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107 Cards in this Set
- Front
- Back
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Limitations on powers- inherent power
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States have inherent power as a result of the social contract. Specific language in the state con can
1) act as a limitation of state's power by allocating authority to a particular branch of government and 2) reaffirm existing authority |
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Separation of Powers: Generally
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Member of one branch can't exercise powers of another unless expressly provided in con. If the con specifies a task is to be performed by a branch that branch cannot delegate to another branch---but the legislature can delegate legislative duties to administrative agencies (part of exec)
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Separation of Powers:Judicial encroachment
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Courts may not encroach on the workings of state agencies by
1) ordering that agencies take certain actions or 2) contradicting agency rules that are based on enabling legislation.. - courts will defer to agency findings unless it is persuaded that the findings aren't reasonably related to enabling legislation. - any statute that intends to displace a common law rule must expressly state the intention to do so. |
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Separation of Powers:Executive encroachment
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Once the legislative branch has acted persons in exec cannot change or modify statutes by adding criteria.
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Separation of Powers: legislative encroachment
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If power is reserved to the governor or another exec member the legislature can't act by statute to take away that power.
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Legislative Branch:single subject rule
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A law can only contain a single subject- but there is a narrow window period where the law may be challenged as violating this rule. The window runs from the date of the enactment of statute to codification.
- court may delete the protion of the law that violates the single-subject rule and the remainder may be allowed to stand if the unconstitutional provision can be logically separated from remaining provisions and the legislative purpose expressed can be accomplished independently. |
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Legislative Branch: lawmaking process- bills that seek to revise or amend a law must ____
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set out in full the revised or amended act; laws may not be revised or amended by legislation that merely refers to the revised or amended law by title.
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Legislative Branch: A bill becomes a law if...
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It is presented to the governor and
1) the governor approves and signs it or 2) the governor doesn't veto it within 7 days of presentation. |
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Legislative Branch: categorization of laws
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General law: applies to the state populace at large- they must comply with the single subject and descriptive title requirements
Special Law: Either applies to a class of people or objects or is local in its applicablity. |
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Legislative Branch: A special law cannot be passed unless either...
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1) notice of intention to seek enactment has been properly published or
2) the law was approved by a majority of voters in the area affected. |
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Legislative Branch: General laws of local application
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apply specifically to areas or counties with a specific population. AKA Population act. In order to be valid:
1) the subject matter must be reasonably related to the population specified in the act and 2) the application must be open ended and not tied to the population after enactment. |
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The Judiciary: Standing generally
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A citizen (person or business) challenging a law must prove:
1) a distinct injury 2) which will negatively affect the citizen 3) in a manner distinct from anyone else similarly situated. |
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The Judiciary: Taxpayer standing
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Taxpayer may bring suit only when they show a special injury which is distinct from that suffered by other taxpayers in the taxing district.
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The Judiciary: Associational Standing may be granted when-
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1) a substantial number of the association's members, although not necessarily a majority, are substantially affected by the challenged rule;
2) the subject matter of the rule is within the association's general scope of interest and activity, AND 3) the relief requested is of the type appropriate for a trade associate to receive on behalf of its members. |
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The Judiciary: Can standing be granted by statute?
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Yes!
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The Judiciary: FLSC- Where does it have mandatory jurisdiction?
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1) death penalty appeals
2) appeals from DCAs that declare a state statute, or provisions of a statute, invalid 3) appeals from final judgments entered in proceedings for validation of bonds or indebtedness 4) Appeals from orders of the state agencies, relating to rates or service of utilities providing electric, gas, and telecom service. |
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The Judiciary: FLSC- Where does it have discretionary jurisdiction?
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1) DCA decisions that expressly declare a state statute valid
2) DCA decisions that expressly construe a provision of either fed or state constitution. 3) DCA decision that expressly affects a class of constitutional or state officers 4) DCA decisions that conflict with other DCA decisions or FLSC. 5) DCA decision that is certified as a ? of great importance, or being in direct conflict with another DCA 6) An order or judgment of a trial court certified by a DCA as being of great public importance or having a great effect on the administration of justice in the state. 7) A question of law, certified by SCOTUS or a USCA which is determinative of the action and which the FLSC has not heard before. *Also can regulate bar admissions and discipline those admitted. |
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The Judiciary: DCA- what may the DCAs hear?
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1) appeals from final judgments or orders of trial courts, taken as a matter of right, which are not directly appealable to the FLSC or a circuit court.
2) Interlocutory orders of trial courts not directly appealable to the FLSC or a circuit court. 3) it may directly review administrative action, as provided by general law. |
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The Judiciary: Circuit courts- what is their jurisdiction
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1) original jurisdiction in matters not vested in county courts
2) appeals from county courts 3) direct review of administrative action when review is provided for by general law. |
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The judiciary: County courts- what is their jurisdiction
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Original jurisdiction in criminal misdemeanor cases not brought in circuit courts, violations of municipal and county ordinances, and civil actions where the amount at issue is 15k or less.
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Construction of the state constitution
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Words are to be interpreted in their most usual and obvious meaning unless the text suggests a more technical sense.
If the constitution prescribes a means of doing something, then by implication id does not permit that thing to be done a different way. |
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Construction of Statutes
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Legislative intent is the key that guides interpretation--- courts look to plain meaning...when there is no ambiguity, the court will stick with the plain meaning.
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What are the four local government entities and what can they do
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County
municipality school district special taxing district They can levy taxes on real property (ad valorem), issue bonds, and establish a civil service system. |
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Counties- what is home rule power
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It enables county government to create law through ordinances and in some cases resolutions without having to return to the legislature for specific authority.
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County authority
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--they have the option of legalizing or prohibiting the sale of alcohol. The status of a county can be changed only by a vote of the electors in a special election called by petition of 25% of the electors of the county.
--They have the authority but are not required to require a criminal background check and a 3-5 day waiting period for firearm purchase. Concealed weapon permit holders aren't subject to those no matter what the policy. |
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Local Government- preemption
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Legislature may preempt the police power of local governments. They can also choose to designate the prevailing authority in its statute. In the absence of an explicit designation a court must employ a balancing of competing interests test to determine which governmental entity will have its rules applied.
To ensure preemotion the legislature must either 1) imply preemption by passing legislation so pervasive that local authorities have room within the subject matter to act under their police posers; OR 2) include a statement of express preemtion in the legislation. |
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Local Government: School system
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State has "paramount duty" to educate kids. By 2010 legislature must meet constitutionally mandated rations at STATE expense.
- every county constituties a school district but 2 or more contiguous counties may combine upon the vote of electors in the county. --Each district has a board, but the board is not a part of the exec- they are separate entities- they have 2 responsibilities: 1) operating, controlling, and supervising all free public schools within the district, 2) determining the rate of school district taxes. **income and principle of state school fund may ONLY be used for the support and maintenance of free public schools. |
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Elections
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All elections must be by direct and secret vote.
The requirements for placing a name on a ballot must be the same for all candidates.. The procedure specified cannot create a greater burden for candidates from minor parties or with no party affiliation. |
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State taxation: What can the state NOT tax? And how could this be confusing?
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Ad valorem- For value--no taxes on real property or tangible personal property. It could be confusing because the state may require license taxes on cars, boats, planes, trailers, trailer coaches, and mobile homes as defined by general law.
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State taxation: The legislature has the power to authorize taxation by what vehicle?
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GENERAL law.
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State taxation: Explain revenue limits and yearly budget growth...
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State revenues are limited to the amount of state revenue for the preceding year plus an adjustment for growth. Excess collections are transferred to the budget stabilization fund until the fund reaches a specified balance. Any money after that fund balance is exceeded is returned to the taxpayers.
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How bout imposing taxes through constitutional amendment?
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After 1994, no new tax or fee can be imposed by constitutional amendment unless it is approved by 2/3 of the voters in that election.
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Who has to pay income tax in Florida?
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Only corporations and anyone who is not a natural citizen.
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What are the statutory limits of the income tax in Florida?
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The state may not levy an income tax of greater than 5% unless an increase is authorized by a vote of 3/5 of the members of both houses.
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Can the state allocate tax money to the counties? If so, how is it disbursed?
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Yes! If it allocates pari-mutuel taxes to the counties it must distribute them to the counties equally.
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Local Government Taxation: What can they tax?
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They can tax property taxes but may be authorized by general law to levy other taxes.
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What are ad valorem taxes?
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Exclusive of taxe levied for the payment of bonds and taxes levied for periods not longer than two years when authorized by vote of the electors who are owners of freeholds therein not wholly exempt from taxation, shall not be levied in excess of the following millages upon the assessed value of real estate and tangible personal property: For county purposes- 10 mils, for municipal purposes- 10 mills, for school purposes- 10 mils
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How do they determine the licensing rate?
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There is no strict test but the fee must be reasonable and there must be a reasonable rational nexus between the amount imposed and the cost of imposing it.
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How are user fees levied?
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They don't have to be authorized by general law. They are based on the proprietary right of a governing body permitting the use of its instrumentality. They are different from impact fees because they are charged more than once.
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How are impact fees levied?
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For these not to be considered an unlawful tax the needs and burdens must be weighed in proprortion to the charge. Impact fees are different from user fees because they are charged only once.
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What is a special assessment?
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A specific levy designed to recover the costs of improvements that confer local and peculiar benefits upon property within a defined area.
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What are MTSUs?
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Municipal Services Taxing units- used to service unincorporated areas with police, transportation, parks, trash--as long as those taxpayers are 1) being taxed uniformly, and 2) receiving the benefits for which they are being taxed.
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Tax Exemptions (except homestead)
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Property owned and used exclusively by a municipality for public purposes is exempt from taxation. ("use" can be vacant land as long as it's not private)
By general law, 25k of tangible personal property is exempt from taxation. It is deducted from the assessed value of the property (this includes business and mobile homes) |
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Homestead Tax exemption
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Up to 25k is exempt from taxation except for assessments for special benefits like improvements or services such as fire services, garbage collection,etc.
--An additional 25k is exempt on nonschool taxes for valuation between 50 and 75k. ---you have to apply with the property appraiser for exemption. --Only one exemption per family or per residential unit --the exemption can't exceed the assessed value of the real estate. --it caps the assessed value of the qualified homestead. |
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Who can get homestead exemptions
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FL residents who are US citizens, perm res aliens, or those who have the intent to remain legally. If title is held bythe husband alone a wife may file for him with his consent and vice versa. If it is held in the entireties, one spouse may file as the agent of the other.
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How do they determine the value of a qualified homestead for exemption purposes?
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Every year, it is assessed to the lower of:
1) 3% of the prior year's assessed value or 2) the % change in the consumer price index. --the assessed value can't exceed the fair market value of the home |
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Tell me about the homestead exemption cap on assessed value...
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The cap is nontransferable to a new owner. After any change in ownership the house will be assessed at the FMV and then the cap will be applied on this assessment from that date forward. The cap doesn't apply to changes additions or improvements to homestead property.
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Tell me about the portability provision of the homestead exemption act
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it allows a homeowner to transfer the exemption cap from one house to another so elderly people don't get locked into a house. It must be used within 2 years of the sale of the original homestead or it will be lost. It isn't automatic- homeowner needs to fill out new application.
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Who can issue bonds and what are the 2 reasons they can be issued?
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Counties, school districts, municipalitis, special districts, and any local governmental body with taxing powers can issue a bond or a certificate of indebtedness. The bonds can only be issued to 1) finance or refinance capital projects authorized by law and then only when approved by a majority of taxpaying voters OR 2) to refund outstanding bonds and interest thereon and obtain a lower interest rate.
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What is the 2-prong test to see whether a project is valid since state and local taxing entities are prohibited from going into business with, being joint owners with, lending taxing power or credit to a corporation...
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1) whether the bonds require a pledge of the credit of a state or political subdivision and
2) whether the funded project serves a PARAMOUNTpublic purpose even if there is an INCIDENTAL private benefit. |
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General obligation bonds (state) may be issued...
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Only to finance or refinance capital projects which are 1) AUTHORIZED by law, and 2) APPROVED by votors
UNLESS!!!!!- They may be issued without a vote for the following purposes: 1) to refund outstanding bonds to get a lower interest rate, 2) to build pollution control and abatement and other water facilities, 3) to acquire transportation right of way for bridge construction and 4) for construction of certain educational buildings and facilities. |
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General obligation bonds (local)
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May be used to finance or refinance capital projects. They are payable from ad valorem taxes.
Boters must approve the issuance of general obligation bonds if they take 12 months or more to mature. |
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Revenue Bonds- AKA Non-recourse bonds (state)
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may be issued to finance or refinance capital projects BUT they are different from general obligation bonds in that they
1) may be issued without a vote 2) are payable solely from funds derived from sources other than tax revenues. - Legislature must approve every project funded with rev bonds by general law or act related to appropriations. Revenue bonds may also be issued for the following non-capital purposes: 1) scholarship loans 2) housing and related facilities. |
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No county or municipality can be bound by a general law requiring that entity to spend funds unless:
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1) the legislature has determined such law fulfills an IMPORTANT STATE INTEREST.
2. ENOUGH FUNDS HAVE BEEN APPROPRIATED at the time of enactment to fund the expense. 3) the legislature has authorized the local entity to utilize a funding source not usually available to it by ENACTING AN ORDINANCE approved by a simple majority of the governing body. 4) the law is APPROVED BY A 2/3 MAJORITY in both houses. AND 5) it includes the requirement it applies equally to all persons similarly situated. |
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Taxpayer standing- to have it, the taxpayer must allege:
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1) a special injury different from that suffered by other taxparyers or
2) a challenge to the tax on constitutional grounds. |
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Homestead Exemption: what effect on liens?
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No judgment decree or execution can place a lien on the homestead until the owner moves.
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Homestead Exemption: What is a homestead. Max permissible size?
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-primary residence or intended residence of owner or owner's family.
- Outside a municipality= 160 acres or less of contiguous land and the improvements on the land. -In a municipality- 1/2 acre or less of contiguous land and improvements on the land. --must be located in Florida |
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Homestead Exemption: What are the three permissible exceptions to the exemption?
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1)The payment of taxes and assessments on the homestead.
2) Obligations arising out of a contract for the purchase, improvement, or repair of the property, and 3) obligations arising out of a contract for house, field, or other labor performed on the property. (construction or mechanic's lien) |
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Homestead Exemption: Are the proceeds from the sale of a house protected?
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Yes, proceeds from the sale of a house or an insurance payment are protected as long as the owner intends to use them to purchase a new homestead in florida.
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Homestead Exemption: How much personal property is exempted from forced sale or encumbrance?
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1000 bucks.
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Homestead Exemption: What happens when owner dies?
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The exemption ends but it still protects the surviving spouse and heirs of the owner until it is terminated to:
1) a valid transfer, devise, or alienation of the property, or 2) abandonment of the homestead. -Heirs don't have to be children to receive benefit. - |
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Homestead Exemption: How do you abandon a homestead?
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1) permanently give up posession of homestead and
2) expressed an intention to no longer use it as a homestead. |
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Homestead Exemption: Can a homestead be devised if the owner dies and is survived by a spouse or minor child?
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Nope.
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Homestead Exemption: What happens if the decedent dies intestate or makes an invalid attempt to devise the homestead? What happens if the decedent devises a 100% fee simple to surviving spouse?
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the general law provisions require a life estate to be created in the surviving spouse with the minor children taking a vested remainder interest. If the decedent devises a 100% fee simple to spouse--the descendants get nothing from the homestead.
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Ex Post Facto constitutional provision
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Repeal or amendment of a criminal statute has no effect on the prosecution or punishment of a crime committed before the change took place.
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Health care- patients rights
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Patients have the right to access the records of a physician or health care facility relating to an adverse medical incident. It includes any medical negligence, intentional misconduct, or any oher act or neglect that caused or could have caused injury or death to a patient.
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Health care: When are med licenses revoked?
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revoked after committing 3 or more incidents of med mal. To qualify as an incident the malpractice must have been found in a final judgment of
1) a court of law 2) final administrative agency decision, or 3) decision of binding arbitration. |
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3 standards of review- list
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1) Strict Scrutiny
2)intermediate scrutiny 3) rational basis |
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Strict scrutiny-
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It applies to fundamental rights. Highest burden. Any laws seeking to abridge the fundamental rights must be narrowly tailored to serve a compelling state interest using the least restrictive means. FUND RIGHTS ARE:right to vote, the right to be a candidate, the right to migrate to another state, the right to marry and procreate and live as a family unit, and to fees that prevent indigents from obtaining equal access to justice (e.g, divorcing, maintaining parental rights, and obtaining transcripts and securing legal assistance for a criminal appeal).
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Intermediate Scrutiny
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If the classification is quasi-suspect, then intermediate scrutiny will apply. The state will have to prove that the action is substantially related to achieve an important state interest.
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Rational Basis
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All other classifications will be reviewed under this. The challenger must prove the state action is not rationally related to a legitimate state interest.
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suspect classes
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1. Race
2. National Origin 3. Religion (either under EP or Establishment Clause analysis) 4. Alienage (unless the classification falls within a recognized "political community" exception, in which case only rational basis scrutiny will be applied). |
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quasi suspect classes
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1. Gender
2. Illegitimacy |
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Equal Protection- What test is used?
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Rational basis
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What are the inalienable rights enumerated by the constitution?
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1) the right to enjoy life and liberty
2) the right to pursue happiness 3) the right to be rewarded for industry; and 4) the right to acquire, possess and protect property |
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No person can be deprived of any right due to :
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1) race
2) religion 3) national origin 4) physical disability - note: age is not a suspect class. - there is no protection from action by private individuals. |
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Freedom of Religion
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No law may respect the establishment of religion
No law may prohibit or penalize the free exercise of religion The practice of religion may not violate public morals, peace, or safety- religious rights are not absolute and free from government intrusion. |
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Freedom of speech and press
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Every person has the right to speak, write, or publish their views on all subjects
No law may be passed that restrains the liberty of speech or press. |
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Freedom of Assembly
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People have the right to assemble peacefully- subject to reasonable regulation
People have the right to instruct their representatives People have the right to petition for a redress of their grievances. |
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Right to work and bargain collectively
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The right of a person to work can't be denied or restricted due to membership or nonmembership in any labor union or organization.
The right of employees to bargain collectively by or through an organization may not be denied or restricted. Public employees don't have the right to strike. |
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Right to bear arms
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The people have the right to bear arms although it may be regulated by law.
There is a mandatory 3 day waiting period between purchase and delivery of a handgun. It does not apply to: 1) concealed weapon permit holders 2) the trade in of another handgun. Counties may make it a 5 day waiting period. |
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Due process
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- No person may be deprived of life, liberty, or property without due process.
-Procedural due process implicates issues of legal procedure used when the rights granted by the constitution are at stake. - In issues of substantive law, the state courts use a subjective test to protect all of the rights granted by the constitution. |
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Due process- analysis-
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Ask whether the states reason for taking action was for a permissible legislative reason (public health, welfare, morals) If yes, then determine whether the states method of action was reasonable and substantially related to that reason. CANT BE ARBITRARY AND CAPRICIOUS.
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The following two types of laws are prohibited:
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Bills of Attainder- (specific to people)
Ex post facto laws-- which have a retrospective effect AND significantly diminish a right the party would have had under the prior law. |
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Imprisonment for debt
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It's not allowed except in cases of fraud. To protect procedural due process, before a person can be imprisoned, the court must determine that the person presently has the ability to pay the debt. If they don't have the funds, imprisonment is unlawful.
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Search and seizure - what are the 2 separate rights that are protected from unreasonable searches and seizures?
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1) The right to have bodies, houses, papers, and effects secured against unreasonable searches and seizures AND
2) the right not to have private communications unreasonably intercepted by any means. |
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In order for a warrant to be issued....__________
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it must be based on probably cause; and supported by an affidavit which describes with particularity the places to be searched, the persons or things to be seized, the communication to be intercepted and the nature of the evidence to be seized.
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Habeas Corpus
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A writ of habeas corpus is grantable of right.
The writ must be granted freely and without cost. The purpose is to promptly bring a party before a court or judge to ensure that the party is not being lawfully restrained. |
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Pretrial release and detention
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- every person charged with a crime or violation of a county or municipal ordinance is entitled to pretrial release on reasonable conditions
- Regardless of the nature of the crime, the accused may be detained if no conditions of release can reasonably protect the community from risk of harm to persons or ensure the accused will be present for trial, or assure the integrity of the judicial process. |
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Prosecution for crime- no person may be tried 1) for a _____ without presentment or indictment by a grand jury or
2) for a ____without either presentment and indictment by a grand jury or an information under oath filed by that state's prosecuting officer 3) when does this not apply? |
1) capital crime
2) felony other than capital crime 3) This doesn't apply to a person on active duty in the militia when being tried by a courts martial |
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Upon demand, the accused in a criminal proceeding shall
1) ___ 2) ___ |
1) be informed of the nature and cause of accusation AND
2) be given a copy of the charges |
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The accused shall have the right to 1-4
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1) have compulsory process for witnesses
2) confront adverse witnesses at trial 3) be heard in person, through counsel, or both; and 4) to have a speedy and public trial by jury in the county where the crimes were committed. If the county isn't known, the indictment may charge venue in two or more counties. |
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What kind of law sets venue for crimes committed outside state boundaries?
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General law
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What are victims or their lawful reps entitled to in criminal proceedings?
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to be informed, present, and heard when relevant at all crucial stages of the criminal proceedings.
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Excessive punishments 1-6 and DP note
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1) excessive fines
2) cruel and unusual punishment 3) attainder (capital punishment imposed without proper process) 4) forfeiture of estate 5) indefinite imprisonment; and 6) unreasonable detention of witnesses NOTE: the death penalty is authorized for crimes as designated by the legislature. Any method of execution is allowed unless prohibited by the US constitution. If an execution method is declared invalid, the sentence is still in force until it can be carried out by a valid method. |
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Treason 1-3 and note
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1) waging war against the state
2) siding with the state's enemies or 3) giving the state's enemies aid and comfort. -- no one can be convicted of treason unless two people give testimony in open court about the same act or confession. |
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Access to courts
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The courts must be open to every person for redress of any injury.
1) if the legislature restricts access it must provide a reasonable alternative or show there is an OVERWHELMING public need. 2) legislature can't abolish a common law cause of action without providing a statutory alternative. 3) the statute of limitations can't expire before the cause of action has accrued. |
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Trial by jury
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The right to trial by jury is guaranteed to all and is inviolate. The qualifications and number of jurors are fixed by law but there must be at least 6.
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Right to privacy 1-2
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except as otherwise provided in the constitution, every natural person has the right to
1) be left alone and 2) to be free from governmental intrusion into that person's private life. Note- FL has express privacy rights whereas US constitution does not. - for a particular facet of private life to be protected the individual must have a reasonable expectation of privacy for that facet. |
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The right to privacy doesn't guarantee complete freedom from intrusion, but the state has the burden of proof that is: 1-2
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1) furthering a COMPELLING state interest AND
2) using the least intrusive means to do so |
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What about public records and court proceedings and the right of privacy?
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A strong presumption of openness attaches to all public records and court proceedings. The public and media have standing to challenge a closure, and the burden of proof is on the party seeking closure. Before a closure order is entered the court must determine that: 1) no reasonable alternative is available to accomplish the result and 2) the least restrictive closure is being used.
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What does the right to privacy include as a fundamental right
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It is a fundamental right to self determination. It includes the right to make decisions about all medical choices, including refusal. It may be exercised regardless of competence at the time of decision. It doesn't include physician assisted suicide.
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Minors and privacy-
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The legislature may not limit or deny a minor's right to privacy guaranteed under the us constitution.
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What are the rights to access public records and meetings
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- Every Person has the right to inspect and copy any public record made or received in connection with an official business of any public body.
- The meetings of any public decision-making body at which official acts are taken or public matters discussed must be open to the public and properly noticed. |
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Limits on attorney contingency fees
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If a contingency fee is charged in a medical liability claim the attorney fee is calculated as follows. No more than 30% of the first 250k in damages received by the claimant and no more than 10% of the damages received in excess of 250k.
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Eminent Domain
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No private property may be taken by the state except for a 1) PUBLIC purpose when there is a 2) showing of NECESSITY and 3) with full COMPENSATION for the property paid to the owner.
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When does a taking occur for eminent domain purposes?
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When the state exercises its police power (public health, safety or general welfare)
A taking is 1) appropriating private property for public use; or 2) depriving the owner of private property of use and enjoyment for a substantial period. |
