Shared Flashcard Set


Bar - Con Law w/ FL Distinctions
Con Law w/ FL Distinctions

Additional Law Flashcards




Fed - Article III - scope
jurisdiction of fed courts is limited to cases or controversies
Fed - Article III - limitations
limitations: 11th amendment and state sovereign immunity
-cases that come within judicial power of US - diversity jurisdiction and federal question

11th amendment
-you cannot sue a state for any mondey damages in either the state's own court or federal court unless the state consents or the US Congress expressly says so to enforce 14th A rights (can sue state for money damages in sister state's court)
-11A protects state and state agencies, not local governments
-state's sovereign immunity applies in both state and federal court, unless state consents or Congress expressly says so to enforce 14A rights
-when enforcing individual rights, congress can override 11A immunity; can force states to pay money damages for violating immunity rights, but must say so expressly; any lack of clarity will preclude damages

can instead sue a state officer
-can always get injunctive relief by enjoining appropriate state officer
-can also get money damages, but only from officer personally
-damages from state treasury are barred unless congress expressly says so to enforce individual rights
Fed - Article III - jurisdiction of SCOTUS
original jurisdiction: case may be filed first in SCOTUS (controversies between states)

appellate jurisdiction
-two means of establishing appellate jurisdiction
---cert: almost all cases; key is that cert is discretionary; SCOTUS is only fed court that exercises discretionary jurisdiction
---direct appeal
-limitations on SCOTUS appellate jurisdiction: congress can make exceptions to Court's appellate jurisdiction by legislating exceptions
-adequate and independent state grounds: arises only in SCOTUS and only when it is reviewing a state court judgment; rule: SCOTUS can review a state court judgment only if it turned on federal grounds, but the court has no jurisdiction if the judgment below rested on an adequate and independent state ground
---adequate: state ground must control the decision no matter how a federal issue is decided: when federal claimant wins anyway under state law (US constitution is a floor not a ceiling)
---independent: state law does not follow on an interpretation of federal law; no AISG if state law adopts or follows fed law
---when state court decision is unclear as to whether it rests on fed grounds or state grounds, SCOTUS can review fed issue; if SCOTUS agrees with state court's decision of fed law, it affirms; if SCOTUS disagrees with state court's understanding of fed issue, remands to state court so it can reconsider state law
Fed - Article III - standing to sue
standing requires injury, causation and redressability

injury: must be concrete, but need not be economic; if your freedom of movement or enjoyment of public space is impaired = injury, but mere ideological objection is not injury; organization has standing if members have standing

causation: D's act must have caused or will cause injury

redressability: court can remedy or redress injury; if injury is in the past, redress is usually damages, but if future injury usually injunction

fed taxpayers always have standing to challenge their own tax liability but not to challenge government expenditures
-but an establishment of religion challenge to specific congressional appropriations can be challenged by any taxpayer
-legislators do not have standing to challenge laws that they voted against
-third party standing refers to question of whether you can raise rights of someone else; generally no, except for when parties to an exchange or transaction can raise the rights of other parties to that exchange or transaction
Fed - Article III - timeliness
ripeness concerns prematurity of case: must show actual harm or immediate threat of harm

mootness cases are overripe and are dismissed whenever they become moot; cases can become moot during trial or on appeal; exception: controversies capable of repetition, yet evading review, are not moot even though they look like it (pregnancies and abortion)
Fed - Article III - advisory opinions
fed courts cannot issue advisory opinions; cannot rule on constitutionality of proposed legislation
Fed - Article III - political questions
non-justiciable question; courts will not decide because there are no manageable standards for judicial decision making

-guarantee clause
-foreign affairs
-impeachment procedures
-politcal gerrymandering
Fed - Leg power - three wrong answers
1) promoting general welfare is not power of congress

2) federal government does not have a general police power

3) necessary and proper is not a free-standing power of congress. it works only as an add-on to some other legislative power
Fed - Leg power - three major power
taxing: law involves a tax
spending power: federal money is spent or disbursed
commerce power
Fed - Leg power - commerce power
almost anything can be regulated as commerce

congress can regulate
-channels of interstate commerce (highways, seaways, airways, etc)
-instrumentalities of interstate commerce (cars, trucks, ships, railroads, etc); and
-intrastate and interstate activity (economic or commercial) that has a substantial effect on interstate commerce. Substantial effect is judge in the aggregate. Question is always whether aggregate activity of everyone doing the same thing has a substantial effect on interstate commerce, and answer is almost always yes
---congress cannot regulate purely intrastate, non-commercial, non-economic activity for which a substantial effect on interstate commerce has not been shown
Fed - Leg power - taxing power
taxing clause is the right answer whenever congress imposes a tax even when the tax is actually used to prohibit good or activity in question

tax must be rationally related to raising revenue
Fed - Leg power - spending power
spending power includes spending for the general welfare

congress can use the spending power to accomplish things it could not do by direct regulation under the commerce clause
Fed - Leg power - anti-commandeering
congress can't force states to adopt or enforce regulatory programs. Cannot commandeer state and local officers to carry out federal programs
-but can bribe states through spending power and adopt own regulatory power and enforce it with federal officers
Fed - Leg power - war and defense powers
-congress has power to declare war and power to maintain army and navy
-congress has power to provide for military discipline of US armed forces members
-congress can provide for military trial of enemy combatants and enemy civilians
-congress cannot provide for military trial of US civilians
Fed - Leg power - 13th A
congress has broad power to legislate against racial discrimination, whether public or private

includes purely private racial discrimination
Fed - Leg power - 14th A
-congress has power to remedy violations of individual rights by government, but only as those rights have been defined by the courts; does not enable congress to redefine constitutional rights by legislation
-to be properly remedial, legislation must have "congruence" and "proportionality"; there must be a reasonable fit between remedial law enacted by congress and constitutional right as declared by SCOTUS
-congress does not have power to overrule court's decisions and define new rights
Fed - Leg power - 15 A
congress has power to ensure no racial discrimination in voting
Fed - Exec power - domestic powers
-power to enforce the law, but not make or break it
-power to enforce is greatest when authorized by statute

powers not subject to statutory control:
-pardon power: pardon or commute punishment for all federal offenses; power cannot be limited by congress
-veto power; 10 days to veto legislation; can veto for any reason or no reason, but cannot veto specific items and accept others; overriding a veto requires 2/3 majority vote of each house
-appointment and removal of executive officers: only president or his appointees can hire or fire executive officers. Some senior officers (cabinet officers, ambassadors, fed judges) require advice and consent of senate. Senate has power of rejection. Senate's approval power does not translate into power of appointment. Executive officers = anyone who takes action on behalf of US.
Fed - Exec power - foreign affairs
commander in chief: president has control over military decisions, although congress has exclusive power to declare war

treatises and executive agreements
-treaties are negotiated by the pres, but require approval by 2/3 vote of senate; once a treaty is approved, it has same authority as a statute
-executive agreements are presidential negotiations not submitted for approval by senate. Can be authorized, precluded, or overridden by statute, but they take precedence over conflicting state laws. Do not have binding status of a treaty
Fed - Interbranch relations - congressional limits on the executive
-applies to executive officers
-an accusation of high crimes or misdemeanors requiring a majority vote of the House of Rep
-trial in the senate
-conviction requires 2/3 vote in the senate
-remedy is removal from office; no other penalty applies

-if a statute gives pres discretion to spend or withhold funds, he may do so
-but, when a statute unambiguously requires that funds be spend, pres has no power to do so; no power to impound funds

legislative veto
-happens when congress passes a law reserving to itself right to disapprove future executive actions by simple resolution
-if congress wants to override future executive actions, it must change the law so pres has opportunity to veto new legislation
-congress cannot evade the pres's guaranteed veto opportunity by passing a law saying that in the future it plans to govern by resolution
Fed - Interbranch relations - delegation of powers
congress can delegate its powers to administrative agencies so long as there are intelligible standards governing the exercise of that delegated power; not a demanding test, almost all delegations of legislative powers are upheld
Fed - Interbranch relations - immunities
-absolute immunity for official acts
-no immunity for acts done prior to taking office
-executive privilege not to reveal confidential communications with presidential advisers, but that privilege can be outweighed by a specifically demonstrated need in a criminal prosecution

-absolute immunity for all judicial acts, but may be liable for non-judicial activities

-US senators and reps are protected by the speech or debate clause
-senators and congressmen and their aids cannot be prosecuted or punished in relation to their official acts
-official acts of federal legislator cannot be introduced into evidence
Fed - federal system - federal and state powers
-even though fed powers are superior, most fed powers are concurrent with those of states
-some powers are exclusively federal
Fed - federal system - intergovernmental immunities
-fed gov is generally immune from direct state regulation or taxation; but states can indirectly tax, like taxing income of federal employees
-states are not immune from direct federal regulation
-state laws cannot shield state officers from fed liability
-exception: anti-commandeering principle
Fed - federal system - privileges and immunities of state citizenship under article 4
-called the comity clause
-forbids serious discrimination against out of state individuals, absent substantial justification
-does not protect out-of-state corporations
-serious discrimination typically involves employment
-rule: there can be no legal requirement of residency for private employment; states cannot require that you live/reside in the sate to work in the state; but public employment can require residency requirements
---examples of unacceptable private employment requirements: admission to the bar, other occupational licenses
-non-serious discrimination: states can discriminate with regard to recreational opportunities, like hunting licenses
Fed - federal system - dormant commerce clause
-more important than comity clause because it protects out of state business and out of state individuals
-dormant: what the commerce clause means in the absence of federal regulation
-rule: in the absence of federal regulation, state regulation of commerce is valid so long as: 1) there is no discrimination against out of state interests, 2) the regulation does not unduly burden interstate commerce, and 3) the regulation does not apply to wholly extraterritorial activity

exceptions to no discrimination against out of state interests
-state as market participant; when state is buying or selling goods or services, it can choose to deal with only in-state persons
-subsidies: state can always choose to subsidize only its own citizens (welfare, in-state tuition)
-federal approval: applies only in absence of federal actions; if congress authorizes or consents to state regulation of commerce, nothing state does will violate commerce clause, even if it discriminates against out of state interests

only when it is so outrageously costly relative to benefits of regulation is non-discriminatory state regulation struck down as undue burden on interstate commerce

state may not regulate conduct occurring wholly beyond its borders
Fed - federal system - state taxation of interstate commerce
discriminatory taxation will be struck down unless congress consents and non-discriminatory taxation will be upheld unless it is unduly burdensome

nondiscriminatory taxation is valid if following two requirements are met:
-must be a substantial nexus between the taxing state and property or activity to be taxed
-must be a fair apportionment of tax liability among states

ad valorem property taxes (value-based property taxes)
-levied on personal property
-commodities: goods that move from state to state; states tax all commodities within their borders on a specified date (tax day), but not goods that are merely in transit; commodities have to come to a rest in that state; rule: pay full tax to every state where goods are stopped for a business purpose on tax day; no taxes are due where they are merely in transit
-instrumentalities: transportation equipment that moves commodities; each state in which an instrumentality is used can tax value of that instrumentality
Fed - federal system - preemption
-fed law preempts inconsistent state law
-state law is not preempted simply because it addresses the same subject matter/topic as a federal statute; must be incompatibility or conflict
-preempting the field: when congress determines that there should be no state law of any sort in a particular field, then any state law in that area is inconsistent with the federal statute and is preempted
-preemption statutes (unless preempting the field_ are construed narrowly
Fed - federal system - relations among states
-interstate compacts are agreements among states; states can make interstate compacts, but if compact affects federal rights, congress must approve
-full faith and credit clause: states don't have to follow other states' laws, but have to give full faith and credit to judgments rendered by other states' courts, so long as rendering court had jurisdiction
Fed - state action
13th A outlaws slavery and involuntary servitude and applies directly to private parties and individuals, but is narrow in its focus

14th A protects other individuals rights, but requires state action, which is government action, whether state or local
-government cannot be significantly involved in private discrimination
-significant state involvement: cannot facilitate or profit from private discrimination and cannot enforce private agreement to discriminate, but is not required to prevent private discrimination
-generally government acts constitutionally so long as its own conduct is neutral and even-handed

anti-discrimination states
-state action is required to show violation of constitution
-state action is irrelevant if there is anti-discrimination legislation
Fed - state - procedural due process
two questions: 1) is life, liberty, or property being taken, 2) and if so, what process is due

-life: death penalty requires procedural due process
-liberty: physical confinement, probation and parole, physical injury (spanking in school), any restriction on legal rights (being punished for free speech). But, injury to personal reputation is not a loss of liberty
-property: have a property interest in government job or benefit whenever you have legitimate entitlement to continued enjoyment; mere expectation is not enough; government benefits are entitlements and are property; if gov job is for cause, property, but if at will, not property

deprivation: notice and hearing not required when there is an accident; random negligence by state employee does not constitute deprivation of life, liberty or property; deprivation requires intentional taking

what process is due? to decide, courts look at three factors:
-individual interest at stake
-value of procedure in protecting the interest
-government's interest in efficiency and cost

timing of hearings
-sometimes hearing must occur before deprivation, like terminating welfare benefits, non-emergency revocations of drivers license
-public employees who can be fired only for cause must be given some opportunity to be heard prior to discharge, unless there is a significant reason not to keep employee on the job; if there is a significant reason, then discharge can come first with subsequent heart that is prompt and provides reinstatement with back pay
Fed - state - substantive due process - standards of review
three standards of review

strict scrutiny
-is the law necessary for a compelling interest
-least restrictive means
-when strict scrutiny applies, government bears BOP; government must show that interest is compelling and law is necessary to that interest
-applies when there is a suspect classification or a fundamental right

intermediate scrutiny
-is the law substantially related to an important government interest
-applies to classifications based on legitimacy and gender

rational basis
-is the law rationally related to a legitimate interest
-challenger bears BOP
-applies to all other cases
Fed - state - substantive due process - fundamental rights
due process vs. equal protection
-if law denies fundamental right to everyone, violates substantive due process
-if law denies fundamental right only to some, violates equal protection

-fundamental right to interstate travel and settlement
-states can impose reasonable residency requirements for political participation and government benefits; most are 30-90 days, but one year is too long for everything but in state tuition and jurisdiction to divorce
-all residents have a right to be treated equally; state cannot have a tax scheme that favors long-term residents over recently arrived residents

voting and ballot access
-voting is fundamental right to all citizens age 18 and over
-poll taxes are unconstitutional
-short-term residency requirements are okay
-congress controls residency requirements for presidential elections, but state controls residency requirements for all other elections
-ballot access: states can impose requirements for candidates to be listed on a ballot, such as longer residency, filing fees, and nomination petitions, so long as serious candidate can reasonably reply; if requirements become so onerous that they effectively bar access to ballot, then unconstitutional

marriage privacy
-requirements for marriage are okay, but substantial interference with marriage of an age-qualified man and woman is unconstitutional

contraception: fundamental right for everyone, whether married or not

sexual intimacy: government has no legitimate interest in regulating non-commercial sexual intimacy between consenting adults, including same-sex couples

-woman has right to terminate pregnancy until viability of fetus; after that stage, restrictions can apply so long as there are exceptions to preserve health and life of mother
-state cannot impose undue burden on woman's right to terminate pregnancy:
---informed consent requirements allowed
---24 hour waiting periods allowed
---parental notification requirements for minors allowed
---parental consent requirements not allowed; but narrow exception that minor get consent of parent or judge, but requires judge to give consent if underage female understands nature of act
---spousal requirements not permissible
---government financing not required

parental rights: parents have fundamental right to raise children as they see fit, including choice of religious or private schools
-can lose rights through abandonment, abuse or neglect

family relations: includes right to live together with close relatives

obscene material
-fundamental right to read obscene material in privacy of one's own home; but no fundamental right to purchase, sell, import, or distribute such material
-does not apply to child pornography

refusal of medical treatment
-not clear whether there is a fundamental right, but there is a liberty interest in refusing medical interest
-no right to commit suicide
Fed - state - equal protection - clauses of 14A
privileges or immunities of national citizenship under 14A
-means nothing today; do not respond

two due process
-5A applies to federal government
-14A applies to localities and states

one equal protection clause
-applies to localities and states
-equal protection clause applies technically to the fed government, equal protection concepts are applied to fed gov via the Due Process Clause of 5A; so for fed gov it is just called 5A Due Process, where for states and localities they have 14A due process and equal protection
Fed - state - equal protection - standards of review
same as for due process

strict scrutiny: is the law necessary for a compelling interest

intermediate scrutiny: is the law substantially related to an important government interest

rational basis: is the law rationally related to a legitimate government interests

NOTE: sexual orientation falls under rational basis, but laws disadvantaging gays might be struck down as irrational because they are not supported by reasons other than mere prejudice
Fed - state -equal protection - suspect classifications
-triggers strict scrutiny
-race, ethnicity, physical disability, content based regulation, or national origin
-discriminatory purpose required; P has to show it has a discriminatory purpose, not enough to show that there is a disproportionate impact
-discriminatory purpose: may be explicit on the face of the statute, or may be proved by a history of discriminatory application, or by extrinsic evidence about the purpose of those who passed the law
-school desegregation: de jure (by law) segregation is unconstitutional; de facto segregation is not

affirmative action
-racial classification
-triggers strict scrutiny and requires a compelling interest
-valid when it specifically corrects past discrimination by the specific department or agency now engaged in affirmative action; general societal discrimination not enough
-affirmative action allowed in the context of preferential admissions to colleges and universities; allowed if necessary to achieve a diverse student body and diversity is essential to the education; need strong showing that racial preferences are in fact necessary to achieving a diverse class; must be holistic and flexible; quotas not allowed
-preferential admissions not allowed for secondary schools, but can allow zoning to maximize diversity
Fed - state - equal protection - alienage
classifications based upon US citizenship generally suspect classifications that require compelling interest, but two important exceptions to strict scrutiny apply
-federal government: congress has plenary power over citizenship and naturalization; federal classifications based on US citizenship do not trigger strict scrutiny; fed classifications are valid unless arbitrary and unreasonable
-state and local participation in government functions: jobs that have a particular relevance to role of government and non-US citizens can be barred from these jobs; states and localities may require US citizenship for participation in government functions, including voting, serving on jury, and working in any kind of government law enforcement position, or as public school teacher

states and localities cannot require US citizenship for access to private employment or for government benefits
Fed - state - equal protection - quasi-suspect classifications
-gender, content neutral regulation, TPM, and legitimacy
-trigger intermediate scrutiny
-gender classifications are almost always invalid; but permissible examples: statutory rape and draft
-legitimacy: (something depends on whether parents were married at time of one's birth) laws are almost always invalid, especially if punitive in nature
Fed - state - equal protection - non-suspect classifications
-age and wealth
-age discrimination in employment is barred by statute, but is not suspect or quasi-suspect; triggers rational basis
-wealth is not suspect or quasi-suspect, but government has to waive fees for indigents when charging fees would deny fundamental right; ex: divorce, transcript for appeal of criminal conviction, transcript for appeal of termination of parental rights
Fed - state - equal protection - fundamental rights
-some fundamental rights come up under equal protection and then apply strict scrutiny
-right to travel
-right to vote; one person, one vote; requires districts of approximately equal size; applies whenever you elect representatives by district; exception: special purpose governments (highly specialized government, distribution of water rights, can have a franchise based on that special purpose, like acreage held or water entitlements)
-racial gerrymandering: vote dilution: drawing districts to scatter minorities so that they are not crucial in any one district; if done with discriminatory purpose, unconstitutional; Voting Rights Act: requires racial gerrymandering to ensure minority success by creating majority-minority districts (race may be a factor in drawing district lines, but not the predominant or only factor; other factors: compactness and observing local, political subdivisions)
-political gerrymandering: can violate equal protection, but political question so non-justiciable
Fed - takings
private property shall not be taken for public use without just compensation
-public use: basically anything government wants to do with property; need only be rationally related to conceivable public purpose (includes taking private property to resell to another private owner for economic development)
-just compensation: fair market value at time of taking

-taking v regulation: if there is a taking of property, compensation required; if mere regulation on property, compensation generally not required, even if regulation reduces value of the property
-economic impact: adverse economic impact of government's action does not necessarily mean there has been a taking; many regulations can dramatically affect value of property but that does not trigger right to compensation
-physical occupation: if government physically occupies private owner's property, then taking has occurred
-no physical occupation: generally no taking
-zoning: not a taking and no compensation, as long as zoning advances legitimate interests and does not extinguish fundamental attribute of ownership
-regulatory taking: zoning regulation can be considered taking when it leaves no economically viable use for property
-development permits: development is often conditioned on concessions by developer, such as building an access road or donating land to park; such extractions are valid so long as the can be seen as offsetting the adverse impact of the development
Fed - prohibited legislation
bill of attainder: a legislative punishment imposed without judicial trial; unconstitutional

ex post facto laws: unconstitutional to expand criminal liability retroactively, either by creating a new crime that applies retroactively to past conduct or by increasing penalty for past conduct

contract clause: bars states from legislative impairment of existing Ks, unless there is an overriding need (something like an emergency)
Fed - establishment of religion - three part test
three part test: Lemon v. Kurtzman
1) does the law have a secular purpose
2) does the law have a primary effect that neither advances nor inhibits religion
3) does the law avoid excessive government entanglement with religion

deficiency of Lemon test
-difficult to apply
-once was interpreted to condemn aid to religious primary and secondary schools, but neutral aid is now allowed; government gives aid to parents and parents are allowed to send children to schools of their choice; parents are making decision as to whether a religious school gets the money
Fed - establishment of religion - endorsement
it is a violation of the establishment clause of the government to endorse one religion over another and to endorse religion over non-religion; some endorsements upheld, like "in god we trust" on currency

prohibits government endorsement of religion in a context that might prove coercive on an individual's conscience; examples:
-officially-sponsored school prayer unconstitutional
-officially-sponsored graduation prayer unconstitutional
-bible reading okay, but can't be inspirational
-display of 10 commandments sometimes okay; can be displayed for secular purposes (historical or promoting morals) but not to inspire religious belief; can teach in school as an example of early legal code; can't post in classroom and leave it there every day of the school year; can't post it in a courthouse if context makes plain that purpose is to endorse religion
-unconstitutional to prohibit teaching evolution
-legislative prayer okay for historical purposes
-nativity scenes are okay on public property if there is something else there to dilute the religious message
Fed - free exercise of religion
religious belief: absolute protected

religious conduct
-protected qualifiedly; laws regulating religious conduct because of its religious significance are unconstitutional
-neutral, generally applicable laws can be enforced despite religious objections; there is no right to accommodation
-no constitutional right to exemption from neutral, generally applicable regulations of conduct; exception
-exception: ministerial exception; FA requires ministerial exception to employment laws; non-discrimination employment laws cannot be applied to ministers
-state university that allows student groups to meet on campus must allow student religious groups equal access
Fed - freedom of expression - content based - symbolic speech
laws regulating expressive conduct are upheld if
-they further an important interest
-that interest is unrelated to the suppression of expression, and
-the burden on expression is no greater than necessary

key: if government is trying to suppress a message, struck down; if government is trying to pursue an interest unrelated to suppression of expression, upheld
Fed - freedom of expression - content based - vagueness and overbreadth
vagueness: give no clear notice of what is prohibited; violates due process

overbreadth: go too far in regulating speech; burden substantially more speech than is necessary to protect compelling interest and violates FA
Fed - freedom of expression - content based - prior restraint
especially disfavored and will be struck down even when other forms of regulation might be upheld; injunctions against speech are almost impossible to get
Fed - freedom of expression - content based - TPM
-applies principally in a public forum (place traditionally reserved for speech activities)

only time, place, and manner may be regulated in a public forum; three requirements:
-must be content neutral on its face and as applied; must not allow executive discretion
-alternative channels of communication must be left open; TPM must be a guideline for speech, not flat prohibition
-must narrowly serve a significant state interest (most are upheld)

nonpublic forum: government property that is not a public forum; government has great power; any reasonable regulation of speech will be upheld
-viewpoint discrimination is invalid

limited public forum: a place that is not a traditional public forum, but government chooses to open to all comers (municipal theater anyone can rent); only TPM are allowed
-note: school auditorium is not a public forum or limited-public forum
Fed - freedom of expression - content based - obscenity
can be regulated because of content
-must be erotic; appeal to prurient interest (gore and violence = no)
-must be patently offensive to average person in society; society may be country as a whole, or particular state or major metropolitan area
-must be defined by proper standards for determining what is obscene, not vague/overbroad
-material must lack serous value; if it has serious value (artistic, scientific, educational, or political) cannot be held legally obscene; determination made by court and based on national standard
-minors: lesser legal standard can be applied to minors, but government cannot ban adult speech simply because it would be inappropriate for minors
-child pornography: can be prohibited whether or not it is legally obscene, and possession can be punished even if it is in the privacy of your own home
-land use restrictions: narrowly drawn ordinances can regulate zoning of adult theaters, but cannot ban them entirely
Fed - freedom of expression - content based - incitement
speech is not protected unless it is incitement to imminent and immediate violence
Fed - freedom of expression - content based - fighting words
words likely to provoke an immediate breach of peace
-must be aimed/targeted at someone, and person might hit back
-generally vulgarity not enough
-fighting words not protected speech
-all fighting words statutes on bar exam are unconstitutionally vague and/or overbroad (laws against hate speech)
Fed - freedom of expression - content based - defamation
-false statement of fact (not opinion) damaging to a person's reputation can be prohibited
-public officials and public figures can recover for defamation only on proof of knowing or reckless falsity (actual malice
-private plaintiffs can recover on proof of negligent falsity
Fed - freedom of expression - content based - commercial speech
-most regulations of commercial speech are struck down so long as advertising is truthful and informational, must be allowed
-test: regulation of commercial speech must directly advance a substantial government interest and be narrowly tailored to that interest
-misleading commercial speech may be prohibited
Fed - freedom of expression - content based - government speech
-FA restrictions don't apply to government as a speaker
-government as a speaker is free to express a point of view
-government does not have to accept all monuments donated by a private person simply because it accepts one; when government is controlling the message, it is entitled to say what it wants
Fed - freedom of expression - content based - corporations
same FA rights to speak as individuals
Fed - freedom of expression - regulation of media
press media have no special privileges; have same rights as everyone else
Fed - freedom of expression - regulation of association
-freedom of association cannot be punished because of political associations
-public employees can be required to take a loyalty oath to constitution, but most loyalty oaths are struck down as vague/overbroad
-bar membership: states can investigate good character, but cannot deny admission based on political affiliations
-states cannot require open primaries; parties themselves have to decide whether they will be open
Fed - freedom of expression - speech by government employees
-general rule: government employees cannot be hired or fired based on political party, political philosophy, or any act of expression; can be fired for disrupting workplace or not doing job
-exception: doesn't apply to confidential advisors or policy-making employees
Fed - freedom of expression - campaign finance
-use of money to support political campaign is political speech and regulation of that money raises FA issues
-contributions can be regulated, provided that limits are not unreasonably low; rationale is to prevent corruption
-direct expenditures in support of a candidate, campaign, or political issue cannot be regulated
-independent expenditures cannot be regulated
-coordinated expenditures is a disguised contribution (campaign is in control) and can be regulated as contribution
-constitutional protection of direct independent expenditures applies to corporations, including nonprofits and unions
FL - declaration of rights - foundation
-article 1, section 1 of FL constitution states that all power is inherent in the people
-list in declaration of rights is not exclusive
-declaration of rights provides greater protection of individual rights than BoR in US constitution, but state constitution can never provide less protection
FL - three tests and equal protection
same as fed
FL - fundamental rights
-enjoy and defend life and liberty
-pursue happiness
-be rewarded for industry
-acquire, possess, and protect property
FL - fundamental rights - religious freedom
-no law establishing state religion
-no law penalizing free exercising of religion
-no state or local government money can be taken out of general revenue to aid any religious or sectarian institution

balancing test: fundamental rights v. state's interest in protecting:
-public peace
-public safety
-public morals

-government may burden person's free exercise of religion if it meets strict scrutiny

judiciary determines jurisdiction over a matter involving free exercise or establishment using 3 part test:
-dispute is ecclesiastical one about discipline, faith, or internal organization (will not hear)
-an ecclesiastical rule, custom or law (will not lear)
-whether religious organization should be liable for a purely secular dispute between it and third party (may hear)
FL - fundamental rights - freedom of speech and press
-same analysis as fed constitution
-truth is defense to defamation
-freedom of press is personal right rather than property right
FL - fundamental rights - right to assemble
people have right to organize and communicate with three branches of government
FL - fundamental rights - right to work
-not a guarantee that you have a right to a job, but that individuals may work without regard to membership status in a union
-public employees have the right to collectively bargain
-public employees do not have the right to strike
FL - fundamental rights - right to bear arms
-people have right to bear arms
-manner of bearing can be regulated by law
-3 day waiting period between purchase and delivery of handgun, but does not apply to: someone who holds concealed weapons permit holder and trade ins of another handgun
FL - fundamental rights - due process
-no person shall be deprived of life, liberty, or property without due process
-substantive due process incorporates entities because ability to earn a rate of return
-states action cannot be unreasonable, arbitrary, or capricious
-note: person is entitled to notice, opportunity to be heard, and present information in defense of self
FL - fundamental rights - search and seizure
-body and property are protected from unreasonable search and seizure
-communications are free from unreasonable interception
-for a warrant to be issued, must be based on probable cause
-warrant needs an affidavit that details: places to be searched, persons or things to be searched, communications to be intercepted, and nature of evidence to be seized
-if warrant doesn't have those, inadmissible
FL - fundamental rights - habeas corpus
produce the body

writ must be granted as a matter of right
-without cost
-without delay

can only be suspended during times of rebellion or invasion
FL - fundamental rights - pretrial detention
every person charged with a crime is entitled to pretrial release on reasonable conditions
FL - fundamental rights - prosecution for crime
no person may be tried
-for a capital crime without presentment or indictment by a grand jury or
-for a felony other than a capital crime without either presentment and indictment by a grand jury or information under oath, filed by court's prosecuting officer
FL - fundamental rights - excessive punishment
forbidden as excessive punishment
-excessive fines
-cruel and unusual punishment
-attainder (capital punishment without proper judicial proceedings)
-forfeiture of estate)
-indefinite imprisonment
-unreasonable detention of witnesses

death penalty is an authorized punishment for crimes as designated by legislature

prohibition against cruel and unusual punishment will be construed in accordance with decisions of SCOTUS on 8th amendment
FL - fundamental rights - access to courts and trial by jury
-courts must be open to every person for redress of an injury
-if legislature restricts access to court system, must provide a reasonable alternative or show there is no other way to accomplish an overwhelming public need
-legislature cannot abolish common-law cause of action without providing statutory alternative
-justice must be administered without need for payment
-filing fees and similar charge are permissible unless they are unreasonable
-any restriction that substantially bars access to the courts will be considered unreasonable
-if legislature abolishes c/a but creates administrative agency to handle similar claims, deemed reasonable
FL - fundamental rights - right to privacy
-specifically enumerated in FL constitution as fundamental right
-unless otherwise provided in FL constitution, every natural person has right to be left alone and be free from governmental intrusion into that person's private life
-does not guarantee complete freedom but state must meet strict scrutiny test
-for particular facet of private life to be protected, individual must have a reasonable expectation for that facet
FL - fundamental rights - access to public records and meetings
-every person has the right to request, inspect and obtain a copy of any public record made or received in connection with any official business of any public body
-includes all legislative, executive, and judicial branches, and any affiliated agency or department; counties, municipalities, and districts; and every constitutional officer, board, commission, or agency
-exempted records are records specifically made confidential by constitution or by general law
-if two or more public officials meet for purpose of conduct public business, meeting must be open with notice topublic
FL - legislative branch - composition
-senate and house of reps
-leader of senate = president
-leader of house = speaker
FL - legislative branch - terms
-senators are elected for 4 year terms
-representatives are elected for 2 year terms
-legislators must be at least 12, permanent resident, registered voter in district (called elector)
-legislators limited to 8 consecutive years in office
-vacancies filled by elections, not appointment
FL - legislative branch - sessions
-legislators meet in regular sessions that last no more than 60 consecutive days
-must pass a budget
-may be called into special session by governor that last no more than 20 days; limited to topic provided in governor's proclamation unless different topic is introduced by 2/3 vote of each house
-majority of each house constitutes quorum (necessary to conduct business)
-sessions are public
-gathering of two or more legislators to discuss official action must be open to general public
FL - legislative branch - laws - basics
-proposed legislation presented in form of bill
-bills require three readings
-all bills must have a title
-must have enacting clause "be it enacted by the legislature of the state of FL"
-must pass by majority vote of each house
-must embrace a single subject
FL - legislative branch - passage
for a bill to become a law, must be presented to the governor

different possibilities
-governor signs it, then it becomes effective
-governor choses not to sign it
-governor vetoes
-if governor does not veto within 7 days when legislature is in session, bill becomes law
-sine die: if governor does not veto it within 15 days after adjournment sine die, then bill becomes law
-governor's veto is overriden by 2/3 of member of each house

law goes into effect on 60th day after adjournment sine die
FL - legislative branch - types of law
three types of law

general law: applies uniformly throughout the state; most common

special law: covers specific class, object, or geographical location
-legislature can enact special law or people in geographical location can vote on the law via referendum
-notice must be provided to people by paper of general circulation

general laws of local application: uses a classification scheme, usually based on population
-object must be able to grow into and out of population classification; must be open ended
-must be reasonably related to classification scheme
-must not cover more than one of prohibited law categories (hint: if it looks like it would relate to an area of uniform approach, likely prohibited law; ex: punishment for a crime, rules of evidence, divorce)
FL - legislative branch - special laws and general law of local applicability prohibited law categories
i) Election, jurisdiction, or duties of officers, except officers of municipalities, chartered counties, special districts, or local governmental agencies;

ii) Assessment or collection of taxes for state or county purposes, including extension of time, relief of tax officers from due performance of their duties, and relief of their sureties from liability;

iii) Rules of evidence in any court;

iv) Punishment for crime;

v) Petit juries, including compensation of jurors, except for the establishment of jury commissions;

vi) Change of civil or criminal venue;

vii) Conditions precedent to bringing any civil or criminal proceedings, or limitations of time;

viii) Refund of money legally paid or remission of fines, penalties, or forfeitures;

ix) Creation, enforcement, extension or impairment of liens based on private contracts, or fixing of interest rates on private contracts;

x) Disposal of public property, including any interest therein, for private purposes;

xi) Vacation of roads;

xii) Private incorporation or grant of privilege to a private corporation;

xiii) Effectuation of invalid deeds, wills or other instruments, or change in the law of descent;

xiv) Change of name of any person;

xv) Divorce;

xvi) Legitimation or adoption of persons;

xvii) Relief of minors from legal disabilities;

xviii) Transfer of any property interest of persons under legal disabilities or of estates of decedents;

xix) Hunting or freshwater fishing;

xx) Regulation of occupations that are regulated by a state agency; and

xxi) Any other subject when prohibited by a general law passed by a three-fifths vote of the membership of each house; although such law may be amended or repealed by like vote.
FL - legislative branch - appropriation bills
-deals with money only
-legislature may use its inherent authority to make law, but at same time, is also making substantive law in budget: unconstitutional
-qualifications must be rationally related to purpose of using money
FL - legislative branch - apportionment
-apportionment occurs every 10 years along with US census
-senate may have no fewer than 30 senators and no more than 40
-house may have no fewer than 80 reps and no more than 120
FL - executive branch - governor
-administers and executes law
-CEO of state
-chief administrative officer of state
-commander in chief of FL national guard when not in active service of US
-uses executive order to communicate with executive branch and administrative agencies the law
-serves as chair of meetings of cabinet
FL - executive branch - lt. governor
-becomes governor when there is a vacancy or the governor is incapacitated
-performs duties prescribed by governor
-only statewide official who may also serve as an agency head while holding office
FL - executive branch - cabinet
three members who are independently elected

attorney general
-chief legal officer
-houses the office of statewide prosecutor; in charge of cases that cover more than one judicial circuit
-issues advisory opinions that are not binding but entitled to great weight by the courts (only people in state or local government can ask for AG opinions)

-chief fiscal officer of state

commissioner of agriculture
-department head of agriculture and consumer affairs
-supervises agricultural concerns

lt. governor and governor are not members of the cabinet
FL - executive branch - elections and qualifications
-governor and lt. governor must form a ticket for general election
-governor, lt. governor and cabinet are elected to 4 year terms
-terms limited to 2 4 year terms
FL - executive branch - miscellaneous
-can only be 25 executive departments in FL, exclusive of those mentioned in constitution (FL fish and wildlife commission, dept of veterans affairs, and dept of elderly affairs)
-each of these officials is subject to impeachment
-governor may not suspend any officer that is subject to impeachment
FL - judiciary - levels
-one supreme court
-five district court of appeals
-20 circuit courts
-67 county courts
FL - judiciary - supreme court compsotion
-7 justicies
-5 justices constitute a quorum
-5 of 7 justices must be representative of each appellate district
-head of court is chief justice, elected for two year term among justices
-concurrence of 4 justices necessary for a decision
FL - judiciary - supreme court jurisdiction
supreme court must hear appeals from:
-final judgments of trial courts imposing the death penalty
-decisions of DCAs declaring invalid a state statute or provision of the constitution
-decisions that invalidate bonds or certificate of indebtedness proceedings
-when provided by general law, review appeals of final orders from public service commission cases (statewide agencies) in electric, gas and telephone service

only way to change these areas of mandatory jurisdiction is by amending the state constitution; everything else is discretionary
FL - judiciary - DCA
5 of them

-must have at least three judges
-concurrence of two is necessary for a decision

-appeals from circuit court as a matter of right
FL - judiciary - circuit courts
-20 of them
-civil cases with claims at 15k+
-courts of appeal as a matter of right to final judgments of county courts
-felony and misdemeanor criminal cases
FL - judiciary - county courts
civil cases that are 15k or less
FL - judiciary - judges
-must be a permanent resident and resident voter in the district (elector)
-under age 70

selection, retention, and vacancies
-supreme court and DCAs are appointed by governor from a list of no fewer than 3 and no more than 6 names submitted by judicial nominating commission
-vacancies of circuit and county courts are filled by governor in same way
-otherwise county and circuit court judges are elected by popular vote; 6 year terms
-supreme court and DCAs have merit retention elections; if justice/judges secure more than 50% of vote to question "shall justice/judge X be retained" then retained for 6 years
FL - judiciary - attorney qualifications and discipline
court jurisdiction
-supreme court has exclusive jurisdiction to regulate admission of persons to practice of law, as well as discipline

state attorneys and public defenders
-ever judicial circuit has state attorney and a public defender
-elected on 4 year terms
-no term limits
-must be permanent resident and registered voter in district (elector)
-must have been a member of FL bar for preceding 5 years
FL - taxation - ad valorem taxation
general rule: state cannot engage in ad valorem taxation (taxes on real property or tangible personal property)
-all other forms of taxation are reserved by state and legislature has broad power to authorize taxation by general law
-state may issue taxes by virtue of licenses on goods such as motor vehicles, boats, airplanes, trailers, trailer coaches, and mobile homes (ensure public's health, safety and welfare)

only local government can engage in ad valorem taxation

no money can be drawn from state treasury except as related to an appropriation made by law
FL - taxation - ad valorem taxation - exemptions
municipal property
-municipal property used exclusively for public or municipal purpose is not subject to ad valorem taxation (animal control, parks, recreation, public safety, water, sewer, transit)
-public purpose: scientific, charitable, educational, literary purposes

homestead exemptions
-those who have successfully established their homestead will be entitled 25k in relief from ad valorem taxes for all school purposes and an additional 25k for all other purposes (county and municipal purposes)
-real property owner may get up to 75k in homestead exemptions
-for someone who is elderly (attained age of 65) and household income does not exceed 20k, individual may be entitled to an exemption not exceeding 50k
-individual who has attained age of 65, whose real estate or interest in real estate does not exceed 250k in market value and household income is 20k or less, homestead exemptions
-surviving spouse of a military veteran or first responder may be entitled to a homestead exemption, in addition to the one for schools, and for all other purposes, for total amount of ad valorem taxes owed on that particular piece of real property
FL - taxation - rates and assessments
-most property will be assessed at just value (market value)
-currently there is no personal income tax in FL, but corporations can be taxed as much as 5%
FL - taxation - local governments
-permitted to assess taxes using ad valorem taxation method unless state legislature gives those local governments authority under general law to assess other types of taxes

what is a local government
-school district
-special district

local governments may be authorized by general law to levy other taxes
FL - taxation - taxes and fees
taxes: used to fund functions of organization for ordinary administration of state or any units of local government

fees: used for specific purpose; three types
-user fees; if you engage in use of a facility or drive over a particular road, then you would pay the fee; should go back to maintenance of the facility, road, etc.
-impact fees: developer will be charged for its impact on overall infrastructure of the county or municipality (impact on roads, sanitation systems, schools); developer will then subdivide the fee among homeowners who purchase lots
-special assessment: group voluntarily agrees to pay a special assessment to help build a park or county commissioners agree that residents will pay for park, but once park is built, special assessment goes away
FL - taxation - milage rates
-mill unity of measure is equal to 1/10 of .01 or .001 used to levy taxes
-millage rate is formula used to determine property taxation
-for all county purposes, maximum millage rate is 10 mills
-for all municipal purposes, maximum millage rate is 10 mills
-for all school districts, maximum millage rate is 10 mills
-water management districts and other districts created by general law may add additional mill, 2 mills
FL - taxation - finance
-state and local governments engage in financing through issuance of bonds and certificates of indebtedness
-these are contracts with individuals who want to hold the debt for the state or a municipality and earn a rate of return
-finance deals with long-term issuance of debt on behalf of state or local government for purpose of financing projects over long period of time
FL - taxation - bonds
general obligation bond
-when state issues general obligations bond, state is pledging full faith and credit of state of FL
-bondholders can be secure in knowing that the assets of the state are backing the refunding of the bonds once the term of the bonds mature
-bonds cannot be used for ordinary expenses
-require a vote of the electors, except for water pollution control, solid waste disposal facilities, to finance or refinance cost of acquiring real property or rights thereof for state roads or state bridge construction, conservation, and historic preservation
-cannot exceed 50% of general revenue

revenue bonds
-bondholders are repaid by revenue generated from project
-have no further recourse for payment (think parking garage)
-no pledge of full faith and credit of state of FL
-no vote of electors required
-used to finance or refinance cost of state fixed capital outlay projects
FL - taxation - local bonds
-local government bodies with taxing powers may also issue general obligation and revenue bonds
-determine whether bond matures beyond 12 months and a day
-if so, then it requires a vote of electors to pass issuance
FL - taxation - taxation budget reform commission
-established in FL constitution
-meets every 20 years and makes recommendations to legislature and people on state budgetary process as well as collection of taxes
FL - counties
-enumerated in constitution
-have home rule power
-all three branches of government are represented
-board of county commissioners = legislature
-chair of commissioners/mayor = executive
-county/circuit courts = judiciary
FL - charter county (18)
-can have any form of government
-charter dictates whether municipal ordinance trump county ordinance
-unless legislature has expressly preempted charter county action, then it most likely can be enacted
-cannot be against constitution or general law
FL - non-charter county
-typically more rural
-administered by a board of county commissioners
-to extend of a conflict between a county ordinance and municipal ordinance, municipal ordinance trumps county ordinance in boundaries of municipality
-to extend of conflict with general law, ordinance cannot be adopted
-non-charter counties can be restricted by implied preemption of the legislature
FL - county officers
constitutional officers
-supervisor of elections
-clerks of the circuit court
-tax assessor
-property appraiser
*tax assessor and property appraiser can be combined into one office upon vote of the electors (referendum)

-board of county commissioners is legislative body of county; can be led by chairperson or mayor
-elected in districts
-4 year terms for commissioners and constitutional officers
-issue of term limit is local
FL - municipalities
incorporated areas of a county

-corporate (can issue bonds, liable to shareholders (electors), has ability to a rate of return)
-proprietary: possess home rule power via statute, has ability to issue bonds, has ability to earn a rate of return, purpose is to run more efficient services, may annex unincorporated area of a county, may consolidate county and municipal government, may transfer powers after making preparations for debt

voting and elections
-managed by councils
-elections occur by secret ballot
-general elections are determined by a plurality (33%)
-electors are at least 18, permanent residents of FL, and registered by general law
-electors can be disqualified by conviction of felony or adjudicated mentally incompetent
FL - education
public education is a fundamental value of the people of state of FL

school districts
-each county is a school district
-each district can merge following a referendum approving the merger
-school board is governing board; elected to 4 year terms

state board of education
-supervision of system of free public education
-7 members appointed by governor to 4 year terms
-paramount duty of state to make adequate provision for education
-must be uniform, efficient, safe, secure, and high quality system of free public schools
FL - eminent domain
-state may not take individual's property for public use without just compensation
-state must show a necessity for property and pay fair market value
-individual can experience taking by the state physically taking the property or state engages in depriving a landowner of substantial use and enjoyment of that property

if the state does not tell landowner that it is taking the landowner's property, then landowner may institute inverse condemnation proceedings
-owner (P) presents to state that a substantial deprivation of use and enjoyment of property is being experienced, or by virtue of state action, it has effectively taken property and has not provided just compensation
-subsequent hearing
-court will determine whether there is a hearing
FL - homestead exemption from forced sale - homestead property
-RP owner has to have established his or her homestead (government place of residence)
-homestead within a county and municipality
-if you live in an unincorporated area of the county, then you are entitled to a homestead exemption from forced sale of up to 160 contiguous acres of land; rivers running through land = contiguous; roads built across land = not contiguous; if you subsequently purchase property adjacent to property you currently own in unincorporated area, that property may be a part of your homestead exemption
-if you live within a municipality, entitled to 1/2 acre of contiguous land
-property is only to be used as your permanent residence in a municipality, but if you live in an unincorporated area of a county, you can engage in business that is rationally connected to the use of the property, like owning a farm
-entitled up to 1k of personal property that is also considered homestead property (exempt from forced sale)
FL - homestead exemption from forced sale - exemptions from forced sale
general rule
-forced sale means that creditor is coming after your assets and trying to attach your home as asset
-creditor is not able to liquidate home if you have established it as your residency or intend to establish it as your residency
-there are exceptions to this rule

-taxes, state and federal
-mechanics lien (property has been improved and owner has not paid for improvement)
-civil forfeiture
FL - homestead exemption from forced sale - requirements for claiming homestead exemption
-must be a natural person (cannot be a corporation)
-can be a fee simple interest in RP if sole owner or tenant in common
-can be a life estate held by surviving spouse
-lease hold interests are not protected
-need not be head of family; can be sole owner with no family or you can have a family
-temporary or absence okay, so long as it is reasonable time, will not defeat whether a person has established property as his homestead
-insurance proceeds or casualty to property: also protected by homestead exemption from forced sale so long as you intend to reestablish a physical presence on piece of real property
FL - homestead exemption from forced sale - restrictions on devises
general rule
-homestead property may not be devised if owner is survived by a spouse or minor children
-if owner is not survived by any minor children, then the owner may devise the homestead property to owner's spouse; cannot be a life estate, has to be a fee simple devise
-owner is not permitted to devise homestead property to anyone other than the surviving spouse unless that spouse has waived his or her homestead rights

alienating homestead property
-owner of homestead real estate, joined by spouse if married, can alienate property by mortgage, gift, sale etc.
-spouse must consent to devise by owner
FL - homestead exemption from forced sale - spousal waiver of homestead rights
-important date: January 1, 2002; if K was before this date, following does not apply
-after that date, a spouse may agree to waive his/her interest in the homestead if they do so by a K with 2 witnesses
-waiver by a non-FL resident is valid when it is executed, whether or not the surviving spouse is a FL resident, so long as it was originally valid in the state where it was executed
-if agreement, K or waiver is executed after the marriage, then owner needs to make fair disclosure to other spouse of his/her estate
-no consideration necessary for waiver of those rights
FL - amending state constitution - changes to constitution
can be done by:
-the legislature
-revision commission
-initiative petition
-constitutional convention
-taxation and budget reform commission
FL - amending state constitution - legislature
-may propose amendments to any part of constitution via joint resolution of both legislative houses
-resolution must be agreed to by 3/5 of the members of both houses
FL - amending state constitution - revision commission
-meets every 20 years
-has plenary authority to propose amendments to any part of the constitution, which are then placed on the ballot for the next general election
FL - amending state constitution - initiative petitions
-citizens have the right to amend or revise constitution by initiative
-change by initiative can only address one subject and matter directly connected to it
-ballot title is a max of 15 words and ballot summary is max of 75 words
-need signatures from half of all of the congressional districts and 8% of Florida’s electorate (about 670k signatures)
-cannot address taxation or general revenue fund
-then sent to Dept. of State to make sure it complies with Ballot Title and Ballot Summary requirements
FL - amending state constitution - constitutional convention
-called for the purpose of considering a revision of the entire constitution
-vote to have a convention is held at next general election
-if approved, convention will be convened
FL - amending state constitution - taxation and budget revision commission
-meets every 20 years
-makes proposals on taxation and state budgetary process
FL - amending state constitution - amendments
-proposed amendment or revision becomes effective if it is approved by at least 60% of electorate that votes on measure
-constitutional amendments become part of the constitution when passed
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