FL Con Law Essay Sheet – Flashcards

*The state as a sovereign has certain reserved powers known as police powers. *In Florida, the state has the power to provide for the general welfare, health, safety, and morals of its citizens.

Article I of the FL Constitution: contains more expressly articulated rights than those found in the U.S Const. *Right to privacy, right to work, right to work, access to courts) *Always address state action by the STATE or FEDERAL GOVERNMENT. *Always address preemption by STATE over COUNTY law. *Always address standing.

FL Con provides basic equal protection. Same standards as U.S Con. Applies to state action only, no private. *FL Constitution expressly forbids discrimination based on race, religion, national origin, or physical disability. Thus, strict scrutiny is applied to these suspect class cases. *Classes: I.Suspect: Race, national origin, alienage, physical disability→Strict II.Fundamental rights: Privacy, travel, vote, 1st amendment→Strict III.Non-suspect: Age and all other classes→RBT *Scrutiny's: -Strict: Law is necessary to achieve compelling government purpose. -Rational Basis: Law is rationally related to a legitimate government purpose. *Age not a suspect class in class, no intermediate scrutiny in FL.

FL Constitution provides that no person shall be deprived of life, liberty or property without due process of the law, or be twice put in jeopardy for the same offense, or be compelled in any criminal matter to be a witness against oneself. *Procedural/State if someone is deprived of their due process rights under the fourteenth amendment they are entitled to - fair trial→ In FL extends to actions by private organizations acting like a quasi-public function. 1. Notice + hearing 2. Right to appeal 3. Right to a Jury trial *Substantive/Federal = fundamental rights→FL can make these rights stronger. Strict scrutiny applies. 1. Fundamental rights 2. Right to possess property 3. Privacy 4. Jury trial

*FL Constitution expressly guarantees the right of people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures. *FL Con also provides that the guarantees against unreasonable search and seizure are construed in conformity with the 4th Amendment to the U.S Con, as interpreted by the U.S Supreme Court. *Can give more rights to criminal D under 5th/Miranda.

*RULE: The courts shall be open to every person for redress of any injury and justice shall be administered without sale, denial or delay. *Every person guaranteed at least ONE appeal from a final order. *A law cannot abolish or restrict a person's right to courts. If it does, it must provide a reasonable alternative, UNLESS: 1. State has a compelling public necessity AND 2. No alternative method of meeting the necessity can be established. **If it proves 1 and 2→state law can abolish or restrict access.

*Constitutional right to trial by jury in criminal and civil proceedings, except: civil commitment, eminent domain, or equitable proceedings. *Right to bail, pretrial release and detention.

*Unlike the U.S. Constitution, the right to privacy is expressly included in the Florida Constitution (stronger right than Federal protection) *In FL, every person has the right to be let alone and free from governmental intrusion in to her private life. • Standard of review same as U.S.—Fundamental right→Strict. • Must be a compelling state interest and the least intrusive means are used to protect that interest. • Medical treatment refusal (person has right to choose or refuse medical treatment for THEMSELVES - look out for other person) • Raising your children. • Abortion→state's interest to protect is compelling when fetus reaches viability—can live outside the womb. After that, state can restrict or prohibit. State not required to pay for abortion. • Right to public records, documents, and meetings cannot be limited by privacy right.

• Every person has the right to inspect or copy any public record, except those made confidential by Florida's Constitution. •FL's Sunshine Law provides that all meetings of state or local government must be open and the public must be given notice of them. • Exemptions: must state necessity + law no broader than necessary. (Redaction) • Part of the right to privacy. • State hires private company to perform government function—run jail or school→more the government controls, the more records must be open to public

*The FL Constitution prohibits union shops and provides no person may be denied a job because of membership or non-membership in a labor union. • The right to work is a part of the FL Constitution Declaration of rights -> fundamental right. Strict Scrutiny applies. •A union may not negotiate a K that would require employees to become union members or pay dues before, upon or after hiring. • Applies to bond fact pattern (building stadium, no union workers allowed). • Public employees have right to collective bargaining but NO right to strike.

*In contrast to the U.S. Constitution, the Florida Constitution expressly incorporates the doctrine of separation of powers, mandating separation of the executive, judicial, and legislative branches of government. • Encroachment: when one branch impedes on the function of another branch • If violates delegation then it violates non-delegation doctrine.

•Constitution allows FL Legislature to make substantive procedural rules. -Substantive procedural rules: creates, defines and regulates rights. EX: Min. sentencing guidelines. -Procedural rules: legal machinery by which the substantive law is made effective by the FL Supreme Court. EX: Service of documents, e-filing, 20 days to file an answer. •Non-Delegation Doctrine: Legislature cannot delegate power to make law or fundamental policy decisions. -May allow executive agencies to make rules via statute IF: Statute provides sufficient guidelines and standards so the agency merely implements policy, not determining themselves. Exception: legislature may not delegate to an executive agency the right to define the elements of a crime or to create criminal penalties.

•Governor •Power to appoint and possess clemency power. •Executive orders: allows governor to act as legislature in emergency situations, may have criminal punishment, approach it like a statute on exam. •Veto power: ➢In session: within 7 consecutive days ➢Not in session or recess: 15 consecutive days ➢If no veto→becomes law as of date stated on bill.

•MAJORITY VOTE ➢Pass bills ➢Resolutions ➢Reapportionment • FL Const. requires senators and representatives (both houses) be elected from districts apportioned on a one-person, one-vote basis. • In regular session in 2nd year after each decennial census, both houses must be reapportioned by joint resolution, in to the following: • At least 30, but not more than 40 senate districts AND • At least 80 but not more than 120 house districts; • Of contiguous, overlapping, or identical territory. ➢ Senate to convict a suspended state, county, or municipal officer. • 3/5 VOTE: ➢Add prohibited subjects for special laws and general laws of local application. •2/3 VOTE: ➢Waive 3 readings of a bill prior to passage. ➢Repeal rules of practice and procedure promulgated by Supreme Court.

• Enacted laws must meet certain criteria to be valid: ➢ General Requirements: 1. Not vague (Test: avg person of common intelligence will understand what is prohibited/permitted - if not it is void on grounds of vagueness) 2. Not overbroad (cannot prohibit const. protected activities as well as activities that aren't protected) 3. Reasonably related to public welfare ➢ Constitutional Requirements: 1. Single subject 2. Adequate title 3. Must reasonably lead to inquiry into the body of Act. 4. Set out in text • Text of original statute being amended must be set out in the Act 5. Enacting clause •"Be it enacted by the Legislature of the State of Florida"

• General law : Apply uniformly statewide to all persons or circumstances. ➢General law of local application: Some general laws use a population or other criteria restricted to particular localities to get around special law requirements. No notice or referendum. It is facially applicable statewide, although it currently may have only only limited applicability. ➢A statute is a general law if it operates uniformly throughout the state even though it applies to only a classified group. Classification = must be a reasonable classification based on some difference reasonably related to the subject matter regulated. ➢General laws that clearly apply to known, specific individuals or geographic areas that exclude others are subject to attack both as equal protection violations and as improperly enacted special laws.

• Special law: Designed to operate on known, specific persons, or things or in a specifically indicated part of the state. Geographical. In order to pass: ➢Notice of intention to seek enactment in each affected county in newspaper OR ➢Referendum vote in area affected. *A special law isn't converted into a general law by legislature's treating and passing it as a general law.

•Prohibited Special Laws and General Laws of Local Application: *These must be uniform throughout the state ➢ Election ➢ Taxation ➢ Rules of Evidence ➢ Punishment for Crimes ➢ Petit Juries ➢ Change of Venue ➢ Creation of Liens ➢ Conditions precedent to civil or criminal proceedings ➢ Divorce ➢ Adoption ➢ Regulation of occupations

FL Constitution vests the judicial power in the Supreme Court, District Courts of Appeal, Circuit Courts, County Courts. No other courts may be established with the exception that the legislature may establish by general law a civil traffic hearing officer system to hear cases involving traffic infractions.

•FL Constitution contains no express limitation on standing, and there is "no case and controversies" language like Federal. • FL has developed conventional standing concepts through case law, and as a result, standing under the FL Constitution is roughly equivalent to that of U.S Constitution. • Standing: ➢ P must suffer injury (personal & direct) ➢ The causation of the injury is the enacted law ➢ Redressability (the injury must be able to be readdressed)

• Jurisdiction of all FL courts is established in Article V of the ➢ FL Const - which provides that Florida Supreme Court has exclusive jurisdiction to promulgate rules of practice and procedure in all courts and to supervise administration of all courts. ➢ FL Supreme Court generally has limited appellate jurisdiction, discretionary jurisdiction, jurisdiction to issue writs, and administrative jurisdiction.

1. Death penalty 2. Bond validation 3. Rate decisions 4. DCA decisions to invalidate a law (declaring a state statute or provision of the state const invalid) • All else is DISCRETIONARY (DCA appeals) OR ADMINISTRATIVE (procedural rules).

• Counties and Municipalities are the TWO most important units of local government in FL. They overlap each other geographically in what is called a two-tiered form of government. • Both counties and municp have "home rule" powers meaning they may govern themselves by their own ordinances.

• Charter: Powerful. If chartered, powers must be consistent with general law or special law approved by vote of electors and can enact any ordinance consistent with general law. Exception: Dade County. • Non-charter: Not powerful. May enact ordinances as provided by general or special law. Authority=general and special law. • County officers: Elected or appointed. Removed/suspended by Governor. • Unincorporated area: not within any municipality and city must provide city services to residents of this area.

• Cannot conflict with state law. • Protect health, welfare, safety, and morals of their citizens.

• As a matter of supremacy STATE law preempts conflicting county laws (charter or non-charter) • State law v. County law or Municipality→ State wins. • Non-chartered County v. Municipality→municipality always wins. • Chartered v. Municipality→Depends if ordinance involves regulations or services (Chartered- Charter will contain a supremacy clause to settle conflict b/w ordinances) Regulatory: charter wins. ➢Services: county wins if approved by residents of municipality and county. ➢ Charter required by the FL Constitution to contain a supremacy clause to settle conflict between ordinances.

• FL Constitution limits the right of the state to tax. • Ad valorem taxes→ property taxes. Can be tangible or intangible. ➢ Only LOCAL governments (counties, municp, school districts, etc) NOT the state may levy ad valorem taxes on real estate or tangible person property. ➢ Only STATE (not local) may levy an ad valorem tax on intangible property (notes, bonds, and other obligations for payment of money - tax may NOT exceed $2 million.) • Revenue cap: Cannot exceed previous fiscal year revenues plus an adjustment for growth equal to average growth of personal income in Florida for the year. • Income tax ➢ Personal= None ➢ Corporate= Yes, limited to 5% net income unless authorized by 3/5 vote of the members of both houses of the legislature. • Sales tax= Yes, on most goods and some services. • Intangible tax= Yes, allowed but not enforced. Cannot exceed 2 mills. This is the State's ONLY Ad Valorem tax. • Pari-Mutual tax= Gambling industry taxes. *NO government in FL may impose ad valorem taxes on motor vehicles, boats, airplanes, trailers, trailer coaches, or mobile homes (although license fees on these items is permissible.

• Counties, municipalities, school districts, and special districts have exclusive constitutional authority to tax the value of real and tangible personal property. Tax at their value. • Ad Valorem Taxation: ➢ Tax Rate: $1 for every $1000 value X the # of mills authorized by the particular governmental entity. (FORMULA TO DETERMINE) ➢ Must be uniformed by county ➢ Yearly assessment ➢ Just valuation: Best and highest use of the property ➢ Leaseholds: Private party leasing gov. property may have to pay property taxes on lease interest in used for commercial use. ➢ Agricultural property and Non-recreational property: yields lower tax rate.

• Municipal property and used exclusively for municipal or public purposes ➢ Exception: cannot be applied to property owned by municipality and leased to a profit-making venture. ➢ County or municipality may grant an ad valorem tax exemption to new businesses and expanding existing business and to tangible property of business by ordinance or referendum. • Personal property • Economic development •Grandparent quarters • Homestead exemption (decreases property value by $50k) • Philanthropic (education, science, charity, religion, literary) • Disabled veteran discount

• Local governments may supplement revenue through assessment of fees against users of government facilities. No needed state legislation • Restrictions of Fees: ➢ Amt of the fee must be pegged to the per capita cost of the facility ➢ Use of fee must be applied toward facility. • Fees: parking, recreational, golf course, charge to use public facility.

• May tax for special services. Ex: tax downtown residents benefited by the use of a bridge that helps them get to/from the mainland. • Geographically defined. • Referendum by affected property owners.

• The state must be self-sufficient. • NOT borrow→for purpose of maintaining ordinary operating expenses. • No money from treasury unless approved by law. • MAY borrow→capital improvements (buildings, bridges, roads, & airports). By use of general or revenue bonds.

•Not backed by taxing power of issuing government and derived from sources other than state tax revenues, rents or fees paid from state tax revenues. • Must be for capital improvements • A bond issue must be for a public purpose. • FL const DOESNT require a referendum for a revenue bond issue. ➢ State government: • No referendum • Approved by legislature • Capital projects ➢ Local government: • No referendum • Capital projects

• Secured by pledge of the revenue derived from the taxation power of the issuing government entity. ➢ State government: • Bonds pledge the full faith and credit of the state. • Capital projects only • Vote of electors ➢ Local government: • Use to finance or refinance capital projects • Capital projects only • If paid from Ad Valorem taxes + mature more than 12 months after issuance→approval by vote of electors

• FL Constitution terms certain property as homestead, for it thereby protecting it from levy by creditors of the owner. For it to apply, homestead MUST be established before the levy of the judgment creditor. • Property is considered homestead if: ➢ Inside municipality→1/2 acre of contiguous land, but limited to owner's house or of his family, OR ➢ Outside municipality→160 acres of contiguous land + improvements thereon

1. Taxes + assessments on property 2. Validly executed mortgage (signed by H+W) 3. Construction/mechanic lien for purchase, improvement or repair (labor performed on the property)

• Pass to surviving spouse/owner's heirs 1. Natural person 2. One homestead 3. Property inside municipality—up to ½ acre 4. Property outside municipality—160 contiguous acres 5. Establishment before levy-prior to lien on property

• Sold property • Intent to return or abandon→look at driver's license, taxes paid, voters reg. • Homestead protection (exemption) may be forfeited if the homestead is abandoned. Whether owner has abandoned is a question of fact.

• If the homestead is sold, the proceeds are considered to retain homestead exemption status if the owner has good faith intent to invest the proceeds in another homestead within a reasonable time. • Only amount of proceeds REINVESTED is protected. • A surplus will be considered as general assets of the debtor (creditors can get this)

1. OWNED AS TBE: (IF DEVISED) • Both husband and wife must convey and/or mortgage the HS together. • Both must sign or invalid. • If no will, passes to surviving spouse in fee simple. 2. SPOUSE OR MINOR CHILDREN SURVIVE: • Cannot be devised • LE to surviving spouse • Vested remainder to owner's descendants as TIC when spouse dies. 3. NO MINOR CHILDREN SURVIVE: • May be devised to spouse. • Not required. 4. NO SPOUSE OR MINOR CHILDREN SURVIVE: • May be devised to anyone owner wishes. 5. IMPROPER DEVISE: • No spouse or minor children: passes intestate. • Spouse AND minor children: ➢ Spouse→LE ➢ Children(surviving at D's death)→Vested remainder, per stirpes 6. SPOUSE ELECTS TO TAKE ½ INTEREST IN HS PROPERTY: • In lieu of LE, spouse may elect ½ interest in homestead as TIC with remaining ½ interest to lineal descendants surviving at time of owner's death, per stirpes. • Surviving spouse or lineal may buy each other out

• Owned TBE with surviving spouse, isn't subject to restraints on devise. It passes by right of survivorship in all cases.

• The U.S Constitution prohibits governmental taking or private property for public use without just compensation. • FL has sovereign power to take private property for public purposes upon reasonable necessity and FULL compensation. (Terms appear to be equivalent) • Public purpose- doesn't mean simply for public function, but rather something which in a broad sense benefits the state in a tangible and foreseeable way (airports, utility companies, public health facilities, colleges, etc) • FL courts have held that whether there has been a take is question of law for the judge. Owner isn't entitled to a jury determination of this question. • Other people with interest rights aside from owner may be entitled to just compensation. *Requirements: 1. Substantially oust the owner from his property→no zoning regulation; 2. Government must show it's reasonably necessary; 3. Public purpose; 4. Full compensation→fair market value

• Even if no formal taking→state acts in a manner that effectively deprives owner of the use of his property then a COA by the property owner arises in "inverse condemnation." • EX: Noise from airport disturbed owners' use of property. • EX: Highway cut off visibility and access to a business.

• Florida Constitution has waived its sovereign immunity. By statute, suit may be brought against the state (including all branches of government and agencies) •Statutory CAP: provides a cap of $200,000 (tort claims) for any one person and $300,000 for all claims arising from one accident. ➢ Immune from suit for planning decisions. ➢ Subject to suit for operational decisions. • Planning v. operational Test: ➢ Operational: There must be an underlying duty to the individual. ➢ If no duty + government undertakes it→reasonable care. ➢Examples: Officer owes duty to put you in a safe place when investigating you. ➢Sheriff's office sued for negligent operation of high-speed chase and no policy regarding chases→negligent because they should have had a policy. ➢ Fight breaks out and all employees' are out for lunch. Only 2 employee's working and 20 customers.

•FL and US Constitutions prohibit state laws retroactively impairing obligation of contracts. Right to contract should not be infringed upon for K's already in existence. ➢ Private K/between private parties= RBT ➢ State K/between state and private party= 1. State action—state law passed; 2. Existing K at time law passed; and 3. Regulation substantially impairs the K. ➢ If yes, it MUST: • Serve important; AND • Legitimate government interest; AND • Narrowly tailored means of promoting the interest -if met then valid, otherwise no.

5 Methods: All require 60% voter approval. 1. Legislative: ➢ 3/5 vote from each House to place the amendment or revision on the ballot. 2. Revision Convention 3. Constitutional convention 4. Initiative signatures: ➢Signature by sufficient # of electors based on prior year election ➢ Single subject/different parts towards same goal ➢ Economic impact statement ➢ Must accurately explain on ballot what the law will do 5. Taxation and budget reform commission *proposed amendment limited to single subject

• People have the right to bear arms to protect themselves and the state in accordance with state laws. • Licensing requirements= OK. • 3 day wait period • Criminal history check and 3-5 day wait period=OK • Restrictions no applied to concealed weapons permit or trades for another gun.

• No person can be tried for a capital crime without a grand jury indictment or be charged with any other felony without indictment or information filed under oath by the prosecuting attorney. • Children: may be charged with delinquency rather than crime but not both and may be tried as an adult upon their demand or decision of the court

• Florida's Constitution guarantees freedom of speech, and no state law may be passed abridging freedom of speech or of the press. Generally analyzed in the same manner as U.S. Constitution. • Defamation suit→If true and published with good motives=exonerated. • Look for issues to protect minors (initials). • Prior restraints: not favored by courts. • Test for speech: 1. Content based: Strict + narrowly tailored 2. Content neutral: Intermediate + TPM allowed ➢Time, Place and Manner Regulations: -Public/Designated: Content neutral/Intermediate/Altern. Channels ➢Limited Public/Non-Public: Viewpoint neutral/RBT •Commercial speech: Unlawful, misleading, fraud=unprotected/can regulate or ban. ➢ State must have substantial interest + narrowly tailored. • Obscenity: If obscene/unprotected/can regulate or ban. TEST: ➢ Appeals to the prurient interest in sex (community standard), ➢ Patently offensive (community standard), ➢ Lacks serious artistic value (national reasonable person standard)

• FL Constitution provides that the people retain the right to assemble peaceable and to petition for redress of grievances.

1. State Police Power— •Reasonable relationship to health, safety, welfare, or morals of the people. 2.Invasion of Protected Zones of Privacy •Abortion, raising children, refuse medical treatment. 3.Vague or Overbroad 4.Bill of Attainder or Ex Post Facto •Punishment on a person without judicial trial or laws applied retroactively 5.Effects Establishment of Religion 6.Freedom of Speech, Press, Association 7.Right to Work 8.Deny Access to Courts 9.Deny Substantive or Procedural Due Process of Law 10.Deny Equal Protection

• FL's Constitution, like the U.S. Constitution's Establishment Clause, forbids regulation and establishment of religion by the government and guarantee's free exercise of religion to each individual. However, does not justify practices inconsistent with public morals, peace or safety. • Lemon Test: -Secular purpose -Neither advances or inhibits religion -Does not promote excessive entanglement between church and state. • If the law targets religion it must pass strict scrutiny. Incidental=OK. • Applies to vouchers for religious schools or to pay religious instructors. This is allowed under Federal E.C. but FL is stricter and forbids it directly or indirectly.