Fl Bar Exam Constitutional Law Essay

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Homestead Definition, Generally
Exemptions, exceptions

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• Homestead: The Florida Constitution (F.C.) protects homestead property from levy by creditors of the owner. It also restrains voluntary conveyances of the property away from the spouse and devise of the property away from the spouse of minor child. Natural persons may
claim homestead. The homestead must be established before the levy of the judgment creditor. Homestead subject to forced sales for property taxes, mortgages on the property, and mechanic liens arising from improvements to property. Homestead inures to the benefit
of the surviving spouse and minor children. Homestead is 1/2 acre of contiguous land including a residence within a municipality. Outside of a municipality may claim up to 160 contiguous acres If homestead is sold, the proceeds are considered to retain homestead exemption provided owner has good faith intent to reinvest the proceeds in another
homestead within a reasonable time

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Homestead - Abandonment

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Abandonment: If homestead is abandoned, the protection may be forfeited.

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Homestead - Restraint on Devise:

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Restraint on Devise: The F.C. restrains devise of solely owned homestead property if there are minor children. Devise fails and intestate succession applied: life estate to spouse, remainder to children. If there is a surviving spouse, the homestead must be devised to the spouse. Otherwise, devise fails, and spouse receives life estate remainder to lineal
descendants. Spouse can waive homestead tights by an Ante-nuptial Agreement.

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General v Specific Laws

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General Laws: Apply uniformly throughout the state. Special laws refer to specific persons, places, or things. For enactment of a special law, notice of intention to seek its enactment must be published in a local newspaper or there must be approval by referendum vote of the electors

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Access to Courts:

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Access to Courts: The F.C. provides that the courts are open to every person for redress to injury. If the legislature abolishes a cause of action, a reasonable alternative must be provided unless the legislature can show a compelling public necessity or no alternative method can be established.

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Privacy

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Privacy: The F.C. expressly provides a right of privacy. Every natural person has the right to be let alone and free from governmental intrusion into his/her private life. Florida's privacy right is considered to be more protective than the federal right.

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• Sunshine Law:

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Every person has a right to access public records and meetings of the state and local government. The legislature may provide exemptions by stating a public necessity justifying the exception so long as the law is no broader than is necessary to accomplish the stated purpose.

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due process
sub and proc

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Due Process: Procedural due process requires the state to act fairly when the government is depriving a person of property or liberty. Examples notice, fair trial, etc.
Substantive due process concerns fundamental rights. The state must pass the strict scrutiny test to interferewith fundamental rights contained in the U.S. and Florida Constitutions

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• Equal Protection Clause

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• Equal Protection Clause is similar to the federal laws. The strict scrutiny test is applied to laws affecting fundamental rights and protected classes. Strict scrutiny requires the state to show a compelling state interest. The rational relationship test requires that the plaintiff show that the law is not rationally related to a legitimate state purpose.

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Separation of Powers:

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Encroachment occurs when one branch of government usurps the function of another branch. For example, when the Legislature passes statutes which change judicial procedural rules. Unauthorized delegation of legislative power occurs when the
legislature delegates the power to make law or fundamental policy decisions. For example, when congress gave the president the line item veto.