Florida Constitutional Law Flashcards
OVERVIEW
Four Most Common Topics:
- Individual Rights
- Taxes and Local Government (heavy testing)
- Legislature
- Homestead Rules
Not Typically Tested by MPQ but by Essay!
FL CONSTITUTION GENERALLY
Article I:
Article II:
Article III:
….
Article XII: Schedule
FL POLICE POWERS
State can provide for general welfare, health, safety, and morals of its citizen
ARTICLE 1: DECLARATION OF RIGHTS
FL Version of the Bill of Rights
EQUAL PROTECTION
Applies only to state action - covers state discrimination
Same standards of review as federal constitution (based on the state’s classification of persons or the type of rights)
- Strict Scrutiny - race, religion, national origin, physical disability
- Rational Basis - when no suspect classification is at issue
FL Courts have been using heavily recently
Exam Tip: look for classifications of groups with different treatment
STRICT SCRUTINY
Requires the government to prove that its act is necessary to achieve a compelling government interest and is narrowly tailored to advance that interest
RATIONAL BASIS
Plaintiff must show that the action is not rationally related to any legitimate government interest
Usually laws will survive this (but not always, remember medical malpractice expample)
INTERMEDIATE SCRUTINY
Gender Discrimination
Requires that a law be substantially related to an important state interest
Note: no express prohibition against sexual discrimination in the state constitution, statutory law makes it “an unlawful employment practice” for an employer to discriminate based on sex
SUBSTANTIVE RIGHTS
Fundamental Rights: (Strict Scrutiny) Inalienable Right to Enjoy and Defend Life and Liberty, Pursue Happiness, Be Rewarded for Industry, and to Acquire, possess, and protect property
- Marriage, travel, and voting are also fundamental rights (MEMORIZE THE LIST ON THE FEDERAL CON LAW OUTLINE)
RIGHT TO VOTE
Fundamental Right is Qualified if:
- 18+
- Permanent resident of FL
- Registered in a County as an Elector
- Not mentally incompetent until the disability is removed
- Not convicted of a felony in any state until served all terms of sentence and has paid any fines fees or restoration
FELONY DISENFRANCHISEMENT
Relatively recent change
Person convicted of a felony can’t vote or hold office until all terms of sentence served (including probation or parole) and all fines and fees are paid
EXAM TIP: RIGHTS
If a fundamental right under U.S. or FL Const. is denied to everyone, there is a substantive due process issue. If the fundamental right is denied only to some it’s an Equal Protection Issue (triggering SS)
FREEDOM OF RELIGION
General Principles: forbids regulation and establishment of religion by the government and guarantees free exercise of religion. Religious freedom does not justify practices that are inconsistent with public morals, peace, or safety. No revenue of the state may ever be taken from the treasury to directly or indirectly aid any church, religious denomination, or sectarian institution. (Note - this is likely in conflict with US Const. Free Exercise in the context of funding for private schools)
Same standards of review used in the Federal Courts are used here
HOT TOPIC: Think about voucher plans for private religious schools, violation of no aid provision?
LEMON TEST
Establishment of Religion - remember to PEE. Law will be upheld against a Free Exercise Claim If:
P: Primarily Secular Purpose
E: Effect neither advances nor inhibits religion AND
E: Excessive Entanglement with religion (does not produce)
Example: Free Busing to All School Children - indirectly advance, but primarily secular, primary effect does not advance religion, and no excessive entanglement, state money doesn’t go directly to religious institution, so likely ok
FREEDOM OF SPEECH AND THE PRESS
HOT TOPIC
No state law may be passed abridging freedom of speech or of the press
Strong presumption in favor of public access
Generally analyzed in the same manner as the 1st Amendment
PRIOR RESTRAINT
Prior Restraints: highly disfavored and subject to strict scrutiny
TIME PLACE MANNER RESTRICTIONS
Generally allowed as long as they are not content-based
CONTENT BASED RESTRICTIONS
Must show narrowly tailored to serve a compelling government interest (burden is on the state)
These will almost always be struck down
COMMERCIAL SPEECH
Not as protected as non-commercial speech
Intermediate Scrutiny
OBSCENITY
Not protected
Test: prurient and offensive (by local community standards) and of no artistic value under federal standards it is obscene and not protected
FREEDOM OF ASSEMBLY
People retain the right to assemble peacefully and petition for redress of grievances
Regulations governing this right cannot give local officials too much discretion to prevent peaceful assemblies. Some time, place, manner is ok, but too much or broad discretion is probably unconstitutional
Tip: Any law or regulation that gives a government actor broad discretion over assembly or speech is probably unconstitutional
RIGHT TO WORK
The right of a person to work shall not be denied because of membership or non-membership in a labor union
Both public and private sector employees have the right to collective bargaining, but public employees do not have the right to strike
Often tested in relation to the financing of government projects: i.e. state issues a bond and hires contractors to do some state project. If the contractor discriminates in hiring based on union membership - doesn’t want to hire union members or non-members - that action violates the right to work because the contractor is acting as a quasi-public actor in exercising a quasi-public function by using government funding for a state project
DUE PROCESS
Clause (generally): No person shall be deprived of life, liberty, or property without due process of law, or twice be put in jeopardy for the same offense, or be compelled to self-incriminate
Procedural Due Process: extends to actions by private organizations exercising a quasi-public function (meaning essentially public in services rendered - public duties, acting on behalf of the government in some way) has to follow procedural due process
Rights:
- To Notice and Hearing
- Right to appeal (often a right to appeal a deprivation)
- Sometimes Right to Jury Trial (esp in criminal cases, civil depends on legal v equitable actions)
Substantive Due Process: fundamental rights, direct protection.
FUNDAMENTAL RIGHTS
- Privacy
- Voting
- Travel
- Marriage
- Possess Property
- Liberty
EXAM TIP: GOVERNMENT DEPRIVATION OF A FUNDAMENTAL RIGHTS
Go through what’s implicated:
- Substantive Due Process: is everyone being denied a fundamental right
- Procedural Due Process: Is the procedure used to deprive someone of a right fair?
- Equal Protection: is everyone being deprived of the right or just a certain group
PROHIBITED LAWS
- No Bills of Attainder: law passed to punish someone
- No Ex Post Facto Laws: laws that retroactively make an act criminal
- Impairment of Contracts: balancing test - first question: has the state done something that interferes with a contract or is just a private party breach
IMPAIRMENT OF CONTRACT
Impairment of Contracts: balancing test - degree to which a party’s contract rights are statutorily impaired against the evil the state is attempting to remedy through the statute
First: has the state done something that interferes with a contract or is just a private party breach
Second: Is there an existing contract - taking away or adding an obligation to a contract that already exists might be an impairment. If it’s a future contract no issue
Third: Does the regulation substantially impair a contract (state has changed the intention and legal effect of the agreement)
If ALL THREE APPLY, may only pass 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 U.S. Constitution 4th A and interpretation by the U.S. Supreme Court
RIGHTS OF ACCUSED
- Information as to the nature and cause of the accusation
- Copy of the Charged
- Compulsory Attendance of Witness (Subpoena)
- Confrontation of Accusers and Adverse (Cross Exam(
- Counsel
- Testify or Refuse
- Speedy Trial
- Fair Trial