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
RIGHTS OF VICTIMS
Rights of Victims so long as they don’t interfere with the rights of accused
- Due Process
- Reasonable Protection from the accused
- Prevent disclosure of confidential information
- Notice of Public Proceedings
- Be Heard
- Confer with Prosecutor
- Be Informed
- Return of Property
- Restitution from convicted offenders for losses
- Promptness
- Be informed of these rights
EXCESSIVE PUNISHMENTS
FL Constitution prohibits excessive punishments including:
- Excessive fines
- Cruel or Unusual Punishment
- Forfeiture of Estates
- Indefinite Imprisonment
- Unreasonable Detention of Witnesses
ADMINISTRATIVE PENALTIES
No Admin can impose a sentence of imprisonment, non quantifiable CL damages, or impose any penalty except as provided by law
Can give QUANTIFIABLE Damages
RIGHT OF ACCESS TO COURTS
Right above the Federal Constitution (look under both EPC and RoA on exam)
General: the Courts shall be open to any person for redress of injury and justice shall be administered without sale, denial, or delay (including at least one appeal from a final order)
Abolishment of a cause of action - there must be a reasonable alternative unless:
- Legislature can demonstrate overpowering public necessity (comparable to compelling state interest)
- No alternative method to meet necessity can be established
RIGHT TO TRIAL BY JURY
Compelling State Interest Standard
Can provide incentives to waive (i.e. plea barganing)
RIGHT TO PRIVACY
Specified in the FL constitution
Can’t limit right of access to public records (Sunshine Laws)
More protection that U.S. Constitution
Can only be based on least intrusive means - compelling state interest
Right to:
- Terminate Pregnancies
- Refused Medical Treatment
- Right of Parents to Direct the upbringing of their children
SUNSHINE LAW: RIGHT OF ACCESS TO PUBLIC RECORDS AND MEETINGS
Public records and meetings must be open to the public and duly noticed
Exceptions: the law states a necessity justifying the exemption and the law is no broader than necessary to accomplish the goal
I.e. right to informational privacy is not subject to the sunshine law (public employee’s personnel file or a bar application)
SEPARATION OF POWERS
The powers of the state government are in the: legislature, executive, and judicial branches
No one belonging to one branch can exercise any powers assigned to either of the other branches unless expressly provided for in the FL Constitution
ENCROACHMENT AND DELEGATION
Usurp of powers of other branch: Encroachment
Assigns its responsibilities to another branch: Delegation (violation of non-delegation)
HOT TOPIC: LEGISLATIVE ENCROACHMENT ON JUDICIARY’S DOMAIN
Substantive v. Procedural Rules
Substantive Law (Legislature’s domain) creates, defines, and regulates rights
Procedural Law (FL Supreme Court’s Domain) legal machinery by which substantive law is made effective. Fl Supreme Court has the power to adopt rules for the practice and procedures in all courts
Example: legislature would be encroaching on the judiciary if it passed a law governing the admission of exert testimony
Examples of Substantive Procedural Rules: minimum sentencing guidelines, three-strike rules (regulate how much time in jail) power of the legislature to pass these laws
Examples of Procedural Rules: Civil and Criminal Procedure, Filing Deadlines, and Service of Process Rules (these are the rules that courts and those in court have to follow)
LEGISLATIVE DELEGATION
Non-Delegation Doctrine: Legislature can’t delegate the power to make law or fundamental policy decisions to other branches
Executive Agencies: may make rules, but the state must provide sufficient guidelines and standards so that the agencies are merely implementing policy set by the legislature
NOTE: The legislature may not delegate TO ANY AGENCY the right to define the elements of a crime, create criminal penalties, or fashion equitable remedies
OPERATION OF THE LEGISLATURE
Bicameral: Senate and House of Representatives
40 Senators - 4 year terms
120 House - 2 year terms
Regular Session: Annually for 60 days, laws may be enacted by a majority vote
Special Session: Called by the governor and limited to 20 days, no limit to how many the governor can declare - only the business that is within the purpose of the special session can be acted upon with a ⅔rd vote
REQUIREMENTS FOR LAWS
- Law Cannot be Vague
- Not Overbroad
- Reasonably Related to the Public Welfare (think police powers: welfare, health, safety and morals)
- Constitutional Requirements: MEMORIZE THIS
- Single Subject (a law may only cover one subject and matters properly connected to that subject)
- Adequate Title
- Text must be set out in the law
- Must have an Enacting Clause (be it enacted that)
A law may not be amended by reference to its title only - appropriate portions of the original text must be set out in the amending act
VOTES REQUIRED FOR LEGISLATION
Majority Vote: passage of regular legislation in each house
Majority Vote of Senate: removal
Supermajority:
- 3/5 in each house to extend regular session
- 3/5 in each house to convene special, amend or revise const, add prohibited subjects for special subjects and general laws of local application, raise corporate income tax rate, create state trust funds
- ⅔ - extend special to include new business, waive three readings of bill, override veto, House of Rep to impeach, Senate to Convict, repeal rules of practice and procedure promulgated by Sup Ct, increase or decrease number of judicial officers, state mandates on local governments, increase state spending above revenue cap
CATEGORIES OF LAW
General Laws: Uniformly state wide to all persons and circumstances
Special Laws: relate to or operate on specific persons or things or in specific part of state (usually a county)
- no special law passed without notice of intention to seek has been placed in newspaper of general circulation in county or be approved by referendum in the affected areas
General Law of Local Application: classification scheme based on population or some other criterion to restrict its application to particular localities. Does not require notice or referendum. Must have a nexus between the classification scheme and the purpose of the act the subject matter of the law must be reasonably related to the classification
Example: Law applies to all counties with a population of over 10million people - doesn’t NAME the county so it’s not a special law it’s a general law of local application
SUBJECTS REQUIRING UNIFORMITY
Have to be regulated through a GENERAL LAW - must be uniform throughout the state:
- Elections
- Taxation
- Rules of Evidence
- Punishments for Crimes
- Petite Juries
- Changes of Venue
- Conditions to Bring Any CIVIL or CRIMINAL PROCEEDING
- Note: This is highly tested - if a law creates an obstacle or condition before you can bring a case in court ask if it’s general or special or general of local application
- I.e. County Specific Mediation Requirement - this is not a general law, it creates a condition precedent to a civil or criminal proceeding it can’t be a specific law [note this is also an issue on access to courts]
- Lien Creation
- Divorce
- Adoption
- Regulation of Occupation
EXECUTIVE BRANCH
Governor, Lieutenant Governor, Cabinet
GOVERNOR’S POWER
Veto: has to veto within 7 days (if….) or 15 fays (if….) NO POCKET VETO
LIEUTENANT GOVERNOR
Performs duties assigned by the governor
CABINENT
Attorney General
Chief Financial Officer
Commissioner of Agriculture
Note: not more than 25 departments
*******HOMESTEAD EXEMPTION FROM FORCED SALE
HOT TOPIC IN CON LAW, WILLS, REAL PROPERTY, SECURED TRANSACTIONS
Rule: Protected against being forced to sell your homestead (primary residence)
Article 10 Section 4
Basics:
Exceptions
LOCAL GOVERNMENT
COUNTIES
Two types of Counties:
- Charter County - all power not inconsistent with general and special laws or the Constitutions - General Powers of Governance
- Non-Charter County - no power except those enumerated by state statute
County Officers can be elected or appointed
Unencorporated - within a county but no municipality
MUNICIPALITY
Cities are established by legislative act
Home-rule Powers - they can govern themselves with respect to health, safety, welfare, EXCEPT MAY NOT ACT:
- State Preemption
- County Preemption (in some cases)
- Forbidden by County Charter
- Forbidden by City Charter (constitution for the city)
- Constitutional Limits
CITY AND COUNTY CONFLICTS
Depends on Type of County (Charter or non charter) and the Subject Matter of the Legislation (Services or regulatory)
Conflict Between Charter and City over Services (i.e. Trash services) - dual referendum
Non-Charter v. City over Services - City will win
Charter v. City over Regulatory Matter - County Wins (regulation of behavior of citizens)
Non-Charter v. City Regulatory - City Wins
HIERARCHY OF GOVERNMENT
Generally: Who’s the bigger fish?
Charter County Beats City
State Beats County
FL Constitution Beats State Statute
Federal Beats State
SCHOOL DISTRICTS
Constitution Creates School Districts - gov’t must provide adequate, uniform, and free schools
School Vouchers: government money provided to parents to use for private schools
Students from a a failing public school may not use state money to attend private schools -
EMINENT DOMAIN
The soverign power of the state (and other governmental entities by statute) to take property for public purpose as long as they provide full compensation
ELEMENTS:
- Necessity - if the government takes title or substantially ousts, that’s a taking and there must be a reasonable necessity
- Public Purpose - property must be used for public benefit (airports, utilities, hospitals, parks)
- Full Compensation - Based on Fair Market Value of the Property determined by the Jury
- Compensable Rights - Others may be entitled to just compensation other than land over (i.e. someone with a property interest - you have mineral rights)
- Inverse Condemnation - property owner institutes action after deprivation of the property (suit to force them to take title and compensate)
SOVEREIGN IMMUNITY
Waiver or Consent to suit of Sovereign Immunity is allowed
Damages are capped at 200K per person and 300K per incident
Other Limits:
- State may be liable for operational functions but not planning (meaning government is doing something private entities often do - i.e. operation of a parking garage, golf course, swimming pool) (planning - policy making, not consented to being sued i.e. where to put stop lights, or set up and operate a prison)
- Underlying Duty (to the individual) if no underlying duty but undertakes must do so with reasonable care (take a duty by engaging)
TAXATION AND FINANCE
Taxation Limitations: Hard for the Legislature to impose new taxes
AD VALOREM TAXES
Taxes based on value of property -counties and municipalites only
REVENUE CAP
Can only raise a certain amount each year - overcome by supermajority vote of the legislature
INCOME TAX
Corporate Income Tax, but no Personal Income Tax
SALES TAX
6%
INTANGIBLE TAXES
Permitted, but usually not enforced
PARI-MUTUEL TAXES
Taxes on gamblinf are a source of income
LOCAL GOVERNMENT TAXATION
AD VALOREM: OK, but limits - mill rate $1 per $1,000 of property value, with a 10mil cap on school, county and city, 30 mil cap
AD VALOREM TAX EXEMPTIONS
FEES v. TAXES
A fee is not a tax and is not subject to the same exemptions and exceptions
- Park fees, parking, tolls, ….
- To be a fee - limitation on the amount: based on the per capita use of the facility
- No surplus
- Used for the facility
SPECIAL DISTRICTS
Geographically defined unit of government that perform special functions
Created by referendum and then tax themselves to pay for services (i.e. water management district)
UNFUNDED MANDATE
State requires local gov to do something without providing $
RULE: County or Municipality is not bounded unless state can show that the law fills and important government interest AND
BOND
Must have a public purpose (broadly defined), covering a capital project (roads, airports, buildings)
Can have incidental private benefit - balancing test to make sure that there’s a substantial public benefit as well, won’t invalidate simply because a private party is validated
Validation Step: Must be a court proceeding to make sure properly issued
Revenue Bond: paid off by revenue from the project (issed for a toll road, uses toll money to pay off)
- State Gov: no referendum required, not paid off from taxes
- Local Gov: For capital projects, no referendum needed
General Obligation Bonds: paid off through taxes, state bonds pledging “full faith and credit” requires elector approval
Referendum required on a local bond if it matures after 12 months (is it paid from current or future revenues) if future taxes needed need a referendum to issue
OPERATION OF THE JUDICIARY
FL CONST GOVERNS (Also Covered in Civ Pro)
COURT SYSTEM
FL Sup and DCOA are appointed by Gov subject to retention election
Circuit and County - Elected
JNC - Nomination Commission - ID people for appointment by the governor
JQC - Wualifications COmmission - handles complaints about misconduct
JURISDICTION
Supreme Court of FL: Death penalty cases, mandatory jurisdiction, bond validation, statewide utility rate decisions, declaring statutes or constitutional provisions invalid RIGHT TO HAVE THE MATTER HEARD
Discretionary Jurisdiction: state officer cases, conflicting decisions of DCoA, DCOA cases on state constitutional validity, great public importance cases, bypass certification, federal certification (concerning the meaning of FL Law)
Administrative Jurisdiction: Rules of Practice and Procedure (Constitutional Power) FL Bar
District Court of Appeal DCoA - Mandatory over final orders of circuit courts and state agencies, discretionary, non final orders, and final orders in it’s appellate court capacity
Circuit Court - Appellate or Trial - Appellate over final orders of local admin agencies and county courts, Trial over original jurisdiction cases specified by statute or amount over 30K or equitable remedy
County: Ordinance, misdemeanors, traffic violations
Writs: Supreme Court, DCoA, and Circuit ONLY
