FLORIDA CONSTITUTIONAL LAW OUTLINE- GROSSO (2013) I. INTRODUCTION TO STUDYING THE Florida CONSTIUTTION Keys to Success 1.

Always start with what the constitution says a. Language 2. Key legal points in case law a. Key interpretations by the judiciary 3. What are the nuisances/ exceptions/ special considerations that case law has pointed out? 4. What areas of law or aspects of life are implicated by this? Federal v. Florida - basic governmental power rests with state governments - key difference o states have inherent power state government agency (legislature) does NOT need something in the state constitution it can point to, to say it has the authority to do this petitioner has burden to show what state did was unconstitutional presumption constitutionality o federal government does NOT have inherent powers limited authority only inherent powers are those granted to it in US constitution

B. The Concept of the State Constitution

1. The State Constitution as a LIMITATION on inherent state governmental power - Peters v. Meeks- FSC held that the state legislature had inherent power to do anything it wanted, including the passage of the county commissioner statutes. The repeal of the constitutional provision didnt affect the already existing inherent power of the states. - Carroll v. State - Statutes are presumed to be constitutional, unless they infringe on the constitution. Courts cant question the legislature. - Constitution places limits on states governing powers - Inherent power comes from the people people alter it by amendment Inherent power is divided into 3 areas: 1. Power to organize and achieve its purposes 2. Power to raise the money necessary to achieve its purposes 3. Powers necessary to provide a relative safe and orderly environment within its territory (police power) a. Constitutional Provisions that appear to be a GRANT OF POWER to the state 1. constitutional languages as a legitimate LIMITATION on powera. by allocating to different branches or departments, the state legislature limits those departments or branches to those allocations. The legislature may change the allocation through its inherent power b. expression unius est exlusio alterius 2. Constitutional language as a REAFFIRMATION of existing inherent power a. provis worded as a grant only amount to a reaffirmation of the power that the state already has b. Example- state legislatures shall have power to regulate the marketability of oranges the state legislature would have the power to regulate tangerines also 3. State Constitution as a limitation on all branches of state government a. Judicial power, like all state power, is inherent. It is a mere allocation of inherent judicial power among the courts to which the state is limited by the constitution b. Allocation of inherent judicial power among those courts that share it is not a grant in any true sense of the word- it is a form of a limitation 2. Self Executing and Non Self Executing Self executing if it establishes a sufficient rule that needs no aid of legislature to be enforced

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Note: just because legislation would help it, it does not mean it is not self executing General Rule- preference is to read all provisions as self executing if language is plain and unambiguous. I.e. a judge could read it and see that it is clear and can enforce it, it IS self-executing. Exception: if ambiguous and not clear it is NOT self-executing

Not self- executing if the provision cannot be implemented without some manner of recovery being established through legislative enactment. o If the statute is vague then it is NOT self-executing Example- Art II 1- Any public official or employee who breaches the public trust for private gain and any person or entity induction such a breach shall be liable to the state for all financial benefits obtains such actionthe manner of recovery and additional damages MAY BE PROVIDED BY LAW 3. The Formal AMENDING Process - for each of the five ways, a provision is put on the ballot to be voted on by the people - ultimately constitution cannot be amended unless the electorate vote to approve the amendment - Art. XI 5- amendment or revision election- people get the ultimate vote

o Once on the ballot, the amendment is ONLY adopted after 60% of voters elect its adoption.
a. Five Exclusive ways to AMEND Florida Constitution; Article XI (1) Legislative Amendments 1 -Florida legislature can adopt resolution that gets put on the ballot for a constitutional amendment provision - If 3/5th of both houses vote in favor of putting a proposed ballot measure on the ballot then it is on the ballot for the citizens to vote Supermajority (2) Constitutional Revisions Commission 2 - Every twenty years Next one is in 4 years automatic - Comprised of 37 members who are appointed by: attorney general, governor, speaker of house, senate president, and chief justice of Florida Supreme Court (3) Citizens initiative Provision 3 Citizens have right to propose amendment to constitution as long as it does not have to do with a limitation of the government in raising revenue and follows the SSR - Petition must be signed by 8% of electors in each of of the congressional districts AND state as a whole - Ensure a broad range of people throughout the state want to see this matter placed on the ballot - Most active, controversial, and litigated Exception: people cannot petition to raise revenue Process: When proposed amendment qualifies to be placed on the ballot the secretary of state office submits amendment to the attorney general of the state of Florida, attorney general petitions Florida Supreme Court to determine whether the measure meets the relevant constitutional requirements o Provisions 1. satisfies single subject requirements 2. Meet ballot title and summary requirement for clear and unambiguous title ASK: Does it (1) fairly inform voter or; (2) mislead the public? o MUST fairly inform AND CANNOT mislead the public o Key Points: Separation of powers Doctrine 1. Court can only decide if requirements have been met for a constitutional amendment; cannot address the merits or the wisdom

2. Standard of review- Court must act with extreme care, causation and restraint before it removes constitutional amendment from people

SINGLE SUBJECT LIMITATION- Only one subject; Art XI 3 Applies to bills and amendments Mention of one thing is the exclusion of another Reason for Rule To Prevent: confusion 1. Prevents log rolling idea of putting together in one vote something that is very popular along with something that is not popular, to ensure passage of the unpopular item. 2. Prevent substantially changing, altering functions of more then one branch of government Public Hearing - limitation exist b/c the initiative process does not provide public hearing and debate Ballot and summary requirements Summary: explanatory statement, 75 words or less, detailing the chief purpose of the measure in clear and unambiguous language. Fla. Stat. 101.161. NOTE: must not detail every ramification of the amendment, only its chief purpose. Title: short title of no more than 15 words that the amendment is commonly known as. Fla. Stat. 101.161. Does the title reflect the amendments chief purpose? Does the title mislead the public? Title and summary cannot mislead people must inform people of the chief purpose Voters never see the actual text and instead vote based on the amend title and summary which highlights the need to follow the statutory mandates as to not mislead the public allowing each voter to make an intelligent, informed decision. Legislature requires that citizen initiatives need to provide the financial impact that will be imposed Standard of Review A proposed constitutional amendment is invalid if it shows that the purpose is clearly and conclusively defective ON EITHER GROUND. Burden- Challenger has the burden of proof Strict Compliance - with the single subject rule because function of the Florida constitution is to control government function including the adoption of any laws by the legislature TEST- Court determines whether a logical and natural oneness of purpose exist *** ON EXAM EXCEPTION- a proposal that affects several branches of government will not automatically fail; rather it is when a proposal substantially alters or performs the functions of multiple branches that it violates SSR test Red flag- if measure will impact multiple functions of government (4) Constitutional Convention 4 The power to call a convention to consider a revision of the entire constitution reserved to the people. Majo vote. Extraordinary thing to do (15% cong dist) (5) Taxation and Budget Reform Commission6 - Beginning in 2007 and each 20th year. Next one in 2027. Automatically on ballot - Can only propose amendments which relate to taxation and budget issues - Needs 2/3 majority vote of 22 members to go to people - Used to examine the state budgetary process: - Revenue needs v. Expenditures - The subject matter is limited to taxation and budget related things

Issue a report of the reviews results.

c. Integrating formal Amendments into the Constitution same as statute 1. Interpret as a Whole- interpreting as a whole and looking at all relevant constitutional provisions 2. Harmonize- When newly enacted amendments, courts are supposed to harmonize the amendment with the rest of the existing constitution State v. Division of Bond Finance 3. Precedent-Later enactment takes precedent as most recently stated will of the people, over older a. First try to harmonize if you cant later wins. 4. Prospective Reading- Amendments to Florida Constitution are to be read prospectively, apply in the future only, not to existing cases, UNLESS constitutional provision by its own terms makes it clear that it is intended to apply to pre existing situations a. Reason- give notice to people

PROCESS: How amendments are integrated into the constitution i. Rule of statutory construction: does not apply to the constitution, just because one thing is mentioned does not mean something else is excluded ii. First rule of construction existing part of the constitution it would be possible to read them as conflicting so harmonize! If they can be harmonized, you must do that. iii. 2nd rule of construction - If they cannot be harmonized, the amendment will control because it is the newest iv. 3rd rule When an amendment states that it is now the rule it will be applied prospectively, the presumption is that it will apply in the future, not retroactively 1. If it cannot be harmonized, - then they have to propose another amendment to make it harmonize, or prove that the old statute/ new statute is not going to work because it is unconstitutional Burnstead case When we amend the constitution to change something that is already there, then the new rule is constitutional. Need to look at what the whole document says
d. Amendment by Interpretation- aids in interpreting the constitution 1. Ejusdem generis- where a general term is found in conjunction with a series of very specific terms, the meaning of the general term will be considered restricted by the more specific term State v Town of Davie 2. expression unius est exclusion alterieus- expression of one thing is the exclusion of another. Used narrowly - Nichos v state 3. Several meanings- when a constitutional provision may well have either or several meanings, if the legislature has by statute adopted one, its adoption is legal. Such a legislative construction will be followed unless manifestly erroneous. - Greater Lortta Improvement Association 4. Dont make irrelevant - Constitution, just like a statute, should not be interpreted in such a way that makes any provision irrelevant 4. Aids in INTERPRETING the Constitution 1. If unambiguous =, its clear, obvious read as the plain meaning 2. If ambiguous, not clear, could mean different things a. look at legislators intent flows immediately from separation of powers doctrine b. Judges cannot interpret this 3. In pari materia reading them together, context matters a. Harmonize, seemingly conflicting things must be read together b. Presumption= constitutional 4. If can be read in different ways- If more then one way to read ambiguous statute the court must adopt interpretation that is constitutionally okay if both ways constitutional, the later added provision holds (latest provision of the public will) 5. Expression unius est exclusion alterious expression of one thing implies the exclusion of another

Key Points: scope of review: 1. No distinction between small violation of constitutions and large one 2. The political motivation of the legislature is not a proper matter of inquiry for the court 3. Statutory construction is far from scientific

II. SEPARATION OF POWERS Article II 3

Basic Principles 1. no one branch should be too powerful 2. no branch can exercise the powers of another 3. doctrine but it is not absolutely strict B. Encroachment by One Branch of Government on the Powers of Another Branch There is some permissible encroachment it is very narrow. Two fundamental prohibitions: 1. no branch may encroach on the power of another branch; and 2. No branch may delegate to another branch its constitutionally assigned powers

CL is made by the judiciary. If the constitution speaks clearly to a given question dont look to common law. CL applies only where there isnt anything in the constitution, or in a statute

Branches of Government 1. Powers of state divided into legislative, executive, and judicial branches. No person belonging to one branch shall exercise powers pertaining to any other branch unless expressly provided in the Constitution. a. **line between what each can do as a practical matter, in the real world there is often a blurring of the line. b. Each branch is both independent and equal to each other. c. Permissible encroachment embedded in the constitution and judicial interpretations, BUT it is very narrowly interpreted. 6 TYPES OF ENCROACHMENT:
(1) Encroachment by the LEGISLATURE power on the JUDICIARY - judge who is not a member of the judiciary determine what public policy is where: o 1. there is no legislation, no statute, legislature has not spoken on it development of common law on cases and judicial precedent o 2. there is a statute but it is ambiguous and the judges have to interpret it a. Judicial Modification of the Common Law SUPREME COURT Judges Will CHANGE Common Law If: (rare) 1. Common law is inconsistent with statute 2. If public necessity to where required to vindicate fundamental rights 3. Judges in the FL SC are permitted to interpret and change the CL BUT a statute passed in derogation of the CL must be narrowly construed in favor of the broadest possible retention of the preexisting CL rule and it must be the Legislatures intent to do so. 4. If statute meant to alter common law, then must explicitly say so in clear, unambiguous terms. * Courts that cannot change common law: a. Trial courts b. District Courts **ONLY Florida Supreme Court can change (amend) common law in Florida***

SUPREME COURT WILL NOT change common law because it is outdated Shands Teaching Hospital- if lawyer argues common law should be changed because it is outdated and needs to be modernized, unless it rises to level of fundamental right/ due process/ answer from the judiciary is that this is a nice public policy but we cannot do anything about it legislature is place to modernize the law

Shands Teaching Hospital v. Smith d. In the absence of constitutional or statutory authority to change established law (including CL), the DCAs cannot overrule controlling precedent. e. When the CL no longer makes sense in current life, that is what modern legislative bodies are for. It violates sep. of powers for judges to decide modern policy. It is up to the legislature to abrogate CL. Dade County Classroom Teachers Assoc. v. Leg.: f. Judiciary cant step in if it appears the Legis is taking affirmative actions toward correcting the problem. The Legis needs reasonable time to extend time and study into the field before the judiciary can encroach. g. If the legislature takes too long to act, then the judiciary can step in. h. Court can only enforce if someone brings a suit that shows they were denied a right, and a compelling set of facts show a clear constitutional right is unmet for a period of time
LEGISLATURE May: 1. fill in the gaps where the constitution has not spoken to that issue and there is a real world controversy (Shands) 2. Supplant the Common Law a. If legislature decides it wants to address an issue that has been the subject of common law precedent, legislature has the right to say that they will write a law on that supplants the common law b. Legislature can supplant that, BUT because of importance and length of time common law has been out there, legislatures decision to abrogate common law must be clear must be clear express intent of legislature Presumption-common law should rarely be changed & any changes should be explicit Fundamental Difference Between Legislature and Judiciary - Two parties in a lawsuit forcing the issue vs. very general issue - Judiciary-hears cases in court- only way judiciary gets jurisdiction- can shape general principles or law around it but cannot act on a regular basis - Legislature- built to conduct hearings, set up to do fact finding hearings and direct legislative staff b. The Temptation a Court May Face to REWRITE a statute in order to avoid holding it UNCONSTITUTIONAL - Brown v. State- A court should not be allowed to construct/interpret a statute completely; when it interprets to some degree, it should do so only within the clear meaning of the statute. If that cant be done constitutionally, the whole statute should be shot down as unconstitutional o Reasons: 1. Cannot hold hearings 2. admissible evidence is limited 3. Limited SOR o Court construction may twist the legislative intent - Presumption -that the law is constitutional - Judiciary cannot insert words into the constitution o If legislature meant word to be there it would be there o Also, cannot delete word o Court cannot rewrite- they can only interpret

c. The Temptation a Court may face to REWRITE a statute in order to avoid SERIOUS PROBLEMS that the statute as written may cause - if the statute is clear and unambiguous there is NO room for judicial interpretation o public policy argument cannot be had in the judiciary that is for the legislature UNLESS it leads to absurd result if plain meaning definition would lead to absurd result - court gives legislature reasonable amount of time to set up guidelines if they dont court will do it themselves. Dade County Classroom Teachers Assoc. FSC denied the petition for a writ of mandamus, indicating that it cannot compel another branch of government from acting. If the legislative body failed to act within a reasonable time, the FSC would have to fashion the necessary guidelines the to protect the CTAs fundamental rights. (2) Encroachment on Power of the LEGISLATIVE Branch by the EXECUTIVE Branch - Legislation is usually very detailed but at times can be rather broad o Legislature writes the law and gives the executive branch the authority to implement the law o Administrative rules or regulations o Legislature controls the purse
Blood Serv Plan Ins Com v. Williams: State Insurance commissioner denied BSPICs application for a license to sell insurance in Fl. FSC ruled that the Commissioner is not authorized to impose additional conditions and requirements as a prerequisite to granting a certificate of authority State of Fl. Police Benevolent Ass: The Fl Legislature must approve funding of collective bargaining agreements even if the governor negotiated and approved them. In this case, the legislature passed legislation that conflicted w/ the agreement. FSC ruled that only the legislature has to power to appropriate money. Chiles v. United Faculty of Florida: Legislature passed a law agreeing to fund 3% raises to members of the teachers union. Then they passed another law postponing funds. The legislature violated the right to K and the right to collectively bargain.

(3) Encroachment on Power of the EXECUTIVE Branch by the JUDICIAL Branch not common - Judges job is to apply laws, interpret and enforce laws and enforce constitutional rights o RULE- when a court of law or an administrative judge is interpreting an ambiguous statute the interpretation of the agency whose job it is to implement that statute is to be given great weight Because executive agencies have specialized knowledge/talents - RULE- Nici Absolute taking the lower courts jurisdiction away

o Usually courts interfering with state agencies (embedded within the executive branch). o Judicial intervention in the decision-making function of the Exec. Branch must be restrained in order to support the integrity of the administrative process and to allow the Exec. Branch to carry out its responsibilities. Legislatures only job per the constitution is to balance the budget. Legislature makes policy executive takes action and appoints administrative agency to execute the law courts enforce the rules o Judiciary cannot encroach upon state regulatory agencies (fall under exec. branch) When the legis. gives an exec. Branch agency over something they would still not be allowed to govern everything! Question on the exam that an agency handles or regulates one thing, make sure to apply EXACTLY what authority the agency was or was not given Executive agencies are creatures of statute Legislature is the dominant policy making body o Exec branch agencies are creatures of statute 7

(4) Encroachment on power of the EXECUTIVE branch by the LEGISLATIVE Branch - Jones v Chile The gov has supreme executive power under Art. VI. Therefore, he has the power to appoint the head of all exec agencies & should have the same power for lower members of all exec agencies. (5) Encroachment on the power of the JUDICIAL Branch by the EXECUTIVE Branch - just b/c you do not like rulings of judge you are overstepping bounds if you remove the judge from office - can only remove judg when: misfeasance, incompetency, neglect of duty in office, felony or drunkenness. In Re advisory Opinion to the Governor- Governor wanted to suspend a circuit judge for incompetence but he didnt fit into the enumerated causes for removal. FSC said CANT remove for a reason not in the statute. (6) Encroachment on Power of the JUDICIAL Branch by the LEGISLATIVE Branch - Legislature can say and require the judiciary to do things substantively but not procedurally Ricky v Ryals- FSC ruled that the term shall is permissive to a court only. The legislature doesnt have authority to make a court do something without the courts independent judgment C. DELEGATION OF POWER AS SEPARATION OF POWERS- must be SPECIFIC 1. Legislative Delegation of Legislative Power - The non-delegation doctrine normally arises where the legislative branch prescribes broad, almost ambiguous laws, and permits the executive branch to provide the particulars. - Legislature cannot delegate its law making duty to other bodies but it CAN delegate that power to an agency or commission to administer the law as enacted (execution of the law) by the legislature 2. Judicial Delegation of Judicial Power - Courts cannot delegate their powers to administrative agencies

The LEGISLATURE Art. III 1

Composition- The legislative power of the state shall be vested in the legislature of the State of Florida - the legislature has the power to decide what the policy of the law shall be - broad, inherent authority - inhibits the exercise of legislative authority

B. Constitutional Limitations: Regulation of the Legislature

1. 2. 3. 4. 5. Subject matter and title requirements- Art III 6 Appropriation bills When laws take effect General laws, special laws and general laws of local application 10 Governors veto power

Subject Matter & Title Requirement one subject and matter briefly expressed in the title. (1)(a) Single Subject Requirement- this can be a very broad subject. Just needs to be reasonable Reasons: 1. Prevent hodge podge or log rolling legislation 2. Prevent surprise or fraud 3. Fairly appraise the people of the subjects of legislation that are being considered; give them voice Three key points 1. Statutes not subject to the SSR. They are all made up of individual bills that have been enacted. You cannot go in and challenge a statute b/c it covers an array of things. 2. You can challenge session laws based on this principle 3. TEST- Can an average person foresee that his interest MIGHT be affected by the proposed legislation? If yes constitutional * bills dealing with appropriations may cover no other subjects*

(1)(b) Title Requirements Look at: Whether the published notice or title confuses as to the subject matter of the proposed legislation. **Must be reasonable ** - Title must include notice of the subject o Subject- matter to which act relates, focus of title; Broad area that we are regulating Broader then the object o Object- purpose to be accomplished Does not have to be in the title; does not need to be included in notice - Statutes are reenacted every 2 years which serves as a cure to title defects (1)(c) Window period for asserting single subject violations - The single subject requirement applies only to

laws before they become codified as Florida Statutes. Once codified, the window period elapses and the single subject matter requirement is cured.
(2) Appropriation Bills Art. III 12- Only thing that the legis must pass every year; Ct can mandate that the budget be passed. Cannot approp money for something unless there is already policy author.. Gov has line veto. - Key Prohibition: it can ONLY be for appropriations * Only one subject o Cannot make laws in budget on public policy o No mixing substantive policy with appropriation (spending money) o Appropriate provision language in a budget is okay as opposed to substantive policy making in appropriation bill. Proviso- must be directly & rationally related to the appropr if not it is unconstitutional TEST: o 1. Does the bill change the law on any subject other than appropriations? If yes invalid o 2. Does every qualification or restriction of the bill directly and rationally relate to the purpose of the appropriation to which the qualification or restriction applies? If no invalid (3) When Laws Take Effect- Art. III 9 - If no effective date given then 60th day after adjournment sine die of the session in which the law was enacted, or in which a veto was overridden. - If conflict - In construing a statute, the specific provisions in the body of the act clearly expressing the legislative intent should supersede and control over an effective date clause in the act that conflicts with such intent (4) General Laws, Special Laws and General Laws of Local Application a. General law- Issue that either applies everywhere in state or could apply anywhere in state or addresses an issue that is an issue in all part of the state o Most of the laws we deal with are general laws o Does not mean it cannot be tailored for a particular section of Florida o ASK: is subject matter something of statewide application/ scheme of things? Ex. water management = state wide o General act on same subject as special act will supersede and repeal special act. b. Special Law- Art. III 10 law that applies only to specic people or class of people for special treatment o Generally upheld against equal protection lawsuits because must be rship b.w law and special class Constitutional prohibition on Special Act Art. III 11 Special Act- only valid if statutorily provided pre enactment (heightened/ rigorous) notice is given, or the laws are conditioned on a referendum in the affected areas o Const. does not specify what this is, but the legislature can define it by general law CANNOT enact any general or special law of local application on one of the 20 enumerated categories. Art III 11. o Cannot single people out in these areas legislation in these areas must apply to everyone in state equally

c. General law of local applicability- for a population act to be constitutional the subject matter of the population act must be reasonably related (* not rational) to the population classification. o conditions: Population act must be OPENENDED (grows in and out of the county) Population act cannot pertain to any of the 20 forbidden categories d. Operation of the Categories set out in Art. III 11 p.13 - just know list exists e. Precedence between General and Special Laws o Conflict- read the special laws as a limited exemption to the general law. o if Ct reads general law and believes legislature clearly meant a comprehensive rewrite of the law and intent is evident then court will determine that any existing, previous special acts are trumped (5) Governors veto power Art. III 8- governor possess the authority to veto a bill enacted by the Florida legislature but the veto must extend to the entire bill - Exception- permits the governor to veto a specific appropriation in a general appropriations bill o However, the governor cannot veto any qualifications or restrictions in a general appropriation bill without also vetoing the appropriation to which it relates - Line item veto- budget appropriations bill can go line-by-line (similar to SSR) - Generally becomes law, w/o the govs sig, if governor fails to veto it, or sign it within 7 days after it has been presented to the governor. During this period or on the 7th day, if the legis adjourns sine die or takes

a 30 day or more recess, the gov now has 15 consecutive days to veto or it will automatically pass.
* DIFFERENT then federal law (pocket veto) FLORIDA, there is no pocket veto, if governor does not affirmatively veto the bill it PASSES Override- need 2/3rd of BOTH houses to override governors veto o Need simple majority to enact bill and super majority (2/3) to override veto o

The COURTS Art. VI 1

General; Background - Prior to 1980- Supreme court was a 2nd court- DCA was intermediary court and SC was another appellate - Constitution gives legislature power to draw jurisdictional boundaries (Five districts)

B. Constitutional Jurisdiction of Florida Courts

1. Supreme Court appellate, extremely limited, one appeal as of right from DCA declares laws 2. District Courts of Appeal appellate, error correcting courts 3. Circuit Courts and trial court can be an appellate court for the county courts a. $15K + probate, equity, taxes, fam law, in rem-prop, felon & misd, home owners assoc (not condos) 4. County Courts trial court a. Limited jurisdictioncivil disputes between $5 and $15K landlord tenant condos (1) THE SUPREME COURT Law Declaring, determining, giving court; limited appellate - Determine common law says which law governs in Florida o Job is not to error correct, or justice doing court - They are harsh and difficult - In general- role is to make sure that all districts out there are following the same rules uniformity - Most occur in conflict jurisdiction Appeal to the Florida Supreme Court as a MATTER OF RIGHT 1. Death penalty cases- Art. V Sect 3(b)(1)- final judgments of T.Cs imposing death penalty- mandatory 2. DCA declared invalid- Art. V Sect 3(b)(1) from decisions of DCA declaring invalid a state statute or a provision of the state constitution mandatory separation of powers 3. Bonding Cases- Art V 3(b)(2) - permits (may) the Fl. legislature to prescribe mandatory Fl. SC jurisdiction over bonding cases by general law 4. State Agencies that Regulate Utilities Art V 3(b)(2) Public Service Commissio. Permits (may) the Fl. legisl to prescribe mand Fl. SC jurisdiction over state agencies that regulate utilities by general law

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* separation of powers c. DISCRETIONARY REVIEW may review any decision of a DCA (1) DCA declares VALID a STATE STATUTE that expressly construes prov. of st/fed. Art V 3(b)(3) - expressly- intended to abolish the inherency doctrine **If DCA says its UNconstitutional mandatory **If DCA says it is constitutional discretionary (2) Expressly affects CLASS of constitutional or state officers Art V 3(b)(3) narrow construction - class- two or more constitutional or state officers who separately and independently exercise identical powers of government. (all four branches) o Not a Class- Grp of officrs compsing a single gov entity such as a board or commission - Decision must directly & in some way exclusively affect the duties, powers, validity, formation, termination or regulation of a part class of const/ state officers. o Does more than simply modify or construe or add to the case law (3) Conflict Jurisdiction Art 5 3(b)(4) - Ensures to the F.SC, the opp to correct a conflict b/w 2 DCAs - Two Basic forms of decisional conflict (City of Jacksonville v. Florida First national Bank) o 1. Where an announced rule of law conflicts with other appellate expressions of law, or o 2. Where a rule of law is applied to produce a diff result in a case, which involves substantially the same controlling facts as a prior case. - A prior decision means a majority opinion - it must be: (1)in the majority decision and (2) must be on the same type of law o Cannot be in: dissent or dicta or a per curium o Must be able to cite to opinion to argue conflict - legal princp which ct applied Conflict allows jurisdiction if you: o Convince the supreme court the conflict exists or o You certify that the conflict exists (4) Certified as Great Public Importance Art 5 3(b)(4) - 1980 amendment substituted importance for interest o recognized some legal issues may have great public importance but may not be sufficiently known by the public to have great public interest. - ****Party adversely affected is the one who must seek review ****** Petrik v. NH ins.co. This is due to standing and case or controversy issues - The DCA does not need to set out specific question to be answered by SC (helpful, not req.) (5) Two DCA opinions that are in direct conflict Art. 5 3(b)(4) - Word expressly is omitted, must be certified - Likely that rship b/w the 2 conflict provisions is that the later will allow the DCA to add the weight of its certification to the litigants request for review when it chooses to do so. - Post decision motions o Rehearing- just you to your panel o Rehearing en banc- conflict- whole court o Clarification- opinion comes out and it is ambiguous (6) Great Public Importance OR great effect on proper administration of Justice and needed Immediately Art. 5 3(b)(5) Often called the bypass provision because it permits an issue to bypass a DCA and be resolved by the F.S.C. - Two important points: o 1. Covers non final as well as final order of the trial courts only method of review for non-final orders by the Florida Supreme Court o 2. Unlike the earlier provision, this one is self-executing

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provides that the jurisdiction of the Supreme court is invoked upon rendition of the certificate by the DCA

(7) U.S. Supreme Ct Decision or U.S. Court of Appeal Opinion that deals with Florida Art. 5 3(b)(6) - provision confers constitutional status on what had theretofore been a provision of the FRAP - when a fed ct, has a case in front of them and it involves/ req interpret by Fl law (prop rights) d. Writs - Florida Supreme Court possess limited amount of original jurisdiction, discretionary 1. May issue writs of prohibition to courts.. Art 5 3(b)(7) Preventative NOT corrective - order from high ct to low ct saying you are proh from exercising that juris that you dont have - narrow in scope and operation, - If abusing discretion they have get an appeal 2. May issue writs quo warranto to state officers and state agencies. Art. 5 3(b)(8) - Test - the right of a person to hold an office or franchise or exercise some right or privilege the peculiar powers of which are derived from the state o You are not authorized to assume the public office you are trying to assume 3. of mandamus. Art. 5 3(b)(8) - lies to compel a public officer to perform a ministerial/mandatory duty o cannot be used to compel a public agency clothed with discretion to exercise that discretion in a given manner o fairly common. 4. writ of habeas corpus - criminal court. Criminal can seek this writ as to why they are being detained-- basic right 5. All writs necessary not in class

2. DISTRICT COURT OF APPEALS- Art. 5 (4)(b) District Court of Appeals hears appeals as a matter of right from T.C. final judgments OR order which are NOT directly appealable to the F.S.C or Cir.C. o Appeal- issues of law NOT fact T.C is better for fact-finding because they were there, heard the evidence, etc. o Only time can be overturned is when no reasonable person could find that way Error in a finding of fact only thing they can do is competent substantial evidence Abuse of discretion o Procedural effect- an opinion of a DCA is binding on all lower courts throughout the state UNLESS a conflicting opinion exists from the local DCA a. DCA- In General 5 DCAs which are the final appellate courts in the Florida Judiciary - Constitution requires DCA to appoint two kinds of officers: o 1. Clerk- runs and manages the office, files paper work o 2. Marshall- executes any service of process Appellate Jurisdiction- District courts of appeal possess mandatory jurisd to review decisions in 3 situations o (1) Trial courts- Fin ord of T.Cs are not direct appeal to the S.C or a C.C are appealable to the D.C. o (2) Administrative Agencies/State Agencies- Must be an admin agency gov by the Fl.Ad. Proc. Act Have to read the statute to see if it provides for an appeal Local governments are not state agencies DCA has jurisdiction over state agencies State agency needs certiorari Local government has an appeal as of right Administrative actions have a 1st line of app to the circ crt; however this is only a nominal appeal -consid a trial b/c it is the 1st time that the case comes before full judicial autho admin. action still has a right to appeal to the DCA b/c that would be its first real appeal. DCA does not hear the direct appeal

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Final orders of state agencies, except order of the pub serv. commis relating to rates or servi of utili providing elec, gas, or telephone service are reviewable. Workers compensation DCA by the legislature. If the admin action reached a final judgment in the Cir Ct, and the Cir Ct was acting in its reviewing capacity, the admin act is not appealable as of right to the DCA if the case has already been directly appealed to the circuit court. Provided that the circuit court: Provided proper procedural due process Determined whether essential requirements of the law are followed and Determined whether the admin find/judg was supp by comp substantial evidence. review is only by writ of cert & not as of right, b/c you only get one appeal as of right in fl. (3) Other order- Non-final orders of trial courts as provided by supreme court rules are appealable

b-f. DCA has jurisdiction to hear cases when: may review. Certiorari generally, higher tribunal can review by certiorari a judgment of a lower tribunal. Can be Circ Ct reviewing Co Ct; App. Ct reviewing Cir Ct, CirCt reviewing local gover (as lower tribunal) ASK: Do I have a right to appeal? App is much broader, Can appeal everything, proced eviden etc. ASK: If I do NOT have a right to appeal then does the DCA have certiorari? ASK: was decision below based: - 1. on competent and substantive evidence; - 2. a departure for essential elements of law; - 3 was there procedural due process? If NO certiorari

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any decision of a DCA that expressly declares valid a state statute, or that expressly construes a provision of the state or federal constitution Art V 3(b)(3) a. establishes the jurisdiction of the DCA over appeals from final judgments of the circuit courts b. where a party is entitled as a matter of right to seek review in the circuit court from administrative action, the circuit court must determine whether: court has certiorari when: i. Whether your received procedural due process ii. Whether the essential elements of law were observed iii. Whether there was competent and substantial evidence to support the findings * the DCA upon, review of the circuit courts judgment, then determines whether the circuit court afforded procedural due process and applied the correct law 2. [DCA] may review interlocutory orders Art V 4(b)(1) a. procedures providing for interlocutory orders by DCA are found in the FRAP made by Fl. SC. b. interlocutory orders- orders on discovery requests, evidentiary hearings, kind of orders during conduct of a trial where there is a need for the person to be able to appeal that quickly 3. DCA power of direct review of administrative action, as prescribed by general law. Art V 4(b)(2) a. Agency- the governor in the exercise of all executive powers other than those derived from the constitution; state officer and each state department; authority including regional water supply authority; board; commission; regional planning agency; multicounty special district; educ units i. Definition does NOT include any legal entity or agency created in whole or in part pursuant to chapter 361, part II, any metropolitan planning organization, any separate legal or administrative entity, an expressway authority, any legal or administrative entity created by an inter-local agreement 1. i.e. NOT state agency = local governments 4. A DCA or any judge thereof may issue writs of habeas corpus returnable before the court or any judge thereof or before any circuit judge within the territorial jurisdiction of the court Art V 4(b)(3) 5. A DCA may issue writs of mandamus, certiorari, prohibition, quo warranto, and other writs necessary to the complete exercise of its jurisdiction Art V 4(b)(3)

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3. CIRCUIT COURTS AND COUNTY COURTS Circuit Courts- Art 5 5(b) General trial courts in Florida; most original T.C. juris is vested in Circ. Ct. - jurisdiction : limited to challenge quasi judicial action by certiorari o appellate jurisdiction- over orders of county courts and certain admin agencies Possess limited appellate juris, to hear all appeals from co courts, other than: 1. county court orders which declare a state const prov or statute unconstitutional; and 2. orders or judgments of a co ct which are certified by the C.C to the DCA to be of great pub import and which are accepted by the DCA for review. o trial jurisdiction- over all matters NOT allocated to the county courts, which include: probate and related matters; equitable matters not cognizable in county courts (juvenile cases); felony cases; tax assessment cases; actions of ejectment or involving title or boundaries of real property - two independent jurisdictional bases for reviewing administrative action o 1. Common law certiorari o 2. Anything prescribed by general law, AKA statutory certiorari - Same writ power of DCA and Supreme Court have County Courts- Art. V 6(b) - Exercise jurisdiction prescribed by general law. Must be uniform. - Juris. of appeals from final administrative orders of local government code enforcement boards - Once circuit court renders an opinion in an appeal from a county court, the matter may not be appealed to the DCA, but it may be reviewed by a common law writ of certiorari. - Statute gives county courts some original jurisdiction over certain matters. Only have jurisdiction if there is a law that gives them jurisdiction a. Common Law Certiorari catchall check and balance - Generally available only where no direct appellate proceedings are provided by law. - Entirely discretionary with the court o As opposed to a statutory appeal which is taken as a matter of right - Scope of review - traditionally limited and much narrower than the scope of review on appeal - ONLY review judicial or quasi-judicial action Never purely legislative action o As opposed to Statutory appeal = review of judicial and legislative actions b. Legislative and Quasi Judicial - must be judicial or quasi judicial to be challenged by certiorari o **quasi-judicial - applying law, adjudicating someones rights under legislation that has already been written, you have due process rights o **quasi-legislative- deciding the rules no due process right to be heard o judicial- announcing the law o discretionary- where you have already had one appeal as of right o mandatory- when it is your one appellate bite of the apple- no other adequate remedy at law test of quasi judicial - whether the statutory tribunal had exercised a statutory power given it to make a decision having a judicial character or attribute, and consequent upon some notice or hearing to be had before it as a condition for the rendition of the particular decision made o requirement - notice of hearing and fair opportunity to be hear and give facts C. OTHER LIMITATIONS ON THE EXERCISE OF JUDICIAL POWER 1. CASE OF CONTROVERSY AND SEPARATION OF POWERS a. In General - Governs exercise of courts jurisdiction/ ability to see a case is in the U.S. constitution - * Florida does not have an actual provision Except as otherwise required by the constitution, Florida recognizes a general standing requirement in the sense that every case must involve a real controversy as to the issue or issues presented

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The parties must not be requesting an advisory opinion Except in those rare instances in which advisory opinions are auth by the Const (SSR)

b. Mootness - Doctrine of standing set in time frame: the requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness) - Food stamps case- case was moot as to group because they were not being impacted THEN, they were within the sphere or category that could be effected - Occurs in two basic situations o 1. When issues presented are no longer live or o 2. When the parties lack a legally cognizable interest in the outcome - class actions a fed class action suit does not ord become moot merely b/c the contro has become moot as to some, but not all, of the plaintiffs, provided that the requirements of the class suit are still met. - Exception: Capable of repetition, yet evading review o 1. Cause can repeat itself o 2. Of great public importance - Intervening events can make standing moot c. Ripeness- before any proceeding for declaratory relief should be entertained it should be clearly made to appear that there is a bona fide, actual, present practical need for the declaration; that the decl should deal with a present justiciable question (Bryant v. Gray) d. Taxpayer Standing A mere incr in tax does not confer stand upon a taxpayer to challenge govern expenditure

e. Citizen Standing- Where there is an attack upon constitutional grounds based upon the legislatures taxing and spending power there is standing to sue without the Rickman requirement of special injury o In the absence of a constitutional challenge, a taxpayer may bring suit only upon a showing of special injury which is distinct from that suffered by other taxpayers in the taxing district. Special injury- must be impacted to degree that is different and exceeds that of the gen. pub Must be actual, live, tangible impact on you Generally, governed by statute f. Associational standing - Groups can have standing to present the interest of its members without the individual members having to bring the suit in their own name Three prong test: 1. A substantial number of the associations members, although not necessarily a majority, are substantially affected by the challenged rule 2. The subject matter of the rule is within the associations general scope of interest and activity; and 3. The relief requested is the type appropriate for a trade assoc to receive on behalf of its members g. Standing to Challenge Administrative Action - a party who is adversely affected by final agency action is entitled to judicial review. There are four requirements for standing to seek such review 1. The action is final 2. The agency is subject to provisions of the act 3. The person seeking review was a party to the action 4. The party was adversely affected by the action h. Third Party Standing- bring claim on behalf of another party. I.e. Jurors

V. LOCAL GOVERNMENT
A. GENERAL
local governments in Florida consist of: counties 1. charter and non charter, 2. municipal corporations and school and

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3. other districts (special districts- hospital, water, single purpose local governments) NOTE: All cities and counties are creatures of the statute / law. NOTE:Legislature is by far dominant policymaking bodycan abolish counties and cities, change boundaries etc.

B. COUNTIES
1. IN GENERAL- state shall be divided by law into political subdivisions called counties; counties may be created, abolished or changed by law, with provision for payment or apportionment of the public debt. Art VIII 1(a) - two principal types of counties o charter o non charter *additionally, special constitution provisions exist which provide special status to identified counties - Conflict - When two ordinances conflict between city and county, it is the same analysis as when there are two constitutional or statutes that are inconsistent Must try to harmonize them 2. NON CHARTER COUNTIES Art VIII 1(f) source of gov power emanates from legis authorization - Current statutory provisions regulating non-charter counties broadly empower such counties to exercise all necessary power to carry on county government - No legal ability to exercise authority within the cities of your county - Municipal ordinances control over conflicting county ordinances - Speer- unless the legislature has preempted an action or particular bond, the county has power to govern itself through that action or bond 2. CHARTER COUNTIES - Art VIII 1(g) MORE power than Non-Charter - all powers not inconsistent with general law power comes from the county charter like cons for county
Impact of Florida Legislature NON CHARTER COUNTY Posses only that power of self-government that is consistent with general or special law Florida legislature may affect the powers of non charter counties by general or special law. Fla. Leg. has relatively free hand May enact only those ordinances that are consistent with both general and special law ordinance will NOT have effect within a municipality if it conflicts with a municipal ordinance; No conflict occurs if the ordinances are considered to co-exist. Only conflict if reg. person cannot comply w/ both. CHARTER COUNTY Fl legis can only impact on powers of self-government of a charter county through a general law, or a special law which is approved by a VOTE of the electors in the affected county (approve by referendum) May enact all ordinances that are consistent with general law Fl legis may not affect the ordinance making authority of a charter county by special law charter itself may provide that the charter county ordinance will prevail if a conflict exists

Enactment of Ordinances Conflicts

3. DUTY TO FOLLOW CHARTERS- an ordinance imposing a single subject matter restriction is invalid in light of the omission of such a requirement from the charter. The charter governed as the constitutional directive in that the charter must provide for initiative and referendum process. Miami Heat; Art. IX 2

C. MUNICIPAL CORPORATIONS- Art. VIII 2

1. IN GENERAL Establishment- Municipal may be estab or abolis & their charters amended purs to general or special laws o When any municipality is abolished, provision shall be made for the protection of its creditors Powers- Municipalities shall have governmental corporate and proprietary powers to enable them to conduct municipal government, perform municipal functions and render municipal services, and may exercise any power for municipal purposes except as otherwise provided by law o Each municipal legislative body shall be elective

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Annexation- Municipal annexation of unincorporated territory, merger of municipalities, and exercise of extra-territorial powers by municipalities shall be as provided by general or special law 2. MUNICIPAL HOME RULE POWER-grants municipalities all powers not expressly prohibited in the act. - unius et exclsuio alterius- where a statute sets forth exceptions no others may be implied - municipal purposes- any activity or power which may be exercised by the state, - ASK: (1.) Was it done for a valid municipal purpose (Ex: state prisons hold no municipal purpose) AND (2.) Was it expressly prohibited by the constitution, general or special law, or county charter? 3. CREATION & MERGER OF MUNICIPAL CORP & ANNEXATION BY MUNICIPAL CORP - legislatures power to annex territory to an existing municipality - legislature needs VOTE of the electorate (affected classes/ areas) - Sullivan- legis can ratify the valid of an election to create a munic retro valid used to cure proced defects a. Annexation under the Provisions to General Law legislature has manifested its intent that there be a sole and exclusive procedure for challenging a municipal governments failure to comply with chapter 171 - 1. Be a party affected - 2. Allege that he will suffer material injury by reason of the failure of the munic governing body to comply with the procedures or to meet the requirements established for annexation as they apply to his property b. Annexation by Special Law- legislature is entitled to annex an area with or without an affirmative vote of the affected property owners - North Ridge General Hospital- held that annexation by special act, rather then chapter 171 process, does not violate the equal protection clause o statute is valid if any state of facts can reasonably be conceived that it will sustain the classification - Burden on Plaintiff to prove the classification is arbitrary and unreasonable

D. OTHER UNITS OF LOCAL GOVERNMENT

Florida Constitution references a number of governmental entities other than counties and municipalities - These include inter alia special taxing units and municipal service taxing units Dunbar Electric- School boards are constitutional entities created by Art. IX, 4 - School boards do not fall within the executive branch of the state government Eldred v. North Broward Hospital District- special taxing district -Cannot claim sovereign immunity. Considered an agency of the state. Sometimes have hybrid agencies that for some purpose under some claim they are a local gov. Other statutes- interpreted to be a state agency and thus able to claim state sovereign immunity

E. STATE-LOCAL RELATIONSHIPS
Courts mediate power disputes between various levels of government. These usually involve the issue of whether the state has preempted the power of subor gov entities to act in a given area, as well as conflicts b/w pol subdivis. 1. PREEMPTION BY THE STATE DISFAVORED!! Hillsborough County- Express preemption- language must be a specific statement; cannot be implied or inferred - Implied preemption the legislative scheme must be so pervasive that it completely occupies the field, thereby requiring a finding that an ordinance which attempts to intrude upon that field is null and void - Inconsistent with general law- legislative provisions cannot coexist. 2. NON PREEMPTION TYPE CONFLICT BETWEEN STATE AND LOCAL GOVERNMENT Presumption: against preemption o Needs to be expressly written that the legislature meant to preempt or If implied preemption- need to be obvious and apparent o Burden- the state to show that statute preempts either expressly or impliedly

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Superior sovereign test- municipalities are creatures of the state and cannot use their powers to thwart the state. But municipal powers are derived from Florida Constitution. The legislature has given home rule powers to municipalities unless the actions of the municipality are prohibited by law. Zoning power comes from home rule statute and there is no express prohibition on such ordinances being applied to state agencies Governmental/proprietary test- limited to when government violates its own zoning laws. Doesnt work well, non clear resolving power. The character of the power exercise varies which each set of facts Eminent domain test- If HRS or its agent, the association, has eminent domain power that it exercises, then local zoning cant applyacquiring the property takes it outside zoning. COURT REJECTS THIS Statutory Guidance Test: Legislature could trump by granting statutory power to locate homes anywhere, but it has not. It could also require the agency to follow local zoning, but the legislature did no do so. The legislature has not spoken on the issue. When it does, it will control. Balancing of interest test: there are competing interests and no reason to think the state is in a superior position to make judgmentsforces state to consider local concerns and alternatives. Burden on state to prove its interests outweigh the local land use regulations. If they do then the state agency can trump local zoning. o Forces state agencies to consider local concerns and alternatives.

F. Local-Local Relationships
1. CONSOLIDATION Art VIII 3 Vote: County gets a vote City may get a vote No double Tax - When consolidating local governments, annexing or changing boundaries the result cannot be that someone is getting double taxed for anything fundamental part of Fl. Constitution Creditor- City cannot consolidate in order to avoid paying creditors. Must make plan to take care of them. Special act- enacting the consolidation can do a variety of things relative to maintaining certain governmental functions but not others, in the cities that are being consolidated. Annexation- Cities are allowed to annex part of unincorporated areas (parts of counties NOT cities) Constitution does not control the submission of a consolidation plan for the legislation to consider o Only the legislature can create the consolidated local government (via special election) and the Constitution doesnt control who can make recommendations or how a recommendation is made 2. THE TENSION b/w TRANSFER OF POWERS & THE PREEMPTION POWER OF CHART COUNTIES Transfer of Powers- Art VIII 4 - Both city and county electors get to vote o Under preemption county gets the vote; city may get the vote - You can transfer some powers But not all It is not an all or nothing thing

VI. TAXATION AND FINANCE

A. TAXATION
1. WHAT IS A TAX? tax Broader, the transaction that triggers your need to pay; may not have to do with what you are paying for; carries with it constitutional restrictions that do not apply to fees. Redistribution of wealth. a. FEES - payment for service; straight up transaction. Used only for the benefit of the person paying; no constitutional restrictions; direct service received o Example: a toll; picking up garbage, managing storm drain o ASK: is there a reasonable relationship between a benefit receiving and the fee? o ASK: How much is fee? does the apportionment, methodology used to calculate it make sense? o Benefit goes to the government if plausible, rational argument to be made that you are receiving benefit- it will be upheld * if government enacts a fee and calls it a fee (not a tax, subject to constitutional limitations) it must be clear from the ordinance or statute that it is a fee and that the money is being taken and used to provide some commensurate amount of service to the people paying it o if it is vague or open ended it allows the government the discretion to take the fee and use it for something else unconstitutional o ** look for restrictions on how money can be spent key determinative on whether something is a fee or a tax**

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b. Special Assessments- specific fee for people in a specific area or situation that needs to be taxed because of their special circumstances or benefit. Quid pro quo. One time fee for a specific thing requirements: two prong test: 1. Whether the services at issue provide a special benefit to the assessed property; and 2. Whether the assessment for the services is properly apportioned test is not whether the services confer a unique benefit or are different in type or degree from the benefit provided to the community as a whole; rather the test is whether there is a logical relationship between the services provided and the benefit to real property 2. CONSTITUTIONAL LIMITATIONS: WHO IS ALLOWED TO TAX? State & Local Taxation; appropriations; state expenses; state revenue limitation Art VII 1 o **must be a adopted by legislature (by general law) that says there can be a tax levied. Doesnt matter if state or local government is the one who wants to tax Check on executive branch-no double taxing,if not granted by const other agent CANT do it ** LOCAL GOVERNMENT CAN TAX AD VALOREM & PROPERTY TAXES** o nothing else unless legislature writes law authorizing them to ** STATE CANNOT LEVY AD VALOREM TAXES & TANBIGLE PERSONAL PROPERTY!*** o unelected agencies people do NOT get to tax you o legislature, who is elected GETS to tax you they decide what agencies get what amt of that money o Exceptions: local govt that are govd by ppl who do not run for office ex. Water management offices in Florida. Special districts (governing members appd by gov) and they do have ad valorem taxes tangible & intangible personal property tangible- property which value is the thing example- car, stock in trade and livestock state cannot tax tangible items local government CAN tax tangible items intangible- something that represents value example- lotto ticket local CANNOT tax ****Can charge you FEE for tangible personal property but CANNOT tax **** Who CANNOT tax? Cities, counties, s. Fla water manag dist hospital auth, other entity of govt o Unless- there is a state statute that says they can tax you * Auth to tax must be strictly constd so any ambig or doubt must be resold in favor of the taxpayer o Attacking the taxing structure of the legislative enactment Legislation usurp power AND No conceivable base for support of the tax LOCAL TAXES Art VII 9 ** In charge of property taxes ** Florida heavily dependent on real estate - With the exception of ad valorem taxes on real property and tangible personal property at the local governmental level, a tax must be authorized by general law (state law) - When challenging local taxes the burden of proof is on the challenger o Presumption is that the tax is valid - Judiciary- special rules for imposition of taxes by government entities. Very narrow. UNLESS arbitrary & capricious - Daytona- Florida gives deference to agencies on taxes

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Uniformity of taxes Must only be uniform within the particular district; equal protection o Validity depends on whether there is a logical, rational reason why these people are being taxed in comparison to other groups of people Burden-As long as rational relationship it is legal Example- drainage problems worse in one dist then other dist = tax on water Special taxing districts o can be set up by local government to reflect that even within local government there are differences amongst geographic areas just show rational rship traffic, pollution etc local govt gets benefit of doubt unless line is drawn arbitrarily within each taxing district the tax must be uniform Mileage rate Concept that constitution put limit on what % of your property value can be taxed. o mil- one dollar in taxes for every thousand dollars worth of value ex- house worth $100k, assessed at 1 mil owe $100 in taxes. o Allowed by general law o Cities/ counties/ school boards = 10 mil limit o Water management = 1 mil limit North west Florida management - .05 mil limit

3. CONSTITUTIONAL LIMITATIONS ON HOW THOSE TAXING MAY TAX a. Ad Volerem Taxation i. Taxes; Rate Art VII 2 - Requirement of a uniform rate within each taxing unit is limited to non state taxes - Art VII precludes a STATE ad valorem tax on real property or tangible personal property - Art VII 2 allows different rates on intangible personal property. Intang pers prop is the only type of prop upon which the state can levy an ad valorem tax - While the law authorizing a particular type of taxing unit to levy an ad valorem tax on real or tangible personal property must be uniform, rates may vary between different taxing units - Hayes v. Walker- lots of discretion given * In sum, Must be at a uniform rate within each taxing unit UNLESS on intangible personal property (must not exceed 2 mills on the dollar of assessed value) ad valorem taxes are prohibited to the state but the counties can levy them. ii. Assess of Value for Purposes of Ad Valorem Taxation Done at COUNTY level const governs Taxation; assessments Art VII 4 assessment for ad volerem taxes shall be just valuation - valuation of ALL property for ad valorem taxation provided: three types (agricultural land, tangible personal property, persons entitled to a homestead exemption) of property that the constitution lays out for ad valorem taxation based on just valuation - assessment subject to provision shall be changed annually on January 1st of each year, but those changes in assessments shall not exceed the lower of the following: o 3% of the assessment for the prior year; or

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the % change in the Consumer Price index for all urban consumers, US city average, all items 1967=100, or successor reports for the preceding calendar year as initially reported by the US department of labor, bureau of labor statistics

just valuation-an annual determination of the just or fair market value of the appraised property o 8 factors to consider just valuation 1. Present cash value of the property which is the amount a willing purchase would pay a willing seller, exclusive of reasonable fees and costs of purchase, in cash or other immediate equivalent thereof in a transaction at arms length 2. The highest and best use to which the property can be expected to be put in the immediate future and the present use of the property taking into consideration any applicable judicial limitation 3. The location of said property 4. The quantity or size of said property 5. The cost of said property and the present replacement value of any improvement thereon 6. The condition of said property 7. The income from said property 8. The net proceeds

Valuation land use cases fair market value Miami Atlantic Development Corp v Blake What you could put the property toonot what you actually do with the property Burden- he who challenges assessments has the burden Tax assessor- elected- ultimate check and balance; lots of discretion Certain kinds of lands can be taxed not on their fair market value/just value - lands shall be taxed based on the char of their actual use as opposed to their pot, higher value uses - farm land, aquifer, land used excl for non comm recreational purp, historic prop, conserv lands - after milage rate applied use these factors to determine tax rate

Legislature can exempt/ tax break to tangible personal property 1. stock in trade and 2. live stock Constitution Allows legislatures to counties to provide additional breaks on taxes o for property providing living quarters for natural or adopted grandparents, 65 years or older o certain types of improvements on home cannot be factored into the home value want to encourage people to do things to their home o legislature can prohibit tax assessors at looking at increased value improvements to properties wind resistance (shatter proof windows, new roof etc) instillation of renewable energy sources solar water heaters o assessment of water - marinas, fishing, County appraisers - county officers, elected officials, discretion on how to value property - county tax assessor may have different approach in different counties o as long as both are assessing taxes consistent with constitution they have leeway as to amount of tax they apply to lands and how they calculate could pay two different tax rates if land lies in two counties allowed as long as nothing unconstitutional going on 4. CONST LIMIT: EXEMPT & WHO CANNOT BE TAXED OR TAXED BEYOND A CERTAIN POINT *** MUST HAVE LEGAL TITLE TO BE TAX EXEMPT**** a. AD VALOREM TAX EXEMPTION Art VII, 3- Taxes; exemptions- go to const for others 1. city owned land All prop owned by a municic & used exclus by it for munic or pub purp is exempt - Land is or is going to be used for non commercial/ profit generating public use - Bought by city with eye towards using it one day for library (for example) some public purpose

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2. Education, scientific, religious, charitable use all property used predominantly for education, religious, scientific, charitable may be exempt from general law Land used for non profit Economic development grants const auth cities & count to provide grants to generate econ act & lure bus 1. if you employ X amount of people we will give you an exemption need city & county VOTE 2. tax exemptions for owners of historic buildings 3. conservation lands given tax exemption- habitat protection, water protection can grant complete ad valorem tax exemptions incentive to preserve land Constitution says legislature must exempt these people from tax exemptions the floor - legislature may go above and beyond that and exempt other types of activities or land b. RESTRICTION ON ESTATE, INHERITANCE, AND INCOME TAXES. Art. VII, 5: - NO estate, inheritance or income tax in Florida! Only for natural persons (i.e. NOT corporations/ artificial entities they may get limited income tax) - Florida constitution says that Florida can ONLY levy those kinds of taxes IF and to the extent that the federal government recognizes a credit from federal taxes to whatever you paid the state a. Florida does not want its residences/ tax payers to pay one penny more in overall state and federal estate and income taxes then they would otherwise have to pay - If totality of federal and state taxes would be 5K and federal law authorizes a credit up to 1K to whatever you pay the state Then Fl. is authorized to levy up to a $1,000 of income or estate taxes ***no income tax, inheritance tax or estate tax in Florida *** c. HOMESTEAD EXEMPTION Art VII 6 1. Every person who has the legal or equitable title to real estate and is the permanent residence of the owner, or another legally or naturally dependent upon the owner, must be exempt from taxation except assessments for special benefits, up to the assessed valuation of 5,000 dollars upon establishment of right thereto in the manner prescribed by law. 2. Only one exemption per person/residence 3. May be increased by general law to a total of 25,000 of the assessed value of the real estate for each school district levy AND the exemption for all other levies may be increased of the real estate if the owner has attained age 65 or is totally or permanently disabled. 4. Increase in homestead exemption of $25k after 1982 5. Homestead: relieved by 25% of ad volorem tax Public policy we dont want people on the streets, dont want people kicked out of their homes Not a complete exemption- pay a rate that is based on assumption that your home/property is worth 25%- less then it is = basic concept of homestead exemption Tension- someone else has to pay that tax (renter etc) folks are subsidizing homeowners two types of homestead exemptions o 1. Forced sale o 2. ad valorem taxation Cap on Increases in Annual AssessmentsNon-Homestead o For all levies other than school district levies, the following rules apply to assessments of nonhomestead property. Assessments may be changed annually on the date of assessment provided by law, but the change may not exceed 10% of the assessment for the prior year No assessment may exceed just value The legislature must provide that the property will be assessed at just value as of the next assessment date after a qualifying improvement is made to the property The legislature may provide that the property will be assessed at just value as of the next assessment date after a change in ownership or control.

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Changes, additions, reductions, or improvements to the property will be assessed as provided for by general law.

d. LIMIT ON WHICH PROP CAN BE TAXED TO PROVIDE SERV IN UNINCORPOR AREAS Taxation; Limitation Art VIII 1(h) - Aimed to prevent taxpayers from being subjected to ad valorem tax to fund municipal services, which did not benefit the taxed property. - Cities cannot be taxed by counties for serv. that will be provided exclusively for outside the city for the benefit of must be real or substantial benefit to the city can use taxes for things outside of the cityjust cannot EXCLUSIVELY Case Law- must be real and substantial benefit - Florida constitution sets the minimum for tax exemption - If a city own land in a part of the incorporated part the city may have to pay some taxes to that county under certain circumstances. - Florida constitution does not grant non-residents an ad valorem tax exemption on personal property

B. FINANCE
1. 3 KEY THEMES TO THE CONST RULES GOV THE ISSUE OF DEBT BY STATE & LOCAL GOVT: 1. The Fla. Const. precludes the incurring of government debt to fund the daily operations of government... a. but allows debt to finance capital improvements; b. UNLIKE federal government who has to deal with conflicts of other nations and wars that has set of responsibilities. State govt CAN operate at a deficit to incur debt to run daily ops of government 2. The Const seeks to prevent the misuse of government bonding authority to primarily benefit private entities, and the extent of this limitation increases when government moves beyond using its authority to issue bonds into incurring public debt. a. Idea is to make sure private actors/ bus ppl are not able to parlay influence into being able to create stock/bond options that are stock free; exploit govt capability to amass money through bonding. b. Big picture idea Prohibition against allowing private sector to run public government 3. Voter approval is generally required if government is going to incur debt on behalf of the public. 2. THE MECHANISMS USED BY GOVT TO RAISE MONEY & THE APPL REST & REQUIREMENTS - The state can borrow money by issuing either revenue bonds OR general obligation bonds - Two levels of government who can do this: (1) State agencies and (2) Local government a. Revenue Bonds are not backed by the taxing power of the issuing governmental body. o payable only from reven from sourcs other than state reven rents/fees paid from state tax revenues. o Only seek payment through specifically identified revenue streams that were identified in bond Cannot require higher taxes to pay me back Government not obligated itself to extentonly to limited, specified extent Easier to float fewer restrictions, taxpayers have far fewer expectations in future. o Trade off- less likely to purchase revenue bond because fewer options to pay me back Capital Investments- STATE can issue revenue bonds to finance state capital projects without voter approval, but the project must be approved by the Legislature. o There are limited exceptions to the capital project requir for things like conservation lands. o Conservation lands-Seen as public policy matter as an investment into the future. Viewed as good debt/ obligation for the future. - LOCAL can issue revenue bonds only to build capital projects and statutorily authorized private industrial or manufacturing plants. But the bonds must be payable solely from the revenue derived from the sale, operation or leasing of the project. o Public purpose in the form of jobs created and econ profit that spins off from that o Case law definitions of industry and manufacturing are very broad, no bright line Industry - Any revenue generating activity

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b. General Obligation Bonds - secured by the pledge of the revenue derived from the taxation power of the issuing authority (Distinction b/w revenue and general obligation bonds). City/county generally obliged to pay it back, however they can. Carry with them more restrictions. Requires voter referendum. i. State- Bonds that pledge the full faith and credit of the state may be issued only for capital project AND always only after a vote of the electors o there is a total cap on the total outstanding principal of state FFC bonds, which cannot exceed 50% of the total tax revenues of the state for the two preceding fiscal years ii. Local Governments- may issue to finance or refinance capital projects o approval by the electors is required if the bonds will be payable from AV taxes and will mature more than 12 months after issuance iii. Exceptions to the election requirement include air and water pollution control, solid waste and water facilities, land and construction for state and county roads and bridges and for schools. o general obligation given for these things voter referendum NOT required 3. RESTRICTIONS ON THE PRIVATE SECTOR a. The Constitution prohibits financial aid to the private sector- Art. VII 10 Exceptions: This Constitutional prohibition on financial aid to the private sector is subject to several exceptions stated in the Constitution, as well as judicially- recognized exceptions. b. first exception allows govt to invest public funds and local govt to partner to provide energy facilities: c. second exception more complicated- applies to the issuance and sale of revenue bonds (purchased typically by lending institutions or investors attracted by the fact that the resulting interest-payment profits are tax exempt) by local governments, which meet specified requirements. o Context - A bond is like a stock issuance. It comes with a lawyers opinion that the bond is legally authorized and qualifies as tax exempt (incentive). When a person buys the bond, a K is created b/w the bond purchaser & the issuing entity. o Exception: allows local governments to use revenue bonds to assist private businesses in the financing of major capital facilities that the private sector could not afford to finance. o The F.S.C has interpreted the Const to not flatly prohibit all bonds not expressly identified as begin excepted from the prohibition. instead interpreted Art VII, 10(c) as simply stating that revenue bonds for airports, port facilities, industrial or manufacturing plants are expressly authorized and categorically exempt from the prohibition [on the state lending its taxing power or credit to benefit a private concern, and that revenue bonds issued for other purposes are also not subject to the prohibition if they meet the case law requirement of a public purpose, which, theoretically does not violate the prohibition on aid to the private sector. Repayment of bonds: The purpose for and method of re-payment of the bonds, including the recourse, if any, the bondholder has to compel the issuing agency to re-pay through raising public funds (i.e., how the bonds are payable) is specifically identified in the bond issue paperwork. o The extent of the required public purpose depends on whether the agency is simply ending aid by issuing bonds payable from non-tax revenues (such as tolls from a bridge or rents from a college dorm) or incurring public debt. Ending aid = public benefit test. Increasing Debt = paramount public purpose with only incidental private benefit & approved by referendum Ex. one that requires the issuing agency (either explicitly or as a matter of reality) to levy or raise ad valorum taxes if necessary to pay off the debt

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In both cases, deference will be given to the agencys determination of a public purpose, which has been read broadly to allow the construction of facilities on private property and include general economic development objectives.

Revenue Bonds Public purpose test- float of that revenue bond etc. Extent depends on whether simply lending aid by issuing bond that are payable form no tax revenues or incurring public debt. o Revenue bonds only payable through specific identifiable revenue sources must simply meet public benefit test General obligation bondsparamount public purpose test more stringent Defer to issuing brd Expl listd these are NOT proh from proh on limit tax & credit & becoming jt stock holder w/ private sector 1. public trust funds 2. US bonds 3. Electric generating plans 4. Capital projects for ports or airport facilities & industrial or manufacturing plants * could take away that anything else is prohibited BUT FL. S.C. has said no this is not the case. Those four things are explicitly authorized by constitution and they are totally exempt as long as you meet terms in Constitution But that does not flatly prohibit all bonding. * Rather, things listed are categorically exempt from prohibition but revenue bonds listed for purposes not listed in constitution can still be allowed if they meet this judicially created public purpose test: o Court is saying if the issuance of bonds that are not listed in const. does meet our judicially public purpose test then because of that they do not constitute the lending of governments powers or becoming of joint owner with private sector instead its having an incidental benefit to the private sector but it is really being done to serve a public purpose.

VII. THE DECLARATION OF RIGHTS AND THE TAKING OF PROPERTY

A. INTRODUCTION
Three primary purposes of the Declaration 1. the state declarations of rights possessed are historical important b/c prior to 14th A to US const protection of individual civil rights was left primarily to state 2. state declaration of rights affords greater individual protection than the similar incorporated bill of rights 3. a state declaration of rights may protect a right that is simply not protected under the federal bill of rights a. rule of law- cases that interpret fed equal protection clause are persuasive but not controlling when Fl is interpreting the equal protect lawFl. cts must deter case law based on Fl. unique history etc. State Declaration of Rights exists to: 1. Protect rights not enumerated in the fed BOR (ex: Privacy) 2. Elaborate and go further than the express protections afforded by the fed BOR (Ex: the state requiring a speedy trial w/in 90 days instead of the federal 180); and 3. Maintain an independent identity for the state from the federal government (the states came first) Different Impacts on Citizens - State- can be more restrictive than federal constitution o State bound by federal constitution, state cannot do things to me that the federal constitution says cannot be done to me But they can also make it harsher - Federal- floor minimum rights of which they are guaranteed. Michigan v Long - Whether the U.S. SC should hear the Florida supreme court case - rule of law- if Florida SC decision is based upon state law than NO federal question jurisdiction

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if based on state law and Florida interpretation then still NO federal question jurisdiction no live federal case and controversy if you read state opinion and the nature of the opinion was: its not clear whether Florida supreme court was deciding based on Florida constitution or federal constitution, then US supreme WILL assume there is a federal question

BASIC RIGHTS * No right is absolute!

1. INTRODUCTION Art I 2 (essentially Florida equal protection clause) - no person shall be deprived of any right because of race, religion, national origin or physical disability notably missing gender and sexual orientation - three basic rights o enjoy life and liberty o pursue happiness o rewarded for industry and to acquire possess and protect property 2. TO ACQUIRE POSSESS AND PROTECT PROPERTY- Shriners hospital- right to possess private property also includes the right to devise the property rights case. Any right thats ided in the declaration of rights is considered a fundamental right. Gov can infringe upon a fundamental right as long as theres a compelling interest. 3. NO PERSON SHALL BE DEPRIVED OF ANY RIGHT B/C OF RACE, RELIGION, NATIONAL ORIGIN, OR PHYSICAL DISABILITY same as federal equal protection clause - Shreiner v. McKenzie Tank Lines, Inc: employer employed Schreiner and fired him after having 3 epileptic seizures. Doesnt cover private action. Individual invasion of individual rights were never intended to be the subject matter of this provision. 4. ALL NATURAL PERSONS, FEMALE AND MALE ALIKE ARE EQUAL BEFORE THE LAW - pretty much the SAME as the federal equal protection clause. But this does not mean that the state provision must always be interpreted to reach the same results as the federal analysis

C. Florida RATIONAL BASIS TEST

Judicial standard of Review in Cases involving Fl declaration of rights where leg. challenged on basis it may violate a const right there are three basic standards of judicial review: 1. Rational Basis Test - must be a rational relationship to a legitimate government purpose very little that is not a legitimate subject of government relation not legitimate = privacy aspects applies to: business act, commerce act, regulating the use of land, environ zoning and pollution Rollins v. State: prohibited 21 and under billiard parlor okay to go into bowling alley *ALL substantive due process claims 2. Strict scrutiny test- applies to government action that implicates a fundamental right OR is based on a suspect classification, MUST: (1) serve a compelling government (state) interest AND (2) narrowly tailored to be the least intrusive possible to meet that compelling government interest * separation of powers 3. Heightened scrutiny- (intermediate) applies to cases involving fundamental rights of juveniles because they are juveniles the state has more of an interest to regulate curfews TEST: the law must be substantially related to the achievement of an important government interest Fundamental Rights - not all rights listed in Florida constitution are fundamental, equal - private property is a fundamental right- government has to compensate you for taking - Privacy NOT fundamental right what you do in privacy doesnt effect other people

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however, when government regulation is designed to prevent impacts to other people- protect the health, safety and welfare of others then yes, it may be a fundamental right that is being impacted by government, but the government has more leeway there.

Fed. decisions and interpreting fed. due process clause as it governs & controls the interpret of Fl. due process clause - similar but not the exact same language o Florida voters decided to put that in their own constitution even though it was already in federal because Florida constitution is designed to be implied and interpreted in light of Florida history and culture o federal court interpretations of federal court interpretation clause are persuasive but not controlling when interpreting Florida due process clause (example)

D. RIGHT TO ASSEMBLE- ART. I 15 People shall have the right peaceable to assemble, to instruct their representatives, and to petition for redress of grievances subject to reasonable govt regulation, but is analyzed under the 1st A of the Fed Constitution. E. RIGHT TO WORK AND RIGHT TO BARGAIN COLLECTIVELY ART. I 5
1. Florida is a right to work state meaning no union/employer can compel me to be a member as a condition of getting hired by someone ; cannot be made requirement of employment 2. If group of people choose to unionize they have that right no closed shops, no union shops allowed in Florida fundamental right 3. No strikes 4. Strict scrutiny analysis b/c it is a fundamental right Hillsborough- effective right to bargain cannot have any restrictions on it o You cannot abridge the right to collectively bargain at all applied strict scrutiny- compelling government interest here uniformity and equal pay needs less intrusive means o You have a right to work even if you are not part of a union. You also have the right to collectively bargain. Cant limit collective bargaining unless theres a compelling state interest.

F. PROHIBITED LAWSArt. I 10
No bill or attainder, ex post facto law or law impairing the obligation of contracts shall be passed. 1. OBLIGATION OF CONTRACT - more restrictive - impairment of contract- free market society- right to enter contracts is a fundamental right - you cannot change the terms of the contract by legislation Pomponio v. Claridge of Pompano Condom, Inc. right to contract fundamental right in FL SS TEST o Florida construes constitutional provisions more protectively than federal provisions by being deferential to a federal interpretation of a similar provision while stating that it is not bound by the federal interpretation to accommodate a local circumstance. Obligation-Remedy Test: legislation must address a legit end and the measures taken must be reasonable and appropriate to that end. o Legislat is not necessary if the legis could have adopted alternative means of achieving the goals. 2. EX POST FACTO LAW- designed to protect an individuals substantive rights. This can also happen if theres a procedural change. - Dugger v. Williams: applies to procedural & substantive law. You can have retroactive law if its a procedural law. Sometimes theres a thin line btw substance and process. If change of process has the effect of changing substance, its prohibited ex post facto. - in Florida a law or its equivalent violates the prohibition against ex post facto laws if two conditions are met

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1. It is retrospective in effect 2. It diminishes a substantial substantive right the party would have enjoyed under the law existing at the time of the alleged event does not apply to purely procedural matters

G. SUBSTANTIVE DUE PROCESS Art. I 9

1. IN GENERAL No person shall be deprived of life, liberty or property without due process of law - rational basis test - Must be a legitimate government purpose as long as the thing isnt infringing on a suspect class or fundamental right. Florida has not abandoned using substantive due process analysis on economic regulatory issues, unlike the federal courts. o Requires government regulation make sense rational basis for why government doing this o Whomever challenging government regulation has the burden of showing that there is a substantive due process right being violated Show that there is no rational basis for regulation Show that it IS arbitrary or capricious and no rational set of policy reasons behind it Very high burden to proof - **Substantive due process is NOT viewed as a fundamental right ** - Presumed constitutional- if no fundamental right there o Needs broad over inclusiveness in order to NOT pass this law 2. A HIGHLER LEVEL OF SCRUTINY If NO fundamental right use RB for evaluating sub. due process 3. DUE PROCESS AND CONCLUSIVE PRESUMPTIONS Hall v. Recchi America, Inc.: test for drugs after accident, if positive, not entitled to workers comp benefits. To determine if parts of a statute are severable from the rest of the law the court must look at the relationship between the unconstitutional provisions and the overall legislative intent. Then it must evaluate whether the remaining provisions of the statute accomplish that intent. - Constitutionality of a conclusive presumption analysis: o Whether the concern of the legislature was reasonably aroused by the possibility of an abuse which it legitimately desired to avoid o Whether there was a reasonable basis for a conclusion that the statute would protect against its occurrence; and o Whether the expense and other difficulties of individual determinations justify the inherent imprecision of a conclusive presumption. - **A presumption is conclusive if a party is not given a reasonable opportunity to disprove either the predicate fact of the ultimate act fact presumed. ** irrebutabble presumption - rebuttable- can be countered or argued against - irrebuttable- cannot counter o most have very close causal relationship, 3. DISTINGUISHING SUBSTANTIVE FROM PROCEDURAL DUE PROCESS - substantive- does this law make sense? o Legislature gets to decide laws o Courts role is to ask if reasonable, rational person would think it makes sense if yes, then it is legal. courts get lots of deference to determine this - Procedural- guarantees right to defend your substantive right, process o Elements: 1. Notice and 2. An Opportunity to be heard 3. By a neutral tribunal * note- in application, these two interrelate Understand sliding scale key points

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1. What kinds of regulations/ things could implicate a substantive due process right? o Changing/increasing the penalties; how much the fine is, how much jail time o Elements of the offense- what constitutes an assault, felony, etc 2. What elements implicate procedural due process? If notice and an opportunity to be heard by a neutral tribunal wasnt given 3. How does court of law determine what process is due? o If there is a statute that says it- go by the statute o Key point: very vague notice, opportunity to be heard by a tribunal is applied by courts on a sliding scale Amount of process that is due has everything to do with the nature of the interest o Fundamental point: lawyer doesnt stop analysis on this is what the statute says, this is what regulation/ordinance says The next analysis isis this constitutional? people get the final decision on what the constitution says (checks & balances)

H. IMPRISONMENT FOR DEBT Art. I 11

No person shall be in prison for debt, except in cases of fraud - ROL if you do not pay your family support obligations & have the ability to pay = jail o If you owe money and you are refusing to pay courts have equated this with fraud o BUT if you have no money and dont pay you cannot be sent to jail for that because then you are being sent to jail for debt and because you are poor and that is unconstitutional - Contempt Bowen v. Bowen payment for child support o Can go to jail for failure to pay child support only if you have the ability to pay

I. SEARCH AND SEIZURE LAW Art. 1 12

Basically the same as the fourth amendment of federal constitution o Distinctions: o 1. Floridas constitution specifically identifies the right to be secure against unreasonable searches and seizures AND the unreasonably interception of private communications by any means goes beyond federal constitution government cannot tap your phones o 2. Floridas privacy clause Art. I 23 Florida added this

J. ADMINISTRATIVE PENALTIES Art.I 18

Clear point of law the legislature gets to make public policy Key point of public policy- what is legal, and how bad is it if you do that? What is the penalty, what happens to you when you do this offense? o Separation of powers Legislature is not allowed to write law giving executive branch power to send you to jail Only judge can send you to jail But legislature can give an executive branch agency the right to impose other penalties, fines, litigation requirements, restitution etc. * important distinction* Executive branch authorized to seek the fine BUT only a judge can levy the fine Must go to court, make a case against you and if they seek a fine against you, you have a right to defend yourselves

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K. ACCESS TO COURTS Art. I 21

Protects your continued ability to bring causes of action; to bring lawsuits or to exercise substantive rights that existed in 1968 in Florida when this was put in the constitution o Is the cause of action that has been severally restricted or appealed by act of legislation something that existed in 1968 when declaration of rights put into constitution If it didnt no access to courts violation If it did may be access to courts violation TEST: legislature cannot abolish substantive right unless o A. There is an overpowering public necessity, OR More then compelling governmental purpose o B. it replaces it with an adequate alternative Allowed to adjust to modern times Must be reasonable alternative mechanism for reframing that interest does NOT need to show a compelling public necessity If they totally abolish cause of action must show compelling government interest TEST: creates an inaccessible barrier to the courts, if so then it is a violation

RIGHT TO PRIVACY Art I 23

1. IN GENERAL -Winfield - right to privacy that is greater than the constitution Fl gives us more rights to privacy - corresponds to 4th amendment search and seizure - right to privacy must be deemed by a court to be reasonable - Florida has particularly important, strong privacy clause in constitution Privacy right attaches to areas where reasonable expectation of privacy Reasonable expectation of privacy- that persons subjective understanding in the context of a reasonable objective observer of society - **bank records are covered by privacy but court has to apply strict scrutiny if gov needs these records without notice and without consent it can do so if it meets S.S test - apply to: education, personal rights, your own health, healthcare, things a reasonable person would think are personal matters not public TEST: 1. Reasonable expectation of privacy? 2. Is the states interest in the intrusion compelling and least drastic means employed? 2. THE EXISTENCE OF A REASONABLE EPECTATION OF PRIVACY - Anything you wouldnt voluntarily disclose is NOT privatedeemed voluntary - Three things that clearly covered within ambit of privacy rights o 1. Protect natural person from public disclosure of personal matters by the government o 2. To prohibit unwarranted governmental inquiry concerning private matters o 3. To create a zone of autonomy protecting personal decision-making, especially concerning issues of health Kurtz- Can require information on whether application smokes - Compelling interest because smoking is costly for the state o NOT private B/C you do it in PUBLIC 3. PRIVACY AND PUBLIC TRIALS Barron- strong presumption of public access to court proceedings. Barrons divorce proceeding records were sealed to protect Barrons privacy (he was a high profile state senator) Strong presumption favors openness of court records - General rule- open to the public - Two key things: (1.) Prevents courts from abusing their power and (2.) Guarantees enforcement of individual rights Exceptions

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1. Necessary to ensure order and dignity in the courtroom 2. When it deals with the content of the information

Closure in CRIMINAL cases okay if: 1. Closure is necessary to prevent a serious and imminent threat to the administration of justice; 2. No alternatives are available, other than a change of venue, which would protect the Ds right to a fair trial; and 3. Closure would be effective in protecting the rights of the accused, w/o being broader than necessary to accomplish the purpose. Closure in CIVIL Cases okay if: necessary 1. To Comply with established public policy set forth in the constitution, statutes, rules, or case law 2. To protect trade secrets; 3. To protect a compelling government interest 4. To obtain evidence to properly determine legal issues in a case 5. To avoid substantial injury to innocent 3rd parties [to protect young witnesses from offensive testimony; to protect children in a divorce] 6. To avoid substantial injury to a party by disclosure of matters protected by a common law or privacy right not generally inherent the specific type of civil proceeding sought to be closed. 4. PRIVACY AND ABORTION Florida law same as federal law- right to continue or terminate a pregnancy that is personal and private to the women and protected by constitution. o State has compelling governmental interest only if after the second trimester only when the fetus is now viable; state has compelling state interest in protecting health of unborn child. Same as Roe v. Wade Minors- In re tw cannot require parental consent- bypass either judicial waiver or notice o Privacy right to have abortion o Government can have compelling interest when dealing with minor judicial bypass- opportunity for this to go before a court- gives more narrowly tailored alternative o Grants greater privacy to state 5. PRIVACY AND REFUSAL OF MEDICAL TREATMENT Guardianship of downing- competent person has constitutional right to choose or refuse medical assistance - Nuance- covers somethings within privacy rights to say no not doing that, but other places where government has compelling interest to say, we know you may want to refuse, but we have a compelling state interest to say you can, such as: o 1. If another impact or effect on third party more its not just about that person and impacts other people, other citizens government may be able to have say o 2. If person deemed incompetent, state has elevated interest Privacy rights include these kinds of decisions. o Right to self determination AND o The right to refuse medical treatment. Other Requirements: o Procedures must be followed to accurately determine the persons will: o Patient must have executed any document purporting the patients desire knowingly, willingly, and w/o undue influence. o Patient must not have a reasonable chance of recovery so that the patient can make the decision. o Conditions expressed must be carefully considered o State regulation of the exercise of self-determination is subject to CGIT. * state has legitimate interest in preventing people from dying (suicide)

determine dividing line between right to refuse medicine and no right to suicide 31

6. PRIVACY AND PHYSICIAN ASSISTANT SUICIDE Krischer v. McIver - the interest of the state in preventing suicide/preserving life is compelling. - No right to commit suicide or to allow a person to assist in committing suicide in Fl. 7. PRIVACY, STATUTORY RAPE AND SEXUAL MISCONDUCT WITH A MINOR Minors - have the same privacy rights as adults however, the scope or range of things that will constitute a compelling govt interest (allowing the state to infringe upon those rights) is broader in application for minors Jas v. State- statutory rape laws are constitutional o Sex = pure privacy rights o Whatever privacy interest a minor has in carnal intercourse is clearly outweighed by the States interest in protecting another minor from harmful sexual conduct, irrespective of whether the minor consented to the sexual activity. o The Court distinguished the facts in a case were the people involved are both 16-year-old consenting minors verses sex between a 15-year-old minor and an adult. o Minor not emotionally capable to give consent to having sexual relationship o Changed from B.B. v State Statute made it a crime for anyone (including another minor) to have sex w/ a person under 18. The issue was whether sex between minors violates the statue. The statute was unconstitutional as applied: Distinguished between exploitation in an adult-minor situation. The only state interest related to pregnancy and health. The right to privacy outweighed the states interest in protecting minors health. State v. A.R.S: Sexual exploitation of children is a particularly pernicious evil that sometimes may be concealed behind the zone of privacy...This state unquestionably has a very compelling interest in preventing such conduct. 8. PRIVACY AND GRANDPARENT VISITATION STATUTES Beagle v. Beagle- Visitation rights grandparents have very little rights o When a state writes a law that mandates visitation for grandparents they must demonstrate harm to the child, otherwise they are unconstitutional o Parent has the right to decide what school kids goes to, who they see, etc. Doesnt matter if parent is adoptive natural Saul v. Brunetti: father of an out of wedlock child has the same right of privacy.

M. THE TAKING OF PROPERTY Art. X 6 Cannot take private property without: (1) without FULL compensation different than U.S. constitution which uses word just in application there is no difference between full and just (2) a public purpose prevent public harm; i.e. - pollution laws; Citrus case- cancer citrus trees
Condemnation taking of land to expose of for public purpose - look at valid public purpose or not - public purpose in condemning land for economic development can be: o something favoring private actors; or o whether facts and circumstances make it clear that this is part of an affirmative economic development objective on behalf of govt that has adequate safe guards to ensure it is a public purpose rather then guise of public policy decision when it is really a guise to help private actors

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Inverse Condemnation- Govt makes rule severally impacts by destroying or regulating private property - ASK:Is this regulation so onerous/ impact the landowners property so much that it is akin to a physical appropriation? (example- cancerous citrus trees) - Courts looks most at economic impact on landowner o Then balances this against the governmental need/ interest (sliding scale) Distinction between FACIALLY UNCONSTITUTIONAL and UNCONSTITUTIONAL AS APPLIED - On its face the terms of the statute is UNCONSTITUTIONAL. - As applied makes it harder for a Court to determine its constitutionality and requires more of a policy determination by the Court. - ** We are going to want to speak about HOW IT IS UNCONSTITUTIONAL either FACIALLY or AS APPLIED. ASK: what is the realistic impact economically on the landowner? o More regulation devalues property more likely a court is going to say it is a taking o NOTE: regulation that de values property is NOT per se a taking But if it devalues it A LOT that could be a taking ASK: is there an economically viable use of the land? o Economic viable use = using land for monetary purpose Example: if farm land and in that region and farming is thriving business in that region Land use law would be upheld. Yes, you could use the land for more money if you build other things but question is simply if land for farming is economically viable if it is then its a taking. DETERMINE: new benefit vs. preventing public harm = crucial distinction for property law Department of Agriculture & Consumer Services v. Mid-Florida Growers, Inc.: when the state validly exercises its police power, if a taking has occurred, compensation is required. - holding full and just compensation is required when the statue, pursuant to its police power, destroy healthy trees. Denial of Wetland Permit If a State Agency denies a permit based upon a valid statute that permits complete denial BUT the end result is taking someones property, that person is still entitled to full compensation BECAUSE the Constitution TRUMPS Fla Stat. - Nuance is that if the person purchases the property with notice that that law is in effect, he waives his right to this compensation based on the denial of the permit.

VIII. HOMESTEAD
PART I: HOMESTEAD EXEMPTION FROM TAXATION Art. VII 6 every person who owns and lives on real property in Florida and makes it his permanent residence is eligible to receive up to 50k in homestead exemption (a) amount - total of $50,000 - you can claim as an exemption from your ad valorem taxes o public policy- keep people in their homes o first 25K applies to all private property taxes automatic house appraised at 100K tax accessory must assume home is worth 75K Constitution also requires additional exemption up to 25K to the assessed value between 50-75k and only to non school taxes (b) one allowed- only allowed ONE homestead exemption residence requirement (c) renters- renters may awarded homestead by general law

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(d) additional exemptions - legislature may be general law allow municipalities (counties or citie) to grant additional homestead if: o (1) exemption not exceeding $50,000 (additional) to any person who is 65 y/o AND whose household income (defined by general law) does not exceed $25,000 OR o (2) any individual whose: residence value is less than $250,000 AND who has lived there for no less than 25 years AND who is 65 y/o AND whose household income does not exceed $25,000 ** general law MUST allow counties/ municipalities to grant these additional exemptions** - i.e. general law cannot prohibit these addit exempt than legislature may grant them to citizens. (e) veterans (mandatory)-veterans above 65 who are partial or totally permanently disabled SHALL receive a discount from ad valorem taxes if the disability was combat related and the veteran was honorably discharged (f) ad valorem (discretionary)- legislature may by general law, provide ad valorem tax relief equal to the total amount or a portion of the ad valorem tax otherwise owed on homestead property to the: (1) veterans surviving spouse- surviving spouse of a veteran who died from service-connected cause while on active duty as a member of the U.S. Armed forces (2) first responders surviving spouse- survive spouse of a first responder who died in the line of duty (3) definitions o first responder- law enforcement officer, correct officer, firefighter, emerg med techn, paramedic o line of duty- arising out of and in the actual performance of duty requirement by employment RESIDENCY REQUIREMENT Garcia- must be a permanent home - held express language of the Florida constitution creates the right for every person who owns Florida real property to receive a prescribed reduction in the taxable value of that property where the owner maintains on the property either o (1) the permanent residence of the owner or o (2) the permanent residence of another legally or naturally dependent on the owner provided the individual for whom the permanent residence is maintained and has no legal impediment to residing on the property on a permanent basis - distinction o legislature can always regulate the manner of these things example - define what is a residence, define permanent, define how to qualify for exemption o legislature can include regulations and supply details hat regulate how someone can avail themselves of rights called enabling legislation PERMANENCY - factual thing subject of disputed evidentiary trial (Garcia) - based on the totality of facts and circumstances that exist in that situation o ASK: is that where you are living for that taxable year? o ASK: Did you intend for this to be your permanent residence for that year? Abandonment - Need clear intent that that is not where you are living anymore o Public policy- benefit if the doubt goes to the tax payer Burden - Tax appraiser has burden to prove taxpayer abandoned premises and it is not their permanent residence Facts need to be clear that you abandoned the homestead If abandoned now need to pay full taxes OR property may be taken away from you Look at: whether the property owner Maintained a permanent residence This is their true and actual residence look at whether they have the ***intent to return*****

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All about this year

PART II: HOMESTEAD PROTECTION FROM CREDITORS

FOUR LEGAL REQUIREMENTS FOR ESTABLISHING HOMESTEAD PROPERTY STATUS 1. Art. X 4(a)- limited to real property owned by a natural person 2. Art. X 4(a)(1)- limited to Fl. resident that made/ intends to make the prop his or her permanent residence 3. Art. X 4(a)(1)- natural person claiming the homestead must be the owner of the property 4. Art. X 4(a)(1)- property claimed must not violate the size and contiguity requirements HOMESTEAD EXEMPTION: Art. X 4 exempt from forced sale on behalf of creditors - rules applied liberally in favor of the homeowner and AGAINST the creditor/ tax man (a) Exceptions from homestead- must be exempt from forced sale under process by any court, and no judgment, decree or execution shall be a lien thereon, except for the payment of taxes and assessment thereon. Obligations contracted for the purchase, improvement or repair thereof, or obligations contracted for house, field or other labor performed on the realty, the following property owned by a natural person: o Exceptions for debts that rise from the property itself Mortgages Taxes and assessments Construction liens o Reasoning: No lender would provide a mortgage to help you buy or remodel your house if you could stay in the house without paying based on the homestead exception No contractor would do work if you could hide from your payment in this way Acreage and Contiguity Limits: based upon location within city or county (1) outside vs. inside the municipality outside municipality if not in municipality, then up 160 acres of contiguous land and improvements as long as home on it annexation- if you purposefully move outside the municipality but due to rezoning etc you end up in the municipality, you will be held to the same standard you were when outside the municipality inside municipality- if in municipality, then only acre of contiguous land with home on it qualifies for homestead (2) personal property to the value of $1,000

(b) Inured Homestead Exemption - these exemptions shall inure to the surviving spouse or heirs of the owner o generally terminat on death of the owner, but will inure to the benefit of surviving spouse & heirs o under the inured concept the creditors of the deceased homesteader are still prohibited from executing on the now no longer homestead property o causes the creditors to lose any opportunity of collecting by levying on the property, but could possibly collect from other assets of the estate o CANNOT will/devise away your property to anyone other then spouses/ heirs Who is an heir? homestead protection extends to qualifying property held by any natural person, and inures to heirs whether or not dependent on the owner homestead protection can inure to the benefit of heirs that would actually have taken the homestead property under the intestate statute, and not just to devisees under a will. Lineal descendants status is sufficient to qualify as in the class of heirs

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(c) restrictions on the intervivos transfer of homestead property - homestead shall not be subject to devise if the owner is survived by spouse or minor child, except the homestead may be devised to the owners souse if there be no minor child. o Joinder is not required when the property is transferred from one spouse to both by tenancies by entireties Homestead owner is survived by spouse and minor children When survived by spouse and minor child, the homesteaded property is distributed by statute rather than will Under the statute which implements the constitution the spouse gets a life estate, lineal descendant get vested remainder in fee simple But if the homestead owner is survived by spouse and no minor children If intestate, the homestead transfers by operation of law the surviving spouse gets a fee simple If property devised/ willed to spouse, then statute says spouse gets fee simple by operation of devise If devise property to best friend, then the devise is invalid and the property is distributed as if intestate if no other lineal descendants, then spouse gets fee simple a devise will be set aside to the extent it attempts to divest a surviving spouse PUBLIC POLICY PURPOSE - this homestead provision and the one related to tax breaks are separate things - this provision protects the homestead from forced sale exempt from claims of most creditors - purpose- prevent severe disruption of the lives of spouse and minor children o promote stability of the state by protecting the owner and the owners heirs from finan misfortune - precludes voluntary conveyance away from a spouse or devise away from a spouse or minor child - the creditors claims give way to the interest of preserving a home for a family but cannot be used to defraud creditors TIMEFRAME OF THE PROTECTION FROM CREDITORS - must have established before the levy of the judgment creditor is recorded must live in home before judgment levied. Cannot move in the day after to get homestead to protect you. TERMINATION OF HOMESTEAD: ABANDONMENT general can be abandoned BUT presumption is against abandonment o facts must demonstrate clear and permanent intent of both owner and family to relinquish possession with no intent of returning issue of abandonment is a question of fact :Examples: NOT ABANDONMENT o husband leaving home to practice and reside in Alabama, but leaving wife and children behind (McGann v. Halker). o Married couple separates, husband buys another home in re Estate of Scholtz Legitimate, not fraudulent separation by husband and wife law v. law o Husband and father did not abandon homestead by moving into an apartment while wife and children remain in home Nationwide financial corporation of Colorado v. Thompson o Husbands mandated (by injunction) absence from home coy v. mango bay prop& invest inc o if switched from another homesteadif sale proceeds intended to re-invest in another homestead TYPE OF JUDGMENTS PROTECTED FROM CREDITORS - homestead provision liberally construed to protect against voluntary and other financial obligations including forfeiture under RICI racketeering statutes

IX. SPECIAL SELECTED FLA. CONST. PROVISIONS

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* Fl Const contains several specific provisions that, in some cases establish fund policies about how govt does its bus, in other cases pronounce policy statements and rights the define Fl, and in other cases have granted const status to what some might consider more app left to statute.

ARTICLE 1 RIGHT TO BEAR ARMS- Art. I 8 a. protection against infringement right of people to have guns in defense of themselves and lawful authority of the state shall not be infringed EXCEPT it may be regulated b. waiting period- must be mandatory 3 days (excluding weekends and legal holidays) between the purchase and delivery at retail of any handgun c. felony - legislature must enact legislation implementing subsection b effective no later than Dec. 31 1991 ; anyone who violates this must be guilty of a felony d. trades- restriction must not apply to a trade in of another handgun ACCESS TO PUBLIC RECORDS & MEETINGS Art. I 24 GOVERNMENT IN THE SUNSHINE- open right to inspect every person has the right to inspect/copy any public record that is made in connection with official business of any public person/officer acting in their official capacity. notice of meetings between public bodies o all meetings shall be open and notice to the public meetings of the legislature shall be open and noticed except with respect to those specifically closed by constitution o cannot have meetings unless duly noticed prevent backroom deals o very broad meaning of what is a public meeting could include workshops, information gathering, lunches (shows broadness) o public bodies- two or more headed bodies MARRIAGE- Art. I 27- Marriage defined- marriage is the legal union of only one man and one woman as husband and wife, no other legal union that is treated as marriage or the substantial equivalent thereof shall be valid or recognized. ARTICLE II NATURAL RESOURCES & SCENIC BEAUTY Art. II 7 Preservation and protection state must conserve and protect natural resources and scenic beauty. Provisions made for abatement of air and water pollution and excessive and unnecessary noise Everglades- Must protect the Everglades. If you pollute Everglades you must pay for it ETHICS IN GOVERNMENT- Art. II 8: Ethics in government- a public office is a public trust. The people shall have the right to secure and sustain that trust against abuse. To assure this right: Financial disclosure - all elected constitutional officers and candidates for such offices and, as may be determine by law, other public officers candidates and employees shall file full and public disclosure of their financial interests Campaign finance disclosure- all elected public officers and candidates for such offices for such offices shall file full and public disclosure of their campaign finances Representation of others- Cannot represent others in front of agency and cannot collect money for such representation. If lawyer then sit on board cannot turn around and represent clients in front of the board you were a part of. Must sit out for two years. Represent for Term of Office/ State Agency- Not okay for me to represent clients in front of agency for which I control the budget/ laws (to extent vote of legislature) I would be able to have undue influence if I can represent clients in front of agency and then go and vote on them. ARTICLE III SESSIONS OF THE LEGISLATURE Art. III 3- Must be in March.

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Special Sessions- Governor may request a special session. o During special session shall discus ONLY such legislative business that is within the purview of the proclamation/ communication of governor OR given consent by 2/3 of each house o A special session of the legislature may be convened as provided by law. Length of Sessions. o A regular session of the legislature shall not exceed 60 consecutive days, (march & April) o a special session shall not exceed twenty consecutive days, o unless extended beyond such limit by a three-fifths vote of each house. During such an extension no new business may be taken up in either house without the consent of two-thirds of its membership. ARTICLE IV CABINET Art. IV 4 - Composition -Made up of o 1. Attorney general o 2. Chief financial officer o 3. Commissioner of agriculture o 4. Governor - Duties prescribed by law - In event of tie between cabinet and governor tie goes to the governor ARTICLE X: MISCELLANEAOUS SOVEREIGNTY LANDS Art. X 11- State (people) owns all water bodies within the state which have not been alienated o Includes beaches below mean high water lines - Sale- of land may be authorized by law, but only when in the public interest - Private use of such lands may be authorized by law, and the law is not contrary to the public interest o Example: own land by beach and want to build marina, that land is public land. Governor and cabinet can authorize man to build marina into what is otherwise known as state land. Will have to do certain things relevant to environmental protection, i.e. give free boat slips to marina patrol. If state concludes it is not contrary to public interest they will allow marina to be built. SUITS AGAINST THE STATE Art. X 13 Sovereign Immunity - State has initial inherent right that they acquire when country was founded to not be sued - However, state, by general law has authorized law to allow it to be suit and waive sovereign immunity o Concept- state is us, maybe it is not fair for people to suffer an injury as a result of the states negligence and not be compensated - Maximums/ Limitations state has traditional immunity from lawsuits but may waived by statute, which Florida has done, subjects to limits of 200,000 for any one person and 300,000 for all claims arising from 1 accident o Claims bill- where someone sued the state and there damages are in the millions (above limitations in statute) i.e. wrongful imprisonment - traditional test of liability makes actionable only operation, but not, planning functions EXAMPLES OF OTHER CONSTITUTIONAL PROVISIONS - Art X 18- disposition of conservation lands - Art. X 21- limiting cruel and inhumane confinement of pigs during pregnancy - Art. X 22- parental notice of termination of minors pregnancy o Legislature CANNOT limit or deny the privacy right guaranteed to a minor under U.S. constitution o However, legislature is authorized to require by general law for notification to a parent or guardian of a minor before the termination of the minors pregnancy Legislature must provide exceptions to the requirement of notification and must create a process for judicial waiver of notification

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o Legislation CANNOT require parental consent unconstitutional as unduly burdensome Art. X 23- slot machines counties can hold referendum on whether they want to authorize slot machines.

* possible argument of why citizens shouldnt be responsible for adding legislation leads to ridiculous statutes

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