Florida Constitutional Law

Question 1

Florida Rational Basis Test

Answer 1

The Florida Supreme Court uses a reasonableness approach when describing the rational basis test. In applying the rational basis test, the courts first look to whether the statute serves a legitimate government purpose, and second, whether the legislature was reasonable in its belief that the classification would promote that purpose.

Without exception, all statutory classifications that treat one person or group differently than others must appear to be based at a minimum on a rational distinction having a just and reasonable relation to a legitimate state objective.

Question 2

Florida Right to Assemble

Answer 2

Under article I, section 5 of the Florida Constitution, the people have the right to peacefully assemble, to instruct their representatives, and to petition for redress of grievances. Under current state interpretations, the right has been largely subsumed under the First Amendment to the United States Constitution, and has received little interpretation at the state level. The Florida Supreme Court has recognized that although the right to petition is inherent and absolute, it is subject to reasonable regulation.

Question 3

Florida Right to Work and Bargain Collectively

Answer 3

Under article I, section 6, employees have the right to bargain collectively with their employers. This right has been held to apply to public employees as well as those working in the private sector. However, workers do not have the right to strike. Article III, section 14 also benefits public employees, authorizing the legislature to create local civil service systems for state, county, district, or municipal employees. This right may only be abridged except upon a showing of a compelling state interest. Any statute that unconstitutionally abriges the fundamental right of public employees to bargain collectively is invalid.

Question 4

Obligation of Contract (Prohibited Florida Laws)

Answer 4

Article I, section 10 of the Florida Constitution prohibits the enactment of any law impairing the obligation of contracts. When a state law has impaired a contractual obligation, the first inquiry must be whether the state law has, in fact, operated as a substantial impairment of a contractual relationship. The severity of the impairment measures the height of the hurdle the state legislation must clear. Minimal alteration of contractual obligations may end the inquiry at its first state. Severe impairment, on the other hand, will push the inquiry to a careful examination of the nature and purpose of the state legislation. Several factors to be considered in this balancing test are:

• (a) Was the law enacted to deal with a broad, generalized economic or social problem?
• (b) Does the law operate in an area which was already subject to state regulation at the time the parties’ contractual obligations were originally undertaken, or does it invade an area never before subject to regulation by the state?
• (c) Does the law affect a temporary alteration of the contractual relationships of those within its coverage, or does it work a severe, permanent, and immediate change in those relationships, irrevocably and retroactively?

Question 5

Ex Post Facto Laws (Florida Prohibited Laws)

Answer 5

The constitutional prohibition of ex post facto laws forbids the enactment of laws with certain retroactive effects. The prohibition of ex post facto laws does not give a criminal a right to be tried by the law in force when the crime charged was committed. And the mere fact that a statutory change alters the situation of a party to his disadvantage is not sufficient to bring that change within the scope of the ex post facto clause. Detriment to the defendant is necessary but not sufficient to establish an ex post facto violation. There are four categories of ex post facto laws:

• (1) Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action.
• (2) Every law that aggravates a crime, or makes it greater than it was, when committed.
• (3) Every law that changes the punishment, and inflicts greater punishment, than the law annexed to the crime, when committed.
• (4) Every law that changes the proof necessary to convict.

Question 6

Due Process and Conclusive Presumptions (Florida)

Answer 6

A presumption is conclusive if a party is not given a reasonable opportunity to disprove either the predicate fact or the ultimate fact presumed. The constitutionality of a conclusive presumption under the due process clause is measured by determining:

• (1) whether the concern of the legislature was reasonably aroused by the possibility of an abuse which it legitimately desired to avoid;
• (2) whether there was a reasonable basis for a conclusion that the statute would protect against its occurrence; and
• (3) whether the expense and other difficulties of individual determinations justify the inherent imprecision of a conclusive presumption.

The unconstitutionality of one presumption, however, does not render all of the provisions on the same issue defective. In determining whether parts of a statute are severable from the remainder of the law, the court must look to the relationship between the unconstitutional provisions and the overall legislative intent. The court must then evaluate the remaining provisions of the statute to accomplish that intent.

Question 7

Substantive Due Process (Florida)

Answer 7

Under article I, section 9 of the Florida Constitution, no person shall be deprived of life, liberty, or property without due process of law. While applying a substantive due process analysis, the Florida courts attempt to determine whether or not the state has a valid purpose for the action which it contemplates. To serve a valid purpose, it must be rationally related to a legislative goal. If a valid governmental purpose has been established, the second part of the analysis involves determining whether or not the means selected by the state to achieve its valid purpose is a reasonable one.

• Example: Statute permits the state to revoke a drug offender’s driver’s license. The statute was enacted to deter the incidence of illicit drug possession, and therefore it was rationally related to the legislative goal of solving the drug problem. Further, it was reasonable because driving is a privilege, and not a right.

Question 8

Procedural Due Process (Florida)

Answer 8

Procedural due process serves as a vehicle to ensure fair treatment through the proper administration of justice where substantive rights are at issue. Procedural due process under the Florida Constitution guarantees to every citizen the right to have that course of legal procedure which has been established in our judicial system for the protection and enforcement of private rights. It contemplates that the defendant shall be given fair notice and afforded a real opportunity to be heard and defended in an orderly procedure, before judgement is rendered against him.

While the doctrines of substantive and procedural due process play distinct roles in the judicial process, they frequently overlap. Hence, many cases do not expressly state the distinction between procedural and substantive due process.

Question 9

Imprisonment for Debt (Florida)

Answer 9

Under article I, section 11 of the Florida Constitution, no person shall be imprisoned for debt, except in cases of fraud. However, in some instances, individuals may be imprisoned for failure to pay restitution. In cases where a person on probation has failed to pay restitution, he cannot be imprisoned until he has had the ability to pay and has refused to do so. There must be both an inquiry into the probationer’s ability to pay and a determination of willfulness. The state must present sufficient evidence of the probationer’s willfulness, which includes evidence on ability to pay. After evidence of willfulness is introduced by the state, the burden may then be properly shifted to the probationer to assert and prove inability to pay.

Question 10

Search and Seizure (Florida)

Answer 10

The right against searches and seizures in article I, section 12 of the Florida Constitution is to be construed in conformity with the Fourth Amendment to the United States Constitution. Recent decisions of the Florida Supreme Court appear to limit privacy rights in search and seizure contexts to the extent found to be reasonable under the Fourth Amendment by the United States Supreme Court.

In order to be protected by a search under the Fourth Amendment, there is a twofold requirement: first, a person must have a subjective expectation of privacy, and second, that expectation must be one that society is prepared to recognize as reasonable. Objects exposed to the “plain view” of outsiders are not protected because no intention to keep them protected has been exhibited. The evidentiary showing required to perform a search is probable cause.

Question 11

Administrative Penalties (Florida)

Answer 11

Under article I, section 18, no administrative agency, except the Department of Military Affairs in an appropriately convened court-martial action as provided by law, shall impose a sentence of imprisonment, nor shall it impose any other penalty except as provided by law. Only the legislature can confer on executive branch entities the power to levy civil penalties. Explicitly and in no uncertain terms, the Florida Constitution requires statutory authorization for such power.

Question 12

Access to Courts (Florida)

Answer 12

Article I, section 21 provides that the courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial, or delay.

Generally, the courts have concluded that the access to courts clause is not violated if restrictions are reasonable. However, where court costs or fees have created an inaccessible barrier, they have been invalidated. Statutes of limitations that bar a cause of action before its accrual have also been invalidated.

Under Kluger, where a right of access to the courts for redress for a particular injury has provided by statutory law predating the adoption of the Declaration of Rights, or where such right has become as part of the common law of the State, the Legislature is without power to abolish such a right without providing a reasonable alternative to protect the rights of the people of the State to redress for such injuries, unless the Legislature can show an overpowering public necessity for the abolishment of such right, and no alternative method of meeting such public necessity can be shown. Any restrictions on such access to the courts must be liberally construed in favor of the constitutional right.

Question 13

Florida Right to Privacy

Answer 13

Article I, section 23 gives Florida citizens the right to privacy. The Florida Supreme Court has identified this as a fundamental right, and as such, it is subject to particularly rigorous protection by the judiciary. Cases involving the right to privacy demand the compelling state interest standard. This test shifts the burden of proof to the state to justify an intrusion on privacy. The burden can be met by demonstrating that the challenged regulation serves a compelling state interest and accomplishes its goal through the least intrusive means.

The right of privacy does not confer a complete immunity from governmental regulation and will yield to compelling governmental interests. However, before a right to privacy is attached and the standard is applied, there must first exist a reasonable expectation of privacy.

Question 14

Reasonable Expectation of Privacy (Florida)

Answer 14

Determining whether an individual has a legitimate expectation of privacy in any given case must be made by considering all the circumstances, especially objective manifestations of that expectation. Although a person’s subjective expectation of privacy is one consideration in deciding whether a constitutional right attaches, the final determination of an expectation’s legitimacy takes a more global view, placing the individual in the context of a society and the values that the society seeks to foster. Although the boundaries of the right to privacy are still evolving in the courts, the right has been applied:

• (1) to protect natural persons from public disclosure of personal matters by the government;
• (2) to prohibit unwarranted governmental inquiry concerning private matters; and
• (3) to create a zone of autonomy protecting personal decision making, especially concerning the issues of health.

Question 15

Privacy at Criminal Proceedings (Florida)

Answer 15

Trial judges must apply the following three-pronged test when considering the closure of criminal court proceedings:

• (1) closure is necessary to prevent a serious and imminent threat to the administration of justice;
• (2) no alternatives are available, other than a change of venue, which would protect the defendant’s right to a fair trial; and
• (3) closure would be effective in protecting the rights of the accused, without being broader than necessary to accomplish this purpose.

Question 16

Privacy at Civil Proceedings (Florida)

Answer 16

The following factors must be considered to determine a request for closure of a civil proceeding:

• (1) A strong presumption of openness exists for all court proceedings. A trial is a public event, and the filed records of the court proceeding are public records and are available for public examination.
• (2) Both the public and news media shall have standing to challenge any closure order. The burden of proof in these proceedings shall always be on the party seeking closure.
• (3) Closure of court proceedings or records should occur only when necessary: (a) to comply with established public policy set forth in the constitution, statutes, rules, or case law; (b) to protect trade secrets; (c) to protect a compelling governmental interest [e.g., national security, confidential informants]; (d) to obtain evidence to properly determine legal issues in a case; (e) to avoid substantial injury to innocent third parties [e.g., to protect young witnesses from offensive testimony; to protect children in a divorce]; or (f) to avoid substantial injury to a party by disclosure of matters protected by a common law or privacy right not generally inherent in the specific type of civil proceedings sought to be closed.

Question 17

Privacy and Abortion (Florida)

Answer 17

The right of privacy is a fundamental right which demands the compelling state interest standard. This test shifts the burden of proof on the state to justify an intrusion of privacy. The burden can be met by demonstrating that the challenged regulation serves a compelling state interest and accomplishes its goal through the use of the least intrusive means. Florida’s privacy provision is clearly implicated in a woman’s decision of whether or not to continue her pregnancy. The right to privacy extends to every natural person, so this right necessarily extends to minors undergoing an abortion.

Under Florida law, prior to the end of the first trimester, the abortion decision must be left to the woman and may not be significantly restricted by the state. Following this point, the state may impose significant restrictions only in the least intrusive manner designated to safeguard the health of the mother. Insignificant burdens during either period must substantially further important state interests. The state’s interest becomes compelling upon viability, which generally occurs upon the completion of the second trimester. Following viability, the state may protect its interest in the potentiality of life by regulating abortion, provided that the mother’s health is not jeopardized.

Question 18

Privacy and the Refusal of Medical Treatment (Florida)

Answer 18

An integral component of self-determination is the right to make choices pertaining to one’s health, including the right to refuse unwanted medical treatment. There are few more personal or private decisions concerning one’s body than the decision of the terminally ill in their choice of whether to discontinue necessary medical treatment.

A competent person has the constitutional right to choose or refuse medical treatment, and that right extends to all relevant decisions concerning one’s health.

Question 19

Incompetent Persons and the Right to Privacy and Refusal of Medical Treatment (Florida)

Answer 19

The right to privacy would be an empty right were it not to extend to competent and incompetent persons alike. The primary concern is that this valuable right should not be lost because the noncognitive and vegetative condition of the patient prevents a conscious exercise of the choice to refuse further extraordinary treatment. When the patient has left instructions regarding life-sustaining treatment, the surrogate must make the medical choice that the patient, if competent, would have made, and not one that the surrogate might make for himself or herself, or that the surrogate might think is in the patient’s best interests. Before exercising the incompetent’s right to forego treatment, the surrogate must satisfy the following conditions:

• (1) The surrogate must be satisfied that the patient executed any document knowingly, willingly, and without undue influence, and that the evidence of the patient’s oral declarations is reliable.
• (2) The surrogate must be assured that the patient does not have a reasonable probability of recovering competency so that the right could be exercised directly by the patient.
• (3) The surrogate must take care to assure that any limitations or conditions expressed either orally or in the written declaration have been carefully considered and satisfied.

Question 20

Privacy and Physician Assisted Suicide (Florida)

Answer 20

Florida imposes criminal responsibility on those who assist others in committing suicide. Thus, it is clear that the public policy of this state as expressed by the legislature is opposed to assisted suicide. Under the provision granting the right to privacy, once a privacy right has been implicated, the state must establish a compelling interest to justify intruding into the privacy rights of an individual. The state has a legitimate interest in:

• (1) the preservation of life,
• (2) the protection of innocent third parties,
• (3) the prevention of suicide, and
• (4) the maintenance of the ethical integrity of the medical profession.

However, the Florida Supreme Court has noted that a carefully drafted statute authorizing assisted suicide may not be unconstitutional.

Question 21

Privacy, Statutory Rape, and Sexual Misconduct of a Minor (Florida)

Answer 21

The standard for evaluating whether the State may regulate the sexual conduct of minors requires the state to show both that it has a compelling interest and that it is furthering this interest in the least intrusive manner.

As to whether the state may regulate sexual misconduct of minors, the Florida Supreme Court recognizes a compelling state interest in protecting children from sexual exploitation.

The Court has upheld prosecution of the child as the least intrusive means of furthering the State’s compelling interest. Prosecution enables the state to prevent future illegal, exploitative acts by supervising and providing any necessary counseling to the child.

However, before the right to privacy attaches and the standard is applied, a reasonable expectation of privacy must first exist.

Question 22

Privacy and Grandparental Visistation Statutes (Florida)

Answer 22

The right to privacy contained in the Florida Constitution allows parents to raise their children without governmental intrusion. Judges may not impose grandparental visitation upon an intact family. The state cannot establish a compelling governmental interest for grandparental visitation rights on an intact family without a showing of harm or detriment to the child. Whether or not the parents are married does not change the court’s analysis.

• Death of a Parent → The potential harm to a child flowing from the death of a parent does not constitute the kind of harm that the courts have found to authorize government intervention. A widowed parent does not lose the fundamental right to privacy that intact families enjoy. The Florida Supreme Court has expressly rejected a “best interests” analysis as a basis for government interference in the private lives of a family.

Question 23

Taking of Property (Florida)

Answer 23

Under article X, section 6, no private property shall be taken except for a public purpose and with full compensation therefore paid to each owner or secured by deposit in the registry of the court and available to the owner. Additionally, the taking of private property by eminent domain and conveying it to a natural person or private entity requires a three-fifths vote of the legislature. Florida statutes also restrict authorities from transferring private property to abate a public nuisance or to prevent or eliminate slum or blight conditions.

A two-tiered model is applied in determining whether a condemning authority has met its burden of proving reasonable necessity for a taking:

• (1) First, the condemning authority must show a reasonable necessity for the condemnation. In order to meet its initial burden, the condemning authority need present only “some evidence” of reasonable necessity.
• (2) Second, there must be a determination of whether the condemning authority is attempting to take the property as a product of fraud, bad faith, or an abuse of discretion.

Question 24

Non-Charter Counties (Florida)

Answer 24

Non-charter counties are counties whose source of governmental power emanates from legislative authorization. As such, the Florida legislature has a relatively “free hand” to control these political subdivisions. The current statutory provisions regulating non-charter counties broadly empower such counties to exercise all necessary power to carry on county government. Even though, unlike a charter county ordinance, the ordinance of a non-charter county will not have effect within a municipality if it conflicts with a municipal ordinance, no conflict occurs if the ordinances are considered to “coexist.”

Question 25

Charter Counties (Florida)

Answer 25

Charter counties possess more autonomy than non-charter counties. This autonomy is expressed in a number of ways in the provisions of article VIII, section 1.

• First, non-charter counties possess only that power of self-government that is consistent with general or special law. Thus, the Florida Legislature may affect the powers of non-charter counties by general or special law. However, the Florida Legislature can only impact the powers of self-government of a charter county through a general law, or special law which is approved by a vote of the electors in the affected county.
• Second, a non-charter county may enact only those ordinances that are consistent with both general and special law. However, a charter county may enact all ordinances that are consistent with general law. Hence, the Florida Legislature may not affect the ordinance making authority of a charter county by special law.
• Third, if a conflict exists between a non-charter county ordinance and an ordinance of a municipality located within that non-charter county, the Florida Constitution provides that the municipality ordinance will supersede the non-charter county ordinance within the municipality. However, in a charter county the charter itself may provide that the charter county ordinance will prevail in the event of a conflict.

Question 26

Test for Local Government Ordinance Conflicting With State Law

Answer 26

There are two separate and distinct ways that a local government ordinance may be found to be inconsistent with state law:

• First, the local government ordinance must not specifically conflict with a state statute. The test of such a conflict is whether one must violate one provision in order to comply with the other.
• The second way an ordinance may be inconsistent with state law is if the legislature has preempted a particular subject area. This preemption can be express or implied. Implied preemption should be found to exist only in cases where the legislative scheme is so pervasive as to evidence an intent to preempt the particular area, and where strong public policy reasons exist for finding such an area to be preempted by the legislature. The scope of the preemption should also be limited to the specific area where the legislature has expressed their will to be the sole regulator.