Florida Constitutional Law Outline Fall 2024 PDF

Florida Constitutional Law Outline Angelo D. Spataro Fall 2024 Use Headings on Essays as Issue Statements Homestead Exemption will be on Final Article 1, Section 1, Florida Constitutional Power – All Political Power is Inherent in the people. o 14th Amendment applies the f...

Florida Constitutional Law Outline Angelo D. Spataro Fall 2024 Use Headings on Essays as Issue Statements Homestead Exemption will be on Final Article 1, Section 1, Florida Constitutional Power – All Political Power is Inherent in the people. o 14th Amendment applies the federal Constitution to the states. § The federal constitution provides the baseline rights for all citizens and the FL constitution adds to this. th o 10 Amendment – Powers not delegated to the United States are delegated to the states. § Our State Constitutions protect us from the government infringing our natural liberties. The U.S. Supreme Court has jurisdiction to review a state court's decision to provide a defendant with broader procedural protections than those guaranteed in the U.S. Constitution unless the state court explicitly states that its decision is based on separate, adequate, and independent state grounds. o The U.S. Supreme Court may review state supreme court decisions if the law has to do with the federal constitution. If it is a state ground the supreme court has no jurisdiction. o Test: Are their adequate state grounds that are clearly stated by the state? § The Supremacy Clause in the Constitution makes federal law supreme to state law, unless there are adequate state grounds stated by the state. § By not allowing the court to hear all state questions it allows the federal law to be uniform and the state court to have jurisdiction. Federalist 78 – The Judicial Department o The biggest restrain on the judiciary is precedent. The court must follow precedent. § The court will retreat from precedent if it is clearly erroneous. o The court is also smaller because the judges must know significant amount of laws. Article I – Declaration of Rights The First Article of the Florida Constitution defines the rights of Florida citizens. I. The Right to Privacy A. Introduction Article 1, Section 23 – Right to Privacy 1 Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein. This section shall not be construed to limit the public’s right of access to public records and meetings as provided by law. This is the Florida Constitutions explicit right to privacy. o The right to be free from governmental intrusion in a person’s private life. o You must have a legitimate expectation of privacy in order to assert the privacy clause. To overcome fundamental rights, Strict Scrutiny is required. o The statute must further a "compelling governmental interest," and must have narrowly tailored the law to achieve that interest. It must be the least restrictive measure, and the individual must have a reasonable expectation of privacy. § If there is a better way to achieve the governmental interest, that way must be taken rather than the less effective measure. § A law is upheld if it is proven to achieve a compelling governmental purpose. The government must have a truly significant reason, and must show that it cannot achieve its objective through any less discrimination alternative. § Balance the interests of the state and the party bringing the case. Article 1, Section 2. – Basic rights All natural persons, female and male alike, are equal before the law and have inalienable rights, among which are the right to enjoy and defend life and liberty, to pursue happiness, to be rewarded for industry, and to acquire, possess and protect property. No person shall be deprived of any right because of race, religion, national origin, or physical disability. This is the group of people protected by the Florida Constitution o Corporations are not protected. o Animals are not protected. Capable of repetition yet evading review – Allows the court to review a case even if it is moot. o Ex. Abortion Article 10, Section 22 – Parental Notice of a Minors Pregnancy The Legislature shall not limit or deny the privacy right guaranteed to a minor under the United States Constitution as interpreted by the United States Supreme Court. Notwithstanding a minor’s right of privacy provided in Section 23 of Article I, the Legislature is authorized to require by general law for notification to a parent or guardian of a minor before the termination of the minor’s pregnancy. The Legislature shall provide exceptions to such requirement for notification and shall create a process for judicial waiver of the notification. A minor needs parental consent to receive an abortion. The Current law in Florida does not allow abortion beyond 6 weeks. o A woman can receive an abortion if two doctors agree it is necessary or to save her life. 2  o Unless, rape, incest, save the mother life or human trafficking. Then the abortion must happen within 15 weeks. B. Abortion v. the Right to Privacy Planned Parenthood v. Florida o Strict scrutiny – balance the states interest in the child living and the ability of the mother to receive an abortion. Is there a compelling interest to limit the ability of a woman to receive an abortion? § The court considered the text, the context, and the history of the statute. § In this case, the court said there was no mention of abortion in Article 1 Section 23 on privacy. § The court considered Roe, in which the court did not explain why abortion had to do with privacy. § Abortion was not mentioned, and the constitution came after Roe v. Wade. There was no mention of abortion when discussing the privacy clause in the State Legislature. The Pro-life and Pro-choice groups did not protest the privacy clause. o The court will recede from precedent if it is clearly erroneous. C. Assisted Suicide v. Right to Privacy The Right to Privacy does not confer a right to die. (Right to Privacy Issue) o Ex. Bush v. Schiavo – The court had decided that Terri Schiavo should be taken off life support, while Jeb Bush said she should not and the legislature passed a law to give him the power to overrule the court. § Under the Florida State Constitution, legislation that overturns a fully litigated final judgment is unconstitutional as a violation of the separation of powers. A statute that prohibits assisted suicide does not violate the privacy clause of the Florida Constitution. o The state has to overcome strict scrutiny because the right to privacy is a fundamental right. § The state has a compelling interest to prevent suicide, protect life, uphold medical oaths, and protect innocent third-parties. The state wants people to die of natural causes. o FL defines assisted suicide as “Deliberately assisting another in commission of self-murder is a criminal act.” D. Public Records v. Right To Privacy Closure of Court documents or proceedings must consider (How to prove the materials are not public): o Comply with Constitution, statute or rules or case law; o Protect trade secrets; o Protect government interests (safety); o To obtain evidence properly determine legal issues; 3  o To avoid substantial injury to innocent third parties o To avoid substantial injury to a party by disclosure of matters protected by a common law or privacy right not generally inherent in the specific type of civil proceeding sought to be closed. Everything is a public record, unless there is an exception Exception: The public’s right to information must be balanced against the intrusion on the right to privacy, and should consider four factors: 1) The relevance of disclosure of the material to furthering public evaluation of governmental accountability; 2) The seriousness of the intrusion into the close relatives right to privacy by disclosure of the material; 3) The availability, from other sources, including other public records, of material which is equally relevant to the evaluation of the same government action but is less intrusive on the right to privacy; and 4) The availability of alternatives other than full disclosure which might serve to protect both the interests of the public and the interests of the victims. § Relevance of disclosure; § Seriousness of intrusion; § Less intrusive sources; § Is partial disclosure possible. o The right to privacy does not extend past death, but the deceased’s immediately family may invoke the right for their family member o The point of the exception is to protect the privacy of the family, and to not reveal very traumatic information. E. Access to Public Records Aricle 1 Section 24 – Access to public records and meetings. (a) Every person has the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf, except with respect to records exempted pursuant to this section or specifically made confidential by this Constitution. This section specifically includes the legislative, executive, and judicial branches of government and each agency or department created thereunder; counties, municipalities, and districts; and each constitutional officer, board, and commission, or entity created pursuant to law or this Constitution. o Every department of the Florida government is subject to this amendment. o Public records law applies to judiciary Use the four factors above on page 4 to determine if the information must be disclosed. 406.135 Autopsies; confidentiality of photographs and videos; exception: o Section 406.135 – A photo or video or audio recording of an autopsy in custody of a medical examiner is confidential and exempt from the requires of disclosure. 4  § (2)(a) A photograph or video or audio recording of an autopsy held by a medical examiner is confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution, except that a surviving spouse may view and copy a photograph or video recording or listen to or copy an audio recording of the deceased spouse’s autopsy. If there is no surviving spouse, then the surviving parents shall have access to such records. If there is no surviving spouse or parent, then an adult child shall have access to such records. § (4)(a) The court, upon a showing of good cause, may issue an order authorizing any person to view or copy an autopsy report of a person whose manner of death was determined by a medical examiner to have been by suicide, an autopsy report of a minor whose death was related to an act of domestic violence, or a photograph or video recording of an autopsy or to listen to or copy an audio recording of an autopsy and may prescribe any restrictions or stipulations that the court deems appropriate. § (b) In determining good cause, the court shall consider whether such disclosure is necessary for the public evaluation of governmental performance; the seriousness of the intrusion into the family’s right to privacy and whether such disclosure is the least intrusive means available; and the availability of similar information in other public records, regardless of form. When the legislature imposes exemptions, the exemptions must state with specificity the public necessity to justify the exemption, and shall be no broader than necessary to accomplish the stated purpose of law. Retroactive legislation – The court will refuse to apply retroactive statutes if the statutes impairs vested rights, creates a new obligation. Courts hearings are public unless: o There is an overriding interest to preserve higher values, narrowly tailored to serve that interest. § Courts are public for government transparency. To check the government’s power over taking one’s life, liberty, or property. FL Sunshine Laws – Disclosure requirements of the government to the people, in order to stop closed door politics and abuse by the government o Article 1, Section 24(b) All meetings of any collegial public body of the executive branch of state government or of any collegial public body of a county, municipality, school district, or special district, at which official acts are to be taken or at which public business of such body is to be transacted or discussed, shall be open and noticed to the public and meetings of the legislature shall be open and noticed as provided in Article III, Section 4(e), except with respect to meetings exempted pursuant to this section or specifically closed by this Constitution. 5  o Florida Sunshine laws only apply to the Executive board branch of all the governments. But does not apply to single executives like the Governor, Mayor, County Commissioner. § When an executive branch board of the government makes official acts, the meeting must be open to the public. Open and Notorious. (Public on Notice before the meeting.) § The government is subject to this law when they have “decision making authority.” § Fact finding/information gathering is not subject to FL Sunshine laws. § The governmental authority is not subject to the laws when they have been delegated information/fact finding authority. FL Sunshine laws do not require staff of government officials to be open, unless they have been delegated decision making authority. Does not apply to legislature or judicial. These laws only apply to executive boards. Staff meetings are exempt o If Florida Sunshine laws are violated, they can be cured by the government officials having open meetings. Ex. E-mails between government officials violates the law, but is cured by a public hearing. Exceptions To Sunshine Law 286.011(8): 8) Notwithstanding the provisions of subsection (1), any board or commission of any state agency or authority or any agency or authority of any county, municipal corporation, or political subdivision, and the chief administrative or executive officer of the governmental entity, may meet in private with the entity’s attorney to discuss pending litigation to which the entity is presently a party before a court or administrative agency, provided that the following conditions are met: (a) The entity’s attorney shall advise the entity at a public meeting that he or she desires advice concerning the litigation. (b) The subject matter of the meeting shall be confined to settlement negotiations or strategy sessions related to litigation expenditures. (c) The entire session shall be recorded by a certified court reporter. The reporter shall record the times of commencement and termination of the session, all discussion and proceedings, the names of all persons present at any time, and the names of all persons speaking. No portion of the session shall be off the record. The court reporter’s notes shall be fully transcribed and filed with the entity’s clerk within a reasonable time after the meeting. d) The entity shall give reasonable public notice of the time and date of the attorney- client session and the names of persons who will be attending the session. The session shall commence at an open meeting at which the persons chairing the meeting shall announce the commencement and estimated length of the attorney-client session and the names of the persons attending. At the conclusion of the attorney-client session, the meeting shall be reopened, and the person chairing the meeting shall announce the termination of the session. (e) The transcript shall be made part of the public record upon conclusion of the litigation. 6  Explanation. The board is exempt when there are: o Discussions about pending litigation involving the board o Settling litigation or strategy sessions related to litigation expenditures o The meeting must be recorded and have a court reporter o The public should be notified there is a meeting o The transcript after the meeting becomes public record and can be read by anyone F. Florida Military Article 1, Section 7 –The military Power shall be subordinate to the civil o The organized militia is composed of the national guard o The Governor is the Commander in Chief § He can use the guard to participate in parade; review; inspection; ceremony; escort duty; participate in training; and extraordinary law enforcement which is to stop a riot. § The President of the U.S. at any time can take over our state militia and use it. Article 1, Section 20 Treason – Treason against the state shall consist only in levying war against it, adhering to its enemies, or giving them aid and comfort, and no person shall be convicted of treason except on the testimony of two witnesses to the same overt act or on confession in open court. G. Freedom of Speech Article 1, Section 4 Freedom of speech and press – Every person may speak, write and publish sentiments on all subjects but shall be responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions and civil actions for defamation the truth may be given in evidence. If the matter charged as defamatory is true and was published with good motives, the party shall be acquitted or exonerated. o Responsible for abuse is libel, slander, etc. o A person is exonerated from libel/slander if it is truthful and the person has good motives o Right to peacefully assemble o Laws restricting speech must meet strict scrutiny. § Minimal Free Speech values can be offset by privacy interests. Ex. Prank Phone Call Statute. Any restriction on speech, you must consider if it is void for vagueness Fla Statute 870.01 – Affrays and Riots o (2) A person commits a riot if he or she willfully participates in a violent public disturbance involving an assembly of three or more persons, acting with a common intent to assist each other in violent and disorderly conduct, resulting in: § (a) Injury to another person; § (b) Damage to property; or § (c) Imminent danger of injury to another person or damage to property. 7  "violent public disturbance" under section 870.01(2) is characterized by harm to persons or property, and not by peacefulness. To "willfully participate" in a "violent public disturbance," a defendant must have "intentionally, knowingly, and purposely" chosen to be part of it. Therefore, to be guilty of the crime of riot, one must "engage in," or at least "intend to assist others in engaging in, violent and disorderly conduct." A person is not guilty by just being at the protest, and not engaging in the aforementioned activities. They must be willful participants in a violent public disturbance, or assist in doing so. H. Access to Courts 1. The Right The courts shall be open to every person for redress of injury, and justice shall be administered without sale, denial, or delay. Article 5 gives the Supreme Court the power to make FL Civil Procedure Rules and certain rules about the court. o (a) The supreme court shall § adopt rules for the practice and procedure in all courts including the time for seeking appellate review, § the administrative supervision of all courts, the transfer to the court having jurisdiction of any proceeding when the jurisdiction of another court has been improvidently invoked, and a requirement that no cause shall be dismissed because an improper remedy has been sought. § The supreme court shall adopt rules to allow the court and the district courts of appeal to submit questions relating to military law to the federal Court of Appeals for the Armed Forces for an advisory opinion. Rules of court may be repealed by general law enacted by two- thirds vote of the membership of each house of the legislature. 2. Eliminating a Cause of Action The State Legislature cannot abolish a cause of action that existed on either of two different dates (Common Law and 1968 Constitution) without providing a substantially equivalent substitute, unless no alternative can be provided. When abolishing a cause of action there are two questions: o Did the cause of action exist in common law; and o Did it exist by statute prior to the adoption of the 1968 Constitution? § Kluger: If the cause of action did not exist on either of these dates, the legislature may abolish it. § If the legislature wants to eliminate a cause of action that does not meet the above requirements, the state must provide an adequate alternative remedy unless no alternative is available or every alternative would be worse. Ex. Workers Comp allows the legislature to eliminate a cause of action for the worker, but allows them to recover by having the state pay them for injuries sustained at work. 8  o Changing lawyers’ fees by statute does not deny access to courts according to the FL Supreme Court Article 1 Section 13. Habeas corpus – The writ of habeas corpus shall be grantable of right, freely and without cost. It shall be returnable without delay, and shall never be suspended unless, in case of rebellion or invasion, suspension is essential to the public safety. o You are not entitled to a public defender for a writ of habeus corpus (appealing conviction.) o The constitution says it is free but the court wants to balance the incarcerated persons right to access courts with the need of the court to balance its resources and workload. § McArthur v. Dixon – limited a convicted person from appealing their conviction by not allowing them to access to courts, seemingly violating the right to Habeus Corpus. They are also violating his right to speech. § Jury has taken away the right before absent invasion or rebellion. Article 1, Section 14. Pretrial release and detention – Unless charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great, every person charged with a crime or violation of municipal or county ordinance shall be entitled to pretrial release on reasonable conditioens. o Exception: If no conditions of release can reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or assure the integrity of the judicial process, the accused may be detained. § You are entitled to pre-trial release unless you are charged with a capital offense or an offense that will result in life imprisonment. § Unless, the public cannot be protected; or you will flee. I. Right to Jury Trial The right of trial by jury shall be secure to all and remain inviolate. o Civil Cases are heard by at least six jurors. Criminal capital cases are heard by 12. All other criminal cases are heard by at least six. o A defendant can waive their jury right, but it must be known and informed. o A lawsuit for money allows for the right to be invoked, while a demand for equitable or injunctive relief ordinarily does not. § If the claim involves both, they must be so intertwined that the court would have to hear both together. o The right to a jury trial does not apply to lawyer disbarments cases. A right to trial by jury exists where there is a statutory or historical right to jury by trial common law. o The U.S. Constitution gives the right, and the FL legislature cannot give it away. In Florida, our right against unreasonable searches and seizures is the same as the U.S. Constitution 4th Amendment. 9  Executive Agencies cannot exercise quasi-judicial powers. o No Executive administrative agency may impose a penalty, as imposed by law. Meaning, the Florida legislature imposes the law, not the executive agency. You must use judicial power to impose a penalty. J. Religious Freedom Article 1, Section 3 Religious freedom – There shall be no law respecting the establishment of religion or prohibiting or penalizing the free exercise thereof. Religious freedom shall not justify practices inconsistent with public morals, peace or safety. No revenue of the state or any political subdivision or agency thereof shall ever be taken from the public treasury directly or indirectly in aid of any church, sect, or religious denomination or in aid of any sectarian institution. Article 1, Section 3 provides that no revenue of the state shall ever be taken from the public treasury directly or indirectly in aid of any religious institution. o There is not a per se ban, the court will consider each case in a case by case manner. § The court must prohibit the use of state funds to promote a religion or its activities. § The court uses the Purpose Driven Test to determine if the funding is ok. o The Purpose Driven Test – The court balances whether government funding: § Promotes religion of the provider; § Is significantly religious in nature; § Involves religious indoctrination; § Requires participation in ritual; or § Encourages the preferences of one religion over another. If the balancing test meets these requirements, the funding is prohibited. Example of funding that is ok to religion: Chaplains in the Military. o The exercise clause is not violated by neutral government programs. Meaning, as long as the program does not specify a religion, it does not violate the establishment clause. § Ex. Chaplains/religious leaders allowed in schools. K. Death Penalty Article 1, Section 9 – Due Process No person shall be deprived of life, liberty or property without due process of law, or be twice put in jeopardy for the same offense, or be compelled in any criminal matter to be a witness against oneself. Essential Elements of Due Process o Notice and 10  o the opportunity to be heard. Article 1, Section 15 – Offenses Committed by Juveniles (a) No person shall be tried for capital crime without presentment or indictment by a grand jury, or for other felony without such presentment or indictment or an information under oath filed by the prosecuting officer of the court, except persons on active duty in the militia when tried by courts martial. (b) When authorized by law, a child as therein defined may be charged with a violation of law as an act of delinquency instead of crime and tried without a jury or other requirements applicable to criminal cases. Any child so charged shall, upon demand made as provided by law before a trial in a juvenile proceeding, be tried in an appropriate court as an adult. A child found delinquent shall be disciplined as provided by law. Article 1, Section 17 Excessive punishments Excessive fines, cruel and unusual punishment, attainder, forfeiture of estate, indefinite imprisonment, and unreasonable detention of witnesses are forbidden. The death penalty is an authorized punishment for capital crimes designated by the legislature. The prohibition against cruel or unusual punishment, and the prohibition against cruel and unusual punishment, shall be construed in conformity with decisions of the United States Supreme Court which interpret the prohibition against cruel and unusual punishment provided in the Eighth Amendment to the United States Constitution. Any method of execution shall be allowed, unless prohibited by the United States Constitution. Methods of execution may be designated by the legislature, and a change in any method of execution may be applied retroactively. A sentence of death shall not be reduced on the basis that a method of execution is invalid. In any case in which an execution method is declared invalid, the death sentence shall remain in force until the sentence can be lawfully executed by any valid method. This section shall apply retroactively. Death Penalty is used in Florida. o The electric chair is not cruel and unusual punishment. o Lethal injection is also not cruel and unusual punishment. o Cruel and unusual punishment is the infliction of unnecessary pain. § For a punishment to constitute cruel and unusual punishment, it must involve torture or a lingering death, or the infliction of unnecessary and wanton pain. Lethal injection and the electric chair do not do this. o Death penalty cases have 12 jurors. Article 1, Section 16(b) – Rights of Accused and of Victims Be present Heard Confer with Florida officials working on case (Includes providing information) Right to participate in criminal process. L. Prohibited Laws Article 1, Section 10 Prohibited Laws – No bill of attainder, ex post facto law or law impairing the obligation of contracts shall be passed. Bill of Attainder – A criminal law that punishes a specific person or group without a trial. You are guilty because of the group you are in. 11  Ex Post Facto – Creates a new or increased punishment on something that already took place. o An ex post facto violation occurs if a law (The state cannot create laws that do this): 1. Criminalizes actions that were previously innocent; 2. Aggravates a crime after it was committed; 3. Increases the punishment for a crime; and/or 4. Alters the rules of evidence to make conviction easier. Impairing the Obligation of Contracts – The state cannot impair the enforcement of a contract. o “The confidence essential to prosperous trade has been undermined.” o Courts test: § 1) Whether the legislation impairing the contract is addressed to a legitimate end; and 2) measures taken are reasonable and appropriate to that end. § The legislation must meet strict scrutiny. Least restrictive means. Article 1, Section 11 Imprisonment for Debt – No person shall be imprisoned for debt, except in cases of fraud. M. Right to Work Article 1, Section 6 Right to Work – Cannot be denied the right to work if you are in a union. You have a right to join a union. Public employers can no longer deduct union dues from public employees’ paychecks. o The employee must pay them if they choose. § Ex. Teachers unions no longer can take money from teachers, the teachers have to actively pay. N. Right to Bear Arms (a) The right of the people to keep and bear arms in defense of themselves and of the lawful authority of the state shall not be infringed, except that the manner of bearing arms may be regulated by law. (b) There shall be a mandatory period of three days, excluding weekends and legal holidays, between the purchase and delivery at retail of any handgun. For the purposes of this section, “purchase” means the transfer of money or other valuable consideration to the retailer, and “handgun” means a firearm capable of being carried and used by one hand, such as a pistol or revolver. Holders of a concealed weapon permit as prescribed in Florida law shall not be subject to the provisions of this paragraph. (c) The legislature shall enact legislation implementing subsection (b) of this section, effective no later than December 31, 1991, which shall provide that anyone violating the provisions of subsection (b) shall be guilty of a felony. (d) This restriction shall not apply to a trade in of another handgun. 12  You have the right to bear arms to defend yourself in Florida. o The manner of bearing arms may be regulated. o There is a three-day waiting period for the purchase of handguns. Article II – Separation of Powers Article II, Section 4 – The State flag can be changed by statute Article II, Section 9 – English is the Official Language of Florida Tribes have their own governments o Time and Memorial = Indian Tribes o Seminoles and Miccosukee Article II, Section 3 Branches of Government/Separation of Powers – The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein. The State Constitution does not list the powers of each branch o The goal of the separation of powers is to avoid excessive centralized power and maintain balance and authority between the branches of government. o The delegation of power prohibition restricts one branch from giving power, or giving away its core functions, to another branch of government. § One branch also cannot encroach on the constitutional authority of another branch. Article II, Section 5 – Public Officers o Cannot be part of two different branches at the same time. § If you hold an office of a foreign country, or a federal officer, you cannot be simultaneously a Florida officer. § Cannot be a member of a local government and also a state officer. Article II, Section 8 – Ethics o 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: (a) All elected constitutional officers and candidates must disclose financial interests and campaign finance disclosures (b) All elected officials must disclose campaign finances (d) You lose pension if convicted of breaching public trust. (e) A member of the legislature or statewide elected official cannot serve as a lobbyist for six years after leaving office (f)(2) Cannot be a lobbyist while in office. (This is pending in the 11th Circuit) Article II, Section 2 – Seat of Government Tallahassee is the capital o All elected officials’ business is done here 13 Article II, Section 7 – Natural resources and scenic beauty Allows the state government to regulate the natural resources and scenic beauty of Florida. A. Delegation of Legislative Power The power given to executive agencies and executive commissions are subordinate to the Governors powers; The Governor has supreme Executive power. o Governor has complete oversight over Executive agencies. § The executive agencies would be taking legislative powers. The three branches of government may not delegate to or encroach on another branch’s powers. (Article II, Section 3) o Article III, Section 1 and 7 give the legislature the responsibility to pass bills into law. § The legislature has the power of the purse, only they can spend money. § John Locke – The legislature may not delegate power, because their power itself has been given to them/delegated to them by the people. It is not the legislatures power to delegate. o Article III Section 8 gives the Governor the veto power. The governor cannot create or change legislation. (Except Line-item veto) § The governor can veto specific provisions with the line-item veto, but he cannot add spending or change spending after appropriations have been passed. § The veto power is a negative power, it is the power to nullify a law. It is not intended or designed to amend or alter legislation. The Executive does not have the power to use the veto to restructure an appropriation. Article VII, Section 1 – Balanced Budget The state government is required to have a balanced budget. o Article III, Section 19(f) Trust Funds –5% of government revenue is supposed to be kept each year so it can be rolled over into the next year to account for government shortfalls. Article 1, Section 7 – Military Power Military power shall be subordinate to the civil. Article II, Section 6 – Enemy Attack In emergencies/ invasions of Florida the legislature is allowed to give all power to the Governor. The legislature may depart from all requirements of the constitution. o This obviously would never happen. The President of the United States would take over the national guard and deploy them and the federal military to propel an invasion. 14  B. Encroachment by Executive Branch on Legislative Power i. Executive Encroachment on Legislature The governor has no authority to change or amend a law, only the legislature can. o The Legislature must pass a law to allow the Governor to execute it. o The Governor cannot use Legislative Power, he is not a Legislature § Use of Legislative power violates the separation of Power. The Governor cannot unilaterally sign compacts on behalf of the state, without the power granted to him by the legislature o The Governor would be creating a new law without the legislatures say, and would violate separation of powers. § Ex. Charlie Crist signing gambling compacts with Indian tribes. Article X, Section 30 Voter control of gambling in Florida – (a) This amendment ensures that Florida voters shall have the exclusive right to decide whether to authorize casino gambling in the State of Florida. This amendment requires a vote by citizens’ initiative pursuant to Article XI, section 3, in order for casino gambling to be authorized under Florida law. The state government cannot make laws regarding casino gambling, only the people can vote on it. o Sports betting was allowed when Governor DeSantis allowed it because it is not casino gambling. Article IV Section 6 Executive departments – All functions of the executive branch of state government shall be allotted among not more than twenty-five departments, exclusive of those specifically provided for or authorized in this constitution. The administration of each department, unless otherwise provided in this constitution, shall be placed by law under the direct supervision of the governor, the lieutenant governor, the governor and cabinet, a cabinet member, or an officer or board appointed by and serving at the pleasure of the governor. The Governor is in charge of the 25 cabinet positions. o The Legislature cannot encroach. ii. Legislature/Executive Encroachment on Judiciary Under the Florida state constitution, legislation that overturns a fully litigated final judgment is unconstitutional as a violation of the separation of powers. o This is an improper delegation of power. o This would be the legislature encroaching upon the judiciary because they would be making changes to the court’s ruling. The legislature has no power to do this, the judiciary interprets the laws enacted by the legislature and not the other way around. o The Governor also cannot overturn final judgements of the judiciary as this is not his job. For the same reason as the legislature, the judiciary rules on executive actions, and not the other way around. This is improper delegation power. 15  § The Governor has to act by a Constitutional power, or by permission of the legislature to act through a bill being passed. This is a blatant violation of separation of powers. C. Relationships with Local Governments/ Special Laws A special law is a law that lacks statewide affect. o It affects a small and specific area. Ex. Allowing a town to change its borders. o Special laws are a way for the legislature to enact policies that affect localities in distinct and different ways. Ex. Water Management Districts § They allow the legislature to make laws for local communities. A general law is one that affects the whole state. They have statewide classification/applicability. o If the legislature passes one law that affects different parts of the state, the law is general and not special, because it is universal despite affecting parts of the state differently. § Ex. The State Capital affects Tallahassee and Leon County, but it affects the whole state as well. Article III, Section 10 – Special Laws If the government seeks to pass a special law it must provide notice, in the manner provided by general law. Notice is not required when the special law is passed by referendum. Article III, Section 11 – Prohibited Special Laws (a) There shall be no special law or general law of local application pertaining to: o (1) election, jurisdiction or duties of officers, except officers of municipalities, chartered counties, special districts or local governmental agencies; o (2) assessment or collection of taxes for state or county purposes, including extension of time therefor, relief of tax officers from due performance of their duties, and relief of their sureties from liability; o (3) rules of evidence in any court; o (4) punishment for crime; o (5) petit juries, including compensation of jurors, except establishment of jury commissions; o (6) change of civil or criminal venue; o (7) conditions precedent to bringing any civil or criminal proceedings, or limitations of time therefor; o (8) refund of money legally paid or remission of fines, penalties or forfeitures; o (9) creation, enforcement, extension or impairment of liens based on private contracts, or fixing of interest rates on private contracts; (No special laws for interest rates) o (10) disposal of public property, including any interest therein, for private purposes; o (11) vacation of roads; o (12) private incorporation or grant of privilege to a private corporation; 16  o (13) effectuation of invalid deeds, wills or other instruments, or change in the law of descent; o (14) change of name of any person; o (15) divorce; o (16) legitimation or adoption of persons; o (17) relief of minors from legal disabilities; o (18) transfer of any property interest of persons under legal disabilities or of estates of decedents; o (19) hunting or fresh water fishing; o (20) regulation of occupations which are regulated by a state agency; or o (21) any subject when prohibited by general law passed by a three-fifths vote of the membership of each house. Such law may be amended or repealed by like vote. How Much Notice for a Special Law? o Reasonable Sufficient Notice. The notice requires the subject of the law to be given, not the objective or the purpose. § North Ridge General Hospital v. City of Oakland Park – The legislature gave a title for the bill and this was enough notice because it gave the subject, which was to expand the boundary of Oakland Park. Article III Legislature A. Introduction The legislature is bicameral, and meets every year. In the same way as the federal government, the judiciary determines if the Legislature or Executive violates the Constitution. The Governor has the power of the line-item veto. A. Legislative Process i. Article III, Section 6 – Laws Every law shall embrace but one subject and matter properly connected therewith, and the subject shall be briefly expressed in the title. The enacting clause of every law shall read: “Be It Enacted by the Legislature of the State of Florida:”. o The legislature can only introduce and pass bills on one subject. o The title must be connected to the law and be briefly named. The name must be clear and unambiguous. § The bill cannot include two subjects that are unrelated. Such as appropriations and then healthcare in one bill. Article III, Section 12 – Appropriations Bills Appropriations bills must just be appropriations and no other subjects Article VII, Section 19 – Raising Taxes A supermajority vote in both chambers of the legislature is required to raise taxes, and it must be single subject. 17 Article XI, Section Three Initiative The power to propose a new or revised amendment by initiative is reserved to the people, and must have one subject. Except amendments limiting the government’s ability to raise revenue. Each law shall contain one subject. However, once it is passed it can be codified into the Florida statutes with other passed laws. o Santos v. State – The defendant was arrested for two offenses under the same statute. However, when the charges were passed by the Legislature the laws were passed separately and only codified into the Florida statutes together after being passed. To determine if a statutes or bills name is too long the court must ask: Whether the title is so worded as not to mislead a person of average intelligence as to the scope of the enactment and is sufficient to put that person on notice and cause him to inquire into the body of the statute himself. B. Executive Review i. Article III, Section 8 – Executive Approval and Veto Article III, Section 8 Executive approval and veto (a) Every bill passed by the legislature shall be presented to the governor for approval and shall become a law if the governor approves and signs it, or fails to veto it within seven consecutive days after presentation. If during that period or on the seventh day the legislature adjourns sine die or takes a recess of more than thirty days, the governor shall have fifteen consecutive days from the date of presentation to act on the bill. In all cases except general appropriation bills, the veto shall extend to the entire bill. The governor may veto any specific appropriation in a general appropriation bill, but may not veto any qualification or restriction without also vetoing the appropriation to which it relates. The governor can only veto specific appropriations in a general appropriations bill. o The line-item veto must be for 1) a specific appropriation which is part of 2) an appropriations bill. o Specific Appropriation – An identifiable, integrated fund which the legislature has allocated for a specific purpose. § The legislature may not hide appropriations in a huge appropriations bill. The governor may single out the appropriation and veto it. o A non-appropriations bill can only be fully vetoed or fully signed by the governor, there is no line-item veto. o The Governor can only veto money, he cannot veto parts of the language of the bill, just the money. § The Governor cannot reduce the appropriation, he can only eliminate all of it. The Governor has 15 days to veto a bill after the legislature has ended the legislative session. When he is presented a bill during session, he has 7 days. 18  o The purpose of the additional time given to the Governor to veto bills is so he may review any last-minute legislation before the session ends. § Over 60% of bills passed during the legislative session are given to the governor for approval or veto at the end of the legislative session, with the bulk submitted after the legislative session is completely over. FL state legislators and staff members do not have an absolute privilege against testifying, but they have a qualified privilege. o The Constitution does not contain a speech and debate clause. o The Legislative privilege exists in Article II, Section 3 separation of powers. § The Legislative Privilege may be overcome by a compelling interest. When determining if the legislative privilege is allowed, first: o Determine whether the information sought falls within the scope of the privilege; then o Then determine whether the purposes underlying the privilege, namely, the deference owed by each coequal branch of government functions free from the burdens of forced participation in private litigation, o are outweighed by a compelling governmental interest. § The compelling interest must outweigh the legislative privilege. Legislative Distircts are defined in Article III o They should follow county and existing political boundaries when necessary. Article IV – Elections Article IV, Section 1 Regulation of elections – o All elections by the people shall be by direct and secret vote. o General elections shall be determined by a plurality of votes cast, so no run-offs. o Registration and elections shall, and political party functions may, be regulated by law; however, the requirements for a candidate with no party affiliation or for a candidate of a minor party for placement of the candidate’s name on the ballot shall be no greater than the requirements for a candidate of the party having the largest number of registered voters. Article IV, Section 2 Electors – You must be 18 to register to vote. Article IV Section 3 Oath – Upon registering to vote, you take an oath of allegiance to uphold the Constitution. Article IV, Section 4 – outlines grounds for disqualification for voting and holding elected office. o Felons may not vote. There are term limits of eight years for each office. o After taking a term off, your term limit resets and you may serve again. o This is only allowed for state politicians. 19  Article IV, Section 5 Primary, general, and special elections – o (a) General elections happen on the first Tuesday in Novembet after the first Monday of November in even number years. This is for state and county elections, as well as federal elections. o (a) A general election may be suspended or delayed due to a state of emergency or impending emergency pursuant to general law. o (b) If there is no candidate for one of the parties in a general election, then anyone can vote in the primary regardless of party affiliation. U.S. Constitution Amendment 24 – No tax on your ability to vote. Article IV – Executive The Governors cabinet consists of the Attorney General; Chief Financial Officer; and the Commissioner of Agriculture. o All members of the Cabinet are elected in statewide elections. o The Governor and Lieutenant Governor run on the same ticket. o The Secretary of State is not elected anymore, they are appointed. A. Article IV, Section 1 – Governor i. Supreme Executive Power Article IV, Section 1(a) – The Supreme Executive Power shall be vested in the Governor. o The powers of the Governor are mostly derived from statutes and case law, but the Governor may issue Executive Orders; this power coming from Article IV, Section 1(a). Governor has the veto power; and the Line-Item Veto o 15 days to veto if in session; 30 if presented with a bill after session. He is the commander in chief of National Guard. The governor is able to remove state and county officials. o The Governor may fills vacancies. The Governor may ask the Supreme Court for an advisory opinion. Governor delivers State of State. A government official must have connection to the complained about action in order to be named a proper party in a lawsuit. o The party suing the government must bring the lawsuit against the state official or agency responsible for enforcing the allegedly unconstitutional scheme. o The Government official named in a lawsuit does not need to have personal action to be sued, but is only required to have a connection to the challenged conduct. To determine whether a state official is a proper defendant when challenging the constitutionality of a statute, there are three factors: o Whether the named state official is charged with enforcing the statute; and if not 20  o Whether the action involves broad constitutional duty of the state implicating specific responsibilities of the state official; and o Whether the state official has an actual, cognizable interest in the challenged action. ii. Take Care that the Laws be Faithfully Executed Article IV, Section 1(a) gives the Governor the power to “take care of the laws be faithfully executed.” Article V, Section 17 State attorneys – Elected to 4- year terms Prosecuting officer of all trial courts, but; Municpal officers prosecute municipal crimes Must reside in jurisdiction Member of FL bar for five years Cannot be in private practice May appoint assistants. Article V, Section 18 Public defenders – Elected to 4-year terms Must reside in jurisdiction Must be member of the bar for five years May appoint assistant public defenders. The Governor may reassign cases from one judicial circuit to another due to Article IV, Section 1(a), and Florida Statute. o The governor must give good and sufficient reason for why removal would serve the ends of justice. o The Governor abuses this power if his decision is arbitrary, fanciful, or unreasonable. iii. Shall Fill by Appointment Any Vacancy The Governor has the power and duty to appoint people to fill vacancies in state positions. iv. Article IV, Section 7 – Suspensions; Filing Office During Suspensions Article IV Section 7 Suspensions; filling office during suspensions – (a) The Governor may suspend state officers for: malfeasance, misfeasance, neglect of duty, drunkenness, incompetence, permanent inability to perform official duties, or commission of a felony, and may fill the office by appointment for the period of suspension. The suspended officer may at any time before removal be reinstated by the governor. (b) The senate may remove them from office through impeachment. (c) The Governor may suspend any municipal officer for a crime. They are reinstated if acquitted. 21  Article IV, Section 7 gives the Governor the power to suspend any county officer. It provides clear and unambiguous grounds for dismissal or suspension. o The Governor must give reasonable relation to the stated grounds for the suspension. § This includes Sheriffs, and other state officers. Article V – The Judiciary A. Introduction The court is only concerned with the power to enact the statute, not the wisdom of the statute. o The court asks whether the legislature or Executive have the power to do what they are doing. Judges are subject to ethics rules. JQC o Article V, Section 10 – o (a) Judges are subject to retention votes every six years. The people decide whether to keep the judge in office. o (b) Circuit Judges stay in office, unless a majority of people in the jurisdiction vote to have an election rather than a retention vote. B. Structure of The Court System i. Article V, Section 1 – Courts Article V, Section 1 Courts – The judicial power shall be vested in a supreme court, district courts of appeal, circuit courts and county courts. No other courts may be established by the state, any political subdivision or any municipality. The legislature shall, by general law, divide the state into appellate court districts and judicial circuits following county lines. Commissions established by law, or administrative officers or bodies may be granted quasi-judicial power in matters connected with the functions of their offices. o These quasi-judicial bodies are called administrative agencies, and they are not courts. They may interpret local ordinances. o The legislature must pass legislation that creates the agency and allows it to interpret local ordinances. o These agencies are subject to judicial review, and their decisions will be overturned if clearly erroneous. o Agencies can only award quantifiable damages; they may not grant non- quantifiable damages like pain and suffering. Article V creates the courts and describes their role and their jurisdiction. There is a three-tiered court system: o Trial Courts; § The trial court has two levels in itself o District Courts of Appeal; and § This is usually the end of the line for cases. 22  o The Florida Supreme Court § The Florida Supreme Court has the power to adopt rules for procedure and practice in state courts, and has ultimate supervision over the practice of law in Florida, including admission to the bar, discipline of lawyers, and discipline of judges. § No power to select judges. o Article V. Section 13 – Ethics § Judges are not allowed to work in private practice § Judges cannot be lobbyists. § Not allowed to hold office while being in a political party. But they are allowed to be members of organizations with partisan leanings. o Article V, Section 21 – Judicial Interpretation of Statutes and Rules § When hearing a case on an administrative action, the court will hear it de novo and may not consider the administrative agencies interpretation. Article V, Section 14 Funding o All justices and judges shall be paid state salaries fixed by law by the legislature. o The Legislature decides. Article V Section 6 County courts o Organization – There shall be a county court in each county. There shall be one or more judges for each county court as prescribed by general law. o Jurisdiction –The county courts shall exercise the jurisdiction prescribed by general law. Such jurisdiction shall be uniform throughout the state. Article V Section 5 Circuit courts o Organization – There shall be a circuit court serving each judicial circuit. o Jurisdiction – The circuit courts shall have original jurisdiction not vested in the county courts, and jurisdiction of appeals when provided by general law. They shall have the power to issue writs of mandamus, quo warranto, certiorari, prohibition and habeas corpus, and all writs necessary or proper to the complete exercise of their jurisdiction. Jurisdiction of the circuit court shall be uniform throughout the state. They shall have the power of direct review of administrative action prescribed by § Can serve as appellate review of a county court case. § Can be given the power to review administrative agency actions. The Chief justice of the circuit court may assign a county judge to assume jurisdiction of a case in circuit court. o Must be temporary § May only be for 60 days. o Article V, Section 8: No person is eligible for the office of circuit judge unless he is, and has been for the preceding five years, a member of the Florida Bar. § Must live in jurisdiction. 23  o Article V allows the chief judge of a judicial circuit to assign any judge to temporary service for which the judge is qualified in any court in the same circuit. ii. The Florida Supreme Court a. Article V, Section 2 – Administration; Practice and Procedure Article V, Section 15 Attorneys; Admission and Discipline o The Supreme Court shall have exclusive jurisdiction to regulate the admission of persons to the practice of law and the discipline of persons admitted. o Only the Judiciary has the power to enact judicial rules of practice and procedure. Not the legislature. § The Legislature may repeal any rule of the Supreme Court by 2/3 vote, but may not enact any law relating to the Supreme Courts practice and procedure. Article V, 11(d) Judicial Nominating Committee o Nine members, five nominated by Governor, four by the FL Bar for the Supreme Court § The JNC picks a list of around 3 to 6 judges for the Governor to pick from, and the Governor then picks the one they want. The Governor picks the justices. § The Governor gets 60 days to make an appointment to the Supreme Court after the JNC compiles its list of judges. Article V, Section 3 – Supreme Court o There are 7 justices o Four are needed for a decision § Each appellate district must have representation of the court. Meaning, each judge must have been a resident of the district before being appointed. There are six DCA’s that need to be represented. b. Jurisdiction Mandatory Jurisdiction o The court shall hear (has jurisdiction when): § Appeals from the final judgements of trial courts imposing the death penalty and from decisions of district courts of appeal declaring invalid a state statute or a provision of the state constitution. § Appeals from final judgements entered in proceedings for the validation of bonds or certificates if indebtedness (state incurring debt) and shall review action of statewide agencies relating to rates or service of utilities providing electric, gas, or telephone service; § When asked by the Attorney General for an advisory opinion Discretionary Jurisdiction o The Florida Supreme Court: 24  o May review a DCA case when they are asked; or when the question presented is of great public importance, or the decision is in direct conflict with another DCA ruling. § Express and Direct Conflict is a strict standard. It requires either the announcement of a conflicting rule of law; or the application of a rule of law in as manner that results in a conflicting outcome despite “substantially the same controlling facts.” o May review any order or judgment of a trial court certified by the district court of appeal in which an appeal is certified to require immediate resolution by the supreme court. o May review a question of law certified by the Supreme Court of the United States or a United States Court of Appeals for which there is no controlling precedent of the Supreme Court of Florida. o The Supreme Court may also review § any decision of a district court of appeal that expressly declares valid a state statute; or § that expressly construes a provision of the state or federal constitution; or § expressly affects a class of Constitutional or state officers. Discretionary Writs o This is additional to mandatory jurisdiction; the court may consider these cases if they want. o The court may issue writs of prohibitions to the lower courts and all writs necessary to complete exercise of its jurisdiction o May issue writs of mandamus and quo warranto to state officers and state agencies. § Writ of Mandamus – An order from the court for a government official to fulfill their duties or correct abuse of power. § Quo Warranto – Used to determine a government officials ability to exercise a right or privilege. o May issue writs of habeus corpus § Writ of Habeus Corpus – used to bring a prisoner or other detainee before the court to determine if the person's imprisonment or detention is lawful. DCA’s: The Final Appeal o There are six District Courts of Appeal. § Each district has at least three but there are more. Need two judges to make a decision. o Jurisdiction – The DCA’s shall have jurisdiction to hear appeals of final judgements by the Trial Courts. § The DCA’s may hear interlocutory orders Pardo Principle o DCA opinions are binding law unless there is a reason to conclude otherwise. o The trial court is required to follow the decision of a DCA if it is the only case on point, even if the trial court is not located in that DCA jurisdiction. 25  o DCA opinions are not binding on other DCA’s, they are merely persuasive. Per Curiam Affirmed o When the DCA issues a PCA, it means they agree/affirm with the lower courts opinion and will not write an actual opinion. § In theory, the point is that the law raised is so well settled that a further writing is not necessary. § In reality, there are so many appeals it would slow down the system or be completely impossible. o Under Rule 9.330(a), An attorney may write an attorney certification statement, which is the attorney asking for a written opinion anyway. § The attorney does this for a better chance of success in appealing to the Florida Supreme Court. o The Florida Supreme Court may review a PCA when there is additional writing and not just a PCA, and if there is an attorney certification statement. Constitutional Standing – The PL has a stake in a controversy sufficient to obtain judicial resolution of that controversy o If there is no standing requirement, then the court will just issue advisory opinions. § The Federal Supreme Court cannot do this, and the FL Supreme Court can only do this if asked by the Governor or Attorney General. o Three steps for federal standing § Injury in fact (To PL) § Causation (DEF Caused Injury) § Redressability (The Injury can be fixed) You need this for the Federal Courts to hear appeals from FL State Courts. o FL Test for Standing is unclear. § Sometimes it uses the federal requirements. Article V, Section 15 Attorneys; admission and discipline – The supreme court shall have exclusive jurisdiction to regulate the admission of persons to the practice of law and the discipline of persons admitted. o When submitting bar application, you are waiving your right to privacy. o You have no right to not sign or turn over confidential information if you want to be admitted to the FL Bar. o This is not governmental intrusion because this is not government action. o Additionally, it is a privilege to practice law, not a right. § An applicant is choosing to apply. Article VII – Finance and Taxation A. Introduction Article VII, Section 5 – No estate or inheritance tax o No estate tax, inheritance tax, income tax. § State depends on sales tax and property tax. 26  Article VII Section 1 – The legislature must pass a bill to spend money, the Governor cannot spend without it being appropriated. o Must have a balanced budget each year. Article VII, Section 19 – In order to raise or create taxes (and eliminate) the law in the Legislature must pass by a supermajority. This is 2/3 of both the House and Senate. o Must be single issue bill. o This only applies to state taxes. Not county or municipal taxes. o No extra fees either, a fee is a tax. The state cannot deficit spend, there must be a balanced budget each year. o The legislature must set aside 5% of revenue each year in a “rainy day” fund until the funds principal balance equals a cap of ten percent of net revenues in the past fiscal year. o State revenues exceeding the cap must be returned to tax payers. o This limitation may be overcome by a 2/3rds vote by the legislature, through a single-issue bill after a 72-hour cooling off period. o State and Local government can take out loans. Corporate Income tax is limited to five percent of net income tax unless 60% of the membership of each chamber authorizes a higher amount. Three ways for the government to raise revenue o Taxes o Fees for licenses or permits; and o Issuing debt instruments. § Bonds are the primary debt instrument. A bond is a promise to pay a sum of money at a designated maturity date, plus periodic interest at a specified rate on the face value. § Full Faith and Credit Bonds and local bonds backed by taxes must be approved by the electors of the issuing entity. § Revenue bonds may be issued without a vote of the electorate. § Once the government decides to issue bonds the bond issue may be challenged by the state in a bond validation proceeding. Article VII bans mileage taxes, exempt certain property from taxation, and create procedural prerequisites for bond issues. o In FL we have: Sales taxes, estate tax, excise taxes, etc. B. Homestead Tax Exemption Ad Valorem Taxes – A property tax. We have these in Florida. o Millage Rate – A mill is 1/1000th of a currency unit. § 1 mil is $1. § Take value of property and multiply by.001 and that is your property tax rate. 27  § The Homestead tax exemption applies to the value of the home. Whatever the value of your house is, reduce it by the tax exemption amount, then multiply by.001. Vehicles, boats, airplanes, trailers, trailer coaches, and mobile homes cannot have ad valorem taxes levied upon them, only a licensing fee. o All other property is able to be taxed under an Ad valorem tax. Homestead Tax o In order to qualify for a homestead tax exemption, the property must: 1) Be located in Florida; 2) Owned by a natural personal; and 3) Be the owner’s actual principal residence. o A property that meets these requirements is given a tax exemption of $25,000 off of the value of their property. This shields the first $25,000 of assessed value of the owner’s house from taxes. § You must apply for homestead. o This does not mean you do not pay up to $25,000. It just means the value of $25,000 is taken off of your property. § Ex. Your home is worth $125,000, the house would be taxed at $100,000. o The Homestead exemption increases to $50,000 for homes worth $50,000 and $75,000. § The Second $25,000 does not apply to school taxes. So, for your house, you would only get the $25,000 exemption. § Ex. House is worth $100,000, you get $50,000, so the house is $50,000, but you need to pay school taxes and the credit does not apply to that, so you only get the $25,000 exemption. Meaning your home would be valued at $75,000. Save our homes act – State law limits the annual increase in the assessed value, not market value, of homesteaded property to 3% or the Consumer Price Index (CPI) whichever is less. o The increase in value of your house is capped at 3% or the CPI whichever is less. A Homestead only stops being a homestead when: o The owner stops being a Florida Resident; o The owner stops using the property as their principal residence; or o The property is sold. Another benefit of homestead is a creditor cannot seize your house. C. Article VII, Section 9 – Ad Valorem Taxation by State, Local and Special Districts State does not have Ad Valorem Tax power, only the local governments and maybe the special districts do o May be authorized by general law to levy other taxes, except ad valorem taxes on intangible personal property and taxes prohibited by the Constitution. 28  Ad valorem taxes – State cannot levy, counties and municipalities can, Special district can if they are allowed by the state legislature D. Article VII, Section 9(a) – Local Government – Other Taxes than Ad Valorem: The General Law Requirement for Ad Valorem Taxes Article VII, Section 9(a) Local taxes may be authorized by general law, and not special law. o The state wants to make it difficult for tax laws to be passed, in order to keep taxes low. E. Article VII, Section 3 – Municipal Property Article VII, Section 3 exempts municipal property from Ad Valorem Taxes. o In order to be exempt, the property must be: § owned by the municipality; § exclusively used by the municipality; and § serve a municipal or public service. The Legislature cannot make a law that violates the ownership and exclusivity requirements of Article VII, Section 3. o Such portions of property as are used predominantly for educational scientific, religious or charitable organizations may be exempt from taxation by general law. o Governmental-Governmental – If government owned, and government operated, it is tax exempt. o Governmental-Propriety – The government owns it, but it has other propriety interests. § If it for the community it is tax exempt § If for a private entity it is not tax exempt unless: it falls under a special category: educational scientific, religious or charitable organizations. o A municipality owning property outside the municipality may be required to make payments to the taxing unit in which the property is located. Counties may: o Tax; o Make and enforce laws; o Take private property and appropriate it for county use; and o All powers of local government not inconsistent with state law. Sovereign Immunity – protects a government or state from being sued or prosecuted without its consent. o Government often waives sovereign immunity and allows lawsuits. o Florida and Florida Counties have Sovereign Immunity. City and Local Governments raise revenue from: o Ad Valorem; o Bonds; 29  o Sales; o Fees; o Any other law allowed by general law. Article VII, Section 9 Limits the maximum mils at 10. o Ad Valorem Taxes are capped at 10 mils. F. Article VIII, Section 1(h) – The Real and Substantial Benefit Requirement for County Services Within a City Article VIII, Section 1(h) restricts counties and municipalities from levying taxes on services that have no connection with the municipality. o Prohibits double taxation. o The tax must have a “real and substantial” connection with the municipality. § Real and Substantial Benefit – There must be a minimum level of benefit, not illusory, or inconsequential. § The burden of proof is on the people objecting to the taxes. The town must prove the negative – the service provided does not provide a real and substantial benefit. G. Article VII – Bonds i. Bonds Bond – A financial instrument issued by a government to generate funds. The government asks for money from investors and in return pays back the bonds plus interest. o Must be used for a public purpose. § The court is highly deferential to legislative intent. If the bond is payable for fees, and not tax revenue, the court will usually allow it. Article VII, Section 11 – State Bonds; Revenue Bonds o (a) Full Faith and Credit Bonds – Issued by the state, with the promise they will pay back citizens. In order to issue bonds, it must be approved by the voters. § Not backed by revenue, backed by taxes o (b) Revenue Bonds – A bond the state will pay back from other sources than taxes. The state does not need to be approved by the voters. o (d) – Revenue Bonds may be issued without a vote by electors to finance or refinance the cost of a state fixed capital outlay projects authorized by law, and purposes incidental, and shall be payable solely from funds derived directly from sources other than state tax revenues. § When the project is paid for by a source other than tax revenue, no vote is needed for the issue of the bond. A vote is needed if it is paid for by tax revenue. o (e) Bonds may be used for to finance or refinance the acquisition and improvement of land, water areas, and related property interests and resources for the purposes of conservation, outdoor recreation, water resource development, restoration of natural systems, and historic preservation. 30  Article VII, Section 14 – Municipalities and special districts may use bonds, when authorized by general law by the state legislature, to control pollution and other water facilities. o Article VII, Section 15 – Revenue Bonds for Scholarships Bonds o Article VII, Section 16 – Bonds for Housing and Related Facilities o Article VII, Section 17 – Bonds for Transportation Projects Article VII, Section 10 – Pledging Credit o The state may not become joint owner, stockholder, give tax power or credit to aid any corporation, association, partnership or person. ii. Local Government Bonds Article VII, Section 12, Local Bonds o Special districts with taxing powers may issue bonds payable from ad valorem taxes. o The projects must be approved by vote by the electors of the jurisdiction. o No referendum is required under Article VII, Section 12 when there is no direct pledge of the ad valorem taxing power. iii. Is the Bond Allowed The bond cannot be based on an involuntary action o Ex. Port Orange imposing a bond that was actually just a toll tax by taxing residents for the use of their roads, even without the use for the roads. Three Part Inquiry in Every Bond Revenue Case: o 1) Does the public entity have authority to issue the bond? § Look at the constitution; laws; ordinances. o 2) Is the purpose of the Bond for a public purpose? o 3) Does authorization comply with the applicable laws? o If it complies with these three, the bond is valid. H. How Can They Tax? The 1968 Constitution Capped taxes on intangible personal property, such as stock certificates, at two mills of the assessed value. Article VII, Section 4 – Taxation Assessments – By general law regulations shall be prescribed which shall secure a just valuation of all property for ad valorem taxation Taxes do not need to be uniform across counties. Counties can levy different tax rates State cannot equalize county taxes o Separate counties, separate appraisers o Counties also provide different services, that require different taxes. o Ex. School taxes, house appraisals/as valorem taxes. 31  I. Fees and Assessments The imposition of a fee or assessment by ordinance, in absence of a legislative charter preemption (a rule against doing so), is within the constitutional and statutory home rule power of municipalities and counties. o Municipalities and Counties may impose fees or assessments by ordinance. If the state does not prevent it. o Fees must be "just and equitable" and must be clearly restricted for the related use, not for other unrelated purposes. § Ex. A fee for water and sewage that goes to maintaining the water and sewage of a municipality. o Fees do not need to be authorized by law, like taxes are. Article VII, Section 9 allows municipalities and counties to levy ad valorem taxes. § Fee – any charge or payment required by law, including any fee for service, fee or cost for licenses, and charge for service. o Fees can earn a profit, a modest surplus over costs does not invalidate fees. A valid special assessment requires: o 1) the property assessed must derive a special benefit from the service provided; and § To determine special benefit: Whether there is a logical relationship between the services provided and the benefit to real property. o 2) the assessment must be fairly and reasonably apportioned according to the benefits received. § If the benefit is general, it is not valid to adopt a special benefit. § Funding a fire department would be a special benefit due to the benefit of the lower insurance costs to residents, and the increase in value of the home/property. § A special assessment is like a fee, but must include the aforementioned requirements. Article X – Miscellaneous and Article II General Provisions A. Original Miscellaneous Provisions i. Article X, Section 4 – Homestead Exemptions Three Benefits of Homestead: o (1) Protects against forced sale o (2) Exemptions from certain taxes o (3) Restrictions on alienation or devise The Homestead Exemption in Article X, Section 4 provides an additional benefit for homestead property in the form of a relief from forced sale. You cannot be forced to give up your home, even if there is a judgement or lien placed against it o Unless: § (1) If it is for paying your taxes; § (2) It is for an improvement to the home; or § (3) For other obligations related to labor on the property. 32  Homestead property may not be seized because of criminal activity. o The Homestead exemption is to protect the family and provide for it a refuge from misfortune, without any requirement that the misfortune arise from financial debt. § If homestead is outside the municipality, up to an acre and a half is protected. o The Homestead protection is available to any Natural Person. This continues after death, without regard to whether the homesteader’s heirs are dependents or not. Specific; General; and Residual Devises o The homestead property passes to the residuary devisees, not the general devisees, unless there is specific testamentary disposition ordering the property to be sold and the proceeds made a part of the general estate. o The homestead can be specific of course, as long as the owner devises it to someone in their will. When there is an unambiguous term in the Constitution or legislation, the court must follow the term o If it is ambiguous, the court will look to the intent of the legislation. § Ex. The intent of the homestead protection against forced sale was not just dependent children, but all natural persons. o If no intent can be discerned, look at context of Constitutional provision/legislation. o Expression of one thing does not exclude others. § Ex. Homestead Provision applies to Spouses and dependent children. But court says it applies to any natural person. The legislature may provide more protection than the Constitution of Florida does, as long as the statute enacted by the legislation does not contradict the Constitution of Florida. Article VI – Campaign Finance Article VI, Section 7 – All elected officials and candidates must file full and public campaign finance disclosures Article VI, Section 8 – There are campaign spending limits and funding of campaign for elected state-wide office o Governor and Lt. Governor get $2 per voter o Cabinet gets $1 per voter. § Can only loan your campaign $25,000 of own money § Your political party only can give you $250,000. § A campaign can only receive $250 per person. 33 Article VIII Local Government I. Basis of Local Government Authority in Florida Article VIII, Section 1(a) Counties – The 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. o Counties spend tax revenue by general law. o Each county has a board of commissioners that is comprised of 5-7 members. II. Article VIII, Section 1 – Counties Florida Counties are either Charter or Non-charter o Charter Counties have all powers of self-governance not inconsistent with general state law, or with a special law approved by the voters. § A charter county may enact ordinances not inconsistent with general law. § When a charter county’s ordinance is in conflict with a municipality ordinance the municipality ordinance prevails, unless ordinance has to do with environment, land use planning, ethics, or transportation improvements. When there is conflict, look to the charter and it will tell you which governments ordinance prevails. § County Commissions require open and notorious meetings. County Commissions are subject to Florida Sunshine Laws. § A county charter is created when it is written by a commission and adopted by the voters. Charter is changed by referendum vote by voters. § Article VII, Section 9 Local Taxes – Counties may be authorized by general law to levy other taxes, for their respective purposes. So, the tax revenue must go to the reason for the tax being passed. o Non-Charter Counties have such power of self-government as is provided by general or specific law. § Non-Charter counties govern themselves only as the state legislature allows them to. o No matter which type of county the county is, state laws preempt county or municipal laws if the laws are inconsistent. § Ex. State bans smoking inside, Broward could not pass an ordinance allowing smoking inside. Top 3 Local Government Tax Revenue Sources o State/Federal Funds o Ad Valorem o Fees 34 III. Article VIII, Section 4 – Transfer of Powers from Municipalities to County Article VIII, Section 3 Consolidation – o The government of a county and the government of one or more municipalities located therein may be consolidated into a single government which may exercise any and all powers of the county and the several municipalities. § The municipality must cease to exist entirely. If not, it is not consolidation, but a transfer of powers. o The consolidation must be made by special law, and approved by voters by referendum. Article VIII, Section 4 Transfer of Powers – Counties and Municipalities may transfer powers of their respective government by approval of voters of both the county and municipality. o Services are being transferred. Regulatory preemption is not a transfer. IV. Article VIII, Section 1(g) – Charter County Preemption of Municipal Authority Section 1(g) gives charter counties the ability to self-govern not inconsistent with state law Section 4 is in conflict with 1(g). Section 4 governs the transfer of powers. 1(g) seems like a transfer of powers, but is not. o Charter counties under 1(g) may pre-empt municipal ordinance. Charter counties do not need special laws to act and simply must not be inconsistent with general law. o Section 1(g) permits regulatory preemption by the counties over the municipalities; while section 4 requires dual referendums to transfer function or powers related to services. § Thus, Dual referendums required under section 4 are only required when the county preemption goes beyond regulation, and instead intrudes upon a municipalities provision of services. § Ex. Broward regulated guns in the county. The City sought to pre-empt these laws because there was no referendum vote in the city, only the county. But this ordinance had to do with regulation, and not services. V. Article VIII, Section 1(h) – Limitation of Taxing Authority Over County Property Ar