Florida Constitutional Law Study Guide 1.2 rev 11 PDF

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FL Con Law Study Guide...

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Florida Constitutional Law Study Guide I.

INTRODUCTION

A. LIMITATION ON POWERS The state constitution, unlike the federal constitution, does not grant power to the state government. Instead, the State Constitution is a limitation on a state’s inherent power. Inherent Power: comes from the people. B. CONSTRUCTION AND INTERPRETATION The primary rule when interpreting the constitution or construing a constitutional provision is to ascertain and give effect to the intent of the drafters, and the electorate which adopted the provision. First, look to the plain language of the statute, if it’s clear and unambiguous, then there is no need to restore to rules of statutory interpretation and construction; the statute must be given its plain and ordinary meaning. Principles of construction: 1.

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3.

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Expressio Unius Est Exclusio Alterius - the expression of one thing implies the exclusion of another. Where the Constitution expressly provides the manner of doing a thing, it impliedly forbids it being done in a substantially different manner. Ejusdem Generis: when a general word or phrase follows a list of specific persons or things, the general word or phrase will be interpreted to include only persons or things of the same type as those listed. In para material: It is a fundamental rule of construction that, if possible, amendments to the constitution should be construed so as to harmonize with other constitutional provisions, but if this cannot be done, the amendment being the last expression of the will of the people will prevail. A constitutional amendment becomes a part of the Constitution and must be construed in para materia with all of those portions of the constitution on which have a bearing on the same subject. Miscellaneous Rules of Construction a. Where a constitutional provision will bear two constructions, one of which is consistent and the other which is inconsistent with another section of the constitution, the former must be adopted so that both provisions may stand and have effect b. Construction the Constitution is favored which gives effect to every clause and every part thereof. c. A fundamental rule of construction of our constitution which renders superfluous, meaningless or inoperative any of its provisions should not be adopted by the courts.

B. SELF-EXECUTING & NON-SELF-EXECUTING PROVISIONS Some provisions of the Constitution are self-executing and require no legislative action to put their terms into effect; others require legislative action by their own terms (e.g. ‘as provided by law”).

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1. Test to determine whether a provision is self-executing or not: 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. 2. Analysis: Does it require legislative action to put it in effect? A Constitutional provision is self-executing when it appears it was intended to have immediate effect and ancillary legislation is not necessary to enjoyment of the right given or the enforcement of the duty imposed. When, however, general principles or powers are declared and specific legislation is contemplated or is necessary to make such principles or powers operative within the scope of the fair intendment and meaning, they are not and cannot be self-executing. C. AMENDING THE FLORIDA CONSTITUTION 1. Change or Amendment – Any changes in the constitution must be approved by vote of the people. 

The constitution may be amended by altering or adding only one article or provision (a change to more that one article or provision is a revision)

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A proposed amendment is limited to a single subject (we will discuss this in the ballot/summary problem

2. Revision – the Constitution may be revised (i.e., changed in more than one article or provision. 3. Means of Proposing Change – There are five (5) ways to formally amend the Florida Constitution – proposals may be made and placed on the ballot by: (1) The legislature; (2) The Constitution Revision Committee; (3) Initiative of the People (4) Constitutional Convention (5) The Taxation and Budget Reform Committee 1. Proposal by legislature (Section 1) – “Amendment of a section or revision of one or more articles, or the whole, of this constitution may be proposed by joint resolution agreed to by three-fifths (3/5) of the membership of each house of the legislature” and by majority approval by the voters (no subject matter limitation – unlimited; general authority) 

Legislature can amend one section or revise one or more articles of the whole constitution.

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Since it’s not a bill, it is not subject to Governor’s Veto

2. Revision Commission (Two (2) Types) –

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a.

Proposal by Constitutional Revision Commission (Section 2) – can recommend everything except Tax &/or Budget matters; there are no rules for majority vote required to go to the people; and its composed of a total of thirty-seven (37) members from all three (3) branches of government: Members include: 1. the attorney general; 2. fifteen (15) members selected by the governor; 3. nine (9) members selected by the speaker of the house of representatives and nine (9) members selected by the president of the senate;three (3) members selected by the chief justice of the Supreme Court of Florida with the advice of the justices. 

It initially met the 10th year after the 1968 constitution was adopted (in 1978) and meets every 20 years thereafter (1998, 2018)

Procedure: 1. Commission convenes, chair appointed by Governor, adopts rules 2. Examines constitution 3. Holds public hearings 4. No later than 180 days prior to the next general election Commission files its proposals, if any with the Custodian of state records to be placed on ballot b.

Taxation and Budget Reform Commission (Section 6) – handles tax and finance issues &/or provisions only. 1. Need a two-thirds (2/3) majority vote to go to the people.

3. Proposal by Constitutional Convention (Section 4) – “The power to call a convention to consider a revision of the entire constitution is reserved to the people.” Procedure 1. Invoked by filing with the Custodian of State Records a petition declaring that a constitutional convention is desired 2. Petition must be signed by a number of electors in each of at least onehalf of the congressional districts in the state 3. The total number of the signatures must be equal to, at a minimum, 15% of the votes cast in the last preceding presidential election. 4. At the next general election held more than 90 days after the filing of the petition a question is placed on ballot: Shall a constitutional convention be held? – If a majority voting answers in the affirmative, then at the next succeeding general election, there is elected from each representative district a member of the convention. 5. Convention convenes at capitol, elects officers and set time and place for meetings. 4. Proposal by Voter Initiated Process (Voter Initiative) (Section 3)

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The power to propose the revision or amendment of any portion of the constitution by initiative is reserved to the people. Procedure To have a revision or amendment placed on the ballot, a person must by Feb 1 of the year in which the election is held: a. File with the Secretary of State a petition containing a copy of the proposed revision or amendment; – It must be single subject matter. b. filing must be signed by a number of electors in each of one-half (1/2) of the congressional districts of the state and of the state as a whole c. the number of electors must be equal to eight percent (8%) of the votes cast in each of such districts and in the state as a whole in the last preceding election in which presidential electors were chosen. d. Cannot bring initiative on raising revenue limitations – on everything else is ok. D. SINGLE SUBJECT REQUIREMENT Article XI, Section 3 requires that any voter initiative proposal “ shall embrace but one subject and matter directly connected therewith” Purposes: 1. It prevents logrolling – a practice whereby an amendment is proposed which contains unrelated provisions, some of which electors might wish to support, in order to get an otherwise disfavored provision passed

2. It prevents an amendment from substantially altering or performing the functions of multiple branches of government thereby causing multiple “precipitous” and “cataclysmic” changes in state government. 

The fact that a single amendment may affect multiple areas of government is insufficient to invalidate an amendment on single-subject requirement

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When the proposed amendment substantially alters or performs the functions of multiple branches it violates the single subject test (i.e legislative, executive, judicial)

A proposed amendment meets the single subject test when “it may be logically viewed as having a natural relation and connection as component parts or aspects of a single dominant plan or scheme. Unity of object and plan is the universal test. E. BALLOT TITLE AND SUMMARY

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Section 101.161 of Florida Statutes requires that the ballot title and summary for a proposed constitutional amendment state in a clear and unambiguous language the chief purpose of the measure. Purpose – so that voters will have notice of the issue contained in the amendment, will not be mislead as to its purpose and can cast an intelligent and informed vote. 1. Chief Test for Ballot Title and Summary 

the Court asks whether the ballot title and summary fairly inform the voter of the chief purpose of the amendment

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The Court asks whether the language of the title and summary, as written, misleads the public

2. Ballot Title Requirements (Fl Stat. 101.161 

The ballot title shall consist of a caption, not exceeding 15 words in length, by which the measure is commonly referred to or spoken of.

3. Ballot Summary Requirement (Fl. Stat 101.61) 

Except for amendments and ballot language proposed by joint resolution, the substance of the amendment or other public measure shall be an explanatory statement, not exceeding 75 words in length, of the chief purpose of the measure

Two (2) Prong Test in determining the validity of initiative petitions 1.

Issue 1: Whether the petition satisfies the single-subject requirement of Article XI, Section 3, Fla. Const.; and

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Issue 2: Whether the ballot titles and summaries are printed in clear and unambiguous language pursuant to Section 101.161, Fla. Stat. (1999).

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Single subject requirement is enforced to ensure that people are not misled & to prevent logrolling in legislative exchange.

The proposal has to be limited to one function of the government, not necessarily to one section of the constitution – location. Cannot change the power of multiple departments

II.

SEPARATION OF POWERS

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Article II, Section 3 – “The power of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.”

The Florida Constitution Expressly provides for separation of powers, but recognizes that the constitution can create exceptions to the general rule. 1. Legislative Branch – makes laws 2. Judicial Branch – interprets laws 3. Executive Branch – administers laws A.

ENCROACHMENT With there being three branches of government, there are six types of encroachment or circumstances where one branch infringes on the powers of the other. 1. 2. 3. 4. 5. 6.

B.

Encroachment on Power of Legislative Branch by the Judicial Branch Encroachment on Power of Legislative Branch by Executive Branch Encroachment on Power of Executive by Judicial Branch Encroachment on Power of Executive Branch by Legislative Branch Encroachment on Power of Judicial Branch by Executive Branch Encroachment on Power of Judicial Branch by Legislative Branch

DELEGATION 1. Legislative Delegation of Legislative Power - the Legislature may not delegate the power to enact a law or right to exercise unrestricted discretion in applying the law. Non-Delegation Doctrine - requires that fundamental and primary policy decisions be made by members of the legislature who are elected to perform those tasks, and that the administration of legislative programs must be pursuant to some minimal standards and guidelines ascertainable by reference to the enactment establishing the program.

2. Judicial Delegation of Judicial Power – The courts cannot delegate its judicial power to another branch of the government. A court cannot give an executive agency (i.e. HRS) judicial authority.

III.

LEGISLATURE

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Fla. Const. art. III, Section 1 – provides the legislative power of the state shall be vested in the legislature of the State of Florida…

A.

REQUIREMENTS FOR LAWS 1. General a. Cannot be vague – a law must be clearly worded so the average person of common intelligence will understand what is prohibited and what is permitted b. Cannot be Overbroad – a law is overbroad if it prohibits constitutionally protected activities as well as activities that are not protected. 2. Constitutional Requirements Article III, section 6: “Laws. – Every law shall embrace but one subject and matter properly connected therewith, and the subject shall be briefly expressed in the title. No law shall be revised or amended by reference to its title only....”

a. Must be Limited to a Single Subject – a law may cover only one subject and matter properly connected therewith. b. Must Have an Adequate Title – subject matter must be briefly expressed in the title of the act. c. No Amendment by Reference to Title – The text of the original statute being amended must be set out in the act. New text must be underlined and deleted text must be stricken through. d. Must Have Enactment Clause – Every bill must state: “Be it Enacted by the Legislature of the State of Florida.” 3. The Window Period for Asserting Single Subject Violations The “window period” during which a law may be attacked generally runs from the effective date of the challenged law until the effective date of the law that reenacted the challenged law as part of the legislature’s annual adoption of the Florida Statute. 4. Cure of Single Subject rule violation a. General rule: the general rule for “curing” laws that violate the single subject rule is through the annual adoption process – when laws (session laws) passed by the legislature are adopted and codified during the annual adoption process, the restriction of Art III, Sec 6 pertaining to one subject matter and notice in the title no longer apply.

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b. Exception to Rule: Legislative amendment of the offending session laws into two distinct bills and subsequent reenactment of two distinct bills into separate laws cures the single subject violation. c. A law passed in violation of the requirements of Art III, Section 6, is invalid until such time as it is reenacted for codification into the Florida Statutes. 5. Appropriation Bills – Strict Single subject requirement Appropriation Bills – Article III, section 12: “Laws making appropriations for salaries of public officers and other current expenses of the state shall contain provisions on no other subject.” Two (2) part test to determine whether appropriations bills violate Article III, section 12: a. If a provision in an appropriations bill changes existing law on any subject other than appropriations, it is invalid. b. A qualification or restriction must directly and rationally relate to the purpose of the appropriation to which it applies 6. Effective Date Laws take effect on the date listed in the statute or on the sixtieth (60) day after the adjournment of the legislative session in which the statute was enacted.

7. Passage A bill is passed by a majority vote of both houses A bill becomes law, without the Governor’s signature, if the Governor fails to veto it, or sign it within seven (7) days after it has been presented to the Governor. The seven (7) day period is extended to fifteen (15) if the legislature adjourns sine die during the seven (7) day period, or takes a recess in excess of thirty (30) days. 8. Veto Governor possesses the authority to veto a bill enacted by the legislature, but the veto generally must extend to the entire bill. EXCEPTION: An exception exists which permits the governor to veto a specific appropriation in a general appropriations bill (line item veto). However, the governor cannot veto any qualification or restriction (condition) in a general appropriation bill without also vetoing the appropriation to which it relates. 9. Override Two-Thirds vote of each house can override Governor’s Veto

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10.

Legislative Sessions

a. Regular Session: The constitutions requires that the regular session of the legislature convene on the first Tuesday after the first Monday of each odd-numbered year, and on the first Tuesday after the first Monday in march or on such other date as set by law in even-numbered years. A regular session of the legislature may not exceed 60 days, unless extended by a three-fifths vote of each house. Only the legislature can extend a regular session b. Special Sessions (i) Governor may call by proclamation  Only laws within the purview of the proclamation or with consent of two-thirds of the members of each house can be enacted during a special session.  Special sessions are limited to 20 days, unless extended by three-fifths vote of each house, and no new business may be acted upon without the consent of two-thirds membership. (ii)

By Statute a. Legislature may call by petition and vote i. The legislature may convene for up to 30 days upon petition to the department of state of 20% of the members of each house and the vote of three-0fifths of each house b. President and Speaker may call by concurrent resolution i. The president of the Senate and Speaker of the House, by concurrent resolution, may convene a special session. ii. Only laws within the purview of the resolution or with the consent of two-thirds of the membership of each house may be considered.

B.

CATEGORIES OF LAW 1.

General Laws – applies uniformly throughout the state

2.

Special Laws – laws that single out a particular person, object, location, class for special treatment. They relate to specific people, places (geographic areas) or things. For a special law to be valid there must be: a. Notice - there must be pre-enactment notice (publication requirements in Fla. Stat. § 11.02 must be satisfied) or b. Referendum – vote of the electors of the area affected NOTE: There can be no Special laws for Dade County

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3.

General Laws of Local Application – population based laws - laws that will apply to an area restricted by a minimum and maximum population figure. For Population based acts to be constitutional: i. the subject matter of the population act must be reasonably related to the population classification ii. The population act must be open ended, i.e., they must not be tied to a particular census, but must allow local governmental unit to grow into and sometimes out of the designated population bracket or brackets. iii. The population act cannot pertain to the 20 forbidden categories

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Forbidden Special and General Laws of Local Application Prohibited Special Laws – Article III, Section 11: (a) There shall be no special law or general law of local application pertaining to: 1. election, jurisdiction or d...