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Florida Bar Subjects > Florida Con Law > Flashcards

Florida Con Law Flashcards

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1
Q

If in an essay, a FL statute has been enacted, what issues should be thought of to address its constitutionality?

A
  1. federal preemption
  2. law related to police power
  3. pricavy issues
  4. vague/overbroad
  5. religion issue (FEC, establishment)
  6. speech issues
  7. press issues
  8. association issues
  9. right to work issue
  10. imprisoned for debt
  11. prohibited law
  12. access to courts
  13. due process
  14. equal protection clause
  15. contract impairment
  16. separation of powers
  17. anti-delegation
  18. law constitution/pre-reqs
  19. governor veto
  20. type of legislative session
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2
Q

What subjects MUST be regulated through general law only?

A
  1. elections
  2. taxation
  3. rules of evidence
  4. punishment of crimes
  5. petite junes
  6. change of venue
  7. conditions to bring civ or crim proceeding (BIG)
  8. lien creation
  9. divorce
  10. adoption
  11. regulation of occupations
  12. private incorporation or the grant of privilege to a private corporation
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3
Q

Describe the levels of scrutiny for EPC issues in Florida

A

1 - Strict Scrutiny
- race, religion, national origin, physical disability
- necessary to achieve a compelling government interest and narrowly tailored
- burden on government

2 - intermediate scrutiny
- gender & sexual orientation
- substantially related to an important government interest
- burden on government

3 - Rational Basis
- EVERYTHING ELSE
- rationally related to a legitimate government interest
- burden on plaintiff

Article 1 Section 2

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4
Q

The right to vote applies to who?

A

Those who qualify as electors. Qualifications include:
1. 18+ years of age
2. permanent resident of FL
3. registered as elector in county

CAN’T be adjudicated mentally incompetent OR felony (can be restored)

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5
Q

What test is used to analyze an establishment clause issue?

A

LEMON TEST (not followed by feds/MBE) - law is upheld if:
1. has a primarily secular purpose
2. primary effect netiher advances nor inhibits religion
3. law does NOT produce excessive government entanglement w/ religion

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6
Q

How are freedom of speech & press issues analyzed?

A

Same as fed law/MBE

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7
Q

Explain FL’s right to freedom of Assembly

A

People retain right to assemble peaceably & to petition for redress of grievances
- regulations governing this right CANNOT give local officials TOO MUCH DISCRETION to prevent peaceful assemblies

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8
Q

What does FL’s “right to work” afford?

A

No person may be denied a job because of membership or nonmembership in a labor union
- public & private sector employees have the right to bargain collectively
- public employees do NOT have right to STRIKE

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9
Q

Explain FL’s right to bear arms

A

People have right to bear arms to protect themselves and state
- 3 day waiting period between the purchase of gun & delivery
- counties may impose 3-5 days & criminal background check

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10
Q

What are the types of Due Process?

A

1 - Procedural Due Process
- no person shall be deprived of life, liberty, or property without due process of law
- notice & hearing required

2 - Substantive Due Process
- taking away a right
- fundamental right? Strict scrutiny
- anything else? rational basis

Article 1 Section 9

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11
Q

What are fundamental rights in Florida?

A
  1. access to courts
  2. right to privacy
  3. right to work
  4. freedom of religion
  5. access to public records & meetings

Also ones recognized by federal gov’t

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12
Q

What are some prohibited laws?

A
  1. bills of attainder
  2. ex post facto laws
  3. impairments of existing contracts
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13
Q

When is a law impairing contracts prohibited?

A
  1. state action
  2. law afffecting EXISTING contracts
  3. law substantially impairs contract (does law change intention and legal effect?)

if all 3 are met, law only upheld if:
- serves important & legitimate purpose
- narrowly tailored

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14
Q

When can a person be imprisoned for debt?

A

ONLY if fraud is proved
- if NOT proved, it is prohibited

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15
Q

What rights do victim’s of crimes have?

10 things

A

Victims MUST be informed of all these rights:
1. due process
2. reasonable protection from accused
3. prevent disclosure of confidential information
4. notice of public proceedings
5. be heard
6. confer w/ prosecution
7. be informed
8. return of property
9. restitution from convicted offenders for loss
10. promptness

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16
Q

Explain FL’s fundamental right of “Access to Courts”

A

Justice MUST be administered without sale, denial, or delay
- the legislature cannot abolish an existing common law or statutory cause of action without providing an adequate alternative that is substantially equivalent

Article 1 Section 21 & Kluger v. White

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17
Q

What are some examples of when the right to access to courts is VIOLATED?

A
  1. denying a persons right to at least 1 appeal from a final order
  2. abolishing cause of action
  3. shifting responsbility for dispute resolution to a nontraditional body (administrative body)
  4. making it significantly more difficult to prosecute a civil action by creating onerous prerequisites or procedural hurdles
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18
Q

When can the legislature abolish a cause of action?

A

If the legislature demonstrates:
1. overpowering public necessity for abolishing right (compelling state interest); AND
2. no alternative method available to meet public necessity

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19
Q

Explain the right to privacy?

A

Every natural person has the right to:
1. be left alone; AND
2. be free from governmental intrustion into that person’s private life

Strict Scrutiny used

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20
Q

What is the states burden when they are intruding on an individuals right to privacy?

A

Intrusion is:
1. furthering a compelling state interest; AND
2. employing the least intrusive means to do so

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21
Q

What are some examples of privacy rights in FL?

A
  1. right to refuse medical treatment
  2. right of parents to direct upbringing of their kids
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22
Q

What are the four requirements of the Sunshine Law?

A
  1. Meetings of the required entities must be open to the public
  2. reasonable notice of meetings must be given
  3. minutes of meetings must be taken
  4. venue must be accessible
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23
Q

When do legislatures have to comply with the Sunshine Law?

A

When there are 3 or more legislature meetings

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24
Q

When can an exemption be made to the Sunshine Law?

A
  1. Law states a necessity justifying exemption; AND
  2. Law is no broader than necessary to accomplish the goal
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25
Q

Explain the limits on attorney contingency fees in medical malpractice cases?

A
  • no more than 30% of first $250k
  • no more than 10% on anything in excess of $250k
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26
Q

The right to work & to bargain collectively are what types of rights?

A

FUNDAMENTAL RIGHTS

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27
Q

What is the most well known procedural due process right?

A

Right to a fair trial

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28
Q

The FL Constitution prohibits excessive punishments, including…

A
  1. excessive finds
  2. cruel or unusual punishment
  3. forfeiture of estates
  4. indefinite imprisonment
  5. unreasonable detention of witnesses
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29
Q

Can the state provide incentives to waive the right of trial by jury?

A

YES!

30
Q

When does encroachment occur?

A

When one branch of government usurps the authority of another branch

Bush v. Schiavo

31
Q

Who has the power to make substantive procedural rules?

What are they

A

Legislature
- minimum sentencing guidelines
- 3 strike rule

32
Q

Who has the power to adopt rules for the practice & procedure in all courts?

A

FL Supreme Court
- civil & criminal procedure
- filing deadlines
- service of process rules

33
Q

What CAN’T the legislature delegate to any agency?

A
  1. right to define elements of a crime
  2. right to create criminal penalties
  3. right to fashion equitable remedies
34
Q

How long can regular sessions last?

A

60 days! Can be extended by 3/5 vote of each house
- if extended, neither chamber will take on new business without approval of 2/3 of its members

35
Q

When do regular sessions of the legislature convene?

A
  • Odd # years –> 1st Tues., after 1st Mon., in March
  • Even # years –> 2nd Tues., after 1st Mon., in January
36
Q

Explain the rules on special sessions of the legislature

A

Can be called by either (1) governor (must specify what will be addressed) OR (2) legislature (3/5 each house must agree)
- CANNOT exceed 20 consecutive days, unless extended by 3/5 vote of each house
- limited to items originally mentioned (2/3 vote of each member needed to address other things

37
Q

When can either house expel a member?

A

Super Majority

2/3 vote

38
Q

When can regulations still be voided even if they meet the required standard?

A

1 - Overbreadth
- overbroad if it burdens a substantial amoung of speech compared to the speech it legitimately regulates
- CANNOT prohibit constitutionally protected activites along w/ unprotected activites

2 - Vagueness
- vague if it fails to provide a person of ordinary intelligence with fair notice of what is prohibited

Under substantive due process

39
Q

What must a state law relate to?

A

Health, safety, morals, & general welfare of the citizens of Florida
- connection must be reasonable

40
Q

What are the requirements that a new law must follow for it to be valid?

A

1 - One subject
- one subject & matter that is properly connected

2 - Title
- must express subject in title

3 - Enactment Clause
- be it enacted by the legislature of the state of Florida

4 - Text
- must be set out in the law

depending on type of law, there are more requirements

41
Q

How do you know a law is of a single subject?

A
  1. the law embraces one subject
  2. includes matters that are properly connected with the subject

A connection between provision & subject is proper if:
- connection natural or logical; OR
- reasonable explanation for how the provision is either necessary to the subject or tends to make effective or promote purpose of subject

42
Q

List the main types of laws that can be created

A

1 - General Laws
- apply uniformly in the state

2 - Special Laws
- relates to particular persons or things or subject of class

3 - General Laws of Local Application
- effective only within areas whose population falls within a stated range

43
Q

What are the requirements for each type of law?

A

1 - General Law
- Article 3 Section 6
- not substantively violate state or federal constitutions
- not purport to prevent future legislation in an area

2 - Special Law
- all requirements of general law
- pass local referendum OR serve notice

3 - General Law of Local Application
- All requirements of general law
- law must be reasonable related to population

44
Q

Who votes to pass the law?

A

BOTH houses must vote to approve the law
- a majority is needed

45
Q

What questions should be asked when you see the legislature passing a law?

A
  1. was the law enacted properly?
  2. did the legislature include provisions that encroach other branches?
  3. does the legislation violate a constitutionally guaranteed right? Level of scrutiny?
46
Q

What are the different votes required depending on the legislative act?

A

Majority vote
- passage of bill
- joint resolution/reapportionment
- senate to convict a suspended state, county, or city officer

3/5 Vote
- extend regular session
- convene special session
- amend or revise constitution
- add prohibited subjects for special or population law
- raise tax rate on corporate income
- create state trust fund

2/3 vote
- extend special session to add topics
- waive 3 readings of bill before passage
- override governor veto
- for house to impeach
- for senate to convict (impeach)
- repeal rules of practice & procedure
- increase or lower the number of judicial officers
- state mandates of local government
- increase state spending above revenue cap

47
Q

Can the governor veto a law?

A

YES! They have 7 days to veto if legislature is open
- if legislature closes (sine die or set to resume in over 30 days) at any point after governor gets the bill, you get 15 days
- if NO VETO = bill becomes a law

48
Q

What are the elements that need to exist for someone to get the homestead privilege?

A
  1. one primary residence (legal domicile, where bills are sent) at a time
  2. residence MUST be owned by a natural person
  3. homestead must be filed w/ clerks office (must be filed before any creditor claim)
  4. acreage limit is met (1/2 acre contiguous land inside municipality or 160 acres contiguous land outside municipality)
49
Q

What is a homestead?

A

If you have a primary residence in FL, it is protected from a forced sale by creditors

also includes $1000 in personal property

50
Q

For Homestead protection to apply against a particular creditor, what must happen?

A

Homestead MUST be established before creditor gets judgment against owner of homestead and levees on property

51
Q

What & who are super creditors?

A

Creditors that can get at a homestead property
- mortgage
- property taxes
- mechanics liens - work on house

52
Q

How can you abandon the Homestead protection?

A

You abandon the homestead property IF:
1. you leave property
2. express an intent NOT to return
3. lease home out to another for more than a year

creditor bears the burden

53
Q

How do proceeds from a homestead sale retain homestead protection?

A

IF owner has a good faith intent to reinvest in another homestead within a reasonable time

54
Q

How & when can someone devise the homestead property?

A
  • if you own it in fee simple absolute, you can devise
  • you CANNOT devise your homestead if there is a surviving spouse & minor children (wife gets life estate & child gets remainder)
55
Q

Explain ‘Spousal Election’ for homestead rights

A

Surviving spouse may choose to take one-half interest in homestead property instead of a life estate
- held in TIC w/ lineal descendants surviving at time of decedent’s death

56
Q

What powers do chartered counties have vs. nonchartered

A

Chartered
- all powers that aren’t inconsistent with general & special laws

Nonchartered
- only enumerated powers provided by general or special law

57
Q

What are the 5 instances in which municipalities CANNOT act?

A
  1. state preemption
  2. county preemption
  3. forbidden by county charter
  4. forbidden by city charter
  5. constitutional limits
58
Q
A
59
Q

When municipal & county ordinances conflict, what prevails?

A

Nonchartered
- municipal rule wins

Chartered (depends on subject matter)
- services: county can’t preempt UNLESS dual referenda done (must pass in county & city)
- regulatory matters: county may preempt
- must put in charter

60
Q

What is eminent domain?

A

Sovereign power of state to take private property to use for public purpose as long as it provides full compensation

jury decides

61
Q

For suits against state & local government, what is the damages cap?

A
  • $200,000 per person
  • $300,000 per incident
62
Q

What are ad valorem taxes & who can levy them?

A

Taxes assessed based on value of property on real estate or tangible personal property (other than cars, boats, planes, & mobile homes)
- ONLY counties or municipalities can levy

62
Q

When may a state be liable for negligence?

A

1 - Duty to Person
- government entity undertakes to perform a particular task, must do so with reasonable care

2 - Must be an operational decision & NOT planning
- planning is policy making function

63
Q

What are the tax benefits w/ having a homestead?

A
  1. assessment of homestead property can increase ONLY up to 3%
  2. value of homestead decreases by $50k (counties or cities may grant additional $50k to people older than 65 years old or w/ incomes of less than $20k)
64
Q

What property is immune from taxation?

A
  1. property owned by federal, state, or county government
  2. property leased by government for government purpose
  3. property owned by municipality & used exclusively for municipal or public purpose
65
Q

When is a finance bond valid?

A
  1. public purpose
  2. bond must pay for a capital project

it can have incidental private benefit

66
Q

What is a revenue bond & who can issue?

A

Bond paid off using revenue from the underlying project
- state & local governments can issue

67
Q

What is a general obligation bond & who can issue?

A

Pledge full faith & credit of government and they are paid off through taxes
- state gov’t can issue –> must be approved by electors
- local gov’t can issue –> must be approved before bond is issued IF bonds will take longer than a year to be paid off

68
Q

Can a person hold 2 government positions at once?

A

NO

69
Q

Who is subject to impeachment?

A
  1. governor
  2. lieutenant governor
  3. cabinet members
  4. supreme court justices
  5. judges
70
Q

What are the ways to amend the constitution?

A
  1. legislative proposal –> joint resolution passed by 3/5 each house
  2. revision committee
  3. constitutional convention
  4. ballot initiative
  5. taxation & budget reform commission

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