Nature of Fla Constitution 1. Constitution is the people’s document a. All amendments and articles are ULTIMATELY approved by the people b. Article 1, § 1 creates inherent power within the people 2. Constitution is a source document, therefore the best place to look when construing the constitution is the constitution itself 3. Florida Constitution only limited by the Federal Constitution 4. Fla Constitution lays out a. What the governmental entities are b. Definition of governmental powers within these entities c. Defines the role of state officials and sets up limitations on their functions and powers d. Identifies which issues are of priority to the people of Florida i. These have been determined to be environment and education e. Sets up the financial structure 5. State Constitution is a LIMITATION on the power inherent in the people vs. the federal constitution which was the granting of powers inherent in the American people a. This comes from the states relying on the commerce clause to determine which issues they were able to regulate 6. Articles of the Constitution a. Declaration of Individual Rights: Article I and scattered throughout b. General Provisions: Article 2 and 10 c. Legislative Branch: Article 3 d. Executive Branch: Article 4 e. Judicial Branch: Article 5 f. Elections: Article 6 g. General Taxing Powers: Article 7 h. Local Governments: Article 8 i. Education: Article 9 j. Amendment Process: Article 11 7. 1968 Revision Commission – this is the current form of Constitution a. last comprehensive revision to the constitution was done in 1998 (33 revisions adopted as a part of 9 portions of proposals) Constitutional Construction 1. Fundamentals of Construing the Constitution a. What is the proper interpretation of the constitution? i. First place to look is the Constitution. Look at Art X, §12. The only phrases that help is “herein” refers to the entire constitution, and that you cannot rely on “titles and subtitles….” 1. But these don’t even help that much. We need the actual intent at the time it was drafted or the general purpose of the framers. b. Framers of the Constitution and Construing the Constitution i. When construing constitution must look at both intent of legislature (people who drafted it) and the intent of the people who voted for it. (Keep in mind the people who voted for it get a very limited view. They don’t even get the actual languagethey get ballot language.) 1. Literalist-looks at the language. Purposivist-looks at the underlying purpose. Scalia is literalist. Stevens is purposivist.
1
a. Literalist is more reluctant to use canons of construction to leave the language whereas a purposivist will more easily jump from the explicit language 2. Tools to Construe the Constitution a. First tool is to look at the explicit language of the provision…. i. If unambiguous then language enforced as it is written and no other resource that needs to be utilized for construction b. If there is ambiguity…then use the canons of construction i. Peter v. Meeks – 1. each department has inherent power to complete the functions within the orbit of that department ii. Fla Society of Ophthalmology --1. used Art V ∫3 (b) (4) – question of great public importance to get jurisdiction 2. Constitutions should be interpreted more or less liberally than statutes: Constitutions receive “a broader and more liberal construction than statutes” 3. Constitutional provisions should not be construed so as to defeat their underlying objectives a. This requires the court to determine the underlying purpose 4. Judge Erlich said that the materials which are available to the public would be important – ie the records of the Constitutional Revision Commission to determine purpose a. He uses this to show that it would be an absurd result to determine that bills submitted on the 59th day do not get the normal 15 day review entitled due to the craziness of session iii. DEP v. Millender is then in direct conflict with prior case. 1. This case says that “less latitude is permitted when construing constitutional provisions because it is presumed that they have been more carefully and deliberately framed than statutes.” 2. Constitution must be construed as a whole so that both provisions will stand out and have effect a. If the provision is inconsistent with the entire document then the provisions must be construed in harmony with the entire document i. This so that evils were prevented 3. Construction of the Constitution is favored which gives effect to every clause and every part thereof iv. NOTE: Fla Society decided in 1986 and DEP in 1996 therefore DEP should rule, but both sides can be argued before the Court v. Greater Loretta Imp. Assn: 1. when the Leg passes a statute to give a particular constitutional provision a particular meaning, then there will be will be great deference given to the legislative interpretation a constitutional provision means 2. this case arose from the question of whether there could be charitable bingos even though the LEG had passed statute stating that there could be no state run lotteries vi. Service Insurance Co v. Chiles 1. Construction is not scientific and the rules are contradictory
2
2. Outcome of the construction will be determined on the tools determined to be used…but the first step is ALWAYS determining whether the language is ambiguous!!!! 3. Self Executing provisions a. These are provisions which can be executed without any further legislative action for implementation i. Important for construction purposes to determine if the provision is self executing b. St Johns Medical Plans v. Gutman i. Test to determine if provision is self executing is: 1. Does the provision lay out a sufficient rule or purpose which it gives or is intended to accomplish may be determined a. If rule present than speaks for the entire people and self executing…need for implementation will be apparent based on the plain language ii. When applying the test: Look to see if the rule fails to lay out specific procedural guidelines. c. Jim Smith Sec’y State v. Coalition to Reduce Class Sizes… i. Art XI ∫∫3, 5 describe how to get initiative petitions onto the ballot (one way to amend the constitution) 1. Neither provision requires a fiscal statement ii. Legislators are able to pass statutes which are related to the self executing provisions, but it must be necessary for ballot integrity and for what is on the ballot 1. ballot summary and title are things that go to the integrity of the process, but not fiscal impact statements – the Court did not try to diminish the importance of an informed voter…just felt these statements did not go to the integrity d. Advisory Opinion to the Governor – 1996 Amendment 5: i. Art 4, ∫ (1)(c) gives the Governor the ability to request an advisory opinion of an interpretation of the Constitution from the SC…provided that the provision deals with his duties 1. he wanted to know if the provision was self executing a. it was not because it did not lay out sufficient rules of how to implement – how to assess the damage of the pollution and how to prosecute the polluters 2. and what “primarily responsible” meant so as to determine how much and if the alleged polluters should be held for their actions a. here use the plain dictionary meaning b. but also say it is not self executing and thus they do not know how the situation should be handled b/c the LEG has not handled it yet e. Barley v. SFWMD i. Basically said here again that Art 4, ∫ (1) (c) is not self executing and requires LEG action f. NAACP v. Fla Board of Regents i. Art 9, ∫ (2), which had given power to the Board of Regents to watch over the university system, was abolished and then the FLBOE and SBOE were established through statutory measures 1. this made the law suit moot b/c it was alleging that the legislature had illegally delegated power to executive to abolish affirmative action
3
a. once BOE created by statute then all their power came from statutory means and there was no longer issue of power delegation
Separation of Powers 1. Art 2, ∫ (3) in FL constitution – lays out specific clause for separation of powers a. States that the government divided into exec leg and jud and no one from any of the branches shall perform duties from one of the other branches unless expressly provided for within the FL Constitution 2. NOTE: US Constitution does not have specific clause for the separation of powers a. In Federal Constitution it merely lays out what the powers of each branch are…does not include the last language stating that people may not exercise powers which are vested within other branches 3. State v Cotton: SC states that they have traditionally applied a strict separation of powers doctrine 4. State v Palmer: only time you have an issue with SOP is when you have exclusive powers a. This dealt with a lawyer who had been disbarred who was practicing law…the DCA determined that the language which stated that the Court had exclusive power to regulate atty’s dealt with admitted and admitting attys – not those which have been disbarred and no exclusive right to dismiss charges against the atty 5. Definitions: a. implied power: power that arises out of and is necessary to perform function expressly granted in the Constitution. This is not enumerated but exists b/c it is needed to carry out an express power b. Inherent Power: power necessary for execution of the branch’s core functions…can be expressed or implied…this type of power NECESSARILY derives from an office, position, status c. Exclusive power: power which may ONLY be exercised by ONE branch i. This is when you get violation of separation of powers d. Traditional power: power which has been exercised by a branch of government for a significant period of time e. Expressed Constitutional Power: Constitution specifies that a particular power will be exercised by one of three branches 6. Methods of Violation a. Unconstitutional Delegation of Power/Illegal Delegation i. BH v. State: 1. Art. 5, § 3 provides that when two DCA’s are in conflict with each other SC has jurisdiction over the matter. This is how they got jurisdiction here. 2. The power to define crime is a legislative function. The mere fact that the people who hold office create the Legislature gives them inherent legislative powers. These powers cannot be delegated 3. Art 1, § 9 states that laws must be drafted in a certain manner and only by the LEG. Therefore this is an inherent power of the LEG to ensure that all laws are created for the society to function correctly. Here, there were crime laws created by the executive, which should have been done strictly by the LEG. a. this is considered a violation of separation of powers by illegally delegating power ii. Askew v. Cross Key Waterways
4
1. Court is dealing with Art 2, § 4, and whether there was illegal delegation of power 2. The Court must be able to determine what the legislature’s intent was for the agency in the statute which delegated power to the agency…if not then there is insufficient criteria for Court review 3. When there is insufficient guidelines laid out by the LEG so that the agency nor the Court can determine what the LEG intent was, then the agency (exec) becomes the law giver and this is illegal delegation of power a. For an executive agencies actions to be overlooked by the legislature there must be proper delegation of power from the legislature re: the actions the agency should be performing iii. Eastern Airlines v. DOR 1. Court determined that because the States was merely adopting Federal standards already in use for the existing statute than this was not an illegal delegation of power a. The LEG was adopting standards for the Dept of Regulation which would have been extension of power, except they adopted standards which were already in place and did not create their own…the Court made a distinction here stating that adopting existing standards (even if by LEG) did not overstep boundaries iv. Chiles v Children 1. If the Governor has unbridled discretion of how to appropriate funds than this will be illegal delegation of power b/c it can give him the ability to keep $ in programs he likes and cut from programs he does not. Since the Legislature is supposed to be responsible for appropriating finds and this is where the illegal delegation of power problem lies. a. Also can lead to an encroachment on the power of JUD v. Perry v. State 1. The judge delegated to the PO to make factual findings re: losses of the victims so that restitution could be made part of the defendant’s sentence. This is an illegal delegation of JUD power onto the EXEC (PO) to make factual findings and enter into record and determine the amount of restitution reasonable. b. Encroaching on power of another branch of gov’t i. Bush v. Schiavo 1. The 2003 LEG overturned a final judgment by the Court to take out feeding tube. This encroached upon the inherent exclusive power of the JUD to give final judgments, therefore this is one of the greatest encroachments which can be done on the judiciary – another branch to overturn final judgments. a. If this were allowed than any person who did not like the outcome of their case could go to law making body – completely take away any power of the JUD branch. ii. State v. Turner 1. When the Court dismissed D’s charges after pre-trial intervention program was completed without the consent of the SAO this was an encroachment into the EXEC’s exclusive power to prosecute and of prosecutorial discretion. c. Placing restrictions or impediments on another branch’s ability to exercise power i. Jackson v. Dept of Corrections
5
1. LEG passed statute that required that is the inmate filing for habeas etc, had ever applied to be indigent than that inmate had to file copies of the petitions to the correct Court as a procedural step prior to ever hearing the case 2. The SC said this was encroachment b/c all of the paperwork was preventing the Courts from performing the inherent duties of hearing cases and doing their day to day duties 3. Also said that this was encroachment b/c (due to Art 5, § 2) the Courts have exclusive power to set out their own administrative procedures ii. Fla Senate v. FPEC 1. An inherent power of the LEG is to hold public hearings and make laws. When you tell them they cannot do that you are encroaching on the ability of another branch of gov’t to perform it’s functions. 2. The Court hs the right to review the final product of the LEG (Moffitt v. Willis) 3. Court stated that the LEG’s right to hold the hearings is more important than the right of the public employees in the union d. Exercising power in a manner not contemplated by the constitution i. State v. Bloom: 1. Criminal def tried for 1st degree murder. Based on evidence, the judge granted motion not to grant death penalty before the trial. Why would the state be so upset that the judge said before trial that he wasn’t going to grant DP. The reason is when you pick a jury in a DP case, the SA gets to “death qualify” the jury which means they get to ask whether or not they would be able to sentence someone to death if the evidence showed it. If someone answers no, the SA gets to kick them off the jury. 2. If judge decides up front, he is making a decision on how to prosecute the case and is therefore intruding on an executive function.
C. Legislature 1. Art 3, § 1: Inherent Powers a. Limitations on LEG: i. Not too many substantive limitations on LEG, most of them are on procedure such as how to adopt a bill. The only substantive limitation is in §11 where it limits what LEG can adopt by local or special law. b. Kelly v. State: i. Was the statute mandatory or discretionary? ii. Inherent power of LEG to lay out schemes for sentencing and enhancements of sentencing, even though the sentencing of criminals is actually performed by the JUD branch. Even if designing these schemes limits judge’s power, it is not violation of SOP 2. Art 3, §2: Qualifications for membership a. Harden v. Garrett: i. Language of Constitution that said: “each house shall be the sole judge of the qualifications, elections, and returns of its members.” ii. SOP requires that the JUD refrain from deciding a matter that is committed to a coordinate branch of govt by the demonstrable text of the constitution. (Also, court does not want to get involved in political issues.)
6
i. Each branch is given the inherent power to decide their own procedures, therefore it is a violation of SOP if another branch attempts to dictate procedural rules for them 2. 3. Quorum and Procedure a. Quorum = ½ membership +1 = majority b. Moffitt v. Willis i. SC had jurisdiction based on Art 5, § (b) (7) – if the case will eventually come up to the Court, they may take it from the circuit crt directly ii. Art 3, § 4 gives the LEG the power to interpret and enforce, waive their procedural rules as they see fit for them to conduct their inherent duties. Speaker of the house was charged with having secret meetings in violation of Constitution 1. this does not mean merely to initially develop the rules, but also to modify as necessary to accomplish their needs iii. It is the final product of the LEG that is reviewable by the JUD…NOT their procedural rules or how they enforce them c. State v. Kaufman: i. Deft’s atty trying to find trafficking statute unconstitutional and challenged that the bill had not been read properly into record when passed ii. A Court may use the legislative journals to determine if the statute has been duly enacted because the journals are considered the official record. The journals are the only record that are superior in dignity to the statute itself (which are prima facie valid). A statute may only be impeached by showing a clear violation on the face of the journals. 1. Exceptions: a. Legislative journal created in fraud b. Can use parol evidence to show when the action was actually taken if the actions were taken by LEG after it seems to be a duly constituted legislature, but apparently valid on the face of the journals 4. Art 3, § 5: Investigation and Witnesses a. Hagaman v. Andrews i. § 2, and § 5 seperately grant each house the power to investigate..thus exclusive power of the legislature to subpoena witnesses for conducting investigations. ii. Governor calling a special session which does not include the issue of the investigation does not limit the power of the LEG to investigate iii. While the JUD or EXEC may not interfere with the investigation power of the LEG, the JUD may ensure that individual’s rights are not being stepped on during the investigation process. b. N. Fla. Woman’s Health v. State i. Right of privacy issue dealing with minors – relied on the “whereas” clauses to determine it was a compelling state interest and it is being met in least intrusive means ii. Can the Courts base their determination of a compelling state interest on LEG fact findings or is this something the Court must do their own evidentiary hearing? 1. normally the JUD has to give way to the LEG findings unless they can find there was insufficient investigation done…otherwise the JUD will agree with the fact findings of the LEG
7
2. J. Pariente says that the JUD should have a role in determining the compelling interest issue 5. Art 3, § 6: Form of Laws a. Definitions i. Logrolling – gathering of unrelated matters in one bill in order to gain support for the entire package ii. Home rule – the ability of a county or municipality to act without authorization of the legislature, but still cannot act inconsistently with State law iii. Special law – laws which act within a limited geographical area or to a particular person, or thing, rather than a whole class of persons or things b. Title Requirements i. Smith v. City of St. Petersburg 1. Primary purpose for testing the sufficiency of the titles is to prevent logrolling 2. Title meets constitutional requirements as long as it places a person on notice as to what will be in the body of the text and makes the person want to look further into the text 3. If the title is sufficiently broad as to not connect it to the body of the text…then it will fail the title requirements 4. Only the “subject” need to be expressed in the title, not “object” or “matter” c. Revisions required to Set Out in Full Revised Provisions i. If you directly amend or repeal a statute or a particular portion of an statute then you must lay out the new and modified statute to be read in full ii. But if you indirectly repeal or amend (by affecting the amendment which initially amended the statute) then there is no requirement to read the bill in its entirety 1. If the amendatory act merely amends the old law by intermingling new and different provisions or by adding new provisions so as to create out of the old act the new, when taken together, a complete act and leaves it in such condition that the old act must be read with the new to determine its provisions and meaning, then the act is amendatory of the old law, and the constitutional provision requires that the law so amended must be inserted at length in the new act. You shouldn’t have to peruse the statutes to find out what the act means. d. Single Subject Requirement i. State v. Thompson 1. Test to meet single subject is whether the subjects are logically and naturally connected 2. Here there was no logical connection between career criminal portion of the statute and the domestic violence portions 3. Reasons for single subject requirement is 1) to prevent logrolling, 2) prevent fraud, 3) to fully inform people of the subject of the legislation 4. Almost all statutes challenged on single subject grounds which fail have the entire statute struck down ii. Franklin v. State 1. CURRENT STANDARD TO DETERMINE IF SINGLE SUBJECT REQUIREMENT HAS BEEN MET 2. Requirement for Single Subject: a. Must embrace only one subject b. This may include any matter properly connected with the subject
8
c. The subject must be briefly expressed in the title 3. To determine the subject: you have to go see what the legislature says the subject is…this is why the subject must be expressed on the title (short title) and then each issue in the bill is looked at to see if it is naturally related to the subject in the short title. a. The legislature is given great deference here and lots of leeway in determining what the subject is 4. To determine if properly connected – Must be naturally and logically connected and you may look at the purpose (can help you determine why LEG is casting a particular act). The subject of an act may be broader than the purpose a. Object: a purpose to be promoted by the act b. Purpose: broader than object, there can be three r four purposes within one Subject 5. If the short title is too broad then look at the remainder of the act and the legislative history for determination of a single subject violation iii. Environmental Confederation v State 1. Purpose was protecting the Everglades. Subject is environmental protection 2. Judge Wolf stated that you must give deference to the LEG purpose for enactment when determining whether a statutory enactment has only one subject. a. Here the limiting permits 3. Failure of the LEG to expressly state a goal will not result in the legislation being violative of the single subject as long as that matter may be logically and naturally connected to the subject iv. Enterprise Leasing 1. Identification of Purpose: a. If one can look at the face of the bill (title of the act) and determine the purpose, the LEG does not have to specifically lay out the purpose e. Window Periods - Curative consequence of Continuing Statutory Revision i. State v Johnson 1. Def window period – time period in which a person may challenge a statute…period is from the EFFECTIVE date of the law until the law is readopted at the biennial period a. Readoption now occurs every year, used to be every two years 2. For a person to challenge under the window period they MUST be able to show that they are effected by the adoption of the law during the window period, but do not have to file during the window period a. (Trapp case) 3. Fake answer for the window period is that it signifies the period when the statute has become codified and thus the public becomes on “notice” – therefore unable to challenge statutes anymore ii. State v. Trapp 1. For the window period to close the entire statute must be re-adopted, not just amendments re-adopted in portion
f.
Article 3, § 10 and 11: Special Acts
9
i. General: 1. Art 3, § 10- must give reasonable notice of a special law (reasonable” defined in statute). Referendum may also be used to make special act effective. a. This reasonable notice is why we care if the law is special or general!!!! 2. Art 3, § 11 – cannot have other subjects outlined in the special laws – special acts relate to purely private matters 3. Population Acts: general laws of local application – only apply in certain areas of the state. They are identified by “in areas with population less than 300,000.” a. In order for these types to be valid there must be a reason for the classification AND the classification must be an open classification 4. Special and Local are interchangeable – means a law which is not a general law 5. General Law is one of three things a. Operates uniformly throughout the state b. Acts uniformly upon subjects as they exist within the state c. Acts uniformly within a permissible classification. Classification must be reasonably related to the purpose of the statute 6. Special laws are used when a. There is a specific problem in a specific area b. Problem may not exist in other areas c. Want to limit something to your own area ii. City of MIA v. McGrath 1. Statute dealt with the ability of a county to charge ad valorem taxes. The classification was based on the population size and the fact that the city had been in financial distress in the last two years. 2. Ad valorem taxes are based on the value of the property you own and is determined by an assessment by the government 3. Non ad valorem taxes may ONLY be imposed by GENERAL law. Therefore this statute was struck down b/c it was considered to be a special law which had a classification based on population. iii. Rowe v. Pinellas Sports Authority 1. Any person who resides in the city or county asking for a bond is eligible to challenge it and the city or county must give notice of the bond. Important b/c you get ONE chance to challenge a bond. 2. Case states that special law (more specific) trumps general law – this has NEVER been overruled!!!! a. There is a case which is coming up which does appear to state the opposite however… 3. Special laws are not prohibited from authorizing use of a tax, just the authorization of a tax!!! iv. Schrader v. Florida Keys 1. this was a law that was treating a part of the state differently from the rest. 2. Court held the law to be valid – this was b/c a special law is valid if the purpose of the statute is of statewide significance and classification is reasonably related to that. g. Appropriations Bills: Art 3, §12
10
i. General structure of the article: 1. Budget process is important because all issues need to have funding, it’s also a way reward and punish people to keep them in line. It’s how the LEG keeps the EXEC in line-but remember line item veto. It’s also how LEG keeps JUD in line. 2. §12: single subject provision relating to approps bill. There are different subject and veto provisions when talking about approps act. 3. Approps bill has to pass-only one that must pass. No program gets funded without it. Constitution provides for it 4. §8. In all bills except approps bills, Gov must veto entire bill. If he vetoes a specific appropriation, he cannot veto the proviso language. He is required to veto the appropritation if he vetoes the proviso because otherwise he would be deciding where the money goes. 5. Art VII, §1c: we do not operate on a deficit-we have a balanced budget 6. §19b: structure of approps bills a. 72 hour waiting period: meant to make everyone look at it before they pass it b. Difference between general revenue and trust funds. GR can be used for anything, trust funds are used for particular projects. c. Budget stabilization fund: used for emergencies like hurricanes or economic downturn 7. Art IV, §1: Gov is CAO of the state. 8. Art IV, §13: revenue shortfall. The chief justice for JUD, the Gov will come in with a plan for how to reduce spending, but LEG decides how money is to be spent, but must be in accordance with planning documents. 9. §19b: the Gov can use line item veto for a specific approp in a substantive bill. 10. Taxation budget reform commission: meets every ten years to review all items relating to the budget and makes recommendations that can be put on the ballot to amend the constitution relating to the budget. 11. Test whether proviso is valid: must be reasonably related to the expenditure. Must be truly meant to be a contingency on how the LEG means for the money to be spent. a. Ex: proviso which says the funding for school nurses is contingent on that they do not hand out condoms. Probably not valid-looks too substantive. What if they said they cannot spend the money on condoms? Probably valid. b. LEG has a right to decide what areas need the money the most ii. Department of Education v. School Board of Collier Cty 1. preexisting formula on how the money was supposed to be distributed . The LEG added more money and said where the money should be spent. LEG said it wasn’t a substantive change, they just decided the best place for the money to be spent. This formula was challenged on the basis that LEG was making a substantive change of the law in appropriations bill which was unconstitutional. 2. Court rejected the challenge that is was a change to substantive law and said that it was not a change in the underlying formula, it was still guaranteeing every county the same amount it got last year…the provision was just trying to assign extra money 3. Distribution formula IS considered substantive law
11
iii. Gindl v. DOE 1. Case deals with an underlying funding formula relating to school district cost differentials 2. When they knew that the amended form would not pass, to try and prevent changing substantive law to get the perceived outcome (which would have occurred if they had changed underlying formula) the LEG tried to tack it on the approp bill. iv. DOE v. Lewis 1. Proviso said that in order to get state funds you cannot knowingly give assistance to orgs that are advocating sexual activity 2. A restriction or qualification upon a proviso must be rationally related to the appropriations or else it is not a valid restriction – here it had nothing to do with the approps, therefore invalid 3. But, DOE did not have official standing grounds –if you are responsible for implementing a law you may not challenge the law based on it’s inefficiency.. only AG office and Comptroller have standing in this capacity 4. This proviso violates Art 3, § 12 b/c it does not pass the test put forth by Brown v Firestone – b/c the proviso changes substantive law on secondary institutions a. Substantive matters have a different level of scrutiny which is why they are kept out of the approps bills – to be scrutinized separately and more comprehensively h. State Budgetary Process; Art 3, § 18 i. Generally 1. Art 7, §1: “no money shall be drawn from the treasury except in pursuance of the appropriation made by law” 2. §216.011(1)(b): “appropriation” means a legal authorization to make expenditures for specific purposes within the amounts authorized in the appropriations act. 3. §216.011(1)(c): “appropriations act” means the authorization of the LEG, based upon legislative budgets or based upon legislative findings of the necessity for an authorization when no legislative budget is filed, for the expenditure of amounts of money by an agency, the judicial branch, or the legislative branch for stated purposes in the performance of functions it is authorized by law to perform. 4. §216.011(1): “proviso” means language that qualifies or restricts specific appropriation and which can be logically and directly related to the specific appropriation 5. “specific appropriation” means the smallest, identifiable, integrated fund which the LEG has allocated for a specific purpose 6. Art 7, § 1(d) - Provision shall be made by law for raising sufficient revenue to defray the expenses of the state for each fiscal period. 7. Art 3, §8: GOV may veto any specific appropriation in a general appropriation bill (GAA), but may not veto any qualification or restriction without also vetoing the appropriation to which it relates. BUT-there is another constitutional provision which allows the GOV to veto approps in general law. ii. Brown v. Firestone: 1. Generally, citizens DO NOT have standing to challenge the gov’t expenditure. This case carved out an exception where if the objection
12
was based on an constitutional provision, they do not have to demonstrate injury. 2. Remember, the Governor may veto any specific approp in general approp bill, but may not veto the restriction or qualification without vetoing ANY approp that was related to the proviso 3. If the JUD determines the LEG proviso to be illegal, then the EXEC veto becomes immaterial. But if the JUD looks first to the EXEC and determines the veto to be constitutional, then the legality of the provision becomes immaterial – this leaves the need in each case to look at both the legality of the veto and the proviso 4. Test for validity for proviso: a. Must not change existing law on any other subject other than appropriations b. Must be directly and rationally related to the purpose of the appropriation 5. Gov’s Veto Power: a. Veto power is intended to be negative and not to alter or amend the legislative intent b. A specific appropriation is the identifiable amount which the legislature has given for a certain purpose – this is the smallest amount that is dealt with for the line item veto and veto power c. If the legislature wants to have power to control how the funding will be handled they need to approp smaller designations of money for very specific objectives to be pursued under a larger purpose – BUT this gives the Governor much more line item veto power within each approp category i. Therefore, if the LEG wants to ensure that the money does not get vetoed, they can keep it in a large sum, under general purpose (eg 50,000,000 to DOC) without allocating down the components iii. Martinez v. Fla Legislature 1. Legislature used a statement of intent to further describe how they wanted the appropriated funds to be used. Statute § 216.181 gave them this power. The Governor then attempted to veto certain portions of this appropriation based on the description found in the summary. 2. The statement of intent may not allocate of appropriate any funds or amend the original provision = it can only be a recommendation to the Executive Office of the Governor on how to spend the funds 3. If the funds had been directed under the GAA, then the Governor would have had right to veto the funds. But the LEG got around this by issuing their desires for how the $ be spent through a statement of intent. 4. Statements of intent are not binding law, thus the veto power does not apply to them – only to the actual appropriations bill. The GOV cannot veto “working papers” or “statements of intent”. iv. Fla House v. Martinez 1. Governor cannot estimate what he thought the proviso was tied to and then veto that amount a. If the approp bill has not broken down the money into smaller items, the Governor does not have the power to appoint someone to
13
calculate how much a particular item he would like to veto would amount to 2. But, a veto is valid if it is mere subtraction of a real number in the approp bill from the total amount allotted (rather than estimation of the proviso amount and substracting) 3. There must be a specific appropriation in the bill for the Governor to be able to veto that money a. If he does not agree with spending money in a certain portion of one of the areas, but the money was divied in lump, then to veto must veto the entire sum of money 4. Governor has the option of vetoing expenditures, not where they came from a. The third veto was not considered valid because the GOV did not like that the money was coming from taxes and thus tried to veto this v. American Bankers Insurance v. Chiles 1. This was a certified question to the Court: Given the requirement of Art 3, § 19 (f) (1) that no trust fund be created except “in a separate bill for that purpose only”. May the LEG include within a bill creating a trust fund all items that relate to the purpose, administration, and funding of the trust fund, or should the bill creating the trust fund be limited to those matters logically indispensable to the trust fund’s creation?” 2. 1st DCA took two positions as to appropriate test of whether the single subject had been violated a. Wolf: to make it more difficult for the legislator to create the account and thus make the funds more accountable by subjecting them to a detailed appropriation process and detailed planning i. This view was upheld b. Webster: All you need to create the fund is to refer to the creation of the fund. Only need the language “I hereby create the trust fund” and there is no scrutiny into why it is being created 3. The SC’s rationale was that if you went with Webster’s rationale then the LEG would only need a 3/5’s vote to create a trust and not to administer it or fund it. SC says the purpose was to apply 3/5 vote administration both to the creation of the trust and for the substance of the fund – its purpose, administration, and funding. i. Legislative Reapportionment: Art 3, § 16 i. Generally 1. Reapportionment is done based on the Census every 10 yrs 2. Accomplished by Joint resolution instead of by law a. Must be passed by both houses of LEG, does not have to be signed by the GOV i. If cannot be passed by an agreement in form of a JR then the SC comes to an agreement. This does not violate SOP b/c it is an express power within the Constitution b. Lays out the number of people for each branch of the LEG c. Senate is 30-40, Legislature is 80-120 ii. In Re Constitutionality of HJR 1987
14
1. Reapportionment per se is not unconstitutional, so Court can only deem invalid if it violates one of the other constitutional provisions 2. Court only reviews facial validity in order to fulfill the “one man, one vote” principle a. Look at size of the Districts b. There is an ideal populous for each District as long as there are only minor mathematical deviations (less than 10% difference b/t largest and smallest counties) than there is no violation of requirement 3. Second requirement is that the Districts be contiguous a. There must be a boundary actually touching at a point and the boundary cannot break away at any time. i. But here there was Palm Beach Cty – where you literally had to “walk on water” to stay on contiguous boundary lines and not consider going into Lee Cty iii. Fla Senate v. Forman 1. Court said they were not going to be more strict than the Federal gov’t on gerrymandering 2. but these would now be avoided by deeming a political question doctrine j. Mandates: Art 7, § 18 i. Generally 1. mandate is when a state gov’t passes down to municipalities and counties that they spend money 2. This becomes important where municipalities and counties do not have home rule 3. Mandate Amendment – prohibits the Legislature from passing mandates without proper funding a. This can be overridden by 1) showing there is an overriding State interest, and 2) having 2/3 vote of both houses of LEG i. Exceptions to this: If the mandate requires everyone to do something
V. Executive Branch-Article IV A. Executive: Art 4, §1 1. Overview of the Executive Branch: a. What is the same between this and Art III, §1? i. The grant of their respective powers. The grant of inherent powers. ii. Veto powers iii. Art III, §15 and Art IV, §5 lay out the qualifications for who can be a member of each branch b. What is different between this and Art III, §1? i. Why is the grant of powers for the LEG so much shorter than the EXEC? Because we kind of know what the LEG does and it’s hard to picture exactly what the EXEC does. 2. Thompson v. State: a. Appellant is challenging the investigative power of the EXEC, the legal authority of dept’s agents to obtain and execute search warrants and the constitutionality of the manner in which LEG granted the investigative authority.
15
b. Case discusses the inherent powers of the EXEC – two things that are included are 1) ability to initiate investigatory proceeding regarding public official, and 2) power to ensure enforcement c. The statute asked the GOV to grant the order. Was the delegatin of power from the LEG unlawful? i. Court said the LEG power is to determine what is a crime and what isn’t and it was the EXEC’s responsibility to carry it out. Thus the conduct Governor performed was not a violation of SOP b/c it was an inherent power in the EXEC arsenal - to enforce laws, LEG never had it to give away. 3. Green v. State: a. 10-20-LIFE statute is being challenged b. Appellant contended that the statute unconstitutional because it removed i. sentencing discretion from the court and ii. prosecutorial discretion from the EXEC. Prosecutorial discretion is also impeded because it limited their ability to plea bargain. c. Court said that prosecutorial discretion was not eliminated…the statute just forced prosecutors to use stronger discretion in certain instances. i. Prosecutorial discretion (ie the enforcement of the law) is a right inherent to EXEC and LEG just put reasonable limitations on it. 4. Chiles v. PSC Nominating Council: a. GOV had the right to make the appt in 1st 60 days to the PSC. If he didn’t do it within 60 days, the nominating council could select someone on its own. i. Governor said that the committee nominating members will infringe on his EXEC power. b. The court determined PSC is a legislative entity by looking at what the commission does (legislative functions of ratemaking) and through giving deference to LEG intent at time of creating PSC (stated was to be legislative function) i. The LEG has legal authority to determine how its members are selected, therefore the PSC (being an entity of LEG) can choose its own members. B. Executive Department; Appointments by Governor: Article IV, §6 1. AHCA v. AIF: a. Claimed that AHCA was 26th department and its existence would have been unconstitutional. b. The test is whether an agency is “functionally related” to the dept i. Functionally related means: the function of that agency is the same of the functions and purposes of the dept. c. The court determined that the agency’s functional responsibility include the regulation of the health care activities in the state. AHCA regulates hospitals and people that provide healthcare. DBPR regulates doctors. Both regulate health care-therefore, they are functionally related. d. The 25-department rule is not very strong in light of this case. As long as it is functionally related, it’s ok. The LEG can create almost any body of people, have of them answer to the GOV, but have the body fall under another department through the “functionally related” test, thus getting around the 25 dept limit. e. Two more important concepts that come out of this case: i. As part of the responsibility of the LEG, they can create new causes of action. LEG being able to remove affirm defenses on its face is constitutional - That does not automatically deny due process. But when removal is applied may result in a violation of due process.
16
ii. AIF challenged Act as violative of their access to FL courts. 1. Court says the access to court action does not apply to affirmative defenses. 2. Jones v. Chiles a. Issue is reappointment of compensation claims judges. b. New statute: JNC determines if a judge is to be retained, if this determination made then GOV may keep him on the commission. GOV alleged that this took away the GOV appointment power. i. JNC sent 3 names to the GOV to fill the Workers Comp judges. Before the statute changed, the GOV would just pick from these 3 names. c. The court said it effectively eliminated his power d. Art III, §13-limits term of office to 4 years unless you go to Art IV, §6 which states the manner which people will be appointed to EXEC. IF you are a member of EXEC, you have to be appointed according to this provision. e. Therefore, the JNC’s power to retain these judges violated both of these provisions. 3. State ex rel Investment v. Harrison: a. Statutory amendment which allowed member of board of Professional regulation to serve at the pleasure of the GOV b. Issue was the statute violated Art III, §13 which states no office shall be created the term which exceeds 4 years, except as provided herein. i. Allowing someone to serve at pleasure of GOV. Court said this might be violative on its face, but must look as applied in light of the “except as provided herein.”language. ii. Art IV, §6b contemplates that there can be EXEC depts. Which can serve at the pleasure of the GOV. You are able to serve at the pleasure of the GOV under the Art 4, §6 language exception as long as you do not have a LEG function. 1. While it looks like you have a 4 year limitation, but Art IV, §6 says they can serve at the pleasure of the GOV, then the 4 year limitation does not apply. c. Court said it was not a board authorized to grant and revoke licenses, so they can serve at the pleasure of the GOV. If it had been, they had to have a fixed term subject to removal only for cause. C. Clemency: Article IV, §8 4. Glock v. Moore: a. Guy in line for execution. b. GOV initiated the clemency review. Filed for clemency based on the fact that there was new evidence. He claimed that racial profiling would have affected him being convicted. c. The guy said he was denied due process because his counsel wasn’t there. d. Court said EXEC power to grant clemency in the EXEC branch is totally discretionary and the courts are not going to second guess it. No denial of due process y not having an atty present b/c the discretionary power lies with EXEC and not JUD. D. Game and Fresh Water Fish and Additional State Departments: Article I, §§9, 11, and 12 1. Generally: a. The ability to have commission and appoint members is not a violation of SOP because this right is expressly written in the constitution. b. Commission must estab procedures to ensure due process. Before this language was added in 1998 CRC, they were not subject to APA. c. Allows LEG to enact laws in aid of the commission, not inconsistent and prohibits LEG from enacting special laws relating to hunting and fishing. Can only enact general laws.
17
2. Whitehead v. Rogers: a. State statute that says you can’t hunt on Sunday. A guy was arrested in violation of this. He challenged it because he held a hunting and fishing license. There was an FWC rule that determined when hunting season is. Issue was whether hunting season included Sundays. b. Court said as long as the rule is “reasonable” and you are “within the gamut of the jurisdiction” of the commission, the rule overrides the statute. c. This gives a lot of power to the commission. 3. Florida Dept of Natural Resources v. FL Game and Fresh Water Comm, 342 So. 2d 495 a. There was a previous law which transferred commission so that it nestled inside DNR, but in 1975 the LEG passed a new law that transferred it to DNR in its entirety. It was a Type I transfer which transferred personnel, planning, and purchasing power. b. Court agreed with trial court that it was unconstitutional under Art IV, §9 because the LEG could not give powers in entirety c. Holding: Budgeting power of the LEG could not be given to another state agency. LEG could put reasonable regulation but the commission couldn’t be subject to another department. 4. Caribbean Conservation Corp v. FWCC: a. 3 statutes that had to do with endangered threatened marine species. Was making the regulation subject to the APA. b. Nonprofit group said that FWCC should not be subject to the APA. i. Prior to the constitutional amendment it was the Game and Freshwater Fish Commission. Nonprofits argue that things that GFFC could regulate prior to the amendment could not be subject to the APA. c. They argued that the word “the” (highlighted in constitution) means that they have all the power of the state with regard to wild animal life and fresh water aquatic life and that is separated from marine life, so it is not applicable. d. Court said three groups had power over marine life, DEP, Marine Commission, and GFFC. So it was not exclusive power and the LEG had the right to make this subject to the APA. e. Powers exercised prior to the amendment are exclusive power and the LEG cannot mess with those. The language after the amendment is subject to regulation by LEG. See constitution notes for pre-1998 language and post-1998 language. VI. Judiciary-Article V A. Specific Provisions 1. Art V, §1 a. Vesting those inherent power relating to judiciary in SC, DCA, circuit court of appeal, and county courts. b. After this provision created, no other courts may be established by the state, political subdivision, or municipality. i. Before the 1969 CRC and before the establishment of Art V, we had about 300 courts because almost every municipality has its own court. ii. While the municipalities are prevented from having their own criminal courts outside the provision, they can create traffic courts c. The LEG determines judicial circuits. Does this mean that LEG can make new courts without asking the SC? d. Commissions estab by law, EXEC branch etc…may be granted quasi-judicial power. e. Allows for military courts 2. §2 a. This changed the ability to create JUD procedures from LEG to the SC
18
b. Important: notice the last sentence of (a)-rules of court may be repealed by 2/3 vote of the LEG – only way LEG can modify a rule enacted that they do not like is to repeal! c. Any judge that has been a member of the FL bar can be appointed to any court 2. 3. §3: jurisdiction of the courts a. SC has 7 judges, one from each appellate district. 5 justices constitutes a quorum, but 4 people must concur in order to have a decision. b. Jurisdiction of SC i. Mandatory jurisdiction 1. Death penalty 2. decisions from DCA finding a statute invalid/ unconstitutional ii. Statutory jurisdiction 1. Validation of bonds 2. PSC rate cases iii. Permissive jurisdiction 1. DCA declares valid a statute or construes the constitution 2. Affects a class of constitutional state officers 3. Expressly and directly conflicts with decision of another DCA or SC iv. Permissive jurisdiction (cont’f) 1. Certified question of great public importance 2. Two DCA’s are in direct conflict with each other’s decision. Generally, the SC will take jurisdiction over these cases v. Immediate pass through jurisdiction 1. Issue is of great public importance and requires immediate action vi. Question of law with no controlling precedent vii. All writs jurisdiction viii. All writs jurisdiction ix. Writ of habeas corpus-LEG has tried to restrict courts from hearing habeas corpus type cases, then the courts have said LEG may not restrict court’s ability to hear those cases. x. Initiative petitions to amend the constitution 1. AG will ask the courts to determine the validity 2. Clerks and marshals are provided for here 4. §4: DCAs: 3 judges and concurrence of two are required for decision. If there is a disposition on the merits, there must be a 3 judge panel and 2 must concur. If there is an administrative type dismissal, then only 1 judge is needed. a. Three types of jurisdictions in (b)(1)(2). This is the only court that has this breakdown of sources of jurisdiction. i. Constitutional jurisdiction from final judgments ii. Review of interlocutory orders. This jurisdiction is determined by the SC. iii. Statutory jurisdiction. b. (3) is habeas jurisdiction and writs 5. §5: circuit courts. a. Have original jurisdiction not vested in county courts. To see what kind of jurisdiction this is, look to §6. County courts have limited jurisdiction-only given by statute. Circuit court are also courts of appeal. b. There is no requirement that you have 3 judges at circuit court. c. Has jurisdiction to review decisions from administrative agencies. Usually they are only review of local administrative agencies and they are done by writ. 6. §9
19
a. LEG does not have to create any new judgeships. The LEG by simple vote can create anything less than what the SC recommends. However, if the LEG wants to create more, they must do it by 2/3 vote. If the LEG feels that SC did not certify enough judges, they can request the SC to return another certification. Interesting language: in order to create new appellate districts, the LEG must have certification by the SC. (remember the implementing bill from 2 years ago.) LEG has to request the SC to make a proposal concerning the new appellate district. If the SC fails to do that, then they can, by 2/3 vote, create the district without approval by SC. 7. §10 a. Appointment of appellate judges must be done by JNC. The makeup of the JNC is determined by the LEG. 3 members appointed by the Gov, 3 members appointed by the Bar and those 6 choose the last 3. The Bar makes recommendation to the GOV regarding their appts but the GOV makes final appointments. The JNC meets and sends 3-6 names to GOV and the GOV is required to choose from that group within 60 days. If he doesn’t, in the past, the GOV sends them back and the JNC met and sent new names. There is really no constitutional crisis. b. Retention of judges is determined by an election. Retention elections usually run about 70%, and the 1st district usually runs 60-65%. i. At the circuit and county level, two ways a vacancy is created: 1) LEG creates new judgeships. If they do this, the LEG has the right to say whether they are appointed or elected positions. 2) if someone resigns from office and it is in the middle of a term, then that is usually filled by gubernatorial appt. if it is close to the end of the term, GOV may still elect or can go to election. Appointment process is the same at district court level and SC level. If they have to run for election, judicial elections in circuit and county court are contested elections meaning people can run against the incumbent. These elections are supposed to be non-partisan. BUT the USSC in Minnesota v. White (a judge wanted to run as a Republican) canon prohibiting partisan support in a judicial election violated the first amendment. In this case, Justice O’Connor said if you’re stupid enough to have elections, then they have to comply with first amendment. In response to this, FL LEG put a const amendment to Art V gave county and circuits the option to either vote or appoint judges. Currently, they are voted in. It did not pass in any circuit-people do not want to give up their right to vote. There is a local option to do a ______ retention for any vacancy. Nominating commissions: only one case dealing with public records as it applies to their proceedings §12: a. Judges are still subject to impeachment, but main way to remove a judge is the JQC. The JQC is made up of 15 people: 6 judges, 4 Bar appointees, and 5 laypeople appointed by the Gov. Broken into two panels. One is the investigative panel-all proceedings in front of this panel are confidential. JQC are only supposed to remove a judge is if he is unfit for office. Their recommendations are persuasive and 90% of the time, the SC follows these recommendations. Other forms of discipline include reprimand, fines, §13: judge’s job is full time and cannot practice law during his judgeship §14: see Rose v. Palm Beach County. §16: §17: prosecuting officer has term of 4 years. Provision that SA may be authorized to prosecute municipal ordinances, but usually state statute. This is weird to be in Art V, because it is considered to be in the EXEC branch, but it is considered so close to the courts that they put it here. Same with PDs, below. §18:PD elected for 4 years, but may be part time depending on size of the county.
8. 9.
10. 11. 12. 13.
14.
20
B. Nature of Judiciary 3. Simmons v. Faust a. Circuit judge sat as a referee on a mediation panel. He dismissed the claim saying the statute did not apply to podiatrists and declared the statute unconstitutional. b. Constitutional validity is directly appealable to the SC. BUT, the constitution says the appeals must come directly from the trial court. This was a circuit judge not acting as a trial court because he was not determining legal rights of the parties. When a judge acts in a judicial manner to make a decision while not acting in his official judicial capacity the decision is not appealable. i. Here the judge made a decision while acting as a mediator, this was outside the official duties of his judgeship, and therefore did not give party right of appeal 4. Broward County v. LaRosa a. Broward County had an ordinance that gave administrative agency authority to make a decision determining racial discrimination and to order damages. The Local Board (admin agency) determined there was discrimination and awarded non-economic damages. Court said this should have been decided by a judge and jury. Art I, §22 gives right to a jury trial. b. Based on interpretation of the constitution the quasi-judicial admin agency did not have the right to make determinations which are judicial in nature…thus they cannot preside over the adversarial hearing of dispute and then award unliquidated damages for resolution. i. Court said an administrative agency conducts a quasi-judicial proceeding in order to investigate and ascertain the existence of facts, hold hearings, and draw conclusions from those hearings as a basis of their official actions.” c. In Contrast, Liquidated dmgs - dmgs determinable with exactness by an arithmetical calculation or by application of definite rules of law – may be determined by this type of body, or even by a hearing officer. There is nothing more here than applying an equation. 5. Verdi v. Metro Dade County a. Municipalities tried to bring municipal violations into county court because municipal courts were banished. But county didn’t give them any priority because they were trivial issues. So there were Boards set up to take care of these violations, but then they couldn’t get citizens to sit on Boards. Mr. Verdi violated 51 municipal ordinances and was fined by one of these municipal officers. Verdi challenged that the Board didn’t have the authority to issue violations b. Corut said sorry-the Boards were quasi-judicial and therefore had authority to issue violations. They were limited to look for a violation and impose fines. This applies the “listens to evidence, hears facts, and issues/penalizes a pre-determined amount (fines up to $500 per violation)” as what a quasi-judicial body does. i. Imprisonment and general liens have to be imposed by a court, not this kind of Board. No violation of SOP in this case. 6. Dept. of Agriculture v. Bonanno: a. citrus canker problem in 1984. there was a program by LEG to eradicate canker, but growers had to be compensated for the trees. State had to make an offer and if that claimant did not accept the offer, the option was to have an administrative hearing to determine amt of dmgs. There was a statute passed that created a rebuttable presumption as to the value of the trees. b. Court upheld the statute stating it was OK for an administrative agency to deal with this issue.
21
c. There are certain things where people have a right to a jury trial. In order to uphold the quasi judicial courts, the court has to determine that the right being affected was not the kind where you had a right to a jury trial. d. Dissent said that the right is against the taking of property which requires a jury trial. 7. Difference b/t courts and quasi judicial bodies a. Courts can hold someone in contempt b. Courts can hold jury trials, others cannot c. Courts can incarcerate people d. Courts can grant equitable relief without a statute e. Quasi judicial bodies must have appeal to court f. Courts are the only body that can grant non-liquidated dmgs. g. QJ can hold hearings, ascertain facts, draw conclusions, and grant relief as specifically provided by law. C. Judicial Power 1. Locke v. Hawkes a. Moffit v. Willis held that the court would not look to the internal process of the LEG, just the product. b. Also, It is a primary judicial function to review the final products of the LEG. The court said it is going to interpret the public records statute. Even if it is the LEG, the court has the inherent power to interpret statutes. c. Court said the statute didn’t apply to the LEG because it didn’t meet the definition. d. Now we have two cases that say LEG is not subject to public meetings and public records law. This spawned Art I, §24. Does this section change the holding of Locke? No, it doesn’t apply. i. Practical effect: JUD was allowed to make rules that would make exemptions from Art I, §24. Rule 2.051 Florida Rules of Jud Admin indicates what is exempted from public record law. So really, this is only effective for the EXEC and local govts. 2. Rose v. Palm Beach County a. This is a case based on one of the first police officers killed in the line of duty in palm beach county. b. The power to determine how much wages someone gets paid is duty of the LEG, not the JUD. c. SC said that it is an inherent power of the court because the court has a right to do whatever necessary to administer justice. In order to guarantee due process, court has a right to approve the expenditure of funds. d. Why did the court have a right to give people more money to get them to show up for the subpoenas? (they didn’t claim it was power under the subpoena power) i. Court said contempt power wouldn’t work because it is after the fact ii. Court said contempt power doesn’t work because it costs more money to imprision them for contempt than to pay them more money to come iii. Contempt power also doesn’t work because they are only imprisoning them for a day when they couldn’t afford to come. e. Is this limited to this situation? Courts say that they have the right, under limited circumstances, to appropriate funds to support the court system. f. Prior to Art V, §14 the county was responsible for costs for conflict counsel, interpreters, witness fees, court reporter fees, etc. the counties didn’t like that and got on the ballot an amendment Art V, §14 says that counties must provide buildings for PDs and SAs, but
22
3.
4.
5.
6.
7.
8.
everything else in state corut system is the responsibility of the state and the LEG is struggling to implement. Hoffman v. Jones a. Contributory negligence vs comparative negligence. b. Dist court reversed a SC decision trying to state comparative negligence. SC wasn’t happy: said DCA exceeded authority-in event there is a conflict b/t DCA and SC, supposed to follow the SC until the conflict is resolved. c. SC said they are not bound to contributory negligence by the statute b/c it is not part of common law. SC said even if it is common law, they can change the common law when great social upheaval exists. Does this mean people have to be rioting in the streets? Also said that rule of contributory negligence was created by JUD, not the LEG and so the JUD has the right to change it. Also, the main function of the JUD is to resolve conflicts. There are no more valid justifications for contributory negligence and, besides that, it just isn’t fair. i. But things that just aren’t fair are supposed to violate due process and if it violates due process, then they obviously have a right to overturn it. d. To create causes of action that were not recognized at common law is the job of the LEG. But since both comparative and contributory were referred to in case law prior 1801 then it had already been in existence just not being exercised. This is how they got around the SOP issue for “creating” COA. Jackson v. Fla Dept of Corrections a. There is no SOP here, b/c if person is going to be so litigious that it becomes extremely disruptive, preventing the Court from operating at full efficiency, the SC has the right to regulate the procedures which go on within the JUD branch – even regulating a client’s access to the Courts b. Pertains to access to courts as an individual right under article 1: is not absolute. c. Balancing test: individual rights vs. disruption to the court system Jean v. State a. SC has the right to stop litigants from filing frivolous litigation as long as they give notice. Subsequent cases have also said that DCAs and circuit courts also have that power if the litigants are so disruptive. Moakley v. Smallwood a. Generally, right to attys fees is usually a legislative prerogative or by rule of contract. However, in this egregious case, courts discussed their inherent authority to award attys fees against a party acting in misconduct. b. The court said it can’t do its job if it doesn’t have some authority to act in response to matters like this. Rilla White Foundation v. Migdal a. Court had two juvenile defendants and ordered an investigation into a childrens’ shelter on abuse allegations to ensure that the children were in a safe home. b. Court stated that the EXEC and Court have overlapping and concurrent power over matters relating to dependency and delinquency proceedings. Court does have power to investigate into exec agency-it talks about an inherent power to protect children. No violation of SOP. i. Next case shows that the Court may have extended a little too far with this case Sims v. State a. Guardians Ad Litem are appointed by the courts and are part of the judicial branch. A petition to terminate parental rights is brought by the guardian. So, essentially, a member of the judicial branch is initiating a case.
23
b. The Majority again said it had an inherent right to protect children and make the overlapping powers argument again-investigation and prosecution power not exclusive. 9. Olive v. Maas a. This one is percolating through the courts now. Goes back to fight b/t LEG and JUD over the death penalty. b. Death penalty cases were dealth with Capital Collateral Regional Counsel which was a state agency. GOV didn’t like this office so the regional office in north florida was disbanded and representation on these issues was dealt with by private counsel and the LEG put a limit on how much the counsel could receive for the work. c. Olive said it’s unconstitutional because he may put in $50K of work, but only get paid to the limit of $10K. d. Ct said that since it is responsibility not to declare statutes unconstitutional, they upheld the statutory limit, but courts can award more money if due process required. Court deemed it constitutional because the statutory amount can be exceeded and it was the inherent authority to grant adequate representation.
D. Article V, §2a: Rulemaking 1. In Re Fla. Rules of Criminal Procedure a. Put a time limit on the time a prisoner had to file for postconviction relief b. In civil cases, courts upheld the right for the LEG to set statutes of limitations. But they have also upheld the right for the LEG to set statute of limitations in criminal cases. c. Substantive right d. SC says since it is habeus corpus, it is within jurisdiction of SC. In habeas, is there a clear definition of what is substantive and what is procedural. e. See Justice Adkins’s concurrence: handout. 2. State v. Raymond a. SC’s latest pronouncement on this issue : rulemaking. b. Statute: first time you show up, you cannot get released. Second time you show up, you can get released. Basically, this just allows SA to get their stuff together. IS this a substantive or procedural issue? c. The SC said the criteria for right to be released was procedural. d. Bottom line is that the timing of when you are eligible for certain release programs is procedural in nature. The question of what criteria the court uses in granting release is substantive. 3. Allen v. Butterworth a. see Giddeon v. Wainright: i. FLSC adopted Rule 1 of the Rules of Criminal Procedure: mechanism for motion for postconviction relief. Items that could not be taken care of on appeal. Extraordinary items. Rule 1 was changed to Rule 3.850: Motion for Postconviction Relief-could be brought within 2 years of final order or appeal. b. Postconviction review in criminal cases is collateral review which means that they are not plenary (direct) appeals. They are not appeals of detail of trial like evidentiary hearings, etc which are dealt with in a direct appeal. These collateral matters started with Giddeon in 1963. The most common collateral matter is that the lawyer at the trial level was inefficient (see Strickland). These claims could take 10-12 yrs to resolve. Intent of the act was to expedite the process, regardless of result. c. Death Penalty Reform Act: said there is no reason to require the trial and direct appeal should be over before the collateral process starts. Says that trial judge should appoint an additional collateral lawyer to begin process of review in whether trial lawyer was effective.
24
If the trial lawyer was not effective, why not begin process immediately upon sentence of death. This was called “dual track.” d. Fundamental right of habeas corpus. The LEG cannot impose a time limit on the exercise of that right-issue came up on statute of limitations. Generally speaking, collateral matters are just collateral. It doesn’t mean they are not important, but it means that they are not direct. It’s interesting that since habeas corpus expanded collateral matter, somehow that turned into saying the LEG couldn’t impose statute of limitations. e. Separation of powers: whether LEG encroached upon the practice and procedure of Art V, §2. They don’t encroach on this when they impose statutes of limitation which is what they were doing here, but primarily due to the nature of habeas corpus, it is violative of SOP in this case. Act was declared invalid on SOP, as well as due process, and some other issues. E. Article V, §3(b): Supreme Court Jurisdiction 1. Jenkins v. State a. Looking at Art 5, §3b3 - In 1980, the language was changed from “directly conflicts” to “expressly and directly conflicts.” b. Prior to 1980, you could look at two majority opinions, the dissent in one case compared to majority in another case or could look at the record. After this opinion, you can only look at majority opinion if the DCA wrote an opinion-will not accept a per curiam opinion because it is not express. Court said the dissent does not rise to the same level of dignity as a majority opinion (p.505). 2. Grate v. State: a. SC said under Jenkins v State, they have no jurisdiction to hear an appeal which is based on review of a PCA (per curiam affirmed) opinion. i. The DCA must write an express opinion for the SC to have jurisdiction 3. Tippens v. State a. Two tiered concept: i. Must have jurisdiction. If jurisdiction is not established, SC cannot take jurisdiction. ii. Even where there may be conflict, SC has discretionary jurisdiction. b. SC’s jurisdiction over citation opinions. Court says citation does not give enough info to create a conflict. i. Citation opinion: these are affirmed or denied with citation to a case. ii. Cases in which SC can accept jurisdiction: 1. If the case cited to is a case that is pending before the SC OR 2. the case cited in DCA has been reversed or receded to by the SC. 3. If the case cited in DCA explicitly notes a contrary holding of another DCA. iii. Bottom line, you must have a maj opinion in DCA that somehow, on its face, creates conflict. F. Jurisdiction: Article V, §4 1. State v. Jefferson a. The LEG cannot take away constitutionally granted jurisdiction. b. Although the constitution grants appellate courts jurisdiction to review criminal appeals in the appellate courts, this constitutional grant does not authorize the LEG to impose restrictions on these jurisdictional powers. While constitutional jurisdiction cannot be restricted or taken away, it can be enlarged by the LEG in all cases where such enlargement does not result in a diminution of the constitutional jurisdiction of some other court, or where such enlargement is not forbidden by the constitution. c. Also must make sure that for there to be appeal right after trial that you preserve your objections. Only way not to lose them if they were not preserved is if fundamental error occurred
25
2. State v. Ratner a. There is a question what pretrial orders the state may appeal in a criminal case. The state has been looking for a way to appeal motion to suppress. FL SC, by rule, gave the state the ability to appeal motions to suppress. b. The trial court and county court said the evidence could not come in (based on a motion in limine). The DCA certified it as GPI. Meanwhile, LEG passed a statute saying the state may appeal motions in limine. Question was whether court had jurisdiction to hear it. c. In this case, the court said the jurisdiction under the Constitution, Art V, §4b1, has the authority to hear interlocutory orders is only established by rule. So, LEG doesn’t have the right to say state has the right to appeal motions in limine to DCAs. d. Court said, the DCA should, instead of dismissing the appeal, transfer the case back to the circuit court for that court to hear the appeal. e. LEG has the right to grant right of appeals to the state by law. However, interlocutory orders or initial motions must be by rule. f. THIS WILL BE DISCUSSED AGAIN LATER. 3. In the Interest of R.B., a minor child v. DCF a. Can a person appeal the LEG to review the termination of parents rights b. Court again said they cannot review this type of appeal 4. Grate v. State a. Can only look to the majority opinion to determine whether a DCA opinion is in conflict with another DCA opinion. G. Article V, §8: Residency On the day they take office, a judge has to be resident of that district. H. Article V, §11(b): Vacancies 1. Advisory Opinion to the Gov re: Appt or Election of Judges a. To retire under the Constitution, a judge cannot voluntarily retire, they have to be dismissed by the JQC. b. The judge in this case had MS and she wanted to leave. She was up for reelection and three people heard rumor that she was going to retire. The three people qualified for election. Gov appointed in Sept, the next general election would not be more than one year after he was appointed. c. Since the election process had started, GOV could no longer make the appointment. I. Article V, §12: Removal and Discipline of Judges 1. In re Inquiry Concerning Judge Ford-Kaus a. Prior to Nov 1, 1966, you could not be thrown out of office for conduct that you engaged while you were not in office. b. Subject matter jurisdiction: things that a judge does while sitting on the bench. c. Personal jurisdiction: continues on a judge for one year after that judge is off the bench. d. JQC investigates and determines probable cause. If they determine probably cause, they can bring charges with SC. There are two ways to go from here. 1) JQC can stipulate what penalty the judge gets. OR 2) JQC can hold a trial to make a recommendation to SC-findings of guilt or innocence have to be by clear and convincing evidence. As far as findings of guilt, if there is competent and substantial evidence that the JQC found clear and convincing evidence, the SC will follow. As far as the penalty, the SC gives deference to JQC, but SC is ultimately responsible for penalties. VII. Elections-Article VI A. General 1. Am Fed of Labor & Congress of Indus Orgs (AFLCIO) v. Hood
26
a. There is a system for provisional ballots for voters who show up to a polling place and are not on the voting roll at that precinct. State law provides with regard to provisional ballots, you must vote in your precinct. Otherwise you might be voting in races which you are not eligible to vote in and thus diluting the votes of people who went to the correct polling precinct. b. The court held that requiring people to vote in their own precinct was a valid provision. 2. Smith v Smathers a. Prior to 1978, you could go qualify to run or be a write-in candidate. But you had to let them know that you wanted to be a write in candidate by a certain time for the purposes of printing the ballots. In 1978, the LEG changed the law so there would be no more write in candidates. b. In this case, a person who wanted to be a write in candidate was suing to complain about it because he didn’t want to have to qualify. He challenged the statute based on the LEG exceeding their authority taking away his right to be a write in candidate. He challenged based on violation of Art VI, §1. c. The court found in the text, the right to vote for the candidate of their choice. The holding said there cannot be a complete elimination of the opportunity to be a write-in candidate, but write-ins can be subject to regulation. d. Question not covered in this case: does this apply just to general elections or to party primaries as well. B. Disqualifications: Article VI, §4 1. Cook v. City of Jax a. There were two people, one from Jax and one from Pinellas. City if Jax amended its city charter and Pinellas amended its county charter to incorporate term limits. To get into next election, they claimed that the term limit provision was unconstitutional b/c violated Art VI, §4. b. Look @ §4b. This is different than term limits for the GOV. 2. Johnson v. Gov. Bush a. Johnson sued to have felons’ voting rights restored. Challenged Art VI, §4a. Johnson sues under 14th amendment: equal protection clause and §2 of the voter rights act. Saying it discriminates on basis of race: higher percentage of blacks are unable to vote because they are felons. b. History: under the 1838 constitution, there was a provision that people who had committed certain crimes could not vote. c. 11th circuit 3 judge panel was in favor of Johnson and then on rehearing en banc, found against Johnson. They said that in 1838 when this provision was put in the constitution, blacks were not allowed to vote, so they were obviously talking about someone else. And although the 1838 had provisions which were put in there for racial animus, these issues had been cured by the 1968 Constitution. Therefore erasing the problems under the EPC. d. But there was some discussion that the government has an even higher role than just to “cure” the animus, but it actually has duty to remove the racial epithets from the Constitution completely. C. Campaign spending: Article VI, §7 1. Chiles v. Dept. of State, Div. of Elections a. Election Campaign Financing Act: if you voluntarily agree to limit your campaign spending, for the first $150K you receive in contributions from an individual, you can be matched 2:1 by the state. After $150K to ??? you get a 1:1 match up to a certain threshold. If you are a
27
candidate abiding by voluntary cap and your opponent doesn’t, for every dollar they go over the state cap, the state will match 1:1. b. In 1992, the constitution was amended to require that trust funds sunset after a certain number of years unless they are reenacted. The Election Campaign Financing Act TF sunsetted and the funding no longer existed in FL. c. Even though the TF did not exist, the court said the TF was set up to fund it, but if there was no money in the TF, the LEG had to appropriate money to cover it. They set up a framework for the LEG to appropriate money. 2. US Term Limits v. Thornton a. AK was sued over their term limits as applied to US reps and senators. b. Said states cannot add qualifications to be a member of Congress. 3. Division of Elections Opinion #0006 a. This controversy is created Art IV, §5b: If you have two people from the same party qualified for an election and no one from the other party opposing then the area must have an OPEN primary election so that people from all parties may vote on the candidate. b. But if there is a write in candidate, there will be a run off for the candidates in the same party and then there will be an election between the write in and the winner of the primary. VIII. School Districts-Article IX 1. Specific provisions: a. §1: two concepts i. Adequate provision ii. Uniform system of free public schools b. §2: state board of education. This provision has only been in the const in 1998. The state board of education prior to 1998 was the Gov and Cabinet. c. §4: two school districts may combine, school districts are non-partisan. Superintendent is generally required to be elected unless there is a referendum in the county pursuant to special law allowing the appointment. d. §6: State school fund: income derived from this fund shall only be used to support and maintain free public schools e. §7: Running of the state university system i. Was the Board of Regents and is now the Board of Governor’s. Had done away with the Board of regents b/c of the clash of power between Regents and local school boards (which had more clout) - did away with Regents and gave the Trustees power, now they are fighting with the local boards as well. Imposed the Trustees in order to have a unified front on education. 2. School Board of Escambia v. FL a. Court went through examples of what did not violate system of free pub schools. i. Places where they had tenure for teachers did not violate uniform system ii. Also the funding b. Court defined uniform system of free public schools? No cases. But see Art IX, §4a: provided for non-uniform number of school board members. Different number of members was justified by definition of “system” as “a complex unity of ….” See p. 570. Each school board could look different and have different goals, since the needs of each community vary. Could have different demographic, different number of people, but had to have a common plan to be a uniform system. 3. Coalition for Adequacy v. Chiles a. Programs not adequate to teach students English. Gifted, special needs kids not receiving adequate attention. School districts not able to carry out constitutional duty b/c of the LEG’s
28
limitations. The petitioners are not asking for any certain amount, they just want it declared inadequate so that LEG would go back and recalculate. b. Court said they could not declare it inadequate without usurping the LEG’s appropriation powers. i. To decide such an abstract question of funding, the courts would be required to subjectively evaluate the LEG’s value judgment as to the spending practices to be assigned tp the state’s many needs-education being one of them. ii. Absent a specific allegation of i.e. a county having low literacy rates due to lack of funding, the court says it will not decide such an abstract issue. c. There was a CRC after this case where they changed Art IX, §1 to add language to make it a workable standard. Words like “fundamental value” and “paramount duty” and “adequate provision” “efficient, safe, secure, high quality provision of free public schools” were added. d. Must really use money to provide for education of children. Court said new standards may result in litigation, but litigation was inevitable anyway. Language they used “fundamental values” rather than “fundamental rights.” If it was a fundamental right, it creates an action for damages. They just want people to be able to come and make the LEG to provide for adequate education. New language was not intended to change uniformity standards, only adequacy standards. 4. Simon v. Celebration a. Didn’t like education in Celebration, so they sued because they didn’t like the quality of education. The family said they were fraudulently induced to come. b. Art 9, §1 was not self-executing. There is no private COA against the school board for not providing adequate education. 5. St Johns County v. NE FL Builders p. 593 a. Dual Rational Nexus test: p. 593 b. St. Johns County school impact fees: see p. 593. Money was kept in trust to be utilized for new construction. If funds were not used in 6 years, the funds would be returned to developer or whoever paid them. Cannot let people opt out of tax just because they don’t have kids. Cannot opt out whole sections of the municipality. c. Funds collected have to be utilized to benefit where the funds were collected. d. By having an impact fee, it was seen as having a tuition for public schools and you can’t have this because it violates the provision “free public eduction.” Also violates “uniform system” because these schools would receive funding from impact fees as well as revenues from the state while other schools would only get revenues appropriated from the state.
IX. Local Govts: Article 8 o Two types: a. General local govts i. Municipalities-established by charter-see Art 8, §2 ii. Counties: these are broken into charter and non-charter. 1. Charter Counties has much more power than non-charter b/c they essentially can write their own “constitution” and the people have agreed to the manner n which the area will be run a. Any powers which have been placed in the charter - as long as does not conflict with State law – is constitutional/valid. b. This gives municipalities broad power to handle various areas in the way they have dictated.
29
o
2. Non-charter counties must go by what is that statute to define what their powers are. iii. Incorporated areas includes any area included within the city limits. Any area not in the city is called the unincorporated area and is governed by the county. iv. Counties are just arms of the state and provide local services based on state needs. See Art 8, § 1d b. Special districts: limited purpose govts created for things like mosquito control, water control, lightning districts, Reedy Creek improvement district. The municipalities and counties have broad powers of home rule. Through home rule the municipalities are given the power to maintain the area (roads, water, sewage, etc) and to regulate the area. But the LEG is still superior and can mandate the local govts or it can limit their powers in two ways: a. Preemption by constitutional or statutory provision – this means that the State occupies an entire field of revenue collection or provision of services to the exclusion of other governmental entities i. Express ii. Implied b. Conflict i. Only occurs in those situations where government not preempted ii. Two levels of govt can act within a certain area - but a local ordinance cannot conflict with a state statute. i. Test: does the local ordinance/mandate frustrate the purpose of state statute iii. Generally, local govts can adopt stricter requirements and can cover more types of behavior 2. “Municipal Purpose” – not restrictive term. i. Defined as “any activity or power which may be exercised by the state or its political subdivisions” §166.021 (2)
1. Non-charter county govt: §1f a. FL power corp vs. Seminole co: i. City had an agreement with FPC to upkeep the power lines on the right of way. The city passed an ordinance mandating FPC to move the lines underground and that FPC must bear the entire cost of this relocation. County was silent as to who should bear the cost. FPC said that they would relocate the lines to underground if the city or county would bear the additional cost. ii. PSC asserted that ordinance invades the exclusive authority for them to regulate rates conferred in § 366.04 1. this statute says that PSC preempts any municipalities desire to regulate iii. Court states that the municipalities cannot interfere [(“frustrate the purpose”) of FPC regulating the rates iv. The State’s power to regulate rates preempts the municipality from requiring FPC to put the lines underground-it frustrates the purpose. v. The preemption needs not be explicit so long as it is clear that the legislature has clearly preempted local regulation of the subject. 2. Charter county powers: §1g a. Cook v. City of Jax: i. This is a case of implied preemption.
30
ii. Counties are not authorized to put term limits in effect for constitutional officers. Art 7, §1d allows them to abolish them or change them, but not impose term limits. b. McLeod v. Orange County: i. Adopted an ordinance levying public service tax on purchase of certain things (electricity, telecommunications….) and wanted to fund certain projects with the public service tax. Chap 166-authorization for public svc tax for municipalities. They are trying to levy the PST to a charter county for an unincorporated area. ii. The most important part of case is charter county can act as municipality in the unincorporated areas. c. State v. Sarasota: i. One limitation we learned from Boca Raton v. Gid is that charter is a limitation (before home rule the cities and counties had to have huge charters in order to get power, after home rule, there are only charters covering very small areas, because they are a limitation.) Sarasota Co was a charter county with a provision that if there was a project over $1M that was funded from local tax revenues and funded for the use of bonds, there HAD to be a referendum. Sarasota wanted to fund a road project and wanted to issue bonds over $1M and wanted to use the gas tax. ii. To defeat the argument of the county, say Art VII, §12 says if you use ad valorem taxes, you already had a referendum. State law only requires a referendum if you are using ad valorem tax dollars and also says that gas taxes can be used for roads without having a referendum. So, the charter provision is inconsistent with state law. Also cannot frustrate the purpose of state law. 3. Municipal Home Rule Concepts: §2 a. Municipal purpose or County Purpose AND not inconsistent with state statute: (see diagram)
US Const.
Fed Stat
State Const
State Stat
Charter county
Non-charter county
municipality
31
Dotted line: municipality does not have to be consistent with county charter unless the county charter says so. c. Municipal purpose: Generally, the courts have been very wrong in their interpretation of what a municipal purpose is. d. Lake Worth Utilities auth v. City of lake worth: i. LEG created a special utility authority in city of Lake Worth which was independent util company to provide svcs. The city and the utility auth became at odds with each other. The city said they had home rule power, thus had authority to get rid of utility authority. So they sent the police in the middle of the night to change the locks at the utility auth. Said “except as provided by law” does not apply to any original powers, therefore only controllable legislation was only when they were doing vague things for municipal purposes. ii. Court said municipalities are still creatures of the state and cannot act inconsistent with the laws of the state 1. Municipalities cannot overrule the LEG. iii. Another rationale: utilities auth was not elective : see sentence in Art VIII, §2(b). He said if you have a general purpose govt with broad home rule powers, must be elected. He said that sentence did not apply to a limited authority. e. Boca Raton v. Gidman i. Cannot have an absurd result when interpreting ii. The major reason that Wolf wrote concurrence in Bush v Holmes is because of the highlighted sentence on p. II-26. iii. Court says just because you give some money to an institution doesn’t mean that the institution gets the benefit. iv. Test p. 30: 1. Whenever a municipality exercises a power, use this test: a. Was the action undertaken for a municipal purpose? b. If so, was that action expressly prohibited by the constitution, general or special law, or county charter? v. However, as long as you can find any valid benefit, the court will usually uphold it. vi. This case supports that the city can pretty much do anything the LEG can do. f. Basic energy corp v. Hamiltion Co i. they wanted to issue bonds to build a state prison in Hamilton co in the City of Jasper and a taxpayer argued that there is no municipal purpose for building a “state” prison. ii. Court said in a footnote that, if the city authorized the bonds and said that there was a valid municipal purpose, they probably could have been ok. iii. The valid municipal purpose was probably to create jobs in the city. This was held to be a valid public purpose, but not valid municipal purpose. g. State v. City of Orlando: i. $650 M worth of bonds. Orlando only needed $30M. ii. They issued the bonds for two other purposes. 1) Was that they could get low interest rate on bonds and they were going to loan money to other cities. And 2) if they can get a lot of bonds at a low interest rate, they can reinvest it at a higher interest rate-this is called arbitrage. iii. Court said here that making money is not a municipal purpose. Court did not want city competing with private lenders. h. City of Winter Springs
32
i.
j.
i. Court was asked if it is a valid municipal purpose to sell pictures of sinkholes. ii. Court said it was a valid municipal purpose because it was related to the history of Winter Springs and that documenting history and telling people about it was a valid municipal purpose. This decision may be contrary to city of Orlando, above. City of Ocala v. Noie: i. this may also be contrary to city of Orlando. ii. When determining blighted communities, based on Fla Stat, if you condemn land for right of way (partial taking) than the owner is entitled to severance damages which can be significant. But, if the city condemns the entire property, they avoid severance dmgs and sell off the rest of the property they do not need. iii. Because it was tied to a valid purpose of condemning right of way, then taking of private property was a valid municipal purpose. City of Venice v. Valente: i. city will mow lawns of landowners and then charge the landowners-would have to go to court and pay lots of attys fees to recover money from landowners. ii. Thus, they enacted an ordinance stating that they could collect attys fees if they had to go to court to collect compensation. (this was to create a statutory way to retrieve atty’s fees – can only be by statute or if in the contract) iii. Court said that since the City had to take these people to court to get the money, that the addition of attys fees clause was a valid purpose.
4. Dade County Consolidated Charter: §6e and §6f 5. Consolidated City of Jax 6. State Preemption of Local Govt Powers a. City of JAX v. American Env’l Svcs.: i. American wanted to site a hazardous waste facilities ii. Ch 403 recognized a need for hazardous waste facilities to be cited. iii. American challenged under state law iv. Court said city has right to pass restrictions related to haz waste facilities, but requiring a cert of need frustrates the purpose of state statute to site these facilities b. Brevard Co v. State Commission on Ethics : i. State statute said municipal or county or state emp’ee cannot work for a business that contracts with a govt’l entity. ii. Brevard passed an ordinance permitting paramedics who worked for county to contract with private entities iii. Ordinance was challenged: ordinance cannot permit what is prohibited by state statute. Court agreed and said it frustrated the purpose of state statute. c. FL power corp vs. Seminole co: (repeated from above) i. City had an agreement with FPC to upkeep the power lines on the right of way. The city wanted to widen the road which would cost a lot of money to FPC to move the underground lines, so they wanted to put it above ground which would be cheaper and wanted to change the type of lines. City wanted underground lines. ii. PSC: statute 366.04 that expressly preempts. d. Tallahassee Regional Medical Center: i. County was trying to resolve the problem that an ordinance conflicted with a state statute. 1. County ordinance sated that the hospital who received patients had to pay for the ambulance service of the patients.
33
ii. iii.
iv.
v.
2. But, this ordinance violated the already in place State statute dictating that the ambulance company must first look to the patient to pay ambulance fees. Since the ambulance area had been impliedly preempted by the state statute, the ordinance enacted was in conflict. Note: when dealing with implied preemption the JUD must be careful to when determining intent of the LEG, esp if the intent will preclude local government from exercising home rule powers There are two types of preemption: 1. Express preemption: obviously says what it has control over. 2. Implied preemption: there is nothing in the statute or constitution that says that the state is the only one who can regulate the city. a. Two requirements: i. Legislative scheme has to be so pervasive that no one else should be able argue ii. There must also be present strong public policy reason for implied preemption to apply. The scope of implied preemption should be interpreted narrowly-should only cover area where there is strong public policy for preemption to exist. This case stands for the idea that home rule powers are very broad unless you have preemption or conflict. There are two separate and distinct ways a local govt ordinance may be found to be inconsistent with state law: 1. If LEG has preempted a particular subject area. 2. In those cases where both the local govt and state have authority to legislate, the local govt ordinance must not specifically conflict with state statute.
7. Inter-jurisdictional conflict a. City of Ormond Beach v. Volusia Co: i. City passed an ordinance that said they are opting out of county impact fee II-38. Had to determine whether municipal ordinance was invalid. ii. Applied the test: Was action taken for municipal purpose? Court said it wasn’t. The cities opted out because they said it was not in the best interests – this is not a valid municipal purpose. iii. Anything in the county charter that said the county ordinances had control over the city ordinances. Still must perform the test for whether there is a valid municipal purpose for the municipal ordinance. 8. Constitutional Limits on Transfer of Power a. Art VIII, §1: talks about county charter amendments. All the voters in the county can approve the county charter-one vote counts for all people in the county (municipality and county included). The charter prevails in event of county and municipal ordinances. b. Art VIII, §4: transfer of powers. Transfer of power between city and county must have 2 votes-one in the city and one in the county. First, the vote of the transferor and then the vote of the transferee. c. Broward v. City of Fort Lauderdale: i. Court found a conflict between these two articles and had to reconcile them. They reasoned that if the “transfer of powers” was simply a “transfer of services” then there was no conflict. They also said it was merely a transfer of a regulatory power and therefore a countywide vote was not needed.
34
ii. This section is also limited to transferring power forever-so it doesn’t apply to limited contracting. 9. Special Districts a. Governing body is usually elected (by acreage) or appointed. The rationale is that most of the services being performed in the district are services that benefited the land and taxation was by acreage. Developers love them because they can control these lands for long periods of time because they can outvote everyone. b. Roach v. Loxahatchee Groves Water Control District: i. District was not a general purpose government, their main control was water management. ii. A legislative grant of power is limited to the needs reasonably necessary to ccomplish the goal of the LEG grant. iii. When a Special District is created by LEG grant, this does not give the District general police powers - only has the specific powers given to them by statute. c. State v. Frontier Acres Community Development District Pasco Cty i. Contended in this case that the statute which allowed the establishment of Frontier Acres violates the 14th Amendment b/c the Board of supervisors was to be elected on a one-vote-per-acre basis, not one One man, one vote concept. ii. But, Development argued that the statute creating the Frontier area did not operate under general governmental functions iii. USSC had previouisly held that “one man one vote” principal did not apply to special purpose gov’tal entities. 1. Chp 190 was held valid on this point. iv. But additionally, Ad valorem taxes must be authorized by law to impose. In order to utilize ad valorem taxing powers, you must get approval from the voters of the district. And comply with all requirements of Chp – there was no economic impact statement filed with Frontier – voters could not vote properly on the development – so the development ended up being invalid on this point. 10. Public Records and Public Hearings: Art 1, §24 a. Generally i. Art I, §24: public records and public right to inspect any record made in connection with public business. ii. LEG may pass an exemption by 2/3 vote of both houses. The public necessity for the law that the law shall be no broader than necessary to accomplish its purpose and the law related to exemptions shall only address the exemptions. You cannot logroll through public records or public meetings laws. b. 636 so 2d 111: i. Upheld a statute that all hearings ii. Right of privacy and public right of access iii. In Term of parental rights, the right to privacy controlled over public right to know. iv. Confidentiality: relation to constitutional rights c. Bd. Of Pub. Instruction of Broward Co v. Doran i. Definition of public mtgs: “all mtgs of any board or commission of any state agency or authority of any county, municipal corporation, or any political subdivision, except as otherwise provided in the constitution, at which official acts are to be taken are declared to be public meetings open to the public at all times, and no resolution, rule, regulation, or formal action shall be considered binding except as taken or made at such mtg.”
35
d. Town of Palm Beach v. Gradison i. Even if it is an advisory board of city govt, they are subject to public mtgs law. e. State v. City of Clearwater f. Neu v. Miami Herald Publishing Co g. Halifax Hosp Med Ctr v. News-Journal Corp. i. Court said it violated Art I, §24 because the exemption would have allowed bd of directors to close their mtgs while talking about strategic plans and the rule never defined what a strategic plan was. ii. In order to be exempt from public mtg, they must have stated why they are doing it and it cannot be broader than needed for the public need. h. State v. Knight: i. Grand jury testimony is exempt from disclosure by FL statute. The LEG passed a statute authorizing limited disclosure of grand jury testimony-to determine whether a person may be guilty of perjury. ii. The court found that 905.27 is not a confidentiality statute. 905.17 was the confidentiality statute. 905.27 was exemption from confidentiality statute opening more info to public. X. Local Govt Finance and Taxation: Article 7 A. Taxation and fees 1. Constitutional Principles of State Taxation: §1a a. Art. VII, §1: no tax shall be levied except in pursuance of law b. Tampa v. Birdsong: 1. Automobile dealers challenged city and comptroller regarding municipal ordinance levying taxes. Pursuant to city charter had a fee based on percentage of sale and someone challenged it pursuant to Art VII, §1. The licensing fee the city was giving does not give the city the power to assess a sales tax. Nor were any taxes that were adopted prior to the constitution grandfathered in. 2. Court said if you want to assess any tax other than ad valorem after 1968 constitution, it has to come from general law. The Court will strictly construe any ambiguity in the taxing laws against the municipality and in favor of the general public. 3. Statutes authorizing a municipality to tax are to be strictly construed, are not extended by implication, and not to be enlarged so as to include any matter not specifically included, even though said matter may be closely analogous to that included. 2. Ad Valorem Tax Principles: §2 a. Two components:: Taxable value: Art VII, §4: Appraisal on assessment of value. Tax assessor determines value as it exists on Jan 1st of each year on real and personal prop. That valuation is referred to as just valuation which is the Fair Market Value of the highest and best use. In most cases, it requires that it be the highest and best use that can be made on a piece of property (even if you are doing something different). 1. Assessed at Fair market value is what the willing buyer would pay a wiling seller for a piece of property. 2. After assessed, the assessor determines which exemptions are applicable. b. Millage rate: Commit the taxable value of all the properties within a city or county and then the entity determines how much money it needs to make to operate and then determines a millage rate.
36
1. A mil is $1 per 1000. the rate of the millage is in Art VII, §2 and §9. Major limitations are that the rate of millage must be uniform within a taxing entity/unit. 1. Exception: intangible millage can only be up to 2 mil. c. Three types of exemptions from ad valorem taxes: 1. Immunity taxation: property can never be taxed-applies to state and counties only. 2. Exemption means that if a property is used in a certain manner that it is exempt from taxation. 3. Limitation on assessments of property. i.e. homestead, save our homes act d. Rutledge v. Chandler 1. Tax that LEG passed was on alcoholic beverages based on a gallonage and type of beverage. Basically, the tax was $1 per gallon. Retailers challenged this tax based on constitutionality of Art VII, §1a imposition of an ad valorem tax. State cannot levy ad valorem tax on tangible personal property and alcohol was tangible personal property. 2. Court distinguished b/t direct and indirect taxes. Direct tax is imposed directly upon property according to its value – this is ad valorem. An indirect tax is a tax upon some right or privilege. Right of privilege being taxed was selling alcohol. 1. Ad valorem tax involves someone coming onto the property and determing value. There is no assessing here. It is based on the quantity. Court said this is not an ad valorem tax, more like an excise tax. e. Board of Public Instruction of Brevard Co v. State Treasurer: 1. Challenged on the basis that there was an indirect method of the state using ad valorem tax dollars 2. Statutes which provide for the local support of the community college, even if they were not monitored by the local boards, would ultimately not be considered to be in violation of Constitution as long as they were approved by the Board. This is b/c the taxes were going to local level to support activities which would have been taken care by the State. 1. The state required a millage to be used for its own responsibilities (to run a community college) which is in violation of the constitution. The Court said they buy that argument, but since the millage was being used for local purposes, albeit by the state, it’s ok. f. Galant v. Stevens: 1. Case challenged the constitutionality of the State’s power to create “municipal service taxing units” (MSTU’s) – 1. Can the State give a municipality the power to levy a tax upon unincorporated areas for the County providing “municipal services” without a referendum? a. Last sentence of §9b, when construed based on the intent of framers, gives the authority to the County to impose millage for special purpose services without a vote by taxpayers 2. Basically if you are only providing street lighting in one area, you only charge the people in that area. 3. Tax does not have to benefit the particular taxpayers who are paying a tax. This only applies to fees. 3. Ad Valorem Just Valuation and Immunities and Exemptions: §§3-4 a. Immunity to taxation is established by case law…NOT express language in const.
37
b. Exemptions: 1. See language in the const 2. LEG can only provide for exemptions that are in the const. 3. §3a 4. §3b: homestead exemption of households goods and personal effects. LEG is allowed to provide for more than these amounts, which they have. 5. §3c: for economic development c. §4 Assessments: 1. Assessed value = Save our homes value (SOH) – any exemptions owner entitled to 2. just valuation for all property for ad valorem taxation 3. supposed to be valued at 100% of highest and best use 4. §4a: you can be in a booming area for development and if you use your land for highest and best use, it might be $1000 acre. But if you use it for high water recharge, to encourage people to keep their land from being developed, this is a break on assessment so the land may be only assessed at $100/acre. d. Other Limitations on taxation: 1. (e) “Granny quarters”: assessed value which results of construction or reconstruction for a parent or grandparent of 65 or older, the total value for taxing purposes is reduced by the value of the improvement. It cannot exceed the total assessed value of the home or 20% or more than what the home is worth 1. Local government reassess the property after the addition and then reduces taxable value of the home by the amount that the addition is worth. 2. Other exemptions: 1. high water recharge 2. agriculture 3. Save our Homes a. Act which states that no matter how much your property goes up each year, once you have a base as your homestead the taxable base of your homestead can only go up 3% each year. Property has to be your primary residence. i. Government loses the ability to collect property taxes b. When people sell the home than the new base goes to the ACTUAL land value 3. Homestead 1. Same 10 mils: value = 100,000 – 25,000 exemption = 75,000. You can only be taxed on the $75,000.
Year 1 Year 5 Year 10
Actual taxable value 100,000 207,350 515,977
x 10 mil = tax 1,000 2,073 5,199
SOH value (3% cap) 100,000 112,500 130,475
x 10 mil = tax 1,000 1,125 1,304
4. Save Our Homes (SOH): §4(c)(1) e. When he is talking about assessed value, he means the assessed value (SOH value) minus any exemptions. 4. Homestead Exemptions: §6a
38
a. There are two homestead exemptions. The one in Art VII, §6 applies to ad valorem taxation. The other in Art X provides there shall be no liens on a homestead. b. A person who has legal equitable title to real estate and maintains a permanent residence or the owner or another natural legal dependent is entitled to an exemption under the FLa Const. Effectively, that exemption is $25K. Parties are only entitled to ONE homestead exemption. c. If someone is over 65 and has income of less than $20K a year, the county can issue another exemption of $25K. In addition, if someone is 65 or over and is terminally or permanently disabled, the county may issue another exemption for $10K. d. Art X: you cannot get at someone’s homestead. No other judgment or lien can be placed or foreclosed on a homestead property except for a mortgage and construction liens. e. Walter v. Schuler: 1. Case confirms the assessed value on a prop is the FMV, just valuation-what a willing buyer will pay a willing seller for a piece of property. “FMV” and “just valuation” are synonymous. 2. See p. III-24 for the seven factors in arriving at a just valuation. 1. Left hand column, end of second paragraph 3. in order for homestead to kick in must assess prop at 100% of value 4. Tax sales or foreclosures are not appropriate considerations when assessing value. f. Canaveral Port Auth v. DOR, 690 so 2d 1226 1. Different b/t immunities and exemptions – most important case!!! 2. Only people really entitled to immunities are the state and its agencies and the counties and people providing public education. Port authority did not fall within definition of state or agency of the state. 1. The closer the property is to pure governmental functions the more likely the property will be eligible for tax exemption 3. Municipality is only eligible based upon who is using the property and what it is being used for 4. Port authority was not using land in a matter which entitled them to immunity and so it was subject to taxation. g. FL DOR v. Howard 1. Latest case on assessments 2. LEG passed a statute which said that if owner challenges assessment of property appraiser and wins, the prop appraiser must use the just value from the previous year. Then the appraiser must give a reason why the appraisal was raised/will be raised the next year. 3. Statute does not limit the property appraiser b/c he only has to give a reason of why he is raising the property value. h. DOR v. City of Gainesville 1. Municipal exemptions 2. G-ville was upset with telecomm provider quality of service 3. Court said: as long as the municipality is using the property for municipal purpose there is no reason to define municipal purpose any less broadly than when we are talking about with home rule. AND telecommsvcs are a utility and municipality has the right to provide utility svc and therefore, the municipal prop was being used for municipal purposes. 4. 2nd argument: LEG could tax the mun an amount equal to the ad valorem in the form of a fee-gets around the constitution. Court said the LEG could NOT do indirectly what they cannot do directly.
39
i.
State, county, and school board property are all immune from taxation. Municipal property is exempt from taxation if it is used for a municipal purpose or if any other specific exemption. Immune property CAN be taxed if there is an explicit waiver by the state.
5. County Taxation of Municipal Property and Residents: Art 8, §1h a. City of St pete v. Briley Wild and Assoc. 1. County wanted to provide sewer svcs in unincorp areas. The pollution from the sewers doesn’t stop at municipal borders, though 2. court said it was beneficial to all residents and under Art VIII, §1(8), it need not be a direct benefit, but only a real and substantial benefit which is provided for the city residents. Not merely illusory, effemoral, or inconsequential. b. Palm beach co v. Town of Palm beach 1. it is not a test of equity, not framed in constitutionality. 2. For the City to become exempt it has the burden of proof that it does not get substantial benefit from svcs it is being taxed for. 6. Home Rule Revenue Sources a. Fees: general 1. Types of fees 1. Regulatory fees: can charge for the cost of regulation 2. Fees in exchange for services: direct benefits to users. i.e. utilities fees. 3. User fees 4. Franchise fees: right of way fee-if you allow people to use public lands, you can charge reasonable fee. 5. Growth fees: a. impact fees b. Special assessment: user fee. Limitation where the govt is providing a svc that directly benefits land. Govt can tax those benefited as long as their fairly apportion the cost. 2. Distinguishing fees from taxes. 1. Fee: generally no more than the cost to provide the service or cost of regulation. Fees provide direct benefit to those who pay for the services. The money collected for the fee actually spent on particular item/benefit it was selected for. Fee is generally voluntary. 2. Tax: not about fairness, all dictated by the language in the Const. 3. Tamiami Trail v. City of Orlando: 1. Orlando passes what they call a fee for trucks using the downtown area. The fee was so much per year for the 1 st truck and a smaller fee for each other truck that used it for a year. 2. It was challenged as being a tax not a fee. The Court says that while the city has the right to regulate traffic and have right to license fee for this regulation, these fees in now way reflected either the cost of regulation or the cost of any benefit provided by the city. Therefore it was an illegal tax. 3. “It is only in those cases where regulation is the primary purpose of a license or ordinance or statute that the exaction of a fee therefore can be especially referred to the police power.”
40
4. Court differentiated parking meters as a legitimate license fee to utilize the particular space because it's a reasonable rental value. 5. A toll would be a fee, not a tax 4. State v. City of Port Orange 1. The city of Port Orange said we can charge new residents impact fees for new roads, what about charging residence for existing roads with a transportation and utility fee? 2. They used a fiction saying each house has so many drivers driving so many miles. They tried to charge for the operation, maintenance and improvements to the local road system. The Court struck the fee down. On page III-73 the court talks about the definition of a tax and a fee. a. Tax: an enforced burden imposed by sovereign right for the support of the government, the administration of law, and the exercise of carious functions the sovereign is called on to perform. b. User Fees: charges based upon the proprietary right of the governing body permitting the use of the instrumentality involved 3. Part of the problem is there's a # of utility fees where a city or county requires people to hook up or use the service. The question is whether this is still a fee. 5. City of Gainesville v. State: 1. Utility fees will remain a fee even if it's not voluntary. Utility providers are allowed to make a profit. 2. Volutariness is not dispositive of whether a fee or tax b. Franchise Right-of-way Rental Fees 1. Alachua County v. State 1. Alachua County could not reach an agreement with the electric company over the amount of a fee. The Electric Company said they are mandating a certain fee that no way reflects the rental value or negotiated cost. 2. What nailed the county is on the bottom of III-77-78. The trial court made certain findings of fact. 1-7. 3. Every one of these went against this being called a fee. The Supreme Court not understanding that every city and county was relying on revenue from these utilities said this is a Tax not a fee for using the right of way. If it was a fee you'd have to show it was related to the reasonable cost of using that land for a particular purpose. 4. Supreme Court, without admitting they made a mistake in this case came up with the next case 2. Florida Power Corp. v. City of Winter Park 1. We meant what we said but if a city has an pre-existing agreement with an electrical authority, until they reach an agreement we're going to let them keep the original fee that they had. 2. Almost every city and county had an existing fee, so what they did was first give the electric company the upper hand and then gave it back to the city and counties. 3. Not sure this means a lot for tax vs. fees except the findings in Alachua County are a good way to determine a tax.
41
c. Impact fees 1. Dual Rational Nexus Test 1. Need for additional capital facilities as a result of the growth and population generated by the development; and 2. The amount of funds directly related to a particular need will be spent for the benefit of those people who have paid the fee. d. Special Assessments: 1. Special Assessment is not voluntary (difference between Use Fee) 2. People you charge get a specific benefit out of an improvement (difference between Tax) 3. If you are providing an improvement that goes directly to the benefit of property you can charge an assessment to the people being benefited. 4. Two prong test: 1. Has to be special benefit to the people being charged for the assessment 2. That the cost needs to be fairly apportioned to the parties based upon the benefit they received. 5. You can use this for fire protection because you get a benefit on your insurance policy. You cannot charge for EMT services in Fire Depts though nor for Police protection, etc. TAX FREE BONDS Public Purpose Predominant Public Purpose State Bonds: Tax Dollars Used Local Bonds: Ad Valorem Tax Used Revenue Bonds: State or Local Revenue YES YES YES YES
Referendum Required YES YES
Capital Projects YES YES
YES
YES
NO
Local Level: NO State: Yes unless Authorized by Constitution NO
Revenue Bonds: No public dollars used
YES
NO
NO
42
CONTRACTORS AND BUILDERS ASSOCIATION OF PINELLAS COUNTY et al., Petitioners, v. CITY OF DUNEDIN, OVERVIEW: Respondent city implemented an ordinance, Dunedin, Fla., Code § 25-71(c), which assessed costs of production, distribution, transmission, and treatment facilities for water and sewer, against parties who sought building permits or permits for water or sewer connections. This ordinance imposed the cost of building new facilities only upon new users and gave old users windfall at the new users expense. Additionally, there was nothing in writing to guide the use of the moneys collected via the assessment, and this undercut the legal basis for the fund's existence. The ordinance was therefore defective for failure to spell out necessary restrictions on the use of fees it authorized to be collected. Tax Law > State & Local Taxes > General Overview [HN4] A municipality cannot impose a tax, other than ad valorem taxes, unless authorized by general law. Tax Law > State & Local Taxes > Public Utilities Tax > General Overview [HN5] Nothing prohibits a municipality's making a modest return of its utility operation or certain portions thereof, providing the rate is not unreasonable. Tax Law > State & Local Taxes > Public Utilities Tax > Imposition of Tax [HN6] Unreasonable reliance on utility revenues does amount to imposing upon ratepayers unfair tax burdens. Governments > Local Governments > Ordinances & Regulations [HN10] Raising expansion capital by setting connection charges, which do not exceed a pro rata share of reasonably anticipated costs of expansion, is permissible where expansion is reasonably required, if use of the money collected is limited to meeting the costs of expansion. Here, it was not limited in that way. Governments > Local Governments > Finance [HN11] A revenue producing ordinance must explicitly set forth restrictions on revenues it generates, where such restrictions are essential to its validity. CITY OF BOCA RATON, FLORIDA, etc., Appellant/Cross-Appellee, vs. STATE OF FLORIDA, OVERVIEW: In an attempt to revitalize its downtown, appellant city considered constructing specifically enumerated improvements in the infrastructure. It planned to obtain a portion of the money to pay the cost from the issuance of bonds that were to be repaid from special assessments levied over a period of years against the property to be benefitted by the improvements. Appellee, the state of Florida, opposed appellant's effort to validate the bonds. The trial judge determined that appellant did not have legislative authority to impose the assessments and appellant sought review. This court reversed and remanded with directions that the bond issue be approved. The court concluded that the special assessments proposed by appellant did not constitute a tax that was prohibited by Fla. Const. art. VIII, § 1(a), because the properties assessed derived a special benefit from the planned improvements, and the assessments were fairly apportioned among the properties 43
that received the benefit, based on their assessed values pursuant to permissible appraisal methods. Additionally, the court ruled that appellant had authority to impose special assessments under its home rule power. Tax Law > State & Local Taxes > Real Property Tax > Assessment & Valuation > General Overview [HN6] A legally imposed special assessment is not a tax. Taxes and special assessments are distinguishable in that, while both are mandatory, there is no requirement that taxes provide any specific benefit to the property; instead, they may be levied throughout the particular taxing unit for the general benefit of residents and property. On the other hand, special assessments must confer a specific benefit upon the land burdened by the assessment.
SARASOTA COUNTY, Petitioner, v. SARASOTA CHURCH OF CHRIST, INC.,
OVERVIEW: Respondent churches filed a class action suit against petitioner county seeking to have a special assessment to fund stormwater improvements and services declared to be an invalid tax. The trial court invalidated the assessment as to respondents on the basis of their tax exempt status, and the appellate court affirmed. Review of the decision was then granted based on direct conflict of decisions. The court quashed the decision of the district court and concluded that the assessment was valid and authorized by the legislature because it applied to those that contributed most of the stormwater runoff requiring treatment, but not to undeveloped real property. The court further found that the properties assessed received a special benefit from the funded services, through the treatment of polluted stormwater contributed by those properties, and that the cost of the services had been properly apportioned. Tax Law > State & Local Taxes > Real Property Tax > Assessment & Valuation > General Overview [HN1] Although special assessments and taxes are both mandatory, a special assessment is distinct from a tax. Taxes are levied throughout a particular taxing unit for the general benefit of residents and property and are imposed under the theory that contributions must be made by the community at large to support the various functions of the government. Consequently, many citizens may pay a tax to support a particular government function from which they receive no direct benefit. Conversely, special assessments must confer a specific benefit on the land burdened by the assessment and are imposed under the theory that the portion of the community that bears the cost of the assessment will receive a special benefit from the improvement or service for which the assessment is levied.
Beneficiaries of special assessment [HN2] Although a special assessment is typically imposed for a specific purpose designed to benefit a specific area or class of property owners, this does not mean that the costs of services can never be levied throughout a community as a whole. Rather, the validity of a special assessment turns on the benefits received by the recipients of the services and the appropriate apportionment of the cost
44
thereof. This is true regardless of whether the recipients of the benefits are spread throughout an entire community or are merely located in a limited, specified area within the community.
Tax Law > State & Local Taxes > Real Property Tax > General Overview [HN3] A valid special assessment must meet two requirements: (1) the property assessed must derive a special benefit from the service provided; and (2) the assessment must be fairly and reasonably apportioned according to the benefits received. These two prongs both constitute questions of fact for a legislative body rather than the judiciary. A legislative determination as to the existence of a special benefit should be upheld unless the determination is palpably arbitrary or grossly unequal and confiscatory. A determination regarding the apportionment of benefits should be sustained if reasonable people may differ on the issue. The standard is the same for both prongs; that is, the legislative determination as to the existence of special benefits and as to the apportionment of the costs of those benefits should be upheld unless the determination is arbitrary.
COUNTY OF VOLUSIA, a political subdivision of the State of Florida, Appellant. v. The STATE of Florida, OVERVIEW: Appellant County of Volusia, a political subdivision of the State of Florida, challenged a judgment from the circuit court, which denied the complaint of the County of Volusia for validation of capital improvement bonds in the amount of $ 40,000,000, pledging unused revenues from regulatory fees and user charges to pay for the bonds. The Florida Supreme Court affirmed the order denying validation. The pledge of all available funds had more than a mere incidental effect on the exercise of ad valorem taxing power. It required a referendum under the Fla. Const. art. VII, § 12. The pledge of all available revenues, together with a promise to maintain the programs, would have had a substantial impact on the future exercise of ad valorem taxing power. The taxpayers of Volusia County had to have an opportunity to vote on the bond issue. Pledged so mush it had to be paid by taxes, so we gonna have a vote! Tax Law > State & Local Taxes > General Overview [HN1] Fla. Const. art. VII, § 12, provides: Counties, school districts, municipalities, special districts and local governmental bodies with taxing powers may issue bonds, certificates of indebtedness or any form of tax anticipation certificates, payable from ad valorem taxation and maturing more than twelve months after issuance only: (a) to finance or refinance capital projects authorized by law and only when approved by vote of the electors who are owners of freeholds therein not wholly exempt from taxation.
Governments > Local Governments > Charters [HN2] Fla. Const. art. VIII, § 1(k) provides: County Seat. In every county there shall be a county seat at which shall be located the principal offices and permanent records of all county officers. The county seat may not be moved except as provided by general law. Branch offices for the conduct of county business may be established elsewhere in the county by resolution of the governing body of 45
the county in the manner prescribed by law. No instrument shall be deemed recorded in the county until filed at the county seat according to law. Governments > Local Governments > Duties & Powers [HN5] Fla. Stat. ch. 138.09 (1981) requires the county commissioners to erect a courthouse and a jail at the county seat.
Governments > Local Governments > Duties & Powers [HN6] Fla. Stat. ch. 138.12 (1981) permits county commissioners to expand the geographical area of county seats without expanding the boundaries of the municipality named as the county seat. Governments > Local Governments > Finance [HN9] The pledge of all legally available, unencumbered revenues, that is, all revenues, other than ad valorem taxation, which the governing body has the authority to spend or pledge at its discretion calls into play the referendum requirement of the Fla. Const. art. VII, § 12 because it in effect constitutes a promise to levy ad valorem taxes. STATE OF FLORIDA, et al., Appellants, v. CITY OF MIAMI, CASE SUMMARY: OVERVIEW: Appellee city sold bonds to finance construction of a convention center. Appellee entered into an agreement with a university in which the university agreed to rent a convention center area and appellee agreed to provide it with parking in the center's garage. Appellee also entered a development agreement in which it agreed to lease to a developer certain convention center properties for a term of 45 years and to give the developer a share of the spaces in the garage. Appellee adopted a resolution providing for the issuance of an additional amount of convention center bonds, secured by a pledge of certain revenues of appellee exclusive of ad valorem tax revenues. The trial court validated the issuance of the bonds. The court affirmed. The convention center served a public purpose. The incidental benefits accruing to the developer and the university were not so substantial as to tarnish the facility's public character. While appellee's charter required an election and prohibited a lease of more than 30 years, these provisions constituted limitations on appellee's borrowing and leasing powers, which were nullified by Florida's Municipal Home Rule Powers Act. Governments > Local Governments > Duties & Powers Governments > Local Governments > Finance [HN1] Fla. Const. art. VII, § 10, prohibits a municipality from lending or using its credit to any private enterprise.
Governments > Local Governments > Duties & Powers Governments > Local Governments > Finance [HN2] The validity of the proposed public revenue bond financing project depends on whether the bond issuance serves a paramount public purpose. If the bond issuance serves a public purpose, then even an incidental benefit to a private entity will not negate the public character of the project. In
46
addition, it is impossible to conceive of a public improvement which will not incidentally benefit some private individual engaged in private enterprise for private gain.
HOLLYWOOD, Inc., a Florida corporation, Appellant, v. BROWARD COUNTY, CASE SUMMARY: OVERVIEW: The court reasoned that if plaintiff's complaint were less clear and the lower court resorted to a rule of construction, case law dictated that testing any scheme of financing should be resolved against the public officials and in favor of the people. Governments > Local Governments > Finance [HN1] A scheme of financing which directly or indirectly obligates a taxing unit such as a county to pay a sum with interest extending over a period of years is in effect an attempt to create a binding, continuing interest-bearing contract obligation to pay money in the future, which violates the intent of the provision of Fla. Const. art. IX, § 6 granting power to issue bonds other than refunding bonds only after the same shall have been approved by a majority of the votes cast in an election in which a majority of the freeholders who are qualified electors residing in such counties, shall participate.
Thomas D. O'MALLEY, etc., Appellant, v. The FLORIDA INSURANCE GUARANTY ASSOCIATION, OVERVIEW: Appellant, treasurer and ex-officio Insurance Commissioner of the State of Florida, together with The Florida Insurance Guaranty Association, Inc., a non-profit corporation, as appellants, sought reversal of a lower court decision holding that formation of the non-profit corporation was unconstitutional. The appellate court held that the Florida Insurance Guaranty Association, Inc., (the Association) was not a private organization as contended in the lower court. The appellate court held that the Association was not a private corporation within the meaning of the above-referenced constitutional prohibition, but was a public corporation of statewide authority created for public purposes relevantly connected with the administration of government. Therefore the appellate court overruled the decision of the lower court and granted relief to appellants. Business & Corporate Law > Corporations > Formation > General Overview [HN2] Private corporations are those which have no official duties or concern with the affairs of government, are voluntarily organized and are not bound to perform any act solely for government benefit, but the primary object of which is the personal emolument of its stockholders. JERRY R. LINSCOTT, Appellant, v. ORANGE COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY,
OVERVIEW: Appellant taxpayer challenged appellee county development authority's issuance of revenue bonds for the purpose of construction of a regional facility of an insurance company. The 47
circuit court held that the bonds were valid and constitutional. On appeal, the court affirmed. Although the facility was not an industrial plant under Fla. Const. art. VII, § 10(c), the facility, as private economic development, served a public purpose under § 10(c) and Fla. Stat. ch. 159 and was thus constitutional. Governments > Local Governments > Finance [HN1] Under the Florida Constitution of 1968, it is immaterial that the primary beneficiary of a project be a private party, if the public interest, even though indirect, is present and sufficiently strong. Of course, public bodies cannot appropriate public funds indiscriminately, or for the benefit of private parties, where there is not a reasonable and adequate public interest. An indirect public benefit may be adequate to support the public participation in a project which imposes no obligation on the public, and the qualification of the direct beneficiary complies with the principles of due process and equal protection.
Governments > Local Governments > Finance Public Health & Welfare Law > Social Services > Economic Development [HN2] Fla. Stat. ch. 159 contains a legislative determination that private economic development serves a public purpose and that it is in the public interest to facilitate the financing of capital projects such as a headquarters facility by the issuance of non-recourse revenue bonds. This legislative determination is entitled to great weight, particularly since it is consistent with the implicit recognition in Fla. Const. art. VII, § 10(c), that the public interest is served by facilitating private economic development. Further, Fla. Stat. ch. 159.33 specifically provides that bonds issued under the provisions of Fla. Stat. ch. 159 shall not constitute a pledge of public credit but shall be payable solely from the revenues of the capital project.
WILLIAM F. POE, SR., Appellant, Cross-Appellee, vs. HILLSBOROUGH COUNTY, OVERVIEW: The voters of appellant county and appellant city approved an bond ordinance levying a surtax in order to finance a new stadium primarily for the use of the local professional football team, although the stadium would host other events. Appellee taxpayer claimed that the bonds were invalid under Fla. Const. art. VII, § 10(c). The trial court found that the new stadium would serve the public but invalidated the bond because under the terms of finance, the professional football organization would receive $ 2 million in revenue from events other than professional football games. On appeal, the court reversed and validated the bond. The private benefit to the football team was incidental to the greater public purpose, and the bond thus did not violate Fla. Const. art. VII, § 10(c) or Fla. Const. art. IX, § 10. The Test: The scope of judicial inquiry in bond validation proceedings is limited to the following issues: determining the public body has the authority to issue the bonds; determining if the purpose of the obligation is legal; and ensuring that the bond issuance complies with the requirements of law.
48
Governments > State & Territorial Governments > Finance [HN3] A bond issue does not violate Fla. Const. art. VII, § 10(c) so long as the project serves a paramount public purpose, and any benefits to private parties from the project are incidental.
Public Health Trust of Dade County, Petitioner, v. Jorge Lopez, Respondent PROCEDURAL POSTURE: Applications for review of decisions by the District Court of Appeal, for the Second and Third Districts (Florida), in which respondent contended that Fla. Const. art. X § 4(b), that extended the homestead exemption to the surviving spouse or heirs of the owner, applied only to minor or dependent heirs.
IN RE: ESTATE OF JOHN A. SCHOLTZ, DECEASED
OVERVIEW: Many years after the deceased and his wife married, they separated and lived apart until his death. During the separation, the deceased bought a piece of residential property titled solely in his name. He lived there until he moved to a nursing home shortly before his death, when he was survived by his estranged wife and one daughter. The trial court determined that the residential property was the homestead of the deceased. Petitioner nephew sought review, claiming that the surviving spouse had committed abandonment, so she was not entitled to the property under the homestead provisions of the Florida Constitution. The court affirmed the lower court. The language of Fla. Const. art. X, § 4, was clear and unambiguous. The homestead could not be devised if the owner was survived by a spouse or minor child. Because the deceased left a spouse, the descent of his property was controlled by Fla. Stat. ch. 732.401(1) (1987). Thus, it was properly treated as homestead property even though the surviving spouse had not lived there with the deceased.
Richard J. OSTERNDORF, et al., Petitioners, v. John TURNER, et al., Respondents OVERVIEW: Fla. Stat. Ann. § 196.031(3)(e) (1980) limited a $ 25,000 homestead tax exemption to those homeowners who have lived in Florida for five consecutive years immediately prior to when they claimed the exemption. Plaintiff tax payers challenged the homestead tax provision. The trial court found the statute was valid. The intermediate appellate court affirmed, but certified two questions to the court to determine whether Fla. Stat. Ann. § 196.031(3)(e) (1980) violated equal protection, due process, or Fla. Const. art. VII, § 6. The court found the statute was unconstitutional. Tax exemptions and disparity in taxes were not totally prohibited. To allow for disparity, it was required that a rational basis existed to distinguish between bona fide residents of more than five consecutive years and bone fide residents of less than five consecutive years in the payment of taxes on their homes. It was constitutionally prohibited for the state to impose different taxes on citizens based solely on their length of permanent residence in the state of Florida. The 49
court found that all permanent residents were entitled to the $ 25,000 homestead exemption provided in Fla. Const. art. VII, § 6(d). Tax Law > State & Local Taxes > Real Property Tax > General Overview [HN1] See Fla. Const. art VII, § 6(c). [HN6] Tax exemptions and disparity in taxes are not totally prohibited. However, there must be at least a rational basis for disparities to exist. ADVISORY OPINION TO THE ATTORNEY GENERAL RE: TAX LIMITATION; ADVISORY OPINION TO THE ATTORNEY GENERAL RE: VOTER APPROVAL OF NEW TAXES;
OVERVIEW: Petitioner attorney general sought an advisory opinion regarding the validity of four initiative petitions to amend the Florida Constitution. Regarding the tax limitation amendment, the court noted that the initiative was intended to make it harder to amend the constitution for both taxes and fees. The court held that the initiative improperly attempted to combine provisions that concerned both taxes and user fees and, as such, violated the single-subject requirement. The court held that the property rights initiative also violated the single-subject requirement because it substantially altered the functions of multiple branches of government. Another initiative was a constitutional amendment that would have eliminated the single-subject requirement of the Fla. Const. art. XI, § 3, for initiatives that dealt solely with limiting the power of government to raise revenue. The court noted that the single-subject requirement would have remained for all other types of initiative petitions. The court held that this initiative complied with both the single-subject and title and summary requirements and should have been retained on the ballot. ADVISORY OPINION TO THE ATTORNEY GENERAL RE TAX LIMITATION
OVERVIEW: In an original jurisdiction proceeding, state attorney general requested that the court review a proposed amendment to the Florida Constitution to determine whether the initiative petition for the proposed constitutional amendment entitled "Tax Limitation: Should Two-Thirds Vote Be Required For New Constitutionally Imposed State Taxes/Fees?" complied with the requirements of Fla. Const. art. XI, § 3, and Fla. Stat. Ch. 101.161, (1993). The court found that it did. The court found that the tax limitation ballot title and summary were valid under Fla. Const. art. XI, § 3 and complied with the requirements of Fla. Stat. Ch. 101.161 by accurately informing the voter of the chief purpose and effects of the proposed amendment. The court noted that the used of a question in a title or summary could convey a double meaning but was not per se misleading. ADVISORY OPINION TO THE ATTORNEY GENERAL RE: PEOPLE'S PROPERTY RIGHTS AMENDMENTS PROVIDING COMPENSATION FOR RESTRICTING REAL PROPERTY USE MAY COVER MULTIPLE SUBJECTS.
50
OVERVIEW: The court concluded that none of the initiative petitions for which the Attorney General of Florida sought an opinion could be placed upon the ballot. The first petition proposed a constitutional amendment providing that compensation for restricting real property use might cover multiple subjects. Land use substantially affected the executive as well as the legislative branch of the government and the initiative would have a substantial effect on more than one level of government. The second petition required voter approval for new taxes. Since the initiative affected subjects other than methods of revenue raising, it failed to fall within the exception to the singlesubject requirement. Through its substantial impact on education and the state budgeting process, the initiative affected several branches of government. The third petition concerned compensation for unfair value loss caused by governmental use restrictions on real property. That initiative also violated the single-subject requirement because it altered the functions of the executive and legislative branches of state government and had a substantial effect on local government entities. Governments > State & Territorial Governments > Elections [HN2] In reviewing the propriety of initiative petitions, the court does not rule on the merits or wisdom of the proposal but rather determines the legal issues presented by the constitution and relevant statutes. The court's legal analysis is limited to two issues: whether the initiative petition violates the single-subject requirement of Fla. Const. art. XI, § 3; and whether the ballot title and summary are misleading, in violation of Fla. Stat. Ann. § 101.161(1). Concerning the first issue, Fla. Const. art. XI, § 3, provides in relevant part: The power to propose the revision or amendment of any portion or portions of this constitution by initiative is reserved to the people, provided that, any such revision or amendment, except for those limiting the power of government to raise revenue, shall embrace but one subject and matter directly connected therewith. Governments > Legislation > Initiative & Referendum [HN9] An initiative violates the single-subject requirement if it substantially affects specific provisions of the constitution without identifying them. Additionally, the use of a question to describe an initiative is misleading. But not per se misleading. ADVISORY OPINION TO THE ATTORNEY GENERAL RE: AMENDMENT TO BAR GOVERNMENT FROM TREATING PEOPLE DIFFERENTLY BASED ON RACE IN PUBLIC EDUCATION; OVERVIEW: As required by state law, the sponsor of four proposed state constitutional amendments filed initiative petitions with the Secretary of State, who submitted them to the Florida Attorney General pursuant to Fla. Stat. ch. 15.21 (1999). In compliance with Fla. Stat. ch. 16.061 (1999), the attorney general petitioned the court for an advisory opinion regarding the validity of the proposed amendments. The petitions addressed alleged discriminatory practices in the areas of public education, employment, and contracting, purporting to bar differential treatment based on race, color, ethnicity, and national origin. They were challenged primarily for including multiple classifications and for failing to identify constitutional provisions substantially affected, thus violating the single-subject and ballot-summary requirements. The court struck the amendments, holding identifiable changes in functions of different levels and branches of government were sufficient to warrant invalidation, and they violated Fla. Stat. ch. 101.161 and Fla. Const. art. XI, § 3.
51
Governments > State & Territorial Governments > Elections [HN1] See Fla. Const. art. XI, § 3.
Governments > Legislation > Initiative & Referendum [HN4] The court's inquiry, when determining the validity of initiative petitions, is limited to two legal issues: whether the petition satisfies the single-subject requirement of Fla. Const. art. XI, § 3, and whether the ballot titles and summaries are printed in clear and unambiguous language pursuant to Fla. Stat. ch. 101.161 (1999). In order for the court to invalidate a proposed constitutional amendment, the record must show that the proposal is clearly and conclusively defective on either ground.
REV. DR. JAMES ARMSTRONG, et al., Appellants, vs. KATHERINE HARRIS, OVERVIEW: Appellant brought an action challenging a proposed amendment to the Florida Constitution, contending that its ballot title and summary were inaccurate. The trial court granted appellee's motion for summary judgment. On appeal, the court reversed and struck the proposed amendment, having determined that it was invalid under Fla. Const. art. XI, § 5. The purpose of the proposed amendment was to require that Florida Constitution's Cruel or Unusual Punishment Clause to be interpreted in conformity with its federal counterpart, effectively nullifying Florida's clause where it was more strict than the federal clause. The amendment flew under false colors because it may have led citizens to vote in favor of the amendment on the false premise that it would have promoted the basic rights of Florida citizens. The amendment hid the ball from voters because its ballot title and summary gave no hint of the radical change in state constitutional law that the text of the amendment provided.
STATE OF FLORIDA, Petitioner, vs. MERLAN DAVIS, Respondent.
OVERVIEW: Petitioner government charged respondent with aggravated assault based upon a domestic violence incident. A reporter interviewed the victim and published a story. Based on statements attributed to the victim, respondent sought to depose the reporter, but her former employer invoked the reporter's privilege. Respondent was convicted, but on appeal, the district court vacated his conviction and sentence because it determined he was entitled to depose the reporter. The district court of appeal certified the question of the applicability of the qualified reporter's privilege against disclosure of relevant nonconfidential information in a criminal trial. The state supreme court answered the question in the affirmative, quashed the district court's decision, and directed the conviction and sentence be reinstated. The court held that where the privilege attached, a court had to apply a three-prong balancing test to determine whether the privilege acted to prevent the disclosure of the reporter's information. The court held that although the privilege did 52
not apply in this case, there was no reasonable possibility that the error contributed to respondent's conviction. Constitutional Law > Bill of Rights > Fundamental Freedoms > Judicial & Legislative Restraints > Prior Restraint [HN1] Courts must protect the press from government intimidation and from laws that effectively constitute a prior restraint on the publication of information. Moreover, without some protection for seeking out the news, freedom of the press can be eviscerated. However, the First Amendment, U.S. Const. amend. I, does not invalidate every incidental burdening of the press, nor does a reporter have a special privilege to invade the rights and liberties of others.
Evidence > Privileges > Journalist's Privilege > Scope [HN3] A qualified reporter's privilege exists at least in those cases involving confidential information; but where a defendant seeks testimony or evidence, no such privilege exists to excuse reporters from testifying about their eyewitness observations or from providing physical material relevant to a crime. A defendant's rights to compulsory and due process under both the federal and Florida constitutions are significant factors that are implicated whenever a defendant seeks to discover information relevant to the charges against the defendant.
Evidence > Privileges > Journalist's Privilege > Scope [HN7] A qualified reporter's privilege exists in Florida, and such a privilege extends to both confidential and nonconfidential information gathered in the course of a reporter's employment. The privilege does not apply to eyewitness observations or physical evidence, including recordings, of a crime. Once the privilege attaches, a court must apply the three-prong balancing test used by an overwhelming majority of other states to determine whether the privilege will act to prevent the disclosure of the reporter's information; that is, the court must determine whether the movant has established that: (1) the reporter possesses relevant information; (2) the same information is not available from alternative sources; and (3) the movant has a compelling need for any information the reporter may have. When determining the compelling need of a defendant, a court must factor into the equation the federal and Florida constitutional rights to compulsory and due process so as to ensure that the defendant receives a fair trial. CAFE EROTICA/WE TRANSPORTATION DARE TO BARE v. FLORIDA DEPARTMENT OF
OVERVIEW: On appeal, the corporation argued for the first time that Fla. Stat. chs. 479.07, 479.08 (2001), as well as Fla. Admin. Code Ann. r. 14-10.004, 14-10.006, imposed a facially unconstitutional prior restraint on speech in violation of the First Amendment. The question was whether the regulations improperly restricted all offsite commercial signs. The appellate court concluded that the statutes and rules related to 23 U.S.C.S. § 131 of the federal Highway Beautification Act of 1965. The regulations directly advanced the goals of traffic safety and appearance of the highway by limiting the spacing between billboards and the structural characteristics of such billboards along the Florida State Highway System. Finally, the permitting regulations did not reach further than necessary to accomplish their given objective. The regulations 53
did not ban all outdoor advertising signs. They merely limited the size and spacing of the signs to accomplish the government's aesthetic interests. Thus, Fla. Stat. chs. 479.07, 479.08, and Fla. Admin. Code Ann. r. 14-10.004, 14-10.006, did not impose an impermissible prior restraint on commercial speech and were facially constitutional. Constitutional Law > Bill of Rights > Fundamental Freedoms > Judicial & Legislative Restraints > Time, Place & Manner [HN5] The starting point in any analysis of the regulation of speech is whether the regulation is content-based or content-neutral. A regulation of speech which distinguishes favored speech from disfavored speech on the basis of ideas or viewpoints is generally content-based. In contrast, a regulation which imposes a burden on speech without reference to the ideas or viewpoints expressed in the speech is, in a majority of instances, content-neutral. Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Commercial Speech > Misleading Speech [HN13] The United States Constitution affords a lesser protection to commercial speech than to other constitutionally guaranteed expression. In order for a restriction on commercial speech to be valid, the restriction must first implement a substantial governmental interest. Second, the restriction must directly advance that interest. Finally, the regulation must not reach further than necessary to accomplish the stated objective.
THE STATE OF FLORIDA, vs. RON ANDREW O'DANIELS, OVERVIEW: Defendant contended on appeal that the ordinance at issue was content-based because it discriminated against performers and entertainers in favor of other speakers, such as preachers, election campaigners, nightclub promoters, and other religious, political, and commercial speakers. However, the appeals court held that an ordinance was not content-based merely because it had an incidental effect on some speakers or messages but not others. Furthermore, the City's justification for the ordinance had nothing to do with content but sought to preserve the reasonable expectations of residents to the enjoyment of peace and quiet in their homes, the ability to conduct their businesses and serve their patrons uninterrupted, and the public's use of the City's rights-ofway. Hence, the court found that the ordinance was content-neutral. Second, although the court recognized the City's interests in traffic regulation, neither the City nor the State met their burden of showing that the ordinance was narrowly tailored. Further, the mere fact that street performers and vendors could still perform and vend from non-fixed locations did not mean that ample alternatives for communication existed. Constitutional Law > Substantive Due Process > Scope of Protection [HN8] If the government action against protected forms of speech is content based, an appellate court applies a strict scrutiny test requiring the government to show that its action is narrowly tailored and serves a compelling state interest. However, if the government action is content neutral, an appellate court applies a time, place, and manner analysis. An ordinance is content based when the government adopts it as a regulation on speech because of disagreement with the message the speech conveys. An ordinance is content neutral if it serves purposes unrelated to the content of the
54
speech or expression. However, an ordinance is not content based merely because it has an incidental effect on some speakers or messages but not others.
Constitutional Law > Bill of Rights > Fundamental Freedoms > Judicial & Legislative Restraints > Time, Place & Manner [HN9] In a traditional public forum, such as a city street or sidewalk, the government may impose reasonable limitations on the time, place, and manner of protected speech provided that such limitations: (1) are justified without reference to the content of the regulated speech, (2) are narrowly tailored to serve a significant government interest, and (3) leave open ample alternative channels for communication of information. The government must demonstrate that it meets all three criteria.
Constitutional Law > Bill of Rights > Fundamental Freedoms > Judicial & Legislative Restraints > Overbreadth & Vagueness [HN11] In determining whether an ordinance is narrowly tailored, an appellate court is tasked with deciding whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time. Governments > Local Governments > Ordinances & Regulations [HN12] In a First Amendment analysis, determining whether a challenged ordinance leaves an alternative channel for communication is adequate requires an appellate court to look at the expense and convenience of the alternative, as well as whether the alternative is a practical substitute. Evidence > Procedural Considerations > Burdens of Proof > General Overview [HN13] The First Amendment mandates that a reviewing court presume that speakers, not the government, know best both what to say and how to say it. Furthermore, the mere existence of an alternative method of communication cannot be the end of the analysis. The reviewing court must also give adequate consideration to whether the alternatives are ample. Whether an alternative is ample should be considered from the speaker's point of view. STATE OF FLORIDA, , vs. J.P.,. STATE OF FLORIDA, , vs. T.M., OVERVIEW: The City of Tampa and the City of Pinellas Park enacted similar juvenile curfew ordinances. In reviewing the ordinances, the lower appellate court initially applied intermediate or heightened scrutiny and ruled that both ordinances were constitutional. After remand, the lower appellate court concluded that, while the cities may have had a compelling governmental interest in controlling the whereabouts of juveniles during late night hours, the ordinances were not narrowly tailored to accomplish that goal by the least intrusive means available. The Florida Supreme Court concluded that the ordinances at issue did not implicate the juveniles' rights to free speech and assembly as those activities were specifically exempted from their ambit. It likewise concluded that the findings stated in the ordinances satisfied the compelling interest prong of the strict scrutiny test. It agreed with the lower appellate court that the ordinances were not "narrowly tailored" because the statistical data failed to establish the necessary nexus between the governmental interest and the classification created by the ordinances. Governments > Local Governments > Ordinances & Regulations 55
[HN1] A district court's rulings on the constitutionality of an ordinance is subject to de novo review by the Florida Supreme Court. Criminal Law & Procedure > Juvenile Offenders > Status Offenses [HN3] Once a constitutional right has been recognized, its exercise by minors should be protected by strict scrutiny, just as it is for adults. Rather than using children's status to divest them of rights or to weaken the formal protections of those rights, courts taking this approach factor in the unique attributes of minors in determining whether the government has a compelling interest justifying restrictions on minors' freedoms. Constitutional Law > The Judiciary > Case or Controversy > Standing > General Overview [HN12] There are three requirements that constitute the "irreducible constitutional minimum" for standing. First, a plaintiff must demonstrate an "injury in fact," which is "concrete," "distinct and palpable," and "actual or imminent." Second, a plaintiff must establish a causal connection between the injury and the conduct complained of. Third, a plaintiff must show a "substantial likelihood" that the requested relief will remedy the alleged injury in fact. INQUIRY CONCERNING A JUDGE, NO. 99-09; RE: PATRICIA KINSEY. OVERVIEW: The judge's campaign materials gave the misleading impression that a judge's role in criminal proceedings was to combat crime and support police officers as opposed to being an impartial tribunal where justice was dispensed without favor or bias. The judge contended that Fla. Code Jud. Conduct Canons 1, 2A, 3B(5), and 3B(9) were inapplicable as they did not apply to judicial candidates. The State's highest court agreed. However, Fla. Code Jud. Conduct Canon 7 expressly applied to judicial candidates and was also violated. The judge's campaign materials were not protected by the First Amendment. There was clear and convincing evidence in support of the JQC's findings that the judge violated Canon 7 by stating that a judge should be a reflection of what a community wants, making knowing misrepresentations as to her opponent's actions on the bench, making intentional misrepresentations in her campaign flyer, and engaging in conduct unbecoming a candidate for a judicial post. The charge that the judge commented on pending cases, which might come before her, was rejected. While a reprimand alone was insufficient, her misconduct did not warrant removal. INQUIRY CONCERNING A JUDGE, RE: CARVEN D. ANGEL. OVERVIEW: The judge was accused of attending, or having a family member attend, partisan political rallies during his election campaign in violation of Fla. Stat. ch. 105.071(1), and of holding himself out as a member of a partisan political party in violation of ch. 105.071(3). The judge admitted seven of the 13 original charges and stipulated to the impropriety of that conduct. The supreme court found that the judge's conduct relating to partisan political functions violated both the spirit and the letter of ch. 105.071 and Fla. Code Jud. Conduct Canon 7. The supreme court noted that in the past, it had accepted the JQC's recommendation of a public reprimand as a sanction for similar misconduct, and elected to do so here.
56
Evidence > Procedural Considerations > Burdens of Proof > General Overview KIMBERLY S. SULT, Petitioner, vs. STATE OF FLORIDA, OVERVIEW: The individual was arrested for violating ch. 843.085(1) after she was observed wearing an official sheriff's department t-shirt, which she had purchased at a uniform store that was open to the public. The statute made it unlawful for unauthorized individuals to wear such clothing because it could deceive a reasonable person into believing that an individual was authorized by an official agency to display or wear it. Answering the certified question in the affirmative, the supreme court found ch. 843.085(1) to be unconstitutionally overbroad under the First Amendment and Fla. Const. art. I, § 9, and in violation of substantive due process. The statute was overbroad because it did not contain any intent or scienter requirement. It made no distinction between innocent wearing or displaying of law enforcement indicia from that designed to deceive the reasonable public into believing that such display was official. The statute violated substantive due process because the imprecision in its language failed to give fair notice of what conduct it prohibited. Thus, the statute invited arbitrary and discriminatory enforcement. Governments > Legislation > Overbreadth [HN4] When legislation is drafted so that it may be applied to conduct that is protected by the First Amendment, it is said to be unconstitutionally overbroad. This overbreadth doctrine permits an individual whose own speech or conduct may be prohibited to challenge an enactment facially because it also threatens others not before the court--those who desire to engage in legally protected expression but who may refrain from doing so rather than risk prosecution or undertake to have the law declared partially invalid. The doctrine contemplates the pragmatic judicial assumption that an overbroad statute will have a chilling effect on protected expression. STATE OF FLORIDA, Petitioner, v. BOYCE E. GLOSSON, OVERVIEW: The county sheriff agreed to pay an informant a percentage of all civil forfeitures arising out of successful criminal investigations. After the informant sold respondents several hundred pounds of cannabis, respondents were arrested on charges of trafficking in cannabis and conspiracy to traffic in cannabis. The trial court dismissed the information against respondents, holding that prosecutorial misconduct had deprived respondents of their due process rights under the United States Constitution and the Florida Constitution. The court affirmed and held that the contingent fee agreement between the State and its informant violated respondents' due process rights under Fla. Const. art. I, § 9 because the informant had an enormous financial incentive not only to make criminal cases, but also to color his testimony or commit perjury in pursuit of the contingent fee. BENJAMIN RUCKER, v. CITY OF OCALA and CRAWFORD & CO., OVERVIEW: On review, the court rejected appellant employee's argument that the interpretation of the term "authorized treating provider" in Fla. Stat. ch. 440.13(5)(e) (Supp. 1994) to exclude his medical expert's testimony was error, finding that the term was properly interpreted as meaning treating providers authorized by appellee employer/servicing agent. The court then found that the statute's application did not cause a procedural due process violation, noting that although appellant was somewhat limited in the medical opinions he could have used, he had not been completely 57
denied the right to present evidence. The court also found that the statute did not violate appellant's right of access to the courts because his cause of action, despite being restricted in the range of medical witnesses available to prove entitlement to worker's compensation benefits, had not been eliminated. The court affirmed, rejecting the contention that the statute was unconstitutional as a violation of equal protection guarantees because appellant failed to show that any classificatory scheme created by the statute could not have rationally advanced a legitimate governmental objective. STATE OF FLORIDA, Petitioner, v. BEN SMITH, JR., OVERVIEW: Criminal respondents were both given cumulative sentences in a single trial based upon one criminal offense. On appeal, the court examined Carawan v. State, 515 So. 2d. 161, to ascertain whether convictions and sentences for the crimes of sale of one rock of cocaine and possession with intent to sell that same rock of cocaine violated the double jeopardy protection provided by the state and federal constitutions. The state argued that the case was overridden by 1988 Fla. Laws ch. 131, § 7 and that the override could be retroactively applied. The court stated that it was an issue of legislative intent. Under the law, multiple punishment was imposed for separate offenses, not the same offense, even if only one act was involved. This was a specific, clear, and precise statement of legislative intent. However, the court held that the law could not be retroactively applied because it would violate the ex post facto clauses of the state and federal constitutions. Therefore, Carawan v. State, 515 So. 2d. 161, was overridden, but the override was not applied to respondents' cases. The district courts' decisions were approved. Governments > Legislation > Interpretation [HN2] With respect to cumulative sentences in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended. The sole issue is legislative intent. STATE OF FLORIDA v. CONE BROTHERS CONTRACTING COMPANY OVERVIEW: In response to rising coal prices, the Florida legislature enacted a law to allow for the adjustment of contract prices to reflect the rising costs of coal. Realizing that some contractors were making windfall profits as a result of the law, an amendment to the law was passed to provide relief to the state under the contracts. Appellee contractor sued appellant agency after appellant refused to pay appellee under a previously existing contract. When the trial court ruled that the amendment to the contract law was inapplicable retroactively and ruled for appellant, appellee sought review. OUTCOME: The court reversed ruling for appellee contractor and remanded, holding that the amendment to the contract law was a valid retroactive amendment because its purpose and effect was to specify criteria for intended relief and its availability was limited to those who demonstrated a real or genuine need. Governments > Legislation > Interpretation [HN1] A statute is not to be given a retrospective effect, unless its terms show clearly that such an effect was intended.
58
Governments > Legislation > Effect & Operation > Retrospective Operation Governments > Legislation > Interpretation [HN4] A retrospective provision of a legislative act is not necessarily invalid. It is so only in those cases wherein vested rights are adversely affected or destroyed or when a new obligation or duty is created or imposed, or an additional disability is established, in connection with transactions or considerations previously had or expiated. Governments > Legislation > Effect & Operation > Retrospective Operation Governments > Legislation > Interpretation [HN6] Remedial or procedural statutes do not fall within the constitutional prohibition against retroactive legislation and they may be held immediately applicable to pending cases where the act does not affect any vested rights or create any new obligations.
Constitutional Law > Congressional Duties & Powers > Contracts Clause > Coverage [HN7] The Contract Clause, U.S. Const. Art. I, § 10, is not an absolute bar to subsequent modification of a state's own financial obligations. As with laws impairing the obligations of private contracts, an impairment may be constitutional if it is reasonable and necessary to serve an important public purpose. R.A.M. OF SOUTH FLORIDA, INC., v. WCI COMMUNITIES, INC., OVERVIEW: During construction, a dispute arose regarding the work being performed by the subcontractor, and the owner refused to pay certain sums due under the contract. Although the owner invoked an arbitration clause in the contract, it subsequently learned that the subcontractor did not become licensed until two years after the construction began and more than a year and a half after it was terminated. Affirming, the court held that the subcontractor was not entitled to cure its unlicensed status pursuant to the prior version of Fla. Stat. ch. 489.128 (1999) where the cure provision of the statute was repealed by ch. 489.128 (2000). The trial court's application of ch. 489.128 (2000), rendering the contract unenforceable, was not a retroactive application because the subcontractor was on "fair notice" that the statutory provision for curing its unlicensed status was a matter of legislative grace that could be withdrawn by subsequent legislative action, the right the subcontractor had under ch. 489.128 (1999) was not a vested right, and once ch. 498.128 (2000) became effective, the opportunity previously afforded to the subcontractor to cure its unlicensed status was properly cut off. UNITED STATES FIDELITY AND GUARANTY COMPANY v. DEPARTMENT OF INSURANCE OVERVIEW: Appellant automobile insurance companies filed suit against defendants, state insurance department and insurance commissioner, seeking a declaratory judgment that the automobile insurance express profits law, Fla. Stat. ch. 627.066 (1981), was unconstitutional as an impermissible impairment on appellants' right to contract. Appellants also contended that the statute deprived smaller insurers of their equal protection rights. The trial court rejected appellants' argument, and an appellate court certified the question to the state supreme court. The state supreme 59
court affirmed the trial court's holding, rejecting appellants' impairment-of-contract-rights and equal-protection-violation arguments. As to impairment of contracts, the court noted that insurance was a heavily regulated industry and that appellants knew that any excess profits recouped by them might be subject to return. As to equal protection, the court observed that the statute did not distinguish small and large insurers in any way. Given these holdings, the court reasoned that there was no viable constitutional challenge. Must show: 1) Sub impairment AND 2) significant and legitimate public purpose
RONALD THOMAS, vs. HARRY K. SINGLETARY OVERVIEW: Petitioner inmates filed applications seeking writs of habeas corpus. Petitioners contended that retrospective amendments to state supervised release programs and the ultimate cancellation of their respective supervised release dates violated ex post facto principles. The court denied the petitions, finding that no inmate had a right to supervised release. The court further found that the fact that petitioners' supervised release dates were retrospectively subject to legislative amendments and then ultimately cancelled created only the most speculative and attenuated possibility of increasing the measure of punishment for their crimes. Thus, the court held that there had been no constitutional violations. OLLIE JAMES GOAD vs. FLORIDA DEPARTMENT OF CORRECTIONS OVERVIEW: At the trial level, the inmate argued that the application of Fla. Stat. ch. 960.297 against him violated the ex post facto clauses of the Florida and United States Constitutions. The trial court agreed. The First District of Appeals reversed that decision, concluding that Fla. Stat. chs. 960.293, .297 afforded civil remedies that were not the equivalent of criminal punishment. Seeking further review, the inmate contended that the additional sanctions therein increased his punishment for a criminal offense that occurred before the laws took effect. The instant court disagreed. The intent of the statutes was to afford a civil remedy to address the State's need to recover the incarceration costs of convicted offenders. Imposing a civil restitution lien to recover the incarceration costs of convicted offenders was not so punitive in nature as to constitute criminal punishment. Nothing on the face of the statute suggested otherwise. The inmate did not have a vested right to free room and board while incarcerated, at the time he was convicted. Moreover, the State's purpose for collecting these fees was proper. Governments > State & Territorial Governments > Finance [HN2] The Florida Civil Restitution Lien and Crime Victims' Remedy Act, Fla. Stat. ch. 960.29.297 (Supp. 1994) was implemented to address two concerns: the problem of compensating crime victims through restitution and the urgent need to alleviate the increasing financial burdens on the state and its local subdivisions caused by the expenses of incarcerating convicted offenders. Fla. Stat. ch. 960.29 (Supp. 1994).
60
Constitutional Law > Congressional Duties & Powers > Ex Post Facto Clause & Bills of Attainder > Ex Post Facto Clause > Quantum of Punishment [HN3] A law violates the Ex Post Facto Clauses of the United States and Florida Constitutions when it increases the punishment for a criminal offense after the crime has been committed. U.S. Const. art. 1, § 9, cl. 3; U.S. Const. art. 1, § 10, cl. 1; Fla. Const. art. I, § 10.
Governments > Legislation > Interpretation [HN4] The categorization of a particular proceeding as civil or criminal is first of all a question of statutory construction. A reviewing court must initially ascertain whether the legislature meant the statute to establish civil proceedings. If so, the ordinarily defers to the legislature's stated intent. When attempting to discern legislative intent, courts must first look at the actual language used in the statute. Criminal Law & Procedure > Scienter > General Overview Governments > Legislation > Types of Statutes [HN7] In determining whether a civil statute is in reality punitive in nature, an appellate court must consider: (1) whether the sanction involves an affirmative disability or restraint; (2) whether it has historically been regarded as a punishment; (3) whether it comes into play only on a finding of scienter; (4) whether its operation will promote the traditional aims of punishment-retribution and deterrence; (5) whether the behavior to which it applies is already a crime; (6) whether an alternative purpose to which it may rationally be connected is assignable for it; and (7) whether it appears excessive in relation to the alternative purpose assigned.
VIII. Article I, Section 23: Right to Privacy A. Legitimate Expectation of Privacy Is there a privacy right at issue? Is there a reasonable expectation of privacy given the totality of the circumstances? Does the reasonable expectation of privacy outweigh the government’s compelling interest in abridging that right? For the court to allow closure of information from the public record when it has become part of the court proceeding through an adjudicated matter:(from Barron)
“apply the following three-pronged test when considering closure of criminal court proceedings: 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 defendant's right to a fair trial; and 3. Closure would be effective in protecting the rights of the accused, without being broader than necessary to accomplish this purpose.”p117 The court may also allow closure outside of a criminal proceeding (or within a criminal proceeding) if the following factors are met (from Barron):
61
“closure of court proceedings or records should occur only when necessary (a) to comply with established public policy set forth in the constitution, statutes, rules, or case law; (b) to protect trade secrets; (c) to protect a compelling governmental interest [e.g., national security; confidential informants]; (d) to obtain evidence to properly determine legal issues in a case; (e) to avoid substantial injury to innocent third parties [e.g., to protect young witnesses from offensive testimony; to protect children in a divorce]; or (f) 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.” p118
Privacy rights under the Florida Constitution are supposed to be stronger than those of the U.S. Constitution. This is because Art. I, Sec. 23 of the Florida Constitution explicitly grants privacy rights while the federal privacy rights come from Griswold’s penumbras and emanations. Polston argues that we cannot say for a fact that Florida has greater privacy rights because we do not fully know the extent of the federal privacy rights. They emanate from Due Process under the 14th Amendment and as such new rights can be recognized as seen fit by the Supreme Court. He would like to take not only the Florida Constitution and the U.S. Constitution, but also the decisions of both the state and federal supreme courts before a true comparison of federal and state privacy rights can be made.
City of N. Miami v. Kurtz, 653 So. 2d 1025 (Fla. 1995) A lady sued the city of Miami because she applied for a secretarial type job and was not hired because she could not truthfully sign an affidavit claiming she had not smoked in a year. The City of Miami had implemented a new hiring policy in which they decided not to hire smokers because the cost of insurance was incrementally higher for smokers than non-smokers. The lady claimed she had a privacy right to smoke under Art I, Sec. 23. Art. I, Sec. 23 of the Florida Constitution “provides that every natural person has the right to be let alon and free from government intrusion into his private life….” It applies only to government action (Therefore it couldn’t be used against a private employer) and is “limited by the circumstances in which it is asserted.” That is to say, one must evaluate the totality of the circumstances to determine if there is a reasonable expectation of privacy. The Florida Supreme Court ruled against the lady and claimed she had no reasonable expectation of privacy. (Smokers must often identify themselves in public when asking for smoking accommodations.) In re Commitment of Sutton, 884 So. 2d 198 (Fla. 2d DCA 2004)
62
Prisoners who were in danger of being civilly committed due to the Jimmy Ryce Act tried to refuse to submit to certain questions during deposition regarding their mental health claiming a right of privacy. The Jimmy Ryce Act allows pedophiles and sexual predators to be civilly committed after criminal incarceration is over based on their psychological evaluation. The state found that it had a compelling state interest in protecting the public which outweighed the prisoners right of privacy regarding medical information of this type (namely their thoughts and feelings about the crimes they were convicted of committing). Post-Newsweek Stations, Fla., Inc. v. Doe, 612 So. 2d 549 (Fla. 1992) A sheriff and his wife were involved in a prostitution scheme (the wife was a call girl) and when they got caught the Johns tried to keep their personal information out of the public eye by claiming a privacy interest. The court says they have no reasonable expectation of privacy because they were involved in a criminal act for which the state has a compelling interest to investigate. Once the info becomes material in the court proceeding it is a matter of public record. Too bad Johns. B. Informational Privacy Winfield v. Div. of Parmutuel Wagering, 477 So. 2d 544 (Fla. 1985) The Dept of Business Reg and Pari-Mutuel Wagering subpoenaed the bank records of the petitioners. Petitioners claimed they had a right to privacy for the financial info. The court went thru the steps of determining whether a reasonable right of privacy was being abridged and found that the petitioners did in fact have privacy interest in financial records. However, the state found that the Dept. had a compelling interest in abridging those rights that was inherent in its regulatory power over the petitioners. “The right to privacy yielded to compelling governmental interests such as the state’s interest in conducting effective investigations in the pari-mutual industry.” Barron v. Fla. Freedom Newspapers, Inc., 531 So. 2d 113 (Fla. 1988) Senator Barron had an ugly divorce from his first wife which brought forth some of his private medical info. The trial judge during the proceedings closed some of the record to keep his medical info private and the newspapers sued. The Supreme Court held that some info can be kept closed from the public (those are the factors at the top for keeping things closed). However the fine senator did not allege any facts that
63
would keep his medical information from becoming public record once it was introduced as a matter in the divorce.
IN RE: T.W., A Minor OVERVIEW: A pregnant minor petitioned for a waiver of parental consent under a judicial bypass provision in order to obtain an abortion. The trial court appointed counsel for the minor and appellant guardian ad litem for the fetus and conducted a hearing. The trial court found that the judicial bypass provision of Fla. Stat. ch. 390.001(4)(a) was unconstitutional because it failed to make sufficient provision for challenges to its validity, was vague, and made no provision for testimony to controvert that of the minor. In addition, the trial court denied the minor's petition and required her to obtain parental consent. The appellate court declared ch. 390.001(4)(a) entirely unconstitutional, quashed the trial court's order requiring parental consent, and dismissed the petition. Appellant sought review. The court found that ch. 390.001(4)(a) failed because it intruded upon the privacy of the pregnant minor from conception to birth and was not the least intrusive means of furthering the state interest. In addition, the court found that ch. 390.001(4)(a) failed to provide adequate procedural safeguards because it did not make any exception for emergency or therapeutic abortions. NORTH FLORIDA WOMEN'S HEALTH AND COUNSELING SERVICES, INC., et al., Petitioners, vs. STATE OF FLORIDA,
OVERVIEW: On review, the women's groups contended that the trial court properly applied a prior case as controlling precedent in finding the Act unconstitutional. Emphasizing the doctrine of stare decisis, the supreme court declined the State's invitation to recede from the prior case's decision. The supreme court held that the Act's requirement that a minor must notify a parent of her decision to have an abortion violated Fla. Const. art. I, § 23, as it was a significant intrusion on a minor's right of privacy. Further, the district court's ultimate determination, that the Act furthered a compelling State interest because it allowed parents to assist in giving post-abortion care to a minor, was controverted by the findings of the trial court. The trial court found that, while such parental support was preferable, most minors, especially older minors, were capable of following directions for aftercare treatment. By ignoring the trial court's findings, the district court violated the basic precept of appellate review. Any comparison between the federal and Florida rights of privacy was inapposite, in light of the fact that there was no express federal right of privacy clause. STATE OF FLORIDA, vs. J.P STATE OF FLORIDA, Petitioner, vs. T.M., et al., OVERVIEW: The cities of Tampa and Pinellas Park enacted similar juvenile curfew ordinances. Respondent first juvenile was cited for violating the Tampa ordinance, while respondent second, third, and fourth juveniles were cited for violating the Pinellas Park ordinance. The State filed petitions for delinquency against the juveniles. The juveniles all moved to dismiss and argued the ordinances were unconstitutional. The respective trial courts came to different conclusions; eventually, the appellate court applied a strict scrutiny standard of review to the juveniles' cases. It 64
then concluded that the juvenile curfew ordinances were unconstitutional. It found that the Tampa ordinance criminalized otherwise innocent conduct by a minor who had parental permission to be at a specified location. It also found the Pinellas Park ordinance was similar but even broader in its application. On further review, the state supreme court found that the ordinances were not "narrowly tailored" because their broad coverage included otherwise innocent and legal conduct by minors, even where they had the permission of their parents, and because the ordinances imposed criminal penalties for curfew violations. Governments > Local Governments > Ordinances & Regulations [HN21] The scope of the exceptions to the juvenile curfew ordinance is of more significance in assessing whether an ordinance is narrowly tailored. Where a curfew sweeps too broadly and includes within its ambit a number of innocent activities which are constitutionally protected, it does not satisfy the narrowly tailored aspect of strict scrutiny.
FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES vs. F.L., the Mother, OVERVIEW: The mother's parental rights to her first six children had been terminated due to her neglect and substance abuse. Her rights to the seventh child were terminated after the trial court found that the grounds for termination set forth in ch. 39.806(1)(c) and (i) had been met and that the mother showed a continued unwillingness and inability to parent the child. The district court of appeal reversed, holding that ch. 39.806(1)(i) was facially unconstitutional since it impermissibly shifted the burden to the parent to show that her past conduct did not predict that a current child was at risk. The supreme court held that to terminate parental rights under ch. 39.806(1)(i), the DCF had to prove by clear and convincing evidence that the parent's rights to a prior child were terminated involuntarily, that the current child was at substantial risk of significant harm, and that termination was the least restrictive means of protecting the child from harm. Interpreted in this light, ch. 39.806(1)(i) was constitutional. However, the trial court impermissibly placed the burden on the mother to present evidence that her prior conduct was not a predictor of her conduct with the child at issue. Family Law > Parental Duties & Rights > General Overview [HN4] When a statute impinges on a fundamental liberty interest, a court analyzes the statute's constitutionality under a strict scrutiny standard. Parents have a fundamental liberty interest, protected by both the Florida and federal Constitutions, in determining the care and upbringing of their children. Where a statute impinges on fundamental parental rights, the strict scrutiny standard applies. To survive a constitutional challenge under this test, the statute must serve a compelling state interest through the least intrusive means possible.
65
THOMAS PADGETT, Petitioner, REHABILITATIVE SERVICES
v.
DEPARTMENT
OF
HEALTH
AND
OVERVIEW: Petitioner parents had four children who were committed to respondent agency for adoption. Each of the four children manifested emotional and behavioral disorders, together with a low level of intelligence functioning, and two of the children showed signs of sexual abuse. These disorders were said to be the result of their living in a deprived environment devoid of learning stimuli and emotional contact, and the disorders improved when the children were removed from home. The trial court concluded that the children were dependent because of extreme neglect by both petitioners. When the fifth child was born, she was permanently committed for adoption because of petitioner mother's inappropriate conduct with the child. When the sixth child was born, the trial court issued an order of dependency, found both parents unfit, and permanently committed the child to respondent for adoption. Petitioners asserted that prospective mistreatment could not support termination of parental rights. On appeal, the order terminating petitioners' parental rights as to the sixth child because of prior abuse and neglect of other children was affirmed. Petitioners showed no evidence of rehabilitation. S.B., Petitioner, vs. DEPARTMENT OF CHILDREN AND FAMILIES, Respondent. OVERVIEW: Because the mother failed to appear at the arraignment on an emergency custody hearing, the trial court entered a default judgment against her. The mother appeared at the disposition hearing, and an attorney was appointed. The trial court ultimately adjudicated the children dependent. The mother contended that because she had a right to a court-appointed attorney, she had the right to pursue a claim of ineffectiveness of counsel by filing a petition for writ of habeas corpus. The court disagreed. Creating an additional process for a collateral proceeding in dependency matters would have been duplicative of safeguards already in place and would undermine the stated goal of parsimoniously remedying the family's problems. The mother had not been criminally charged, and there was nothing to suggest that the Department planned to seek termination of parental rights. Because the mother had a statutory, not a constitutional, right to counsel, she had no right to collaterally challenge the effectiveness of counsel. The court disapproved L.W. v. Department of Children & Families, 812 So. 2d 551 (Fla. Dist. Ct. App. 2002) to the extent that it conflicted with the court's decision. Family Law > Parental Duties & Rights > General Overview [HN6] There is a constitutional right to counsel in dependency proceedings under two circumstances: when the proceedings may result in the permanent termination of parental rights, or when a parent may be charged with criminal child abuse. The constitutional right to counsel in the former situation, proceedings which may result in the permanent termination of parental rights, is based on the recognition that there is a constitutionally protected interest in preserving the family and raising one's children. The right to counsel where criminal charges may be brought, on the other hand, flows from the Sixth Amendment right to counsel as applied to the states by the Fourteenth Amendment. JULIE K. JACOBY, Appellant, v. DAVID E. JACOBY, Appellee.
66
OVERVIEW: Both parties sought primary residential custody of the parties' two girls. Appellant proposed that they live with her and her lesbian partner in the home they had shared since the separation. The father became engaged while the divorce was pending; he intended to marry and move into a home owned by his new wife when the dissolution was final. If awarded custody, the girls would live with him, his new wife and her teenaged children and attend public school in the neighborhood of his new home, which was in the same county as the marital home, but not nearby. The court reversed and remanded, finding the trial court had penalized the mother for her sexual orientation without evidence that it harmed the children. Accordingly, it reversed the court's appointment of the father as primary residential parent, and remanded with directions to enter a new custody order and consider attorney's fees. VALERIE MARADIE, Appellant/Cross- Appellee, v. JOHN B. MARADIE, OVERVIEW: Appellant, mother, sought review of decision awarding primary custody of the parties' daughter to appellee, father. Appellant argued the trial court erred in awarding custody to appellee based on trial court's taking judicial notice that a homosexual environment was not a traditional home environment, and could adversely affect a child. The appellate court concluded that the trial court failed to follow the statutory procedure required for judicial notice, Fla. Stat. ch. 90.204(a)1995), and the subject judicially noticed was not within the limited subjects authorized by statute. To fulfill the requirements of judicial notice under Fla. Stat. ch. 90.202(12), the facts sought to be noticed must not be subject to dispute because they were capable of accurate and ready determination by resort to sources whose accuracy could not be questioned. To fit within Fla. Stat. ch. 90.202(12), accurate records must exist which established the judicially-noticed fact. Pursuant to Fla. Stat. ch. 90.202(11), the noticed facts must not be subject to dispute because they were generally known within the territorial jurisdiction of the court. The court held judicial notice was not appropriate. PHILIP GOODE VON EIFF vs. LEONOR AZICRI OVERVIEW: Respondents, the biological maternal grandparents, filed a petition for unsupervised visitation with petitioner parents' child, as authorized by the Grandparental Visitation Rights statute, Fla. Stat. ch. 752.01(1)(a), alleging that the biological father and adoptive mother had refused reasonable visitation with the child and that such visitation was in the child's best interests. Petitioners countered that they had a fundamental privacy right to determine with whom the child associated and that subsection (1)(a) violated that right. The court noted that while an implicit right of privacy was recognized under the federal constitution, Floridians enjoyed an explicit right of privacy under Fla. Const. art.1, § 23, which granted the citizens of Florida more protection from governmental intrusion than that afforded under the federal constitution. The court found that petitioners possessed a constitutional right of privacy in their decision to limit the grandparents' visitation with their child. The court declared that § 752.01(1)(a) was facially unconstitutional. Constitutional Law > Substantive Due Process > Privacy > General Overview [HN6] When analyzing a statute that infringes on the fundamental right of privacy, the applicable standard of review requires that the statute survive the highest level of scrutiny: the right of privacy is a fundamental right which we believe demands the compelling state interest standard. This test shifts the burden of proof to the state to justify an intrusion on privacy. The burden can be met by 67
demonstrating that the challenged regulation serves a compelling state interest and accomplishes its goal through the use of the least intrusive means. DIANE SAUL and DAVID SAUL, Appellants, vs. DOMINIK BRUNETTI, OVERVIEW: Appellee father had an out- of-wedlock child with mother in 1994. Appellee paid court-ordered child support and was actively involved in the child's life. The child lived with mother and appellants, the child's maternal grandparents. Mother was then killed in a car accident. Appellee took the child to live with him, but soon a dispute arose over visitation. Appellants filed suit seeking visitation pursuant to Fla. Stat. ch. 752.01 (1995). The court awarded the maternal grandparents temporary weekly visits, based on a best interest analysis. The court of appeals reversed, holding that the statute violated appellee's constitutional right of privacy. The court affirmed, holding that, as with two other subsections of the statute previously held unconstitutional, subsection (d), which referred to grandparent visitation with children born out of wedlock, also violated a parent's right to privacy. The fact that the parents were never married did not change the analysis.
ELIZABETH SULLIVAN, etc., Appellant, vs. LANDON COLE SAPP, OVERVIEW: The father was declared to be the natural father in a paternity action. A provision was included regarding income tax exemptions. The mother filed a timely motion for rehearing in the paternity action pertaining to the taxes. However, she was killed in a car accident. The grandmother sought to intervene in the paternity action that was pending on rehearing and requested visitation rights pursuant to Fla. Stat. ch. 61.13(2)(b)2.c. The supreme court held the paternity judgment was not voided by the death of the mother. Thus, the cause of action was not moot and the trial court retained jurisdiction to consider the economic matters. The mother challenged only a collateral economic issue and did not challenge any substantive issue. However, the grandmother's issue of visitation was no longer the matter in litigation and her motion to intervene was properly denied. Fla. Stat. ch. 61.13(2)(b)2.c failed to require a showing of harm to the affected child, did not further a compelling state interest, and was facially unconstitutional as violative of a parent's fundamental right of privacy under Fla. Const. art. I, § 23. Vickie L. Bernie and Bruce J. Bernie, Petitioners, v. State of Florida, OVERVIEW: An envelope addressed to petitioner wife broke open during transit, revealing a suspicious substance. The substance was tested and identified as cocaine. Police obtained a search warrant for petitioners', husband and wife, residence relative to the prospective controlled delivery of the cocaine. A few minutes after the controlled delivery, police executed the warrant, arrested petitioners, and charged them with possession of cocaine. Petitioners sought to suppress the evidence on the grounds that it was the product of an unreasonable search and seizure, relying on the provisions in Fla. Stat. ch. 933.18 (1983). The trial judge granted petitioners' motion to suppress, but the appellate court reversed the decision. The supreme court affirmed the appellate court's decision and held that the 1982 amendment to Fla. Const. art. I, § 12 brought the state's search and seizure laws into conformity with all decisions of the United States Supreme Court. The court concluded that there was probable cause to obtain a warrant to seize a package already in law enforcement's constructive possession and that law enforcement knew contained contraband. 68
Criminal Law & Procedure > Search & Seizure > Search Warrants > Probable Cause > Sensory Perceptions [HN6] The law is clear that an anticipatory search warrant is not constitutionally invalid for lack of a present violation of law at the premises where the contraband will be delivered in the future.
STATE of Florida, Petitioner, v. John M. LAVAZZOLI, OVERVIEW: Respondent violated the terms of his probation and the trial court imposed a threeyear period of incarceration. Respondent sought review and the appellate court reversed, holding that the trial court erred in refusing to consider respondent's motion to suppress. Upon petition of the state, the appellate court certified its decision to the state supreme court. The court considered the narrow issue of whether an amendment to Fla. Const. art. I, § 12 applied retroactively to respondent's case. Before amendment, the constitutional provision provided Florida citizens with a higher standard of protection from government intrusion than that afforded by the federal constitution. After amendment, Florida's exclusionary rule was linked to the federal exclusionary rule, removing the independent protective force of state law. The court held in the absence of clear legislative intent to the contrary, a law was presumed to operate prospectively and that the rule applied with particular force when the retrospective operation of the law would impair or destroy existing rights. The court therefore held that the amendment applied prospectively only and upheld the decision of the appellate court. STATE OF FLORIDA, Petitioner, vs. SHELTON SCARLET, OVERVIEW: The Florida Supreme Court previously ruled that, in the absence of a controlling federal decision directly on point, evidence obtained through an unlawful search was inadmissible in a probation revocation hearing. The United States Supreme Court subsequently ruled that such evidence was admissible in parole revocation hearings. The appellate court found a parole revocation hearing was substantively different from a probation revocation hearing as the former was an administrative proceeding conducted by non-lawyers to which traditional rules of evidence generally did not apply, while the latter was under the court's jurisdiction and generally led to sentencing hearings requiring the appointment of counsel. The Florida Supreme Court declined to revisit its prior decision. YOUNGHANS v. STATE of Florida, Appellee. OVERVIEW: The trial court denied appellant's application for bail pending appeal of a conviction. On review, the court temporarily relinquished jurisdiction, and remanded for reconsideration pursuant to the following guidelines: If an appeal was taken merely for delay, bail should be refused; but, if taken in good faith on grounds not frivolous but fairly debatable, then appellant should be admitted to bail. In determining whether an appeal was frivolous and taken only for delay, the trial court could consider the character of the case, the trial, and the assignments of errors. Additionally, the trial judge could consider the habits of appellant as to respect for the law; appellant's local attachments to the community, by way of family ties, business, or investments; the severity of the punishment imposed for the offense; and any other circumstances relevant to the question of whether appellant would be tempted to remove himself from the jurisdiction of the 69
court. In a case where the term of imprisonment imposed was short, the court explained, the trial court might also consider whether the denial of bail would render nugatory the right to appeal from the judgment of conviction.
STATE OF FLORIDA, Petitioner, v. DANNY W. ARTHUR, OVERVIEW: Defendant was indicted and denied release on bail. He petitioned for habeas corpus to review the denial. The district court affirmed denial and certified questions of whether a trial court had discretion to grant bail to a defendant who was charged with a capital offense or an offense punishable by life imprisonment where the proof of guilt was evident and presumption great, and whether the accused or the state in such a case had the burden of proof on the issue of whether the proof of guilt was evident and the presumption great. The court answered the first question in the affirmative, determined that it was the state's burden to prove facts which took away the entitlement to bail, approved in part and quashed in part the lower court's decision, and remanded with directions to reverse the order denying bail and to remand for further proceedings. The court found that the trial court maintained discretion to grant or deny bail. Moreover, the court found that the state was required to present further evidence which, viewed in the light most favorable to the state, would be legally sufficient to sustain a verdict of guilty. NINA DIAMOND v. E. R. SQUIBB OVERVIEW: Petitioners daughter and parents commenced a product liability and negligence action against respondent corporation relating to a drug produced by respondent. The drug was administered to petitioner mother while pregnant with her daughter and it was found more than 20 years later to cause cancerous and pre-cancerous conditions in teenaged girls. Respondent moved for and was granted summary judgment because petitioners' claims were barred by the statute of limitations in accordance with Fla. Stat. ch. 95.031(2). Petitioners sought a writ of certiorari reviewing the appellate court's decision. Petitioners contended that Fla. Stat. ch. 95.031(2) was unconstitutional and violated Fla. Const. art. I, § 21, denying them access to the courts and depriving them of their due process rights. The court vacated the appellate court's decision. The court reasoned that the statute of limitations barring petitioners' claim was unconstitutional and deprived petitioners of a judicial forum to redress their injuries. Moreover, the statute of limitations expired before petitioners knew that they had a right of action against respondent, therefore, summary judgment was improper. Robert P. Smith v. Department of Insurance, OVERVIEW: The reviewing court affirmed, except for the portions approving a cap on noneconomic damages and imposing rate changes. The court held the Act did not violate the single subject rule under Fla. Const. art. III, § 6 because there was an opportunity for debate and hearing and the provisions were germane to the subject of the Act. However, the cap on noneconomic damages was impermissible under Fla. Const. art I, § 21 because no overpowering public necessity for abolishment and no alternative method of redress was shown. Further, the legislature did not have sufficient authority to impair insurance contracts by changing the agreed-to premiums.
70
However, those portions were severable and the Act remained valid after the invalid provisions were stricken. Insurance Law > Industry Regulation > Joint Underwriting Associations Torts > Business Torts > General Overview [HN7] The first part of the Tort Reform and Insurance Act of 1986, Ch. 86-160, Laws of Fla. (1986), contains long-term insurance reform which (a) expands the authority of the Department of Insurance to review and approve property and casualty rates; (b) establishes a joint underwriting association to guarantee the availability of property and casualty insurance to persons required by law to have insurance, but who have been rejected in the voluntary market; (c) creates an excess profits law for commercial property and casualty insurance; (d) requires insurance companies to return excess profits to policyholders who comply with risk management guidelines; (e) restricts cancellations and non-renewals of casualty insurance contracts; (f) allows the formation of professional and commercial self-insurance funds; and (g) permits banks to own and control reinsurance companies.
Civil Procedure > Judgments > Relief From Judgment > Additurs & Remittiturs > Additurs Civil Procedure > Judgments > Relief From Judgment > Additurs & Remittiturs > Remittiturs Torts > Procedure > Multiple Defendants > Joint & Several Liability [HN8] The second part of the Tort Reform and Insurance Act of 1986, Ch. 86-160, Laws of Fla. (1986), contains the tort reforms which (a) largely replace joint and several liability with proportional liability; (b) limit noneconomic damages to $ 450,000; (c) require structuring of future economic damages exceeding $ 250,000; (d) require damages to be itemized in verdicts; (e) require courts to reduce judgments by amounts contributed from collateral sources; (f) create an offer of judgment/demand for judgment rule; (g) authorize judges to require settlement conferences; (h) specify criteria by which judges can increase or decrease jury verdicts by additur or remittitur; and (i) place limits on punitive damages.
of Legislation > General Overview Governments > Legislation > Interpretation [HN18] When a part of a statute is declared unconstitutional the remainder of the act will be permitted to stand provided: (1) the unconstitutional provisions can be separated from the remaining valid provisions, (2) the legislative purpose expressed in the valid provisions can be accomplished independently of those which are void, (3) the good and the bad features are not so inseparable in substance that it can be said that the Legislature would have passed the one without the other and, (4) an act complete in itself remains after the invalid provisions are stricken.
71
Clara H. KLUGER, Appellant, v. Bernadette WHITE OVERVIEW: Appellant's car was damaged when a car owned by appellee car owner collided with appellant's car. Although there were no injuries, the damage to appellant's car exceeded the value of her car, which was less than $ 500. Appellant sued appellees for damages. The trial court ruled that under Fla. Stat. ch. 627.738, appellant had no right of action against appellees because appellant had no property damage insurance and her damages did not exceed $ 550. On appeal, the court held that ch. 627.738 was unconstitutional because it violated Fla. Const. art. I, § 21, which guaranteed the right to have access to the courts. The court determined that Fla. Stat. ch. 627.738 was unconstitutional because ch. 627.738 was enacted after the adoption of the state constitution, and appellant would have had a right of action at the time the constitution was adopted. The court found the state legislature removed a right without good reason and without providing an alternative. GREGORY HENDERSON, et al., Appellants, v. JAMES V. CROSBY, OVERVIEW: The prisoner's argued that actions taken by the prison officials, which limited access to prison law libraries, violated Fla. Const. art. I, § 21. These actions included the removal of books, limiting inter-library loan, and restricting hours of operation. The appellate court held that the trial court erred in applying a federal test, which was narrower than the Florida Mitchell test. Section 21 required that the Department of Corrections provide affirmative assistance as to all types of claims that might be filed in Florida's courts, including those based on federal law, not merely those claims challenging convictions, sentences, or conditions of confinement, or seeking to vindicate a fundamental constitutional right. Furthermore, the Department's justification for its action or inaction had to satisfy the strict-scrutiny test when such action or inaction resulted in a significant impediment to inmates' access to the courts. However, the appellate court held that the prisoners were not entitled to relief. As a matter of law, either individually or collectively, the actions complained of did not constitute significant impediments to the right of access to Florida courts. B.J.Y., Petitioner/Appellant, vs. M.A., Respondent/Appellee. OVERVIEW: Plaintiff mother sued defendant man seeking a determination of paternity and an award of child support under Fla. Stat. Ann. § 742.031 (1991). Defendant requested a jury trial. The trial judge granted his request, finding § 742.031 unconstitutional because it denied defendant the right to jury trial as guaranteed by Fla. Const. art. I, § 22. The appellate court denied a petition for certiorari and certified to the court the question of the constitutionality of the statute. The court held that the Florida Constitution preserved the right to jury trial in paternity proceedings and declared unconstitutional that portion of § 742.031 that required paternity proceedings to be tried by the judge. The Florida Constitution guaranteed a right to jury trial in those cases where, at the time of the adoption of the constitution, the law gave that right. Before the Florida Constitution became effective, the Bastardy Act of 1828 permitted a woman to sue the alleged father of her illegitimate child and obtain child support. Under that act, the issue of paternity was to be tried before a jury. Accordingly, the Florida Constitution preserved the right to jury trial in paternity proceedings.
72
UNIVERSITY OF MIAMI, etc., Appellant, v. PATRICIA ECHARTE, PROCEDURAL POSTURE: Appellant state university sought review of a decision from the Third District Court of Appeal (Florida), which affirmed the trial court's ruling that Fla. Stat. chs. 766.207 and 766.209 violated the Florida Constitution. Appellee parents sued appellant in a medical malpractice action in which they alleged their daughter was injured by negligent care provided by appellant's hospital's medical providers. OVERVIEW: Appellee parents of an injured child sought to bring a medical malpractice action against appellant state university. Pursuant to Fla. Stat. chs. 766.207 and 766.209, appellant contended that appellees had to submit their claim to a medical negligence arbitration panel. Appellees filed a declaratory action questioning the constitutionality of the provisions. The trial court entered judgment in favor or appellees because it determined the statutes were unconstitutional. The appellate court affirmed. On appeal to the state supreme court, the appellate court's decision was reversed and remanded. The court held that the statutes which provided a monetary cap on noneconomic damages in medical malpractice claims when a party requested arbitration did not violate a claimant's right of access to the courts because they provided a commensurate benefit to plaintiffs in exchange for the monetary cap. Further, the legislature had reasonably concluded that the high cost of malpractice insurance made such measures necessary and unavoidable. OUTCOME: The decision of the lower court finding medical malpractice arbitration statutes unconstitutional was reversed and remanded for further proceedings. The court held that the medical malpractice arbitration statutes did not deprive plaintiffs of their right to access to the courts.
Torts > Malpractice & Professional Liability > Healthcare Providers [HN1] See Fla. Stat. ch. 766.201(Supp. 1988).
Insurance Law > Claims & Contracts > Notice to Insurers > Reasonableness Torts > Malpractice & Professional Liability > Healthcare Providers Torts > Negligence > Proof > Evidence > Expert Testimony [HN2] Fla. Stat. ch. 766.203-.206 set out the presuit investigation procedure that both the claimant and defendant must follow before a medical negligence claim may be brought in court. The first step in the presuit investigation is for the claimant to determine whether reasonable grounds exists to believe that a defendant acts negligently in the claimant's care or treatment, and that this negligence causes the claimant's injury. Fla. Stat. ch. 766.203(2) (Supp. 1988). Fla. Stat. ch. 766.203(2) also requires that the medical negligence claim be corroborated by a "verified written medical expert opinion" before giving notice to a defendant. After the claimant establishes the reasonable grounds to believe that negligence occurred, the defendant or defendant's insurer is required to conduct a presuit investigation. Fla. Stat. ch. 766.203(3) (Supp. 1988).
Civil Procedure > Alternative Dispute Resolution > Arbitrations > General Overview 73
Civil Procedure > Alternative Dispute Resolution > Validity of ADR Methods Torts > Procedure > Alternative Dispute Resolution [HN3] If the claimant's reasonable grounds for the medical negligence claim are intact at the completion of the presuit investigation, either party may request that a medical arbitration panel determine the amount of damages. Fla. Stat. ch. 766.207(2) (Supp. 1988). Section 766.207 provides that upon such request, the opposing party's agreement to participate in arbitration binds both parties to the arbitration panel's decision, and precludes other remedies by the claimant against the defendant.
Torts > Damages > Compensatory Damages > Lost Income > General Overview Torts > Damages > Compensatory Damages > Medical Expenses Torts > Malpractice & Professional Liability > Healthcare Providers [HN4] Under Fla. Stat. ch. 766.207(7) a claimant can recover net economic damages of past and future medical expenses and eighty percent of lost wages and earning capacity. The claimant's noneconomic damages are limited to a maximum of $ 250,000 per incident, and are calculated on a percentage basis with respect to capacity to enjoy life. Fla. Stat. ch. 766.207(7). Finally, Fla. Stat. ch. 766.211 (Supp. 1988), provides for prompt payment of the award to the claimant, including interest at the legal rate and a penalty rate if the defendant fails to pay within 90 days of the award.
Torts > Damages > Compensatory Damages > Pain & Suffering > General Overview [HN5] See Fla. Stat. ch. 766.202(7) (Supp. 1988).
Civil Procedure > Alternative Dispute Resolution > Arbitrations > General Overview Civil Procedure > Alternative Dispute Resolution > Validity of ADR Methods Torts > Malpractice & Professional Liability > Healthcare Providers [HN6] Fla. Stat. ch. 766.207(7) holds the defendant responsible for the prompt payment of the arbitration award and interest on all accrued damages, payment of the claimant's reasonable attorney's fees and costs as determined by the arbitration panel up to fifteen percent of the award, and payment of all arbitration costs. In addition, Fla. Stat. ch. 766.207(7)(h) holds each defendant participating in the arbitration proceeding jointly and severally liable for all damages assessed by the panel. Fla. Stat. ch. 766.209(3) provides that if the defendant refuses arbitration, the claimant proceeds to trial without any limitation on damages and is entitled to receive reasonable attorney's fees up to twenty-five percent of the award. Fla. Stat. ch. 766.209(4) provides that if a claimant refuses a defendant's offer to arbitrate, then a claimant proceeds to trial; however, noneconomic damages are capped at $ 350,000 per incident.
Constitutional Law > Bill of Rights > General Overview Governments > Courts > Common Law Torts > Damages > General Overview [HN7] Where a right of access to the courts for redress for a particular injury is provided by statutory law predating the adoption of the Declaration of Rights of the Constitution of the State of Florida, or where such right is a part of the common law of the State pursuant to Fla. Stat. ch. 2.01, 74
the legislature is without power to abolish such a right without providing a reasonable alternative to protect the rights of the people of the state to redress for injuries, unless the legislature can show an overpowering public necessity for the abolishment of such right, and no alternative method of meeting such public necessity can be shown. Thus, the legislature cannot restrict damages by either enacting a minimum damage amount or a monetary damage cap without meeting this test.
Constitutional Law > The Judiciary > Case or Controversy > Constitutionality of Legislation > General Overview [HN8] The legislature has the final word on declarations on public policy, and the courts are bound to give great weight to legislative determinations of facts. Further, legislative determinations of public purpose and facts are presumed correct and entitled to deference, unless clearly erroneous.
JEANIE H. MELBOURNE, Petitioner, vs. STATE OF FLORIDA,
CASE SUMMARY:
PROCEDURAL POSTURE: Defendant appealed the judgment from the Fifth District Court of Appeal, Orange County (Florida), convicting her on two counts of driving under the influence manslaughter and one count of driving under the influence with serious bodily injury. OVERVIEW: Defendant was convicted of two counts of driving under the influence (DUI) manslaughter and one count of DUI with serious bodily injury. When the prosecution used a peremptory strike to remove an African American from the jury panel, defense counsel stated that he would raise a challenge. After brief comment as to the strike being the first by the prosecution of an African American, and the defense's having stricken two, defense counsel indicated he had nothing else to say. The court indicated it did not see any discriminatory action in the strike. Because no further challenge was made prior to the jury being sworn, defendant failed to preserve the issue for review. Defendant's multiple convictions did not violate double jeopardy although they arose from a single violation of the DUI statute. Florida allows multiple convictions for a single violation of the DUI statute where injury results to several persons, because the individual violation is a direct cause of injury to each victim. Defendant's convictions were affirmed. OUTCOME: Defendant's convictions of driving under the influence (DUI) manslaughter and DUI serious bodily injury were affirmed where defendant failed to preserve for review an issue of racial peremptory challenge. Multiple convictions arising out of one violation of the DUI statute did not result in double jeopardy violation when multiple injuries resulted from a single incident. CORE TERMS: peremptory, juror, peremptory challenge, racial discrimination, race-neutral, nonracial, proponent, racially, defense counsel, guidelines, suspended license, racial group, reasonableness, genuineness, black man, discriminatory, prosecutor, driving, driver, burden of
75
production, timely objection, basis of race, come forward, new trial, nondiscriminatory, credibility, questioned, purposeful, objecting, approve LexisNexis(R) Headnotes
Criminal Law & Procedure > Juries & Jurors > Peremptory Challenges > General Overview [HN1] A party objecting to the other side's use of a peremptory challenge on racial grounds must make a timely objection on that basis, show that the venireperson is a member of a distinct racial group, and request that the court ask the striking party its reason for the strike. If these initial requirements are met, the court must ask the proponent of the strike to explain the reason for the strike. At this point, the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation. If the explanation is facially race-neutral and the court believes that, given all the circumstances surrounding the strike, the explanation is not a pretext, the strike will be sustained. If the explanation is not facially race-neutral, the inquiry is over; the strike will be denied. The Florida Constitution does not require that an explanation be nonracial and reasonable, only that it be truly nonracial.
Civil Procedure > Trials > Jury Trials > Jurors > Selection > Voir Dire Civil Procedure > Appeals > Standards of Review > Reversible Errors Criminal Law & Procedure > Juries & Jurors > Peremptory Challenges > Appellate Review [HN2] Peremptory strikes are presumed to be exercised in a nondiscriminatory manner. The trial court's decision to honor a peremptory strike turns primarily on an assessment of credibility and will be affirmed on appeal unless clearly erroneous.
Criminal Law & Procedure > Criminal Offenses > Vehicular Crimes > Driving Under the Influence > General Overview Criminal Law & Procedure > Criminal Offenses > Vehicular Crimes > License Violations > Revoked & Suspended Licenses [HN3] Multiple convictions can arise from a single violation of the driving under the influence statute where injury results to several persons.
DARRICK TERRELL ADAWAY, Petitioner, vs. STATE OF FLORIDA, Respondent.
PROCEDURAL POSTURE: Defendant appealed his sentence which was affirmed by the Third District Court of Appeal (Florida). The lower appellate court expressly declared valid Fla. Stat. ch. 775.082(1) (1999) which mandated life imprisonment without the possibility of parole for persons convicted of capital sexual battery. The sole issue was whether such a sentence for oral union with the vagina of a girl under the age of 12 constituted cruel and unusual punishment. 76
OVERVIEW: Defendant sexually assaulted an 11-year-old girl while she slept in the bedroom she shared with her siblings. Defendant was convicted violating Fla. Stat. ch. 794.011(2) (1999), sexual battery on a child under 12, and Fla. Stat. ch. 899.04(5)(b) (1999), lewd or lascivious molestation of a child under 12. Defendant was sentenced to life imprisonment without the possibility of parole on the sexual battery charge, which was a mandatory sentence under Fla. Stat. ch. 775.082(1). Defendant argued the sentence was grossly disproportionate to his crime and therefore violated both U.S. Const. amend. VIII and Fla. Const. art. I, § 17. The supreme court held that for a prison sentence to constitute cruel and unusual punishment solely because of its length, at a minimum the sentence had to be grossly disproportionate to the crime. Defendant failed to demonstrate gross disproportionality. Given the array of potentially lifelong harms associated with sexual abuse of children, the supreme court declined to second-guess the Florida Legislature's judgment that such a crime warranted a lifelong penalty. Thus, defendant's sentence did not violate Fla. Const. art. I, § 17 or U.S. Const. amend. VIII. OUTCOME: The judgment of the lower appellate court was affirmed.
Constitutional Law > Bill of Rights > Fundamental Rights > Criminal Process > Cruel & Unusual Punishment Criminal Law & Procedure > Sentencing > Cruel & Unusual Punishment [HN1] See Fla. Const. art. I, § 17.
Criminal Law & Procedure > Criminal Offenses > Homicide > Murder > Capital Murder > Penalties Criminal Law & Procedure > Criminal Offenses > Sex Crimes > Sexual Assault > Abuse of Adults > Elements Criminal Law & Procedure > Sentencing > Capital Punishment > General Overview [HN2] Fla. Stat. ch. 794.011(1)(h) (1999) defines sexual battery as oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object. When a person at least 18 years old commits sexual battery on a person under 12, the statute deems it a capital felony, punishable as provided in Fla. Stat chs. 775.082 and 921.141. Fla. Stat. ch. 794.011(2)(a) (1999).
Criminal Law & Procedure > Criminal Offenses > Sex Crimes > Sexual Assault > Abuse of Adults > Penalties Criminal Law & Procedure > Sentencing > Capital Punishment > General Overview Criminal Law & Procedure > Postconviction Proceedings > Parole [HN3] Fla. Stat. ch. 775.082(1) (1999) provides that a person convicted of capital sexual battery shall be punished by life imprisonment and shall be ineligible for parole.
Constitutional Law > Bill of Rights > Fundamental Rights > Criminal Process > Cruel & Unusual Punishment 77
Criminal Law & Procedure > Sentencing > Appeals > General Overview Criminal Law & Procedure > Sentencing > Cruel & Unusual Punishment [HN4] Like the United States Supreme Court, the Florida Supreme Court is reluctant to declare a sentence cruel or unusual simply because of its length. The length of the sentence actually imposed is generally said to be a matter of legislative prerogative. The Eighth Amendment to the United States Constitution and former Fla. Const. art. I, § 17 have historically provided protection relative to the mode and method of punishment, not the length of incarceration.
Constitutional Law > Bill of Rights > Fundamental Rights > Criminal Process > Cruel & Unusual Punishment Criminal Law & Procedure > Sentencing > Cruel & Unusual Punishment Criminal Law & Procedure > Sentencing > Proportionality [HN5] Through the thicket of Eighth Amendment jurisprudence, one governing legal principle emerges as "clearly established," namely, that a gross disproportionality principle is applicable to sentences for terms of years. In other words, to violate the Cruel and Unusual Punishments Clause, a prison sentence must, at least, be grossly disproportionate to the crime.
Constitutional Law > Bill of Rights > Fundamental Rights > Criminal Process > Cruel & Unusual Punishment Criminal Law & Procedure > Sentencing > Cruel & Unusual Punishment Criminal Law & Procedure > Sentencing > Proportionality [HN6] For a prison sentence to constitute cruel and unusual punishment solely because of its length, at a minimum the sentence must be grossly disproportionate to the crime. It is "clearly established" that a gross disproportionality principle is applicable to sentences for terms of years.
DADE COUNTY CLASSROOM TEACHERS ASSOCIATION, INC., a Florida corporation not for profit, Petitioner, v. The LEGISLATURE of the State of Florida, PROCEDURAL POSTURE: Petitioner, a corporation, brought original mandamus proceedings to compel respondent, the legislature of the state of Florida, to enact standards or guidelines regulating the right of collective bargaining by public employees of Florida, as guaranteed by Fla. Const. art. I, § 6 (1968). The petition for the writ was filed as a class action on behalf of the teachers employed by a county district school board and the state's public employees. OVERVIEW: Petitioner, a corporation, sought a writ of mandamus, brought as a class action on behalf of the teachers employed by a county district school board and the public employees of the state of Florida. The original mandamus proceedings sought to compel respondent, the legislature of the state of Florida, to enact standards or guidelines regulating the right of collective bargaining by state public employees, as guaranteed by Fla. Const. art. I, § 6 (1968). The petition complained of inaction on the part of respondent to do as such, following a decision by the court that made clear that, except the right to strike, the state constitution guaranteed public employees with the same rights of collective bargaining as were granted to private employees. The court denied the petition 78
for the writ, holding that it had confidence that within a reasonable time, respondent would extend its time and study into the field and any judicial implementation of the rights in question would have thus been premature. If not, the court ruled that it would fashion such guidelines by judicial decree in such manner as to comply both with the state constitutional requirements and its responsibility. OUTCOME: The petition for a writ of mandamus to compel respondent, the state legislature, to enact standards or guidelines regulating the right of collective bargaining by Florida's public employees was denied, because the court held that it had confidence that respondent would extend its time and study into the field, and judicial implementation of the rights in question would thus have been premature at that time. The cause was dismissed. Constitutional Law > State Constitutional Operation Labor & Employment Law > Collective Bargaining & Labor Relations > Strikes & Work Stoppages [HN1] The court has made clear that, except for the right to strike, Florida's state constitution guarantees to public employees the same rights of collective bargaining as are granted to private employees. The court has also emphasized, however, that appropriate legislation setting out standards and guidelines and otherwise regulating the sensitive area of labor relations between public employees and public employer should be adopted by the state legislature.
Constitutional Law > Separation of Powers Governments > State & Territorial Governments > Legislatures Labor & Employment Law > Collective Bargaining & Labor Relations > Right to Organize [HN2] In the sensitive area of labor relations between public employees and public employer, it is requisite that the state legislature enact appropriate legislation setting out standards and guidelines and otherwise regulate the subject within the limits of Fla. Const. art. I, § 6 (1968). A delicate balance must be struck in order that there be no denial of the guaranteed right of public employees to bargain collectively with public employers without, however, in any way trenching upon the prohibition against public employees striking either directly or indirectly or using coercive or intimidating tactics in the collective bargaining process.
Labor & Employment Law > Collective Bargaining & Labor Relations > Right to Organize Labor & Employment Law > Collective Bargaining & Labor Relations > Strikes & Work Stoppages [HN3] See Fla. Const. art. I, § 6, Declaration of Rights (1968).
Constitutional Law > Separation of Powers Governments > Legislation > Enactment [HN4] Florida's constitution, like those of most other states, divides the state's sovereign powers into three coordinate branches, legislative, executive and judicial, and prohibits a person belonging to one of such branches from exercising any powers "appertaining to either of the other branches unless expressly provided herein." Fla. Const. art. II, § 3 (1968). And it is too well settled to need 79
any citation of authority that the judiciary cannot compel the legislature to exercise a purely legislative prerogative. The court has been diligent in maintaining and preserving the doctrine of separation of powers mandated by the state constitution.
Governments > Courts > Authority to Adjudicate Governments > Federal Government > Executive Offices Governments > Legislation > Enactment [HN5] The court has summarized the separation-of-powers rule as follows: The courts have power to invalidate legislative enactments, but with certain exceptions not necessary to enumerate here, may not control or direct legislation, under the doctrine of separation of powers between the executive, legislative and judicial branches of the government.
Administrative Law > Separation of Powers > Constitutional Controls > General Overview Constitutional Law > Separation of Powers Governments > Courts > Authority to Adjudicate [HN6] One of the exceptions to the separation-of-powers doctrine is in the area of constitutionally guaranteed or protected rights. The judiciary is in a lofty sense the guardian of the law of the land and the state constitution is the highest law. A constitution would be a meaningless instrument without some responsible agency of government having authority to enforce it. As one state high court justice has stated, the people are under a constitution, but the constitution is what the judges say it is, and the judiciary is the safeguard of our liberty and of our property under the constitution.
Constitutional Law > Separation of Powers Governments > Courts > Authority to Adjudicate Governments > Legislation > Enactment [HN7] When the people have spoken through their organic law concerning their basic rights, it is primarily the duty of the legislative body to provide the ways and means of enforcing such rights; however, in the absence of appropriate legislative action, it is the responsibility of the courts to do so. Where people in a constitution or charter vote themselves a governmental benefit or privilege, they, the people in whom the power of government is finally reposed, have the right to have their constitutional rights enforced.
Constitutional Law > Separation of Powers Governments > Legislation > Enactment [HN8] The government of the Union, then, is, emphatically, and truly, a government of the people. In form and in substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit. But it may with great reason be contended, that a government, entrusted with such ample powers, on the due execution of which the happiness and prosperity of the nation so vitally depends, must also be entrusted with ample means for their execution. The power being given, it is the interest of the nation to facilitate its execution. It can never be their interest, and cannot be presumed to have been their intention, to clog and embarrass
80
its execution by withholding the most appropriate means. It must have been the intention of those who gave these powers, to insure, as far as human prudence could insure, their beneficial execution.
Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Scope of Freedom Constitutional Law > Bill of Rights > Fundamental Rights > Search & Seizure > General Overview Evidence > Privileges > Self-Incrimination Privilege > General Overview [HN9] The courts have not hesitated to accomplish by judicial fiat what other divisions of government have failed or refused to do in protecting, implementing, or enforcing constitutional rights. The federal constitution guarantees of freedom of speech, of the press, of assembly, and religion under U.S. Const. amend. I; the guaranty against unreasonable searches and seizures under U.S. Const. amend. IV; the right against self-incrimination under U.S. Const. amend. V; the right to counsel under U.S. Const. amend. VI; all these constitutional rights have been judicially protected by the courts.
Civil Procedure > Pleading & Practice > Pleadings > Time Limitations > Extensions Labor & Employment Law > Collective Bargaining & Labor Relations > Right to Organize Labor & Employment Law > Collective Bargaining & Labor Relations > Strikes & Work Stoppages [HN10] The question of the right of public employees to bargain collectively in Florida is no longer open to debate. It is a constitutionally protected right which may be enforced by the courts, if not protected by other agencies of government. It is a right which should be exercised in accordance with appropriate guidelines in order to make sure that there may be no denial of the right and, at the same time, that the prohibition against strikes by public employees will not be violated, either directly or indirectly, and with appropriate penalties for doing so.
LAWTON CHILES, as Governor of the State of Florida, Appellant, vs. STATE EMPLOYEES ATTORNEYS GUILD and RAYMOND J. GREENE, Appellees.
PROCEDURAL POSTURE: Appellant governor, sought review of the decision of the First District Court of Appeal (Florida) which declared unconstitutional Fla. Stat. Ch. 447.203(3)(j) (1997). That statute prohibited those persons who by virtue of their positions of employment were regulated by the Florida Supreme Court, from engaging in collective bargaining with their government employer . OVERVIEW: Appellee filed an action seeking declaration that Fla. Stat. ch. 447.203(3)(j) (1997) was unconstitutional. The lower court struck down the statute concluding that it unconstitutionally infringed upon the right of government lawyers to bargain collectively. On appeal, the court found that those government agencies that allowed collective bargaining had not suffered any adverse 81
impact from such collective bargaining. In affirming the lower court, the court held the state did not demonstrate that a blanket ban on collective bargaining by public employees working as attorneys was the least onerous means of protecting the attorney-client relationships between the lawyers and the public entities which employed them. Evidence of collective bargaining procedures in other jurisdictions showed that collective bargaining procedures could be fashioned to accommodate both the public employers' interests in assuring fidelity and competence in their attorneys and the attorneys' constitutional right as public employees to bargain collectively. OUTCOME: The court affirmed the decision of the lower court which held Fla. Stat. ch. 447.203(3)(j) (1997) to be unconstitutional, because the state had failed to prove the requisite necessity for a wholesale ban on collective bargaining by government lawyers. Constitutional Law > Substantive Due Process > Scope of Protection Labor & Employment Law > Collective Bargaining & Labor Relations > Duty to Bargain [HN1] The legislature cannot, abridge public employees' right to bargain collectively, absent a compelling state interest making it necessary to do so. The legislature may not restrict the right to bargain. The court requires strict judicial scrutiny of any statute that interferes with public employees' rights to bargain collectively. The right to bargain collectively is subject to official abridgement only upon a showing of a compelling state interest. The compelling state interest or strict scrutiny standard imposes a heavy burden of justification upon the state to show an important societal need and the use of the least intrusive means to achieve that goal.
Constitutional Law > Substantive Due Process > Scope of Protection Labor & Employment Law > Collective Bargaining & Labor Relations > Duty to Bargain [HN2] The right to bargain collectively is a "fundamental right." A statute abridging the right of state employees to bargain collectively is consonant with the constitution only if it vindicates a compelling state interest by minimally necessary means.
Constitutional Law > Substantive Due Process > Scope of Protection [HN3] The interest public employers have in the relationship between themselves as clients and their employees who represent them as attorneys may fairly be said to be compelling.
Labor & Employment Law > Collective Bargaining & Labor Relations > Duty to Bargain [HN4] The compelling state interest in retaining competent, professional attorneys does not support a finding of a compelling state interest in preventing any collective bargaining by state employed attorneys.
Civil Procedure > Appeals > Standards of Review > Clearly Erroneous Review [HN5] The findings of a trial court are presumptively correct and must stand unless clearly erroneous.
82
Labor & Employment Law > Collective Bargaining & Labor Relations > Discipline, Layoff & Termination Legal Ethics > Sanctions > Disciplinary Proceedings > General Overview [HN6] Attorneys representing public entities are under the same professional obligations to their clients whether they are retained or whether they are salaried employees. Attorneys violating these rules are subject to sanctions, whether they violate them collectively or individually. In finding that collective bargaining by state-employed attorneys does not encroach upon the court's jurisdiction over the discipline of attorneys, the court has in effect rejected the argument the state makes here that permitting attorneys to bargain collectively would somehow entail a breach of professional ethics.
Labor & Employment Law > Collective Bargaining & Labor Relations > Discipline, Layoff & Termination Labor & Employment Law > Collective Bargaining & Labor Relations > Duty to Bargain Legal Ethics > Sanctions > Disciplinary Proceedings > General Overview [HN7] Public sector lawyers who sue to enforce their rights to bargain collectively under statutory law do not run afoul of their traditional duty of loyalty owed to their employer/client. However, these lawyers are held to the highest ethical obligations to continue to represent the client in the matters they have undertaken, and that a violation of their duty to represent the client competently or faithfully, or of any other rule of conduct, will subject those attorneys to the appropriate discipline, both from the employer and from the state bar.
Legal Ethics > Sanctions > Disciplinary Proceedings > Investigations [HN8] In determining whether an action taken by an attorney or employee association violates the attorney's ethical obligations, we look not to whether the action creates antagonism between the attorney/employee and the client/employer, since such antagonism in the labor relations context is unfortunately commonplace; rather, we seek to ascertain whether an attorney has permitted that antagonism to overstep the boundaries of the employer/employee bargaining relationship and has actually compromised client representation.
83