Florida Constitutional Law Flashcards
Strict Scrutiny Test
Gov’t BOP - act is necessary to achieve a compelling government interest and narrowly tailored to serve that interest.
Legislative action will generally fail
Rational Basis Test
Challenger BOP - act is not rationally related to a legitimate state interest
Legislative action will generally be upheld
Intermediate Scrutiny Test
Gov’t BOP - regulation is substantially related to an important government interest
When is the Rational Basis Test Applied to Equal Protection Claims
When you are not dealing with a fundamental right, e.g., age
When is the Intermediate Scrutiny Test Applied?
Gender
Legitimacy
What does the establishment clause do?
Prevents excessive government entanglement with religion
Does the Florida constitution bar suits against churches for negligent supervision
-No, Florida has held that the doctrine of respondeat superior has a secular purpose, its primary effect does not inhibit religion and its application does not involve excessive government entanglement
With regard to freedoms of speech, press and assembly, what power does the Florida constitution give to its constituents that the US Constitution does not?
The right to instruct their representatives
What is homestead property?
Residential property owned by a natural person of up to 1/2 acre within a municipality or 160 acres outside a municipality and personal property up to $1,000
If land becomes annexed, homestead owner must consent to the reduction in homestead protection once property is part of municipality
What do you need to do to make sure homestead protection is applicable?
Homestead must be established before the judgment creditor’s levy on the property
What is the effect of homestead status?
Homestead property is protected from levy by the creditors of the owner, but IS NOT protected from forced sale to satisfy obligations contracted for purchase, improvement or repair (e.g., mortgages, mechanics liens), or taxes or assessments, condo or HOA liens
Can equitable liens be placed on homestead property for other debts?
Yes, if fraud is involved in inducing the loan
How can homestead protection be forfeited
If homestead is abandoned by owner and family. This is a question of fact
May a homestead property be conveyed by one spouse without the other’s spouse’s consent?
No. If owner of homestead Real estate is married, spouse must join in mortgage, sale or gift of real estate
If homestead is sold, what happens to proceeds?
Proceeds are considered to retain homestead exemption status, provided that the owner has a good faith intent to reinvest the proceeds in another homestead within a reasonable time. Only the amount of the proceeds reinvested are protected. The surplus will be considered general assets of debtor.
Restraints on devise of homestead property - what type of property does it apply to?
Solely owned property. R.P owned by JT with ROS or T by E is not homestead property.
What types of devise does the homestead rule apply to?
Dispositions by will or trust, except an inter vivos, irrevocable transfer of an interest in the property is not a devise
Rules for devise of homestead property
- Homestead cannot be devised if owner is survived by spouse or minor child
- If owner is not survived by minor children, the homestead must be devised to spouse in fee simple absolute
- If no spouse or minor children, owner can devise however he chooses.
If homestead improperly devised, what are the descent rules?
Same as other intestate property
-If survived by spouse and one or more descendants, spouse gets a life estate with vested remainder in defendants surviving at the time of owner’s death, per stirpes.
What can surviving spouse take in lieu of life estate?
She can take a 1/2 interest in the property as TIC with the surviving descendants who take per stirpes
What happens if spouse disclaims homestead rights?
Treat it as if spouse predeceased owner.
What happens if spouse waives homestead right and Owner is not survived by minor children?
There is no restraint on the devise, and it can pass under the residuary clause of the will.
How can you pass along homestead protection to heirs?
If Owner has no spouse or minor children, she can devise the property by will to an heir and that person will have the homestead protection also.
What happes if owner dies w/o spouse or minor children and does not specifically provide in her will what happens to the property?
The property passes to the residuary devisee unless there is a specific testamentary provision ordering the property to be sold and the proceeds made a part of the general estate.
Homestead keeps “protection” even from general devisees. It cannot be sold to satisfy a general devise. It must go to the residuary.
What does the Florida constitution say about organized labor?
Const. protects the right to work by providin gthat no person may be denied a job b/s of membership or nonmembership in a union.
Public and private sector employees have the right to bargain collectively but PUBLIC employees cannot strike.
True or false:
The right to work and the right to bargain collectively are fundamental rights
True
Florida’s right to bear arms
You have the right, but the matter may be regulated. Constitution mandates a three day waiting period between purchase and delivery of handgun. counties may impose additional waiting period of three - five days and a criminal history background check.
Florida’s due process provision
No person may be deprived of life, liberty or property without due process of law.
Procedural due process extends to private organizations acting in a quasi-public function (e.g. professional organizations)
To what does the right against self incrimination extend to in Florida
Proceedings before administrative agencies that are essentially penal in nature.
Does the Florida constitution prohibit:
- Bills of attainder
- Ex post facto laws and
- Laws impairing the obligation of contract?
Yes - just like federal
When the state is NOT a party to a contract, what does the court balance?
Courts balance the degree to which a party’s contract rights are statutorily impaired against the evil a state is attempting to remedy through contract
Does Florida permit imprisonment for debt?
Only if fraud is proved
A “debt” is an obligation arising out of contract. Not child support, taxes, alimony or tort damages
Florida’s search and seizure rules
Same as U.S. Constitution
What are the exception to the Florida constitution’s general right to pretrial release on bail?
- Capital or life offenses where probability of guilt is “great”
- Accused poses a threat to public safety or integrity of judicial system
Express guarantee of Florida Const w/r/t searches and seizure
The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures and against the unreasonable interception of private communications by any means
Florida’s rights of accused
Right to speedy and fair trial, counsel, confrontation, etc., but are WAIVED if the accused does not demand them
Can you be punished by imprisonment in an administrative action?
No
How may children be charged?
Can be charged with delinquency rather than a crime, but not both
What are a victim’s rights?
To be informed, present and heard, when relevant, at crucial stages of litigation, s/l/a this does not interfere with constitutional rights of the accused.
Can death penalty be applied to some under 16?
No, it is cruel and unusual punishment to apply death penalty to someone who was 16 or younger when crime was committed.
The writ of habeas corpus
Granted freely as of right, but a solvent person may be charged a filing fee for filing a writ of habeas corpus
What is necessary to charge someone with a capital crime?
Indictment
What excessive punishments does the Florida Const prohibit?
- Excessive fines
- Cruel or unusual punishment
- Forfeiture of estate
- Indefinite imprisonment
- Unreasonable detention of witnesses
Right to Access to Courts
Courts are open to everyone to redress injury. Guaranteed at least one appeal from a final order.
What happens if legislature abolishes a cause of action?
Reasonable alternative must be provided unless
- legislature can demonstrate a compelling government necessity for the abolition and
2. No alternative method can be established
When are you entitled to a trial by jury?
In criminal proceedings, and in civil proceedings where the right existed at the time Fla’s constitution became effective in 1845
Minimum jury size
6
12 in capital cases
Difference between Fla right to privacy and that provided for in the US Const.
-Right to privacy is expressly included in Florida
constitution and is considered to provide MORE protection than US
“Every natural person has the right to be let alone and free from governmental intrusion into her private life”
Is right to privacy a fundamental right?
Yes - so strict scrutiny applies
What does Fla constitution authorize legislature to do w/r/t abortion
It authorizes them to adopt law requiring parental consent for minor abortion, but it must include a judicial process for waiving such notice
Can a person’s access to public records, documents and meetings be limited by the privacy right?
No
All public meetings must be open to the public except
Legislature may provide exemptions by law if law states
- public need for justifying exemption and
- law is no broader than necessary
Limitation on state’s powers in Florida constitution
State has police powers, but the constitution is a LIMITATION on those powers (as opposed to US constitution which GRANTS powers to the fed’l government)
What is Florida’s counterpart to the Bill of Rights
Article I Declaration of Rights
Governor and Lieutenant governor, qualifications
- 30 years old
- residents of Fla for 7 years
Atty general - member of bar for five years
Governor
§ Chief executive of the state
o Ensures all laws faithfully executed
o Acts as commander in chief
o Initiates judicial proceedings in the name of the state
o Power to appoint and possesses clemency power (2 cabinet members must approve)
o cannot be re-elected if he served more than 6 years in 2 consecutive terms
Lt Governor
§ Performs duties assigned by the Governor
§ Can become governor if vacancy in office of governor; becomes acting governor if the existing governor is impeached or incapacitated
o no more than 8 consecutive years
Cabinet
§ Attorney General - chief legal officer
§ CFO - settles and approves accounts against the state
§ Commissioner of Agriculture - supervises matters pertaining to ag and consumer affairs
GOVERNOR presides over cabinet
o no more than 8 consecutive years
Impeachment
o For committing a misdemeanor while in office
§ House has power to impeach by 2/3 vote
§ Trial in the Senate (w/in 6 months of impeachment)
Can governor seek advisory opinion from Supreme Court
Yes re: any portion of the Florida const. that affects his powers and duties. However, he cannot force the justices to respond. And the opinion is that of the individual justice, not the court, so while they are persuasive, they are not controlling
What happens if there is a tie vote in cabinet
In the vent of a tie vote with governor and cabinet, the side on which governor is on is deemed to prevail.
OF the 25 departments of the executive branch, which are the only two specifically authorized in the constitution?
Dep’t of Veteran’s Affairs and
Dep’t of Elderly Affairs
Senators -
40 of them
§ 4-year terms
§ Consecutive Limit - 8 years (no lifetime limit)
Representatives -
120 of them
§ 2-year terms
§ Consecutive Limit - 8 years (no lifetime limit)
Qualifications of Legislators
§ 21 years old
§ Resident of district
§ Resident in FL for 2 years
§ May not hold more than one state or local office
Government in the Sunshine
All legislature sessions are open to the public except senate sessions considering appointment or removal of public officers
What constitutes a quorum?
A majority of each house
Regular Sessions
§ Cannot exceed 60 days
§ Must pass budget during session
Special Sessions
§ Generally convened by governor
o May only transact business related to governor’s proclamation, unless 2/3 of legislature agrees
§ Cannot exceed 20 days, unless 3/5 vote of each house to extend
Rules
§ Each house makes its own rules of procedure
§ May punish member w/ majority vote
§ May expel member w/ 2/3 vote
• Bills and Laws
o Origin - either house
o Procedure - must be read in each house on three separate days, unless waived by 2/3 vote
o Passage - majority in both houses
o Requirements for a Law
(1) Address only a single subject
(2) Not vague
(3) Not overbroad
(4) must be enacted in accordance with constitutional req’ts
(5) must have adequate title that gives notice
(6) Text must be set out (if amending)
(7) Must have enacting clause - “ Be it enacted by the Legislature”
• Executive Signature or Veto
o Bill becomes law if:
§ Governor signs; or
§ Governor does not veto w/in 7 consecutive days after it is presented
o In recess for more than 30 days - governor has 15 days to veto
o General rule - veto extends to entire bill
§ Exception - general appropriations bill (may veto specific appropriations)
o Override Veto - 2/3 vote in each house
o General Law
§ Apply uniformly state-wide to all persons or circumstances
o Special Law
§ Relate to or are designed to operate on known, specific persons or things or in a specifically indicated part of the state
§ Requirements to Pass:
o Legislature must give notice in newspaper of general circulation in affected counties; or
o Law becomes effective by referendum vote
Composition of Supreme Court
§ 7 justices (5 for a quorum)
§ Concurrence of 4 needed for decision
§ Chief Justice - chosen by majority of the court
Mandatory Jurisdiction of Supreme Court
o Appeals from final judgments imposing death penalty
o Appeals from decisions declaring state statute or provision of constitution invalid
o Bonds/certificates of indebtedness
Discretionary Jurisdiction of Supreme Court
o Decision that declares state statute or constitution valid
o DCA - question of great public importance or direct conflicts b/w DCAs
o Trial Ct - question of great public importance and requires immediate resolution
o SCOTUS/US Ct of App - question of law
District Court of Appeals - Composition
§ At least 3 judges; concurrence of 2 needed for decision
District Court of Appeals - Jurisdiction
§ Final judgments
§ Interlocutory orders
§ Writs - habeas corpus, mandamus, etc.
• Circuit Court - same as NY Supreme - Composition
§ 20 circuit courts
Circuit Court - Jurisdiction
§ All actions not vested in County Courts
§ Legality of taxes
§ Ejectment
§ Equitable actions for title or boundaries to real property
§ Felony/misdemeanor cases
County court - Composition
§ One in each county
County court - exclusive jurisdiction
o Amount in controversy < $15,000
o Right of possession of real property < $15k
County court - concurrent jurisdiction with Circuit court
o Equity actions < $15k
o LL/T cases > $15k
o Right to possession of real property in which amount > $15k
o Qualifications of Judges
§ Elector of the state § Resides in court’s territorial jurix § Under 70 § Member of FL Bar: o 10 years for Sup Ct/DCA o 5 years for all other courts
o Selection, Retention, and Vacancies
§ Sup Ct / DCA - appointed by Governor
o 6-year term
o General election prior to expiration à majority vote to retain
§ Circuit/County - elected by popular vote
o May run for re-election
o Removal and Reprimand
§ Judicial Qualifications Commission
o Investigates and recommends removal or discipline
§ Procedure
o Prior to formal charges à confidential
o After formal charges à public
o Majority needed to recommend discipline
§ Sanctions
o Sup Ct may accept, reject, or modify recommendations of the commission
o Reprimand, fine, suspension w/ or w/o pay, and attorney discipline
• Attorney Qualification and Discipline
Separation of Powers between the branches
Fla constitution expressly incorporates the doctrine of separation of powers.
Encroachment
When one branch of gov’t usurps the function of another branch, it is said to encroach.
Example:
A statute says that in the event of its violation, an injunction shall issue. But issuance of injunction is a judicial determination. It should say injunction is a remedy.
Can the legislature delegate power to make law or fundamental policy decisions?
No. But the legislature via statute may allow executive agencies to make rules - but it must provide sufficient guidelines and standards so that agencies are merely implementing policy determined by legislature, not making policy themselves.
Can’t let agency decide elements of crime or punishment
What does it mean that municipalities and counties have home rule powers?
They govern themselves by their own ordinances. They overlap geographically.
What is a county
A political subdivision of the state.
67 in Florida
Two types of counties
chartered and unchartered
Charter County
Broadens scope of local gov’t power
- May have allpowers not inconsistent with general law or special law and may enact ordinances not inconsistent with general law
- Dade county charter supersedes special law.
Noncharter county
May enact ordinances AS PROVIDED by general or special law
Preemption by state law
State law preempts conflicting county laws
County-Municipality conflict in ordinances
In a chartered county, the charter must contain a supremacy clause to settle conflicts between ordinances
Non-charter county - municipality always prevails
Sale of alcoholic beverages
Each county may determine whether alcohol can be sold within the county, and once permitted, may onyl regulate hours of sale and zoning req’ts. State regulates everything else.
What is the unincorporated area of a county
Territory in a county not incorporated into a municipality
Municipalities
- creatures of the state
- may be established or abolished and their charters amended pursuant to general or special law.
- they act to protect the health, welfare, safety and morals of the citizens
Can municipal ordinances conflict with state law?
No
Merger of two municipalities
General or special law may provide for merger of two municipalities
Consolidation
The gov’t of a county and the gov’t of a municipality may be consolidated into a single government. They obtain all powers of both the municipality and the county, but do not obtain an increased tax base
Transfer of powers
Individual functions or powers of a municipality may be transferred to the county. This is a common way for a municipality to alleviate budget problems. Sometimes, residents vote, other times its done by contract.
o Regulation of Elections
§ MUST be by direct and secret vote
§ Determined by plurality of votes cast
o Electors
§ 18 years old + permanent resident + registered to vote
o Disqualification of electors
§ Convicted of a felony
§ Adjudicated mentally incompetent
Time of elections
General: First Tuesday after the first Monday in November of even-numbered years
Special: held as provided by law
Limitation on reelection
8 consecutive years by end of current term of office (except governor)
True or false: Florida constitution limits the right of state to tax
True
Ad Valorem Taxes (on real estate or tangible personal property)
§ By local gov’t only (no state ad valorem tax)
§ Not on mobile homes, vehicles, boats, planes, trailers, etc.
-county, municipality and school district may EACH impose tax up to the constitutional limit of 10 mills
What is a mill
$1 per $1,000 of value
What is the cap on tax of homestead property?
Capped annually at the lower of 3% or the percent change in the consumer price index
Exemptions from ad valorem tax
o Municipal Property - owned by municipality for public purpose
o Community and Economic Development - ordinance approved by votes for tax exemptions for new/expanding businesses
o Historic Preservation - may grant
o Tangible Personal Property - $25,000 exemption
o Homestead Exemptions
o Homestead Exemptions
§ Requirements
o (1) Property must be real property located in FL; and
o (2) Must be either permanent residence of owner or dependent
§ Types of Qualifying Ownership Interests
o Legal or equitable title
o Need not be fee simple
§ Exemption Amount
o $25,000, plus
o Another $25,000 (dollar-for-dollar after $50k up to $75k)
o MAXIMUM = $50,000
§ Other Homestead Exemptions
o 65+ Years Old + Income Less than $20,000
• Up to $50,000
o 65+ Years Old + 25 Years as Residence + Income Less than $20,000 + Property value < $250,000 at time of application:
• Exemption = assessed value
o 65+ Years Old + Disabled Veteran + Honorably Discharged
• Discount based on veteran’s permanent, service-connected disability
o SS of Military Veteran or First Responder (died in line of duty)
• Complete exemption
o Currently Serving Military Personnel
• Add’l exemption equal to % of taxable value of homestead property
• Non-Homestead Residential Real Property
o Change may not exceed 10% of the prior year’s assessment
o Valuation of Property
§ In General
o “Just value” of property = FMV
§ Exceptions - must be valued at less than just value
o Ag land
o Working waterfront properties
o Historical properties
o Improvements made to homestead property to provide living quarter for grandparents “granny flats”
o Timing of Assessment of Property
§ Made based on value of property on January 1
• Income Tax
o Personal - none (allowed up to 5%)
o Corporate - 5.5%
• Pari-Mutuel Taxes
o If allocated to counties, must be done equally
Intangible tax
state may levy an ad valorem tax on intangible property. It cannot exceed to mills.
May a county or municipality be bound by a general law requiring it to spend funds?
No unless it is an important state interest
o State Bonds
§ May be issued for state fixed capital outlay projects (only by approval of voters) § Total outstanding principal may not exceed 50% of total revenues for preceding 2 years § Issued w/o vote to finance: o Air/water pollution control o Solid waste disposal facilities o Water facilities o State roads o Bridge construction
o Revenue Bonds
§ May be issued w/o vote of electors
§ Payable solely from funds other than state tax revenues
§ Typically, will dedicate certain revenues to pay the bonds
o Local Bonds
§ Payable from ad valorem taxes
§ May only be issued:
o To finance/refinance capital projects approved by voters; or
o To refund outstanding bonds at lower interest
True or false: Legislature cannot reduce county/municipality authority to raise revenues
True
Is legislature permitted to delegate its power of eminent domain?
Yes. Typically, public utilities are granted this power.
What is eminent domain?
Power of state to take private property for public purposes
Public purpose
Must benefit state in tangible and forseeable way
Five ways to amend/revise constitution
- Proposal by legislature
- Proposal by revision commission
- Proposal by Initiative
- Proposal by constitutional convention
- Amendment/Revision Election
Proposal by legislature
- 3/5 of each house vote to amend
- governor has no veto power
Proposal by Constitution Revision Commission
- Meets every 20 years
- comprised or 37 people
- Files with custodian of records the proposal at least 180 days before election
- reports directly to the people, not the legislature
Proposal by Initiative
- Proposal must cover one subject only
- Petition Signed by 8% of total votes cast in last presidential election, from at least ½ of congressional districts
- legislature must provide statement of probable financial impact
Proposal by Constitutional Convention
- File petition for constitutional convention w/ custodian
- Signed by 15% of total votes cast in last presidential election, from at least ½ of congressional districts
- At the next election, a question is placed on ballot: -“Shall a constitutional convention be held”
Election
After convention, the proposed amendment is put on the ballot
- file proposal with custodian 90 days before election; published 2x in newspaper;
- majority vote of people.
Is the question of whether there has been a taking for the jury or decided as a matter of law
Question of law for the judge.
Is a police power regulation a taking
Generally no, unless it goes too far
No when there is an immediate threat of harm
When is there a statutory right to compensation even if the gov’t action is not a taking
When the gov’t action inordinately burdens real property
Is the question of what constitutes full compensation a question for the judge or the jury?
Jury -but its a statutory right, not a constitutional one
What is full compensation?
FMV plus attorneys fees
Leasehold, easements, personal property, franchises, and contracts are compensable property interests
Inverse condemnation
Even if there has been no formal exercise of eminent domain, when the state acts in a manner that effectively deprives the owner of use of his property.
eg. noise from airport
Before an eminent domain proceeding may be brought, what has to happen
Condemning authority must:
- attempt to negotiate in good faith with property owner
- provide property owner with written offer, and if requested, copy of the appraisal on which it was based; and 3. attempt to reach an agreement on compensation
How is the constitution constured
- as a statute would be construed. Intent of framers and adopters is considered and words are given plain meaning.
- some provisions are self executing, others require legislative action (‘as provided by law”)
