiction: Rules of Practice and Procedure
Administrative
Supreme Court Jurisdiction: Florida Bar
Administrative
DCA Jurisdiction: Final Orders of Circuit Courts
Mandatory
DCA Jurisdiction: Final Orders of State Agencies
Mandatory
DCA Jurisdiction: Non-final Orders of Circuit Court
Discretionary
DCA Jurisdiction: Final Orders of Circuit Court in its appellate capacity
Discretionary
DCA Jurisdiction: Bypass certification
Discretionary
Circuit Court Jurisdiction: Final Orders of County Court
Appellate
DCA Jurisdiction: Final Orders of Agencies not under APA
Appellate
DCA Jurisdiction: Original Jurisdiction
Trial
DCA Jurisdiction: Amount sought exceeds $15,000 (or equitable remedy)
Trial
Jurisdiction: Ordinances, Misdemeanors, Traffic Infractions
County Court
Jurisdiction: Amount sought is $15,000 or less
County Court
Who may issue writs?
Supreme Court
DCA
Circuit Court
5 Methods of Amending the Constitution
(1) Legislative
(2) Revision Convention
(3) Constitutional Convention
(4) Initiative: signatures
(5) Taxation and Budget Reform Commission
Petition drive bypasses Legislature
Initiative
Requirements for Initiative
(1) Single Subject Rule - a proposal is seen as embracing one subject if the component parts or aspects have a natural relation and connection to a single dominant plan or scheme
(2) Economic Impact Statement - probable financial impact of the amendment
(3) Must be represented accurately on ballot
