Litigating Constitutional Issues

Question 1

Florida Bar Rule 4.3-1: A Lawyer shall not bring a defense or assert an issue UNLESS:

Answer 1

There is a basis in law and fact.
EXCEPTION: Criminal Actions, May provide defense to require every element.

Question 2

Constitutional issue with ethically requiring lawyers to only assert actions/defenses only under a basis in law and fact

Answer 2

1. Duty to inform of Const’l issue
2. Must obtain client consent to waive a const’l issue

Question 3

T/F: An attorney is required to raise every colorable claim suggested by the client.

Answer 3

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

Question 4

If pre-suit requirements are not met what is the outcome?

Answer 4

dismissal

Question 5

What is the deadline to complete all pre-suit requirements?

Answer 5

Prior to filing the complaint

Question 6

When does someone have Constitutional standing?

Answer 6

(1) Injury- adversely affected a right/duty
(2) causation- must only attack portion that adversely affected them
(3) redressability

Question 7

Does someone have Constitutionality standing by being a public official?

Answer 7

No. Impact must be personal

Question 8

Who is an indispensable party?

Answer 8

One whose interest is the subject of the action.

If not joined a complete and efficient determination of rights is not possible

Question 9

When challenging a charter, ordinance, or franchise, who must be an indispensable party?

Answer 9

the county or municipality

Question 10

Where does FL’s Freedom of Religion originate from?

Answer 10

Equal Protection clause of US Const; Art 1 sec 3

Question 11

How are questions of law re standing reviewed?

Answer 11

de novo

Question 12

What is the Rickman Rule?

Answer 12

to have standing a PL must allege injury or show they will suffer special injury

Question 13

What is the exception to the Rickman rule?

Answer 13

Taxpayer standing

if alleged taxing measure violates constitutional
limits on taxing and spending power

Question 14

How has FL modified associational standing doctrine?

Answer 14

Only substantial amount of members has to be effected; not all

Question 15

T/F: the AG is an indispensable party to all constitutional challenges

Answer 15

False

only requires notice; does not have to participate

Question 16

What aspect is FL govt prohibited from interfering in when it comes to religious institutions?

Answer 16

employment

why? bc it would require judicial determination of good
faith of religious leader

Question 17

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

Answer 17

(2) Declaration of Rights

Question 18

What are the types of constitutional challenges?

Answer 18

(1) facial
(2) as applied

Question 19

Which Const challenge is fact intensive and applies to challenger and similarly situated

Answer 19

As-Applied

Question 20

What must challenger show under facial challenge?

Answer 20

Must demonstrate no set of circumstances exist where statute can be constitutionally applied

Question 21

Name all Constitutional Remedies

Answer 21

Damages
Injunction
Declaratory Relief
A combo

Question 22

What are the elements of a claim that can be granted Declaratory Relief?

Answer 22

(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

Question 23

What does Declaratory Relief do?

Answer 23

provides judgment declaring rights of parties