Litigating Constitutional Issues Flashcards
Florida Bar Rule 4.3-1: A Lawyer shall not bring a defense or assert an issue UNLESS:
There is a basis in law and fact.
EXCEPTION: Criminal Actions, May provide defense to require every element.
Constitutional issue with ethically requiring lawyers to only assert actions/defenses only under a basis in law and fact
- Duty to inform of Const’l issue
- Must obtain client consent to waive a const’l issue
T/F: An attorney is required to raise every colorable claim suggested by the client.
FALSE. An attorney’s duty is to look at the facts and law to determine claims made in good faith to support the action taken.
Clients set goal: Attnys choose the path
If pre-suit requirements are not met what is the outcome?
dismissal
What is the deadline to complete all pre-suit requirements?
Prior to filing the complaint
When does someone have Constitutional standing?
(1) Injury- adversely affected a right/duty
(2) causation- must only attack portion that adversely affected them
(3) redressability
Does someone have Constitutionality standing by being a public official?
No. Impact must be personal
Who is an indispensable party?
One whose interest is the subject of the action.
If not joined a complete and efficient determination of rights is not possible
When challenging a charter, ordinance, or franchise, who must be an indispensable party?
the county or municipality
Where does FL’s Freedom of Religion originate from?
Equal Protection clause of US Const; Art 1 sec 3
How are questions of law re standing reviewed?
de novo
What is the Rickman Rule?
to have standing a PL must allege injury or show they will suffer special injury
What is the exception to the Rickman rule?
Taxpayer standing
if alleged taxing measure violates constitutional
limits on taxing and spending power
How has FL modified associational standing doctrine?
Only substantial amount of members has to be effected; not all
T/F: the AG is an indispensable party to all constitutional challenges
False
only requires notice; does not have to participate
What aspect is FL govt prohibited from interfering in when it comes to religious institutions?
employment
why? bc it would require judicial determination of good
faith of religious leader
What are FL’s Bill of Rights called?
(1) FL Bill of Rights
(2) Declaration of Rights
(3) Declaration of FL independence
(4) FL Rights Act
(2) Declaration of Rights
What are the types of constitutional challenges?
(1) facial
(2) as applied
Which Const challenge is fact intensive and applies to challenger and similarly situated
As-Applied
What must challenger show under facial challenge?
Must demonstrate no set of circumstances exist where statute can be constitutionally applied
Name all Constitutional Remedies
Damages
Injunction
Declaratory Relief
A combo
What are the elements of a claim that can be granted Declaratory Relief?
(1) Bonafide, actual need for declaration
(2) present ascertainable facts/present controversy
(3) Immunity power of aggrieved party dependent on facts
(4) Person bringing case has standing and interest in ct procedure
What does Declaratory Relief do?
provides judgment declaring rights of parties
