Florida Constitutional Law Flashcards
What are the 4 hot topics for Florida Con Law essay questions?
- Homstead (big time!)
- Unconstitutional statutes or ordinances
- Finance/ Revenue Bonds (public projects)
- Local Gov’t issues
The Federal Constitution enumerates certain powers, while state constitutions are a _______ on state powers.
limitation
The state as sovereign has certain reserved powers (that the federal government does not have) known as ______ _______.
police powers
In FL, according to its police powers, the state ahs the power to provide for the ______ of its citizens. (4 things)
- general welfare
- health
- safety
- morals (criminal laws)
Florida’s counterpart to the federal Bill of Rights is …
Article I, Declaration of Rights.
Some of the rights in FL’s Declaration of Rights are more expressly articulated than those found in the U.S. Constitution, e.g. _____, _____, _______.
Right of privacy (stronger right to privacy in FL)
Right to work (union context)
Right to access to courts
How does the FL Constitution treat equal protection claims?
- FL’s EPC only applies to state action.
- Fed Rules Apply:
The same standards of review based upon the class of persons subject to the alleged discrimination or types of rights allegedly infriged that apply under the U.S. Constitution apply under the FL constitution.
The Florida Constitution expressly forbitds discrimination based on _____, ______, _______, or ________. Thus, ___ ______ is applied to these cases.
race, ,religion, national origin, physical handicap
strict scrutiny
In Florida, strict scrutiny requires ______
state must show a compelling state interest and remedy must be narrowly tailored to meet the interest
In FL, rational basis review requires
P must show that he act does not relate to the achievement of a legitimate state purpose.
Is there any intermediate review in FL?
Nope.
If a law restricts fundamental rights, then _____ _____ is applied. Examples of fundamental rights include:
strict scrutiny
right to marriage
right to freely travel
right to vote
right to raise your children as you see fit
FL’s Constitution forbids regulation and establishment of religion by the _____ and guarantees free exercise of religion to each _____. However, it also states that religious freedom does not justify ____________.
- government
- individual
- practices inconsistent with public morals, peace, or safety (no bong hits for Jesus).
Under FL’s freedom of religion provisions, no revenue of the state shall ever be taken from the public treasury _____________.
direcly or indirectly in aid of any church, religious denomination, or in aid of any sectarian institution. (Has seriously limited viability of school vouchers in FL).
For establishment clause questions, FL uses the _____ test, which states that in order to be in accordance with the establishment clause a law must:
Lemon Test
- be primarily for a secular purpose
- neither advance nor inhibit religion as the primary effect
- not produce excessive gov’t entanglement with religion
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.
Generally, free speech and press provisions of the FL constitution have been analyzed in the same manner as _____.
the First Amendment of the U.S. Constitution
Prior restraint is _____ favored by the courts.
NOT
Time, Place, and Manner restrictions are ______.
ok if they are not content based.
If time, place, and manner restrictions are content based, then the gov’t must show _______.
that the regulation is narrowly tailored in showing a compelling state interest.
FL Constitution provides that the people retain the right to assemble _______ and to ___________.
peaceably; petition for redress of grievances
A key to noticing that freedom of assembly might be infringed by a local law is that too much _____ is given to a ______.
discretion; local official
Public employees in FL have no right to _____, because FL is a _________ state.
Strike; right to work
Right to work laws apply to ______ and _______.
state action; state employees
Right to work is often tested in conjunction with _____.
Bonds. State cannot choose a contractor to build a public building only if the contractor promises to only use non-union workers/ subcontractors.
Due process in FL means that, no person shall be deprived of __, ____, or ___ without due process of law, or be twice put in ______ for the same offense, or be compelled in any ______ matter to be a witness against oneself.
life, liberty, or property
jeopardy
criminal
Procedural due process in FL extends to actions by ____ organizations exercising a ______ function.
private; quasi-public
On the bar exam, if you see a procedural due process question, you should also look for a ________.
substantive due process issue
Questions often cover where to two merge.
Examples of procedural due process guarantees and substantive due process guarantees.
Procedural: Notice and hearing; right to appeal; jury trial
Substantive: Right to possess property; privacy rights; jury trial
What are prohibited laws in FL?
- no bill of attainder
- no ex post facto law
- no law impairing the obligation of contracts
What is a bill of attainder?
Law passed for one person (Terry Schiavo)
What is an ex post facto law?
Retroactively applied law (mostly criminal)
What is impairment of contract?
State rewrites existing contract.
What is the impairment of contract analysis?
- State action?
- Existing contract?
- Does regulation substantially impair contract?
If so, state may only pass law if serves important and legitimate state interest AND must be narrowly tailored.
How are search and seizures treated under FL Con law?
4th am: same as federal
5th: greater protection than federal for crim. def.
What are excessive punishments in FL?
Excessive fines cruel or unusual punishment forfeiture of estates indefinite imprisonment unreasonable detention of minors
NO administrative agency shall impose a sentence of _____, nor shall it impose any other penalty except as provided by law. An administrative agency cannot award ___________, but may award ______.
imprisonment
non-quantifiable common law damages (emotional distress)
quantifiable common law damages (back pay, attorneys fees)
What is the access to courts rule?
The courts shall be open to every person for redress of injury and justice shall be delivered without sale, denial, or delay.
What is the Kluger v. White rule?
If the legislature abolishes a cause of action, a reasonable alternative must be provided unless:
- The legislature can demonstrate a compelling public necessity (b/c of fundamental right) (Judicial economy counts) AND
- No alternative method of meeting the necessity can be established.
Examples of access to courts alternatives that have/ have not been accepted:
Have: workers comp medical malpractice med. malpractice for nursing homes family law voluntary arbitration mediation before dissolution of marraige
Have not:
award of attorney’s fees to prevailing party
caps on damages
statutes changing SOL (shortening significantly)
filing fees
appeal
What is the right to privacy under FL Con law?
Every natural person has the right to be let alone and free form governmental intrusion into the person’s private life except as otherwise provided herein.
What is the internal conflict with FL’s right to privacy?
FL also has a sunshine law, which allows the public the right to access public records and meetings as provided by law.
How does FL’s right to privacy compare to the Fed right?
FL’s right to privacy is considered to privde more protection than the corresponding right of privacy under the US constitution.
If a law infringes on privacy rights, what is the test in FL?
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
What is the sunshine law?
Any public meetings/ records must be open to the public.
(Must balance this againt privacy interests).
What is the rule for exempting something from the sunshine law?
If not provided to the public, must state the necessity justifying the exemption and the law should be no broader than necessary to accomplish the goal.
When one branch of gov’t usurps the function of another branch it is said to _______. When one branch of government delegates its responsibilities to another branch of gov’t, it is said to violate the ________.
Encroach
non-delegation doctrine
The FL Constitution provides the legislature with the power to make _______ procedural rules, but the Florida Supreme Court with power to adopt rules for the ______ and ______ in all courts (___________).
substantive
practice and procedure
procedural rules
Difference between substantive procedural rules and procedural rules?
Substantive (made by the legislature) include: sentencing guidelines, 3 strikes rule, rules of evidence
Procedural (made by SCT) include: how many days to reply; file a reply; efiling rules
The legislature cannot delegate the power _________.
to make law or fundamental policy decisions.
Agencies cannot define the elements of a crime, e.g.
FL state legislature consists of two houses: ______ and ____ each with how many members and waht are their terms?
senate and house of representatives 40 senators (4 year terms) 120 reps (2 year terms)
What are the 3 types of legislative sessions?
- Organizational session - convened 14 days after each gen. election
- Regular session- convened the first week in March - laws on any subject may be enacted in a regular session by a majority vote
- Special sessions - may be called by the Governor or legislators, limited to 20 days, unless extended by 3/5 vote, no new business may be acted upon without the consent of 2/3 of the membership.
Who polices each house of the legislature?
They police themselves.
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 2/3 vote of the membership, the house may expel a member.
What are the 4 general requirements for a law?
- cannot be vague
- cannot be overbroad
- must be reasonably related to public welfare
- must meet constitutional requirements
(single subject, adequate title, text set out, enacting clause)
What are the constitutional requirements for a FL law?
- Must be limited to a single subject (great discretion)
- Must have an adequate title
- Text must be set out
- Must ahve an enacting clause
*Put these in an essay, but these likely won’t be the reason a law is overturned for unconstitutionality.
What are the different types of votes required for legislation?
- Majority vote
- 3/5 Vote (supermajority)
- 2/3 Vote
What type of legislation requires a majority vote?
Majority vote in each house needed for passage of bills (including joint resolutions and reapportionment)
Needed for Senate to convict a suspended state, county, or municipal officer
What type of legislative action requires a supermajority or 3/5 vote?
Needed in each house to:
- extend a regular sessions
- convene a special session
- amend or revise the C
- add prohibited subjects for special laws and general laws of local application
- raise the tax rate on corporate income
- creation of State Trust Funds
What type of legislative action requires a 2/3 vote?
Needed in each house to:
- extend special session to include new business
- waive three readings of a bill prior to its passage
- override a gubernatorial veto
- repeal rules of practice and procedure promulgated by the SCT
- increase or decrease the numbers of judicial offices recommended by SCT
- state mandates on local govts
- to increase state spending above revenue cap
Needed in House:
1. to Impeach
Needed in Senate:
1. to convict an impeached state officer
What are the categories of state laws?
- General laws
- Special Laws
(General laws of local application)
What is a general law?
applies uniformly statewide to all persons or circumstances
What is a special law?
Special laws relate to or are designed to operate on known, specific persons, or things or in a specifically indicated part of the state.
Usually found when a law applies to one geographical area. (Monroe County, e.g.)
What is the rule re special laws?
No special law shall be passed unless:
- notice of intention to seek enactment has been published in a newspaper or general circulation in the affected counties OR
- the law is to become effective only on approval by referendum vote of the electors of the area affected.
What is a general law of local application?
A law that uses a classification scheme based upon population or some other criterion so that its application is restricted to particular localities. A general law of application is distinguishable from a special law in that it doesn’t require notice or referendum.
**Used to get around special law requirements.
**ON bar: Has always had a minimum and maximum cap in order to be found valid and there must be a nexus between the population requirement and the evil to be remedied. (E.G. foreclosures, some counties don’thave foreclosures and the rules might not apply there).
What should you look for to determine whether general law of local application will be valid?
Look for a population minimum and maximum and a nexus between the population requirement and the evil to be remedied.
What are laws that must be uniform (i.e. can’t be special laws or general laws of local application)?
- election
- taxation
- rules of evidence *
- punishment for crimes *
- petit juries
- change of venue *
- conditions precedent to bringing any civil or criminal proceeding * (ADR for example)
- creation of liens *
- divorce *
- adoption
- regulation of occupations
All functions of the executive branch are allocated among not more than ____ departments.
25
Can’t create new departments without C amendment.
What are the roles of the Gov?
Ensures all laws faithfully executed acts as commander in chief initiates judicial proceedings in the name of the state has the power to appoint possesses clemency power can veto
The Gov has the power to veto a bill within _____ days after presenatation. If the legislator adjourns, the governor has _______ days to veto the bill.
7 days
15 days
T/F: There is no pocket veto in FL?
True. Gov must veto witin 7 or 15 days of presenation depending on whether the legislator is in session.
What are the potential subjects where Homestead Exemption will be tested?
wills, trusts, FL con law, family law, secured transactions, commercial paper MANY
What is the Homestead Exemption?
The homestead exemption provides that a natural person’s homestead property is exempt from forced sale under process of any court and no judgment or decree or execution shall be a lien thereon.
Exceptions:
- Payment of taxes and assessments on the homestead
- obligations contracted for the purchase, improvement, or repair of the homestead
- obligations contracted for house, field, or other labor performed on the homestead realty
Property included:
- If outside municipality: 160 acres of contiguous land and improvements theerto
- If inside municipality: 1/2 acre of contiguous land residence of the owner or his family.
What are the elements for homestead exemption?
- natural person (not corporation or pship)
- one homestead (each family gets one)
- property inside municipality = 1/2 acre contiguous + residence
- prop outside municpality = 160 contiguous acres
- Establishment before levy
What are the exceptions from the homestead protection?
- taxes and assessments and homeowners association
- validly executed mortgage (need both husband and wife signatures)
- mechanics/ construction liens for people who made improvements to homestead; equitable liens (used money to purchase homestead)
What are the abandonment and proceeds rules related to the homestead exemption?
- Abandonment: Your homestead can be abandonned if you move and make a new place your permanent residence.
- Proceeds are still protected if you sell your homestead with the intent to re-invest in a new homestead.
(Gen. proceeds are protected for about 2 years even if liquid). (ONLY up to the amount re-invested).
Restraints on the sale/devise 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 ______. It passes by right of _________ in all cases.
restraints survivorship (This is the easy case - won't be tested)
If there is no will and the homestead was owned solely in the decedent’s name, then the surviving spouse receives a ______ and a _________ goes to the lineal descendant of decedent.
Spouse gets life estate
Child (e.g.) gets vested remainder
The homestead cannot be devised if the __________.
owner is survived by a spouse or minor child. LE to spouse; VR to lineal descendants.
If the owner is not survived by minor children, the homstead may be devised to _______.
Surviving spouse (she normally would only get life estate).
If no spouse or minor children survive, the homstead may be devised to ________.
Whomever the owner chooses.
Note: If choose heir, no creditors; if choose friend, creditor can come in
If homestead is improperly devised, then ________.
it descends in same manner as other intestate property, but surviving spouse gets life estate and vested remained in descendants.
In lieu of the life estate, a new FL rule allows the surviving spouse to _______.
Take 1/2 interest in homestead in lieu of the life estate as tenants in common with the lineal descendants.
This gives the SS an actual ownership interest, which he/she can sell. So if SS wants to move to an old folks’ home and doesn’t want to live on homestead, he/she can sell her 1/2 interest, raise some money, and use it to make her move.
What are the two types of counties in FL?
Charter counties and non-charter counties
What is a charter county?
Has all powers not inconsistent with general or special laws. Has its own constitution and is more powerful than a non-charter county.
What power does a non-charter county have?
Power to enact ordinances as provided by general or special law – has to look to legislature to determine if it can act.
(v. charter county, which can enact ordinances so long as they are not inconsistent with general or special laws)
What is an unincorporated area?
An area not covered by municipality – covered by county, so therefore in the jx of the county
Municipalities are created by _______.
the state legislature
What type of powers does a municipality have?
Home rule - powers of a municipal purpose – water, utilities, garbage, sewer, etc.
When may a city not act?
- state preemption
- county preemption
- forbidden by county charter (city w/in county)
- forbidden by city charter
- consitutional laws (Fed. or FL)
Who wins?
Regulatory: city v. charter county?
Regulatory: city v. non-charter county?
Charter county
City
Who wins?
Services: Charter county v. city?
Services: Non charter county v. city?
Determined by dual referenda
City wins
Summarize the County-City Conflict Rules:
A city always trumps a non-charter county. When acting re regulatory issues, a charter county trumps a city. When acting re services, if city and charter county conflict, there is a dual referenda to determine which entity provides which services.
What is the hierarchy of governments re background check for gun control, e.g.?
- charter county beats city (city beats non-charter county)
- state beats county
- constitution beats statute
- federal beats state
The FL constitution guarantees that the state will provide ______ and _______ schools.
Constitution guaranatees that the state will provide adequate and uniform schools.
(school vouchers did not pass this).
What is eminent domain?
The sovereign power of the state (and other governmental entities by statute) to take private property for public purpose and for full compensation.
What are the elements of a proper eminent domain takign?
- Taking: must substantially oust the owner from property (distinguish from zoning)
- Necessity: gov’t must show reasonable necessity for its action (tourist dollars count)
- Public purpose: prop must be used for public benefit (cannot take for public purpose, then give to private entity to develop)(need airports, hospitals, utilities, parks)
- Full compensation: Fair market value - have right to jury trial to determine FMV.
Under the compensable rights theory, other people besides the landowner may be entitled to just compensation. For example:
person with a property interest: e.g. owner of mineral rights under the land
Inverse condemnation is: _______
Where a landowner initiates a suit to ahve the government actually take the property through eminent domain because the government has otherwise deprived the owner of use of hte property. (e.g. they put an airport next dooor, so I can’t enjoy my property anymore. Gov’t should give me FMV of my property).
Constitution and state permit waiver of _____ _______; however, the statute provides a cap for _____ for any one person and _______ for all claims arising from one accident.
sovereign immunity
$200,000
$300,000
What are the two functions under which the government operates related to sovereign immunity?
- Planning function (gov’t will use as a defense)
2. Operational function (P wins if operational negligence)
What is an example of a planning v. operational state function?
You cannot sue the city for not putting a stoplight in a particular location, that is a planning function; however, if the city had a defunct light there and didn’t send an officer to direct traffic, then you can sue because that was an operational function.
Flow for determining sovereign immunity question:
- planning v. operational function
- underlying duty?
- cap on damages?
What is the underlying duty rule related to sovereign immunity?
There must be an underlying duty of the state to the individual in order for an individual’s suit to be successful. Where no underlying duty exists, if the gov’t entity undertakes to perform a particular task, then it must do so with reasonable care.
If the city undertakes to provide a pool, must do so with reasonable care.
No underlying duty for cops and firemen to save in time.
What are the state taxation types/rules?
- There is C amendment that limits new taxes/ collecting more revenue than the previous year.
- There is a small corporate tax and no income tax.
- There is an intangible tax that is not enforced.
- There are pari-mutual taxes (sin taxes - gambling, cigarettes, alcohol, etc).
What are the main tax revenues for local govts?
- ad valorem tax: tax on real property at its value - generally millage rate ($1/ $1000 of value) $10 million cap per entity (school district, county, city)
What are the elements of a fair ad valorem tax?
- millage rates & cap
- uniformity (FMV property appraiser)
- assessment (yearly + notification)
- Best and highest use rule
- leaseholds (can be taxed even if on gov’t prop like airport)
- ag property tax break (outside city limits, cows, don’t need best and highest use)
What are the exemptions from ad valorem taxation?
- municipal property
- personal property
- economic devlopment (special industry promoted) (oridnance plus referendum)
- economic devlopment (historic - ordinancec only)
- grandparent quarters
- philanthropic property (libary, educational, scientific, charitable, religious)
- Homestead - decrease value by $25,000
- Disabled veteran discount (can get more than $25,000 on homestead).
What are the rules re fees from local govts?
Fees can be used to help lower taxes, but still pay for public spaces. There is a limitation on the amount and on the use.
Limitation on Amount: The amount of the fee must be tied to the per capita use of the facility and the local gov’t can raise no surplus through fees.
Limitation on Use: The fee must go right back into the facility that generates the fee, not for other purposes of the local gov’t.
If a government wants to finance a porject, it must be for a _____ purpose and with an _______ _______ benefit.
public
incidental private
What are bonds (generally)?
IOUs issued by the state gov’t. Used to finance state projects.
What is a revenue bond?
A revneue bond is a bond where the bondholders are paid back from revenues rather than taxes. Generally, no referendum is needed to use such bonds because the tax payers are not on the hook for the bond.
(v. general obligation bond)
What is a general obligation bond?
A bond where teh full faith and credit of the state or local gov’t is pledged. Generally, bondholders can be paid from tax dollars.
State gov’t: no vote needed because if acting for the public purpose, then such action is provided for in the state constitution.
Local gov’t: Referendum is required if bonds mature more than 12 months after issuance.
When is a referendum needed for a state or local gov’t to issue a bond?
Only when a local government issues general obligation bonds (taxpayers on the hook) and the bonds mature more than 12 months after issuance.
How are justices and judges elected in FL?
Governor appointment
SCT & DCA: Retention election after appointment
Circuit & County: political election
What is the JNC and the JQC?
JNC is the judicial nominating committee: suggests judges to be appointed.
JQC is the group that reprimands judges for ethical violations.
What are the mandatory topics under the jurisdiction of the FL SCT?
- death penalty
- bond validation
- rate decisions (from public service commission)
- DCA decisions to invalidate a law
(the constitution must be amended to add any new mandatory subjects).
What are the discretionary topics under the jx of the FL SCT?
- officers of state
- conflicting decisions between DCAs
- statute and constitution validity by DCA
- great public importance (certification) by DCA
- bypass certification
- federal certification
What administrative topics are under teh jx of the FL SCT?
- rules of practice and procedure
2. FL Bar admissions/ suspensions
What are the topics under mandatory jurisdiction of the FL DCA?
- final orders of circuit courts
2. final orders of state agencies
What are the topics under discretionary jurisdiction of the FL DCA?
- non-final orders of the Circuit Court
- final orders of circuit court in its appellate capacity
- bypass certifcation
What is the jurisdiction of the circuit court?
Appellate:
- final orders of county court
- final orders of agencies not under APA
Trial:
- original jx
- amount sought exceeds $15,000 (or equitable remedy)
What is the jurisdiction of the county court?
- ordinances, misdemeanors, and traffic infractions
2. amount sought is less than $15,000
Which courts in FL can issue writs?
SCT, DCA, Circuit Court
Can a public offical hold two governmental positions?
No – one paid position at a time.
How are public officials removed from office?
Governor may suspen, but may not remove. The senate must remove.
What are the five methods for amending the FL constitution?
- legislative
- revision convention (meets every 20 years and canvasses for amendments)
- constituional convention (called by leg.)
- Initiative: signatures (Most common)
- taxation and budget reform commission
What is needed for a legislative amendment to the Constitution?
3/5 vote of each house can propose, then need 60% vote of electors.
What is needed for a voter initiative amendment to the Constitution?
- single subject rule: seen as one subject if the component parts have a natural relation and connection ot a single dominant plan or scheme. (much more strict than in legislative action)
- economic impact statement : probable financial impact of the amendment
- Must be represented accurately on ballot: summary language on the ballot must be accurate, circuit judge will decide whether language is accurate.
