Florida Constitutional law Outline
This outline is for Florida Con Law, it also covers cases. This is to be used as a study aid.
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INTRODUCTION TO THE FL CONSTITUTION STATE CONSTITUTION AS A LIMIT ON INHERENT POWER BRANCHES OF STATE GOVERNMENT AMENDMENT PROCESS Advisory Opinion to the Attorney General (Pregnant Pigs): Under Fla. Const. art. XI, § 3, a proposed constitutional amendment must manifest a logical and natural oneness of purpose in order to satisfy the single-subject requirement. This determination requires the Florida Supreme Court to consider whether a proposed amendment affects separate functions of government, as well as how it affects other provisions of the constitution. However, the possibility that an amendment might interact with other parts of the Florida Constitution is not sufficient reason to invalidate a proposed amendment. Likewise, a proposal that affects several branches of government will not automatically fail. Rather, it is when a proposal substantially alters or performs the functions of multiple branches that it violates the singlesubject test. St. John Meds Plan v. Gutman: The test, in determining whether a constitutional provision should be construed to be self-executing, or not self-executing, is whether or not the provision lays down a sufficient rule by means of which the right or purpose which it gives or is intended to accomplish may be determined, enjoyed, or protected without the aid of legislative enactment. If the provision lays down a sufficient rule, it speaks for the entire people and is self-executing. 5 Ways to Amend the Florida Constitution: 1. Legislature: joint resolution (3/5 of membership of both houses) and text and a vote on the journal. 2. Initiative Petition: 1 proposal to amend, petition 8%, single subject, clear title and ballot summary (not required by the constitution, mandated by legislature) (AG required to request advisory opinion from Supreme Court). 3. Constitutional Revision: every 20 years, 37 members (including Governor, Chief Justice, Speaker, Attorney General and Public hearings are required) 4. Tax and budget reform commission: 18 members, every 20 years, tax and budget only. 5. Convention: by petition, 15% of voters statewide in last Presidential election, 15% of voters in one half of the congressional districts, election, elect representatives, develop ballot proposals Armstrong v. Harris: A court may declare a proposed constitutional amendment invalid only if the record shows that the proposal is clearly and conclusively defective. Fla. Stat. ch. 101.161 requires that the ballot title and summary for a proposed constitutional amendment state in clear and unambiguous language the chief purpose of the measure. The requirement for proposed constitutional amendment ballots is the same as for all ballots, i.e., that the voter should not be misled and that he have an opportunity to know and be on notice as to the proposition on which he is to cast his vote. All that the Florida Constitution requires or that the law compels or ought to compel is that the voter have notice of that which he must decide. What the law requires is that the ballot be fair and advise the voter sufficiently to enable him intelligently to cast his ballot. To conform to Fla. Stat. ch. 101.161(1), a ballot summary must state "the chief purpose" of the proposed amendment. In evaluating an amendment's chief purpose, a court must look not to subjective criteria espoused by the amendment's sponsor but to objective criteria inherent in the amendment itself, such as the amendment's main effect. SEPARATION OF POWERS 1 ART II § 3: The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein. Shands Teaching Hospital & Clinics v. Smith: The legislature has not altered the doctrine to allow wives to be liable for husbands medical bills and the courts have no power to create law. Connor v. Southwest Fla. Regional Medical Center: The Supreme Court says that the doctrine of necessaries violates Equal Protection and abolishes it. The Courts can abolish or strike laws but they cannot create law Dade County Classroom Teachers Assoc v. The Legislature: 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. Chiles v. United Faculty of Fla.: Once the executive has negotiated and the legislature has accepted and funded an agreement, the state and all its organs are bound by that agreement under the principles of contract law. The act of funding through a valid appropriation is the point in time at which the contract comes into existence. The conclusions are compelled by the Florida Constitution. Chiles v. Children A, B, C, D, E, F, G: Under the doctrine of separation of powers, the legislature may not delegate the power to enact laws or to declare what the law shall be to any other branch. Any attempt by the legislature to abdicate its particular constitutional duty is void. The legislature, under Fla. Const. art. II, § 3, may not delegate its lawmaking function to another branch notwithstanding policy considerations or the fiscal operations of other states that do not have the constitutional prohibitions against the delegation of powers. Executive on Legislature State v. Florida Police Benevolent Assoc: Where the legislature provides enough money to implement the benefit as negotiated, but attempts to unilaterally change the benefit, the changes will not be upheld, and the negotiated benefit will be enforced. This result would not impede upon the legislature's exclusive power over public funds, because the funds would already be there to enforce the benefit. Where the legislature does not appropriate enough money to fund a negotiated benefit, as it is free to do, then the conditions it imposes on the use of the funds will stand even if contradictory to the negotiated agreement. Judiciary on Executive State Department of Health and Rehabilitative Services v. Sepe: However, by including in the order the above described mandatory directions to the state agency as to the method and duration of the treatment, the trial court proceeded without jurisdiction or in excess of his jurisdiction; first, because the state agency had not been brought into the case by proper process, and had not been furnished with notice and an opportunity to be heard thereon. Secondly, such directions to the 2 state agency purporting to designate and control the type and duration of treatment of the person committed, amounted to usurping the jurisdiction of the state agency to determine those matters, as it is authorized to do by law. To thus invade the functions of the state agency as a division of the executive department is in derogation of the doctrine of the separation of powers of the state government. JUDICIARY Jurisdiction of the Courts: County court jurisdiction: misdeameanors, civil trials, no equitable causes. Circuit court jurisdiction: felonies, equitable actions, all actions at law (above $15,000) Florida Supreme Court jurisdiction: 1. Mandatory jurisdiction: a. appeal of constitutional right: death penalty (straight from circuit court) and invalidity of a state statute or state constitutional provision (U.S. constitution problem) (from the DCAs) b. appeal of statutory right: validation of bonds (circuit court) and utility rate decrease (from the public service commission) c. Advisory opinions: when brought by attorney general through an initiative petition (AG required to ask) or by the governor for the extent of the executive power. 2. Discretionary Jurisdiction: i. DCA: expressly declares a state statute valid or construes the provision to be valid ii. DCA: expressly affects a class of constitutional or state officers iii. DCA: express and direct conflict with another DCA or the Florida Supreme Court b. Certified DCA Decisions i. Great public importance ii. Certified conflict c. Certified Trial Court Decisions (certified by DCA) i. Great public importance ii. Great effect on proper administration of justice iii. Requires immediate resolution by the Supreme Court (bypass provision) d. Certified Federal Decisions (certified by Federal court) i. No controlling precedent of Florida Supreme Court ii. Determinative e. Extraordinary Writs i. Prohibition: excess of jurisdiction ii. Mandamus: iii. Habeas Corpus: iv. Quo warranto: v. All writs: to aid in the jurisdiction of any of the above, not its own basis of jurisdiction 3. Other functions of the Supreme Court a. Rule-making function: rules of civil, criminal, appellate procedure b. Disciplining of lawyers c. Budgetary duties: how many judges are needed, etc. District Courts of Appeal: A. Final orders of the circuit court 3 B. C. D. E. Final orders of state agencies operating under the APA Non-final orders of the circuit court (interlocutory) Final orders of circuit court operating under its appellate function Bypass certification (bypass of circuit court) Jacksonville v. First National Bank of Jacksonville: alleged conflict may exist either (1) where an announced rule of law conflicts with other appellate expressions of law, or (2) where a rule of law is applied to produce a different result in a case which involves "substantially the same controlling facts as a prior case." Jenkins v. State: From and after April 1, 1980, the Supreme Court of Florida lacks jurisdiction to review per curiam decisions of the several district courts of appeal of Florida rendered without opinion, regardless of whether they are accompanied by a dissenting or concurring opinion, when the basis for such review is an alleged conflict of that decision with a decision of another district court of appeal or of the supreme court. Fla. Const. art. V, § 3(b)(3), provides that the Supreme Court of Florida may review any decision of a district court of appeal that expressly and directly conflicts with a decision of another district court of appeal or of the supreme court on the same question of law. Miami v. Arostegui: A district court of appeal does not lose jurisdiction to issue its mandate while discretionary review is pending in the supreme court. If the trial court has jurisdiction to proceed despite pending discretionary jurisdiction, then the district court has jurisdiction to issue its mandate, a ministerial act, despite pending discretionary jurisdiction. Exercise of Judicial Powers Rich v. Ryals: It is the policy of a court in the interpretation of statutes where possible to make such an interpretation as would enable the court to hold the statute constitutional. Mongomery v. Dep’t of Health and Rehabilitative Services: In Florida, the courts have adopted the federal "injury-in-fact" test governing standing, and the federal "zone of interest" test where applicable. To have standing, appellants are required to show an injury which is both real and immediate, not conjectural or hypothetical. Mootness has been defined as the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness). Mootness occurs in two basic situations: When the issues presented are no longer live or when the parties lack a legally cognizable interest in the outcome. A case becomes moot, for purposes of appeal, where, by a change of circumstances prior to the appellate decision, an intervening event makes it impossible for the court to grant a party any effectual relief. Mootness can be raised by the appellate court on its own motion. A regulation is ripe for challenge when an affected person has to choose between disadvantageous compliance and risking sanctions. North Broward Hospital District v. Fornes: In the event an official threatens an unlawful act, the public by its representatives must institute the proceedings to prevent it, unless a private person can show a damage peculiar to his individual interests in which case equity will grant him succor. Where there is an attack upon constitutional grounds based directly upon the legislature's taxing and spending power, there is standing to sue without the requirement of special injury, which will still obtain in other cases. It has long been the rule in Florida that, in the absence of a constitutional challenge, a taxpayer may bring suit only upon a showing of special injury which is distinct from that suffered by other taxpayers in the taxing district. School Board v. Clayton: A taxpayer is precluded from bringing suit solely because the tax burden suffered by all taxpayers increased. There are two means to 4 achieve standing in a taxpayer case. Absent a constitutional challenge, a taxpayer must allege a special injury distinct from other taxpayers in the taxing district to bring suit. A constitutional challenge means an attack upon constitutional grounds based directly upon the legislature's taxing and spending power. Clayton v. School Board: A citizen taxpayer has no standing, individually or as a representative of a class, to challenge the illegal acts of elected or appointed officials, unless such illegality rises to constitutional proportions. LEGISLATURE ART III § 6 Every law shall embrace but one subject and matter properly connected therewith, and the subject shall be briefly expressed in the title. No law shall be revised or amended by reference to its title only. Laws to revise or amend shall set out in full the revised or amended act, section, subsection or paragraph of a subsection. The enacting clause of every law shall read: “Be it enacted by the legislature of the state of Florida Single Subject Rule State v. Thompson: The purpose of the constitutional prohibition against a plurality of subjects in a single legislative act is to prevent "logrolling" where a single enactment becomes a cloak for dissimilar legislation having no necessary or appropriate connection with the subject matter. The act may be as broad as the legislature chooses provided the matters included in the act have a natural or logical connection. Salters v. State: the general rule for curing laws that violate the single subject rule is through the biennial adoption process. This court clearly recognized in Scanlan that a single subject rule violative chapter law may be cured by means other than the biennial adoption process. Trapp v. State: The general mechanism for curing single subject rule violative chapter laws is through the Florida legislature's biennial adoption of the Florida statutes. There is an exception to the general rule. The legislature's separation and reenactment of the dissimilar provisions originally contained in a chapter law can cure a single subject rule violation. Santos v. State: Fla. Const. art. III, § 6 contains two essential requirements. The requirement that the subject of a law be briefly expressed in the title serves the purpose of providing notice to interested persons of the contents of an enactment. The purpose of the requirement that each law embrace only one subject and matter properly connected with it is to prevent subterfuge, surprise, hodge-podge and log rolling in legislation. The purposes sought to be achieved by these restrictions are satisfied if each enactment of the legislature embraces but one subject and matter properly connected therewith and the subject is briefly expressed in the title. When laws passed by the legislature are being codified for publication in the Florida Statutes, these restrictions do not apply. The legislature is free to use whatever classification system it chooses. Fla. Const. art. III, § 6 does not require sections of the Florida Statutes to conform to the single-subject requirement. The requirement applies to laws in the sense of acts of the legislature. North Ridge General Hospital v. City of Oakland Park: The purpose of both of the constitutional requirements is to assure that proper notice will be given of the subject matter of proposed legislation. Therefore, the measure of the violation of these constitutional requirements must be whether such published notice or title, as the case may be, confuses as to the subject matter of the proposed legislation. 5 Appropriations bills: are subject to a special one subject requirement which provides that they can only deal with the payment of salaries of public officers and other current state expenses. This requirement is apparently based upon the assumption that appropriating funds is a function distinct from the general legislative process. As such these two legislative functions should not be intermixed. Department of Education v. Lewis: If a provision in an appropriations bill changes existing law on any subject other than appropriations it is invalid. Second a qualification or restriction must directly and rationally relate to the purpose of the appropriation to which it applies. St. Johns River Water Management District v. Deseret Ranches of Florida: Special or local laws as used in the Florida Constitution refer ordinarily to law relating to entities, interests, rights, and functions other than those of the state, since the organic law does not contemplate or require previous publication of notice of proposed laws for the exercise of state powers and functions though they may be more or less local or special in their operation or objects. Department of Legal Affairs v. Sanford-Orlando Kennel Club: A general law does not lose its general law status so long as it operates uniformly upon subjects as they may exist in a state, applies uniformly within permissible classifications, operates universally throughout the state or so long as it relates to a state function or instrumentality. Furthermore, courts have held that a law pertaining to subdivisions of a state or to subjects, persons or things of a class is valid if the classification is based upon proper distinctions and differences that inhere in or are peculiar or appropriate to the class. The classification scheme must be reasonable and not arbitrary and must rest on some reasonable relation to the subject matter in respect of which the classification is proposed. A general law operates uniformly, not because it operates upon every person in a state, but because every person brought under the law is affected by it in a uniform fashion. Uniformity of treatment within a class is not dependent upon the number of persons in the class. State v. Roberts: The legislature may not delegate the power to enact a law, or to declare what the law shall be, or to exercise an unrestricted discretion in applying a law; but it may enact a law, complete in itself, designed to accomplish a general public purpose, and may expressly authorize designated officials within definite valid limitations to provide rules and regulations for the complete operation and enforcement of the law within its expressed general purpose. Only when the purpose of a special act is to usurp the rights or powers conferred by general law is the statute unconstitutional. In those cases where a special act has been held unconstitutional it has provided for the complete transfer of power from a state officer to a newly created or designated person or agency. City of Miami v. Morganti: A statute which constitutes a special law cannot impose a non-ad valorem tax. Article III § 10 of the Florida Constitution permits the passage of special laws generally if notice of intention to seek enactment thereof has been published in the manner provided by general law. Moreover notice is not required when the law except the provision for referendum is conditioned to become effective only upon approval by vote of the electors of the area affected. A law that operates universally throughout the state uniformly upon subjects as they may exist throughout the state, or uniformly within a permissible classification is a general law. A statute relating to a subdivision of the state, based upon proper distinctions and differences that inhere in or are peculiar or appropriate to a class is a general law. A special law is one relating to or designed to operate upon, particular persons or things, or one that purports to operate upon classified persons or things when classification is not permissible or the classification adopted is illegal; a local law is one relating to or designed to operate only in a specifically indicated part of the state 6 or one that purports to operate within classified territory when classification is not permissible or the classification is illegal. EXECUTIVE, EDUCATION, AND ELECTIONS Consists of governor + Cabinet (8 year term limit) Cabinet is 1. Attorney General 2. Chief Financial Officer 3. Commissioner of Agriculture Governor does not have to select the lieutenant governor until after primary. Lieutenant governor’s only job is to stay alive. Clemency Need governor and 2 members of cabinet No clemency for impeachment or treason Mandatory that AG get advisory opinion on any initiative petition Governor’s veto power: The Governor has 7 days from presentation of the law, or 15 days from adjournment of the legislative session. Legislature can override the veto by 2/3 vote in both houses. Governor cannot pocket veto (governor must affirmatively act to veto). Line item veto: The veto must generally extend to the entire bill. An exception does exist which permits the Governor to veto a specific appropriation in a general appropriations bill. However, the Governor cannot veto any qualification or restriction in a general appropriation bill without also vetoing the appropriation to which it relates. Chiles v. Public Service Commission Nominating Council: the PSC is an entity of the legislative branch and as such the legislature has the authority to establish by law how legislative branch officials including these PSC members may be selected. The governor should not have the sole power of appointment in this instance, particularly when (1) the governor has the first opportunity to make the appointment and (2) any person appointed by the nominating council must be confirmed by the senate. Coalition for Adequacy and Fairness v. Chiles: A citizen and taxpayer can challenge the constitutional validity of an exercise of the legislature’s taxing and spending power without having to demonstrate a special injury. Standing is allowed when a public official is willing to perform his duties but is prevented from doing so by others. A uniform system means that a system of public free schools as distinguished from the authorized State educational institutions shall be established upon principles that are of uniform operation throughout the State and that such system shall be liberally maintained. It is well settled that the power to appropriate state funds is assigned to the legislature. Advisory Opinion re Requirement for Adequate Public Education Funding: To ascertain whether a proposed amendment meets the single subject requirement we must decide whether the proposal affects separate functions of government and how the proposal affects other provisions of the Constitution. A proposed amendment may affect multiple branches of government so long as it does not substantially alter or perform the function of these branches. Enfolding disparate subjects within the cloak of a broad generality does not satisfy the single subject 7 requirement. Under this proposed amendment, the function of the governor would be limited because the Governor would be unable to veto any specific appropriation within the 40% educational appropriation to less than the required 40%. Advisory Opinion re Amendment to Reduce Class Size: The ballot title and summary must state in clear and unambiguous language the initiative’s primary purpose. The ballot title and summary must be accurate and informative. The purpose of the § is to provide fair notice of the content of the proposed amendment so that the voter will not be misled as to its purpose and can cast an intelligent and informed ballot. The title and summary need not explain every detail or ramification of the proposed amendment. Simon v. The Celebration Co.: In order for a constitutional provision to create a private cause of action, the provision must be self executing. The basic guide or test in determining whether a constitutional provision should be construed to be selfexecuting or not self-executing is whether or not the provision lays down a sufficient rule by means of which the right or purpose which it gives or is intended to accomplish may be determined, enjoyed or protected without the aid of legislative enactment. HOMESTEAD Nature of Homestead Protection: I. Real Property a. Must be owned by a natural person (no marriage requirement) b. Permanent residence (no durational requirement) ownership and intent c. Ownership interest - possessory/unobstructed d. Extent: if within a municipality the homestead is restricted to one half acre of contiguous land upon which the exemption is limited to the residence of the owner or his or her family. If located outside a municipality, the homestead will extend to 160 acres of contiguous land and improvements thereon, which cannot be reduced without the owner’s consent by reason of subsequent inclusion in a municipality. II. Personal Property a. Valued at $1000 III. Insurance and Sale Proceeds What homestead property is protected from I. Forced Sale II. Liens III. Not protected from a. Federal/supremacy clause debts b. Mortgages c. Labor to build, repair or maintain residence d. Taxes and assessments Persons Protected I. Owner II. Surviving Spouse III. Heirs (anybody who stands to inherit under intestacy laws) Conveyances of Homestead I. Inter vivos: II. Devise: fla. stat. 732.401: If not devised as permitted by law and the Florida Constitution, the homestead shall descend in the same manner as other intestate 8 property; but if the decedent is survived by a spouse and lineal descendants, the surviving spouse shall take a life estate in the homestead, with a vested remainder to the lineal descendants in being at the time of the decedent's death per stirpes (25%). a. Surviving spouse b. Minor child ABANDONMENT OF HOMESTEAD Once property is homestead the property remains homestead unless it is 1. Abandoned a. Does not require continuous uninterrupted presence to be considered not abandoned b. Abandoned when the claimant has relinquished possession and has formed the intention of no longer using the property as a homestead voluntarily c. In order for abandonment both the owner and the owner’s family must have abandoned the homestead d. It is an issue of fact 2. Validly devised 3. Alienated or otherwise legally transferred Orange Brevard Plumbing Co. v. La Croix: The proceeds of a voluntary sale of a homestead are to be exempt from the claims of creditors just as the homestead itself is exempt if, and only if, the vendor shows, by a preponderance of the evidence an abiding good faith intention prior to and at the time of the sale of the homestead to reinvest the proceeds thereof in another homestead within a reasonable time. Moreover, only so much of the proceeds of the sale as are intended to be reinvested in another homestead may be exempt. In order to satisfy the requirements of the exemption, the funds must not be commingled with other monies of the vendor but must be kept separate and apart and held for the sole purpose of acquiring another home. The proceeds of the sale are not exempt if they are not reinvested in another homestead in a reasonable time or if they are held for the general purposes of the vendor. Butterworth v. Caggiano: According to the plain and unambiguous wording of Fla. Const. art. X, §4, a homestead is only subject to forced sale for (1) the parent of taxes and assessments thereon; (2) obligations contracted for the purchase, improvement or repair thereof; or (3) obligations contracted for house, field or other labor performed on the realty. Bartelt v. Bartelt: Where there is no surviving spouse or minor child, the decedent's homestead may be devised without limitation. When the decedent's homestead is devised to his son -- a member of the class of persons who are the decedent's heirs -- the constitutional exemption from forced sale by the decedent's creditors found in Fla. Const. art. X, § 4(b), inures to that son. The test is not how title was devolved, but rather to whom it passed. In re Estate of Scholtz: The abandonment concept is inextricably tied to the head of household requirement of the prior constitutional homestead scheme. The abandonment concept is predicated on two possible bases. The first is that a homeowner whose spouse abandons him and sets up her own residence elsewhere with no intent of returning cannot be a head of household because there is no longer a family residing with him in the home. In that case, the property loses its homestead status by definition and the surviving spouse has no claim simply because there is no homestead. A second possible basis is the court's concern that it is inequitable to allow a spouse who has abandoned the homestead to come back and claim it when her spouse dies. This equitable concern is tied to the family unit 9 definition of homestead. Even if it is not, however, the courts have the authority to act upon such concerns no matter what the equities may be, in view of the clear and unequivocal language to the contrary in the constitutional and statutory homestead scheme. FINANCE AND TAX STATE POWER TO TAX: no ad valorum on real property, intangibles, estates and inheritances, and income tax (corporate 5%) Department of Revenue v. Leadership Housing, Inc.: Appreciation in value of a capital asset is not income until it is realized from a sale, exchange, or other disposition of the asset, and the present Florida corporate income tax on such capital gain is constitutional and proper. LOCAL GOVERNMENT POWER TO TAX: Ad valorum on real property and tangibles and whatever the legislature grants by general law (additional sources: special assessments, user fees: voluntary and reasonably related to cost) Fees and Assessments: Fees: voluntary: avoid payment if service is not sought Assessments: mandatory, within a specific geographic region, must directly benefit the property assessed, must be rationally related (proportional). Gilreath v. GE: The Florida Constitution permits local governments, including counties, to levy and collect ad valorem taxes on real property and tangible personal property. Fla. Const. art. VII, § 9. The power to tax intangible personal property, however, is reserved only to the State. Fla. Const. art. VII, §1(a), 2 and 9(a). Tangible personal property consists of goods, chattels, and other articles of value capable of manual possession and whose chief value is intrinsic to the article itself. Intangible personal property means money, all evidences of debt, all evidence of ownership in a corporation or other business organization having multiple owners, and all other forms of property where value is based upon that which the property represents rather than its own intrinsic value. Contractor and Builders Association v. Dunedin: A municipality cannot impose a tax, other than ad valorem taxes, unless authorized by general law. Lake County v. Water Oak Management Corp.: In reviewing a special assessment, a two-prong test must be addressed: (1) whether the services at issue provide a special benefit to the assessed property; and (2) whether the assessment for the services is properly apportioned. In evaluating whether a special benefit is conferred to property by the services for which the assessment is imposed, the test is whether there is a logical relationship between the services provided and the benefit to real property. Tampa v. Birdsong Motors: Taxation by a city must be expressly authorized by either the constitution or grant of the legislature, and any doubts as to the powers sought to be exercised must be resolved against the municipality and in favor of the general public. Statutes authorizing a municipality to tax are to be strictly construed, are not to be extended by implication, and are not to be enlarged so as to include any matter not specifically included, even though said matter may be closely analogous to that included. Gallant v. Stephens: It also authorizes "special districts" to tax for their districts to the extent of millage limits prescribed by the Legislature, with the approval of voters within the district. In addition, the last sentence of § 9(b) expressly provides that a 10 county furnishing municipal services may, to the extent authorized by law, levy additional taxes within the limits fixed for municipal purposes. AD VALOREM TAXES AND EXEMPTIONS Factors to be used by the Asssessor in determining fair market value 1. Cash value of the property 2. highest and best use 3. location 4. quantity or size 5. cost of property 6. condition 7. income 8. net proceeds of the sale Schultz v. Tm. Florida-Ohio Realty Ltd.: The just valuation at which property must be assessed under the constitution and Fla. Stat. § 193.011 (1985) is synonymous with fair market value. In arriving at fair market value, the assessor must consider, but not necessarily use, each of the factors set out in Fla. Stat. § 193.011. The particular method of valuation, and the weight to be given each factor, is left to the discretion of the assessor, and his determination will not be disturbed on review as long as each factor has been lawfully considered and the assessed value is within the range of reasonable appraisals. In the levy of property tax the assessed value of the land must represent all the interests in the land. This means that despite the mortgage, lease, or sublease of the property, the landowner will still be taxed as though he possessed the property in fee simple. The general property tax ignores fragmenting of ownership and seeks payment from only one "owner." When determining the fair market value of income-producing property which is encumbered by a long-term submarket lease, the assessor must consider but not necessarily use each of the factors set out in Fla. Stat. § 193.011 (1985). The ultimate method of valuation employed and the weight, if any, to be given each factor considered is within the discretion of the assessor. However, the resulting valuation must represent the value of all interests in the property -- in other words, the fair market value of the unencumbered fee. Havil v. Lake Port Props: A property appraiser's determination of "just value" is an exercise of administrative discretion within the field of his expertise. A strong presumption of validity attaches to the property appraiser's assessment of property for ad valorem taxation purposes. If, however, the appraiser does not consider each of the statutory factors articulated in Fla. Stat. Ann. § 193.011, the presumption of validity is lost. The taxpayer bears a "heavy" burden in challenging a property tax assessment. The taxpayer must meet its burden to show that the challenged valuation was not arrived at lawfully and is not supported by any reasonable hypothesis of legality. A taxpayer must present proof that excludes every reasonable hypothesis of a legal assessment, otherwise the county appraiser's determination of just value must be upheld. The three traditional approaches to value, or any combination thereof, namely, cost, income, and market will support an assessment. The weight given to each of the factors is within the discretion of the property appraiser; reliance on a particular approach is dependent upon the type of property being assessed. A tax assessment may not be overturned merely by showing that a lower valuation is more reasonable. It is not for the trial court to consider which method used in appraisals is superior, so long as the property appraiser's valuation took into consideration the statutory factors under Fla. Stat. Ann. § 193.011. The 11 application of appraisal principles to any given property requires an exercise of judgment. Therefore, a greater reliance on one may result in a different valuation. It is for this very reason that the property appraiser is given "great leeway" as long as he follows the requirements of law. If the evidence shows an appraiser properly considered the statutory factors under Fla. Stat. Ann. § 193.011, a trial court's finding that another method was superior or more "credible" is insufficient. Regardless of which method was "theoretically superior," the trial court is bound to uphold the appraiser's determination if it is supported by any reasonable hypothesis of legality. Appleby v. Nolte: "Personal property," for the purposes of ad valorem taxation, shall be divided into four categories as follows: "Intangible personal property" means money, all evidences of debt owed to the taxpayer, all evidences of ownership in a corporation or other business organization having multiple owners, and all other forms of property where value is based upon that which the property represents rather than its own intrinsic value. Oyster Pointe v. Nolte: The proper method for challenging the validity of a tax assessment is through the circuit court. Straughn v. K&K Land Management: Fla. Const. art. VII, § 4(a) provides that agricultural land or land used exclusively for non-commercial recreational purposes may be classified by general law and assessed solely on the basis of character or use. EXEMPTIONS FROM AD VALOREM TAXATION 1. Municipal Property: cannot be taxed so long as the land is put to a governmental purpose. If the purpose is commercial the land becomes taxable 2. Personal property: no taxation on personal effects 3. Economic Development (historic): done by referendum 4. Grandparent quarters: reduction in assessed value (under a county ordinance) if a grandparent is living in the land 5. Philanthropic Property: education (school), literary (library), scientific, religious, charitable (ownership must be combined with use). 6. Homestead tax exemption ($25,000 of value): persons with title to property who make it main residence entitled to a tax break (must be applied for) FINANCE STATE General Obligation Bonds Has to be submitted to vote of citizens except for specific types State Revenue Bonds Capital Projects Student Loans Housing LOCAL GOVERNMENT General Obligation bonds Local revenue Bonds with no ad valorem pledge and use sales tax etc. Local revenue pledge bonds or bonds with an ad valorem pledge A general obligation bond promises the full faith and credit of government to pay it back and because it is low risk you get a lower interest rate from government A revenue bond designates to pay you back from specific projects (tolls from bridges etc and so it is risky and you get a higher interest rate). 12 STATE BONDS GENERAL OBLIGATION REVENUE Citizens must vote Usually pledge profits from industry Except no vote required for pollution control and not state taxes and right of way Legislative approval required For capital outlay only No vote required Must be authorized by the state Subject to debt limit (Not exceed 50% of tax revenue of the state for the 2 preceding years) LOCAL GOVERNMENT BONDS GENERAL OBLIGATION BONDS 1. Unqualified pledge of ad valorem taxing power up to full constitutional limits of rate or amount 2. Requires a referendum because you may be affecting ad valorem taxes to pay it back. 3. Capital projects only like decade of progress bonds for the metrorail and zoo REVENUE BONDS 1. No ad valorem is pledged 2. No vote of electorate needed 3. Allowed for public purpose projects and cost of capital projects or industry or manufacturing plants 4. Pledges to pay back with revenue from only a specific project General obligation bonds 1. referendum-invoke taxing power 2. fixed capital outlay 3. state total GO bond debt must be 50% or less of state’s total tax revenues for last 2 years Revenue Bonds: the thing to be built will be paid for by revenue generated by the thing (ex. Bridge and a toll booth) 1. fixed capital outlay 2. legislative approval of every project LOCAL GOVERNMENT CHARTER COUNTIES Source of governmental power is the county charter which is authorized by the constitution Legislature can only impact their self government powers by general law or by special law subject to a referendum May enact all ordinances consistent with general law and the legislature cannot affect the ordinance making power by special law The county charter itself may provide that the charter outranks a municipal ordinance in a city w/in the charter NONCHARTER COUNTIES Source of governmental power emanates from the constitution Legislature can impact their power with a special law because they possess only the autonomy consistent with general or special law May only enact ordinances consistent with both general and special laws If a conflict exists between a non-charter county’s municipal ordinance and an ordinance of a municipality w/in that county 13 then the municipality’s ordinance supersedes w/in the municipality. Misty’s Cafe PRE-EMPTION OF LOCAL GOVT REGULATIONS BY STATE Three types 1. Express preemption: the state statute says so 2. Implied preemption: The state statutory scheme simply leaves no room for local government to regulate in the area 3. Conflict preemption: There is no way the state law and local government law can work together. DECLARATION OF RIGHTS (PRIVACY) Florida right to privacy is express and is broader in FL than in Fed and Florida may give its citizens more protection than the federal constitution THREE PART TEST 1. Is there a reasonable expectation of privacy which is legitimate and not only subjective If yes then burden shifts to government to show 2. Compelling state interest 3. Least intrusive means – no less intrusive means available to accomplish compelling state interest BEHAVIORAL V INFORMATIONAL PRIVACY Informational Information about you that isn’t public Behavioral Area of human activity so personal it is outside the reach of government APPLICATION Applies only to governmental action and not actions of private people like Internet web-sites DECLARATION OF RIGHTS (INDIVIDUAL RIGHTS PROHIBITED LAWS DUE PROCESS, CRIMINAL AND ADMINISTRATIVE LAW) Florida Const ART I § 2 declares rights All natural persons male and female alike 1. Right to enjoy and defend life and liberty 2. To pursue happiness 3. Rewarded for industry 4. To acquire, possess and protect property EXCEPT that the ownership of property by aliens ineligible for citizenship may be regulated or prohibited by law 5. No person shall be deprived of any right because of race, religion, national origin or physical disability REASONABLE BASIS ANALYSIS 1. Is there a legitimate state interest 2. Is it reasonably necessary to protect the state interest Rational Basis Florida Standard Legitimate state interest and Legitimate state interest and means chosen rationally means chosen must be related to the interest. reasonably necessary to Underinclusiveness and protect the interest. Over Strict Scrutiny Compelling state interest and narrowly tailored or least restrictive means. Under and over are usually 14 overinclusiveness irrelevant and under may be fatal fatal. Not reasonably necessary because it is Underinclusive Does not affect gifts made w/out proper deliberation > 6 mths before death Overinclusive Voids many gifts that are well deliberated and no family members in need NO DEPRIVATION BECAUSE OF RACE RELIGION OR PHYSICAL HANDICAP Deprivation Clause) PROHIBITED LAWS ART I § 10 No bill of attainder, ex post facto law or law impairing the obligation of contract Shriners Hospital v. Zrillic: statutory classifications that treat one person or group differently than others must appear to be based at a minimum on a rational distinction having a just and reasonable relation to a legitimate state objective. Equal protection analysis requires that classifications be neither too narrow nor too broad to achieve the desired end. Such underinclusive or overinclusive classifications fail to meet even the minimal standards of the rational basis test quoted above. Schreiner v. Mackenzie State Lines: The first is the equal protection clause. The second part identifies the inalienable rights of Florida's citizens. The third part is the deprivation clause. The equal protection clause under Fla. Const. art. I, § 2. provides that all natural persons are equal before the law. Inalienable rights are the right to enjoy and defend life and liberty, to pursue happiness, to be rewarded for industry, and to acquire, possess and protect property. The inalienable rights clause does contain the exception that the ownership, inheritance, disposition and possession of real property by aliens ineligible for citizenship may be regulated or prohibited by law. The deprivation clause under Fla. Const. art. I, § 2 provides that no person shall be deprived of any right because of race, religion or physical handicap. Rollins v. State: For a statutory classification to satisfy the equal protection clauses found in our organic documents, it must rest on some difference that bears a just and reasonable relation to the statute in respect to which the classification is proposed. State v. Saiez: The overbreadth doctrine applies only if the legislation is susceptible of application to conduct protected by U.S. Const. amend. I. This doctrine operates as an exception to the traditional rule of standing which does not permit a person to whom a statute may constitutionally be applied to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others. The traditional rule is relaxed in the first amendment area because of weighty countervailing policies. In the U.S. Const. amend. I area, an overbreadth argument is permitted because of the judicial assumption that an overbroad statute may well have a chilling effect on protected expression. An overbroad regulation may not be enforced until the scope of regulation is narrowed by a limiting construction or partial invalidation to remove the threat to protected expression. U.S. Const. amend. I is not implicated by Fla. Stat. ch. 817.63 in any way; consequently, the overbreadth doctrine is not applicable. The basic test of substantive due process is whether the state can justify the infringement of its legislative activity upon personal rights and liberties. So long as the legislative activity does not encroach upon constitutional guarantees, or run afoul of federal statutory law, a state has a broad scope of discretion in which to regulate the conduct of its citizens. It need only be shown that the challenged legislative activity is not arbitrary or unreasonable. If there is a legitimate state interest which the legislation aims to effect, and if the legislation is a reasonably related means to achieve the intended end, it will be upheld. 15 Nevertheless, there remain basic restrictions and limits on a state's legislative power to intrude upon individual rights, liberties, and conduct. To exceed those bounds without rational justification is to collide with the Due Process Clause, U.S. Const. amend. XIV. Lite v. State: To comply with the constitutional guarantee of due process, a state statute must bear a reasonable relationship to a permissible legislative objective. Further, the statute must not be discriminatory, arbitrary, or oppressive. OBLIGATION OF CONTRACT Source of authority and Evil guarded against Unbargained for deprivation of contractually Police power guarding against foreclosure owed monies during the litigation during litigation A law violates the condition against ex post facto if 1. it is retrospective in effect 2. Diminishes a substantial right the party would have enjoyed under the law existing at the time of the offense. 3. SUBSTANTIVE DUE PROCESS Old law says that you cannot spray arsenic on citrus trees unless state or feds allow you to because it affects the fruit quality and farmers are saying that the law is unconstitutional because it is a deprivation of their property rights by an overbroad law because the state has failed to determine the level of arsenic which is tolerable and the absolute ban is unconst. There must be a compelling state interest and the means chosen must be necessary. Compelling state interest was the protection of citrus Means necessary because any other means would necessitate an impossible regulatory army to check every farmer to see who sprayed how much SEARCH AND SEIZURE ART I § 12 Florida has a detailed protection against search + seizure - houses papers and effect: interception of private communication - construed like 4th amend of U.S. Constitution and U.S. Supreme Court analysis - No warrant unless probable cause unless particular description - canker and the one warrant for the area. ADMINISTRATIVE PENALTIES Broward county sexual harassment board orders company to pay 4G in compensatory and 5G in atty’s fees. Administrative boards cannot assess money damages unless the legislature gives them this power because to do so would be infringing on the right to trial by jury. DECLARATION OF RIGHTS (ACCESS TO COURTS, TAKINGS AND PROPERTY RIGHTS) ART I § 21 TEST 1. If cause of action existed a. Under statutory law prior to the Declaration of rights (1968) OR b. Common law of the state 2. Then legislature cannot abolish cause of action, unless Impairment 16 a. Reasonable alternative exists or provided OR b. Overpowering public necessity exists and there is no alternative method to address it Kluger v. White: Where a right of access to the courts for redress for a particular injury has been provided by statutory law predating the adoption of the Declaration of Rights of the Constitution of the State of Florida, or where such right has become a part of the common law of the state pursuant to Fla. Stat. § 2.01, 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. Owens Corning: When an injury has occurred but a cause of action cannot be pursued because the results of the injury could not be discovered, a statute of limitation barring the action bars access to the courts and is constitutionally impermissive. Don’s Sod Company: No bond requirement or other like financial hurdle can be employed by the legislature to prevent a constitutional challenge to those very provisions that bar access to the court. Although an administrative proceeding reviewable in the district court of appeal may in some cases satisfy the constitutional requirement of access to the courts, it is not a satisfactory remedy where the taxpayer is challenging the constitutionality of the assessments as well as the bond or tax payment provisions prior to obtaining access to the courts. Kennedy: To say that you could not hand write an appellate brief is a deprivation of access to the courts TAKINGS Two basic types: Physical Invasion or categorical taking Overregulation Test for taking by overregulation: It is a taking unless there is: 1. Is there a legitimate public purpose for the regulation If NO it is a taking If YES go to prong (2) 2. Does Regulation deny the owner all economically viable use of the land based on reasonable investment backed expectations. If No then not a taking If Yes Taking has occurred. Mid Florida Growers: When the state, in the exercise of its police power, destroys decayed fruit, unwholesome meats or diseased cattle, the constitutional requirement of just compensation clearly does not compel the state to reimburse the owner for the property destroyed because such property is valueless, incapable of any lawful use, and a source of public danger. "Just compensation" is a clear requisite, however, to the act of destroying healthy trees. A healthy plant may not be destroyed in order to protect a neighbor's plant of the same species without compensation to the owner. 17 Keshbro: "Temporary" takings which deny a landowner all use of his property, are not different in kind from permanent takings, for which the Constitution clearly requires compensation. A taking occurs where regulation denies substantially all economically beneficial or productive use of land. Moreover, a temporary deprivation may constitute a taking. Where the government's activities have already worked a taking of all use of property, no subsequent action by the government can relieve it of the duty to provide compensation for the period during which the taking was effective. 18