1 STATE CONSTITUTIONAL LAW ATTACK OUTLINE “I don't control the schedule, so I don't worry about it," [Charlie Weis} said, invoking Parcells. "Just tell me when and where and we'll show up and play." I. Nature of Constitution II. Construing the Constitution A. General • construction of constitutional provision by legislature is presumptively correct and very persuasive unless manifestly erroneous. • Choose construction where conflicting provisions don’t – give both effect – see Burnsed • Construction that gives every provision affect is favored • Construction that gives superfluous, meaningless, or inoperates provision should not be adopted • The outcome a judge wishes can determine the rules of construction they wish to employ Textualism (Scalia and Thomas) Purposevism (Stevens) (1) Amendments should be construed as a whole (1) Constitutions are broader than statutes and merit more liberal construction (2) Less latitude permissible when construing constitutional provisions as they are more carefully framed than statute (cf Florida Society of Oph.) (2) Constitutional provisions should not be construed so as to undermine underlying objectives (3) Avoidance of interpretative absurdity – “court will not give constitutional provision an impossible or irrational construction simply to validate given statute.” • Intent – framer’s AND those who voted on provision • Provisions are to be read in pair materia • The object of "pari materia" is to ascertain and carry into effect intention of legislature o proceeds upon supposition that several statutes governed by one spirit and policy and intended to be consistent and harmonious in their several parts and provisions. • • 1) Ascertain the meaning and intent of the provisions a) give effect to the purpose indicated by a fair interpretation of the language, give affect according to plain and ordinary meaning of words, presumption is in favor of natural and popular meaning of words, then, o 2) if language clear and unambiguous, no need to interpret and rely on rules of construction, no power to go outside of provision and look for excuses to give words new meaning -“If that language is clear, unambiguous, and addresses the matter in issue, then it must be enforced as written.” “The plain language clearly contemplates . . .” o 3) if language ambiguous, Endeavor to construe in manner consistent with intent of framers and voters Look at legislative hx and other texts • Legislature’s construction should control and b followed, unless manifestly erroneous – see Loretta B. Self Executing • To have standing, provision must be self-executing – no private cause of action for damages • Presumption is provisions are self-executing – see NAACP • Can enforce legal rights in constitutional provision without implementing legislation – see Gutman • 2 b s.e., language must be plain and unambiguous – lay down sufficient rule to accomplish purpose o if provision requires additional ascertainments, not self-executing • Legislature amend self-executing? Yes – integrity of initiative process; no -substantive see Smith 2 III. Separation of Powers • Express powers – constitution specifies power and which branch exercises • Inherent power – power needed by branch to carry out core functions • Implied power – power arising out of core function and necessary to carry out power • Exclusive power – only one branch may exercise – can be expressed, inherent, or implied • No person from one branch shall exercise powers of other branch unless expressly authorized • Powers must be exclusive to that branch • If not exclusive, multiple branches can regulate – not a separation of powers issue o Regulating unauthorized practice of law – judiciary disciplines; legislature punishes • FL applies a strict doctrine • Types of violations: o (1) Illegal delegation: one branch attempts to delegate power to another branch o (2) Encroachment: one branch attempts to exercise powers of another branch o (3) Placing restrictions or impediments on another branch o (4) Exercising power in manner not contemplated by court • illegal delegation of power when legislature does not legislate criteria = delegates policy making which is exclusive power of legislature o if court can’t effectively interpret whether intent met, then unconstitutional • court has final say on cases -can’t legislate a different outcome or overturn final judgment • statutes granting power to executive must provide sufficient criteria to guide in execution of powers granted • Court may not enjoin legislature from holding a public hearing – goes to legislature’s core function or inherent power. See Moffitt. • Judge can’t perform functions of state atty – dismissing charges; but may get involved in plea bargain IV. Legislature A. Inherent Powers • Legislature has power to delineate sentences for crimes, even mandatory. o Judiciary just applies the law – the sentence B. Qualification for Membership • Each house is sole judge for its qualifications, elections, and returns • Court did not want to get into their house – did not want legislature in judiciary house C. Quorum and Procedure • Court refuses to investigate internal procedures • Court only reviews final product of legislature – the laws • Legislature determines on its own whether meeting is open to public or not • Only journals superior to enacted acts o Courts have no substantive power to nullify legislative proceedings o Will only look at journals to see if act was constitutionally enacted o Legislative journals are prima facie valid D. Investigations and Witnesses • Legislature has inherent right to investigate; court has right to balance with privacy rights • Court can review legislative findings justifying legislation to weigh presumption of correctness E. Forms of Law • IS BILL VALID – DISCUSS SEPARATION OF POWERS • Constitutional single subject requirement. Exceptions: revisers and biannual re-adoption bills. Purpose of single subject clause: 1. to prevent log-rolling ( may look at legislative hx first) 2. to prevent surprise 3. to apprise people of subject to provide opportunity to be hear on subject 4. to provide limitation on Legislature’s power to enact laws. Court’s standard of review: highly deferential to legislature. Unconstitutionality must appear beyond reasonable doubt, -it must be assumed the legislature intended to enact a valid law. Violation is fundamental error. Test: 1. Title: does title give reasonable notice to induce reasonable inquiry into act’s subject matter? 2. Is act an express amendment? If yes, it must be “set in full.” If amendment by implication, no. 3 3. Single subject clause requires: 1. the subject shall be briefly expressed in the title – court generally need look not further than short title when defining s.s. “An act relating to . . .” o legislature defines subject in title 2. Single subject: law may include any matter properly connected with subject of law. It is properly connected if: o 1) the connection is natural or logical, OR (use common sense) Look to see if provisions are logically connected o 2) there is a reasonable explanation for how the provision is a) necessary to the subject, OR b)tends to make effective the objects and purposes of legislation included in the subject. Determine the subject – is it expressed in the title and what is it? To help me determine whether this is within the single subject, I look to the purpose. (The subject is the matter to which an act relates; the object, the purpose to be accomplished.") Standard: Each section of act is logically connected to subject expressed in title or consistent with subject and promotes object of act even if goals are unexpressed but clear purpose 1) in title and why legislature making legislation, 2) might be more than one purpose. look at legislative hx only if can’t tell from reading legislation if the purpose is readily apparent, the legislature doesn’t have to lay it out. This has not been adopted by the Supreme Court. Curative Consequence of Continuing Statutory Revision Window: starts with Chapter Laws (un-codified bills); ends with (re)-adoption b/c people are on notice – amendments do not close the window. those arrested within window have standing to challenge. strike the whole law – exception see Tormey. F. Article III, Section 10 and 11 – Special Acts Article X, Section 12(g) – rules of construction – special law means special or local law. Art III, Sect 10 – Notice – 30 days or referendum Special law – upon particular person or thing, or upon classified person or thing • permitted classification – when classification reasonably related to purpose • Standard: If a classification closes on a particular day and forever excludes future entry, it is a special or local law • Authorization to tax has to be by general law. how to use the tax can be dealt with by a special law. whether referendum or not is if don’t give a notice. Special law of local application – just in identified part of the state • to be valid = reason for classification AND classification must be open. • local law trumps special law re use of taxes as long as local law reasonably related to purpose of general law. general law • 1) universally throughout the state (murder), OR • 2) acts uniformly upon subjects throughout state – illegal to cut mangroves, even though mangroves only in certain parts of the state o general law of limited geographic scope area of critical state concern – sewage hook-up in Keys. • 3) acts uniformly within permitted classification – higher penalty for assault police; bank exempt from usury laws when loaning to high risk customers • 4) relates to state function or instrumentality G. Appropriation Bills Valid proviso in appropriation bill: 1) reasonably related to funds to be spent 2) cannot be a ruse reason – must be for a reason legislature would want to spend $ 3) can’t change or amend existing, underlying substantive law – may add to as in Collier. a) can’t create contingency for $ if establishing substantive law – see Lewis. H. State Budgetary Process • Trust funds created except by separate bill. 4 o Matters naturally and logically connected to creation, administration, and purpose of trust fund only. Premiums ok b/c indispensable for creation. Brown v. Firestone Limitations: (1) Appropriations bill must not change or amend substantive law (2) Provisos must bear direct and rational relation to purpose of appropriation • veto power – nullify or suspend legislative intent; NOT amend or alter. • cannot designate $ for another purpose –that would be legislating. • 1) Specific appropriation: Smallest identifiable fund. • if restriction has no money, must veto entire appropriation. • may not veto directions in statement of intent. • cannot veto an estimation – must be a quantifiable amount. • may not veto funding source he desires – must veto entire appropriation. I. Legislative Reapportionment • Apportionment is a political issue, :: courts exercise limited review o Look at three things ONLY – federal law requirements, 2) one person/one vote, 3) district contiguousness o gerrymandering or voting rights not here. • Equal protection challenge o intentional discrimination on actual political group o actual effect V. Executive Branch • power to enforce laws • inherent power is to appointment power – but not at PSC which is legislative • functional relation test – if does agency perform same type of function of department? If yes, can put in department and not violate 25 department provision. • Pardon powers exclusively in executive – court will not second-guess governor’s application • Fish and wildlife conservation commission in executive o Exclusive powers – wild animal and fresh water aquatic life o concurrent powers – marine life o but, penalties prescribed by general law o general law to aid commission, but no general or special law of local application pertaining to hunting or fishing o has its own staff, research, and enforcement; determines its own budget o fix hunting seasons – too bad legislature VI. Judiciary A. Nature • medical mediation panel not a court, :: no jurisdiction to hear when judge acting as mediator declared statute unconstitutional – judge not a judge when acting as mediator • unliquidated damages a judicial function; liquidated may be awarded by hearing officer – math formula B. Power • Court won’t look at internal rules and procedure of legislature – separation of powers – see Moffitt • BUT, in Locke, did by construing statute based on supreme judicial power of interpreting and construing statutes and constitutions • Court has inherent power to administer justice – award higher fees to witness – see Rose • May change common law, especially if “rule” was “legal thought” when England c.l. adopted by state • To make court rules – not legislating :: no separation of powers issue • Inherent power to limit litigiousness person from clogging up the courts – see Jackson • Inherent power to award attorneys’ fees if lawyer abusing the judicial system – see Moakley • Inherent power to protect children – is this a goal or power? See Migdal – can investigate, but not tell how agency to run its affairs. • But, legislature and executive have goal of protecting children too – where does inherent power stop? • Inherent power to protect constitutional rights – award higher atty fees where d.p. requires C. Rulemaking • Court has right to make rules for practice and procedure – legislature can repeal rule w/2/3 vote • Substantive v procedural – see J. Adkins • When the court can grant right is procedural. The criteria used by courts in doing it is substantive o Statute attempting to amend rule is unconstitutional b/c violates separation of powers • SCT has exclusive authority to set timeline for postconviction motions per Art V, Sect 2a -see Allen 5 o Habeas proceedings are procedural in nature, :: court makes rules D. Supreme Court Jurisdiction • mandatory – death penalty, DCA declares statute or constitutional provision INVALID, bonds, utility rates • permissive -• medical mediation panel not a court, :: no jurisdiction to hear when judge acting as mediator declared statute unconstitutional – judge not a judge when acting as mediator • no jurisdiction to review per curiam affirmed orders that conflict • DCA conflict must be direct and expressed, and no review of dissent – only majority is law • Judicial v. quasi-judicial functions • no jurisdiction under all writs unless other provision gives reason for jurisdiction. See Williams o Art V, Sect 3b7 – all writs jurisdiction of the SCt is not separate source of original or appellate jurisdiction, but operates in furtherance of Court’s ultimate jurisdiction conferred elsewhere in the constitution o Independent basis -may issue a writ on any case that is reasonably certain to come within the jurisdiction of the SCt, like a death penalty case. See Moffitt o Writ of prohibition – reach down and grab a case where appears lower court to act outside of jurisdiction and case is likely to come up to FL SCt anyway on appeal. • Citation opinion may be reviewed E. DCAs Three sources of jurisdiction 1) constitution – final judgment appeals 2) general law – administrative review 3) supreme court rule – interlocutory appeals • all writs jurisdiction • Circuit court jurisdiction – what not vested in county courts • Writ of certiorari – court error was fundamental error and no adequate remedy on appeal o Civil – court departed from essential requirements of law and irreparably harmed w/o review – e.g. a privilege court permitted to be violated – see 4b o Because the court would ultimately have the right to hear the issues on final appeal, the court exercised its discretion and reviewed the order by certiorari – see In re DB • Preserve error in trial to earn appeal, unless error is fundamental – se Jefferson • Non-final orders not appealable to DCA unless SCt rule provides – legislature can’t override – see Ratner, but legislature can determine circuit court jurisdiction, so DCA remanded. F. Residency • Relevant time is when judge takes office G. Vacancies • if in middle of term, governor appoints; at end, appointment of election • once election process starts, appointment process abated • appointments within 60 days from list of 3 – 6 candidates from nominating committee • nominating meetings are open to the public H. Removal and Discipline • JQC investigates. Needs probable cause with clear and convincing evidence. • Make recommendation to SCT – they are final arbiter of penalty. • If they find that there is competent and substantial evidence that is clear and convincing, they will uphold the JQC. VII. Elections VIII. School Districts • Uniform = system that gives student equal chance of achieving education goals – see Escambia • Adequate provision – sufficient funding – see Coalition No std, -judicial imposition of one would be separation of powers violation • Impact fee fiction – 1.8 kids per household; all residents pay otherwise violate uniform requirement • Vouchers – see Bush I J Khan – statute not unconstitutional unless BARD Art IX, Sect 1 does not say cannot have free education (tuition paid) in private school Wolf – since constitution limitation on power, legislature spend money way it wants o Religion – see Bush II 6 LOCAL GOVERNMENT STRUCTURE See hierarchy 1. General Purpose Local Government – police power – health, safety, welfare – school boards 2. Special Purpose Local Government – roads, mosquito control 3. Counties established by constitution 4. If have broad home rule power, must have elected body for general purpose govt 5. Police power is sovereign right to enact laws for protection of lives, health, morals, comfort, and general welfare. I. Non-charter County Art VIII, Sect. 1f • Have such power of self-government as is provided by general or special law – derive power from statute. • May enact, in manner prescribed by general law, ordinances not inconsistent with general or special law. • Conflict with municipal ordinance – muni ordinance prevails. • May enact ordinance creating MTSU to service unincorporated areas – see Speer. • § 125.01 Fla. Stat. grants full power to carry on county government. o Preemption? o Conflict – either authorizing or prohibiting? o Purpose? • If no, then have full authority to act through exercise of home rule power. II. Charter County Art VIII, Sect 1g -Power derived from constitution, or special law from electorate. -May enact ordinances not inconsistent with general law. -Charter shall provide which ordinance prevails btw county and muni. -Ordinance cannot be inconsistent with own charter, BUT may add requirement to state law – see Sarasota -Charter county acts like a municipality in, and only in, unincorporated area – see McLeod -can levy tax in unincorporated area if not inconsistent with general law, BUT -may not levy tax in municipality – see 1h. Art VIII, Sect 1h -protects muni resident from paying taxes for services exclusively for unincorporated area, BUT -no constitutional prohibition from taxing unincorporated resident for exclusive muni services. III. Municipal Home Rule Concepts Art VIII, Sect 2 -Established by general or special law. Powers derived from constitution. -Provision abolished Dylan’s Rule – munis shall have governmental, corporate and proprietary powers. -Can do anything if not inconsistent with general law -cannot abolish statutorily created power authority – see Lake Worth Courts will uphold almost any municipal “purpose” -if leg. says it’s a municipal purpose, then no court interference absent clear abuse of discretion -is purpose rationally related to general purpose of local govt? -don’t read literally if gives ridiculous or unreasonable conclusion -how rule on Boca v Gidman with Wolf’s reasoning in Bush? 1. Does municipal ordinance have a municipal purpose? 2. Is ordinance inconsistent with general law? a) Preemption i) express ii) implied b) conflict i) direct ii) frustrate intent or purpose IV. Dade V. Consolidated City of Jacksonville 7 VI. State Preemption Local Government Powers Preemption – state has whole subject area. -constitutional (taxes except ad valorem) OR statutory 1. Is ordinance inconsistent with general law? a) Preemption i) express – see Fl Power v Seminole ii) implied – e.g worker’s compensation claims 1. strong public policy reason exist for finding area to be preempted by leg., AND 2. legislative scheme so pervasive it’s obvious legislature should control b) conflict (when no preemption – when two govt can regulate) i) direct ii) frustrate intent or purpose -cannot allow what is disallowed, or disallow what is allowed. VII. Inter-jurisdictional Conflict -primacy of municipal ordinance under non-charter county constitutional provision does not prevail -municipal ordinance must state valid purpose of ordinance to prevail – see City of Ormond v Volusia VIII. Constitutional Limitation on Transfer of Power Art VIII, Sect 1g – county voters can amend charter Art VIII, Sect 4 – transferor and transferee voters must vote -charter preempts municipal regulatory power – no referendum -dual referenda required for transfer of services IX. Special Districts -limited purpose governments – can only exercise power granted by general law – see Loxahatchee -special district may only levy ad valorem taxes if special law creating district authorizes it, AND voters in the district vote for them. -governing board appointed or voted by vote per acre (not 1 vote/person), b/c services benefit the land. -may contract for police, fire dept. etc. X. Public Records and Public Hearings Art I, Sect 24 -meetings btw 2 or more and documents received subject to public disclosure, unless 1) exemption – a) must be one subject b) must be public necessity c) no broader than necessary to accomplish purpose d) need re-adoption or will be sun-setted 2) legislature has own rules on what is and what is not public – section 24c LOCAL GOVERNMENT FINANCE AND TAXATION I. Taxation and Fees A. Constitutional Principles of State Taxation Art VII, Sect 1a * No tax levied except in pursuance of law.* All taxes, except ad valorem, are preempted to the state, except as provided by general law. -authorization to tax preempted to state, BUT -no constitutional or statute impeding how counties/munis USE the tax – see -Power to tax intangible personal property is available only to State * Fee is not revenue raising act – can only cover cost of service or regulation Tax – enforced burden, no direct benefit required Fee – voluntary, in exchange for a direct benefit – see Port Orange Fee – no statutory authorization required B. Ad Valorem -to counties, municipalities, school districts, special districts only -direct tax assessed against value of property -excise – not on value of something, but on exercise of privilege of conducting business 8 -ad valorem as same rate w/in taxing unit -MSTU – tax just those in unincorporated area receiving service, or all of unincorporated area -county may tax muni more per Art VII, Sect 9b -county may ad valorem tax to provide municipal services in unincorporated area w/o vote C. Just Valuation and Immunities and Exemptions Art VII, Sect 3 -municipal property exempt from taxation. If lease to private entity, may lose exemption -by general law, property used predominantly for ed., literary, scientific, religious, charitable -household goods -by ordinance and vote of electors, may exempt ad valorem for new and expansion of business -energy exemption Art VII, Sect 4 -valued for highest and best use at 100% -agriculture exception – taxed at agriculture level if land in developed area -homestead – value may only increase 3% or CPI, whichever is less -FMV = just valuation D. Art VII, Section 6a $25,000 E. County Taxation of Municipal Property and Residents -if real and substantial benefits accrue to municipality for service to unincorporated, municipal residents can be taxed too – no prohibition per Art VIII, Sect 1h. -municipality has burden to proven not receiving real and substantial benefit F. Home Rule Revenue Sources can pay off bonds with fees fees do not require legislative authorization home rule power authorizes levying fees and special assessments 1. User Fees -require no enabling general law 1. be no more than cost of service or regulation 2. voluntary 3. exchanged for direct benefit not shared by others not paying the fee 4. spent on item wanted -voluntary – SCt backed-off in Gainesville re utility fees – court must consider all circumstances together in determining whether user fee or special assessment 1) name given of charge 2) relation btw fee and value of service or benefit – extent of use or cost of service/reg 3) whether fee is only charged to user of service 4) voluntariness (not dispositive – utility fees not voluntary) 5) traditional funding (Wolf – like garbage collection) -can use fictions based on statistics to create rate for storm water collection, impact fee, schools 2. Franchise Right of Way -must be nexus btw fee and rental value of right of way -must be bargained for -see Alachua County v State 3. Impact Fees -a fee b/c developer has right not to develop land -rational nexus test 1) need for capital facilities as a result of population growth from development, and 2) fee collected directly related to fee and benefit those who paid -not for operational costs -use a fiction to determine amount of fee -everyone in community must pay it – no exception for not having a kid -roads, schools, 4. Special Assessments -no general law authorization required – can assess under home rule power -Special assessments not "taxes" because confer a special benefit on the land burdened by assessment 1. must provide specific benefit to the property/land – charge cost of service or benefit 2. benefits must be properly apportioned between parcels -not voluntary – a forced contribution from property owner -street lighting, paving, fire dept – other must show property benefits -Test – benefit must be over and above what the whole community receives to not be considered a tax 9 II. Bonds Art VII, Sect 12 -State level – full faith and credit bond = repay with any amount of tax revenue -Local level 1) if repay with any ad valorem, then a full faith and credit bond 2) if repay with non ad valorem tax (utility tax), then not -Repayment of bonds Public purpose Predominant public purpose Referendum required For Capital Projects State tax dollars used Yes Yes Yes Yes Local bond or ad valorem Yes Yes Yes Yes Revenue bonds from other projects state or local funds used Yes Yes No Local level – no State level – yes, but unless it is under other Section authorized by constitution Revenue bonds – no public funds used Yes No No No Two type of bonds 1. general obligation bonds 2. revenue bonds State Level Art VII, Sect 11 GOBs -Only capital projects, voted on, outstanding principle limitation Get around capital project by giving money to local govt to use on non capital projects Local Art VII, Sect 12 -general obligation payable from ad valorem, = mature > 12 months, capital projects, and referendum -revenue bonds – do not have to be for capital projects -Art VII, Sect 10 -can partner with private if 1) public purpose 2) only revenue bond used -if pledge tax dollars, slip from public purpose to predominantly public purpose -use public purpose if no tax pledged -incidental benefit to private enterprise will not negate public purpose -