Florida Constitutional Law
Professor Sheppard Spring 2010
Keyed to Cooper & Marks, Florida Constitutional Law Cases & Materials, 4th ed.
What are the basic provisions needed to have a meaningful constitution?
Lord Bryce article: first great work in which the institutions of the US have been thoroughly discussed from the POV of an attorney
Enumerates the Bill of Rights or Declaration of Rights
Frame of Government
i. Name and functions of the leg, exec, and judicial body
Structure of the frame of government.
i. Art. 2 Sec. 1
Misc. provisions (NOT So MISC.)
i. more in depth provisions
ii. include: raising of revenue (taxation and finance powers that guide or limit the leg body), local government, education, militia (Sheperd’s favorite)
1. Militia – every state constitution had one b/c back in the day the US did not have a standing army. In those days when the state was scattered, the states had to defend themselves from piracy.
Method of Amendment
i. Method for people to take control.
ii. The amending process is the process by which the ppl hold the gun to the head of their legislatures.
1. The Social Contract
· Man created government by entering a social contract. He surrendered some of his freedom in order to gain the protection of society. It is from this contract that government derives its inherent power to govern.
· State possesses powers by reason of its sovereignty, but only such powers as are within the limitations of the state Constitution and without the prohibitions of the federal Constitution.
Peter v. Meeks
· R: State constitutional are limitation upon the power of the state legislature. It is a fundamental principle of con law that each department of government has, without express grant, the inherent right to accomplish all objectives naturally within the orbit of that department.
· Peter v. Meeks à most important rule of interpretation regarding the state constitution.
o Each branch of the state government has the inherent powers that
o If the state constitution doesn’t limit the ability of one branch to do something and it is not otherwise prohibited by the US const. then that branch of government has the power to do that, which is in its orbit.
St. Johns Medical Plans v. Gutman
· R: To determine whether a provision is self executing: The basic guide, or test, in determining whether a con provision should be construed as self executing, or not, 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 sufficient rule, it speaks for the entire people and is self-executing.
· H/R: The clear language in subsection (c), we hold that this provision is not self-executing, as it cannot be implemented without some manner of recovery being established through legislative enactment. Additionally, (c) provides that liability is “to the state” indicating that standing is conferred on the State of FL, not on individual citizens.
Private Causes of Action
In order for a constitutional provision to create a private COA, the provision must be self executing.
Self Executing = the provision is “whole”
“adequate provision shall be made by law.” = not self executing.
or if there’s no remedy, or if it’s too vague, then also not self executing, and the Legis has to do something more so that it can be enforced.
Test for determining whether a provision is self executing: 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.
The Legis must determine the COA; if not, the provision doesn’t provide for a private COA.
Ex: Art IX § 1 – “high quality education” provision is not self executing.
Simon v. Celebration Co. (Count II)
No private COA exists for the enforcement of Art IX § 1 against individual school brds, because the clause says “adequate provision shall be made by law.”
The Separation of Powers doctrine precludes the Court from subjectively evaluating the Legislative decisions in allocating funds, thereby usurping the Legis’ appropriations power; thus precluding the Court from determining what is meant by “adequate funds” other than “not inadequate.”
School Brd. v. DOE
Any citizen/taxpayer may bring a declaratory action to challenge the constitutionality of provisions in a general appropriations act, including a claim that the state has failed to make “adequate provision for a uniform system of free public schools” as required by Art IX § 1, and that the standard for determining whether the legislature has made adequate provision for public schools is whether the resources allocated by the legis are sufficient to provide a “uniform, efficient, safe, secure, and high quality system of free public schools that allows students to obtain a high quality education.”
Here, the complaint didn’t state such a COA, but challenged the method of distributing the state education funds.
1968 Florida’s Current Constitution
Difference btwn FL Con and US Con
Amendment process
Proposal by leg
Const convection
Initiative (where the citizens hold the guns to the legislature’s head)
Tax and budget commission
Revision commission (meets every 20 years)
Executive
Plural executive
Governor shared power with the Cabinet
Line item veto
Stricter Limits on the Legislature
Single subject for laws
Mandate to balance budget
Severe limitiation on taxation
No inheritance or estate tax
Virtually no personal income tax
Cap on growth in taxes on annual basis
Constitutional Regulations
Game and Fresh Water Fish
Minimum Wage
No Smoking in the Workplace
Government of FL has an affirmative right to protect the environment
Education
Class room size caps
Each child has a right to pre-kindergarten program
Declaration of Rights
Equal protection for natural persons
Bear arms
Access to courts – can’t eliminate Cause of Action
Victims rights
Freedom of Religion
Right to privacy (federal right to privacy is inferred in the US Con)
More expansive than the federal gov’ts (supposedly)
AMENDING THE FLA CONST – Article XI
5 ways to amend:
People’s Initiative
Legislative amendment
Constitutional Convention – never been done; very difficult
Revision Commission – automatic every 20 years
Tax & Budget Commission – automatic every 20 years
No matter who proposes the amendment(s), the people are always involved through a vote.
Amendment provisions must be read with all other [already exis
e of logrolling, the FlaSC asks “whether the amendment manifests a ‘logical and natural oneness of purpose’.”
§ A provision meets the SSR 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.
SUBSTANTIALLY Altering or Performing the Functions of Multiple Branches of Gov’t
The Court must consider “whether the proposal affects separate functions of gov’t and how the proposal affects other provisions of the constitution.” The effect must be one of precipitous, cataclysmic changes in gov’t, not just merely effecting multiple functions of diff branches of gov’t.
People’s Property Rights case
Ballot summary must be as plain & direct as possible so its easy to understand. “Scenic beauty” doesn’t mean anything.
The SSR is only in the citizen initiative process and none of the other amending processes, to make the initiative process more difficult. If not, the people would start making amendments redistributing powers of the state gov’t. This is better left up to the Legislature.
2 types of law-making in the constitutional framework:
1. Democractic – the “we the people approach:” then people get to say, or
2. Republicanism – electing into the legislature to represent the people; thereby the people put the decision in the hands of the legis. The public are a bunch of passionate panicky lunatics. Also, this way, minorities are protected, people that are experienced are involved in the process, it’s deliberative, and they think the law out before enacting.
The Fla Const is a republican document that intends for the law to be deliberative. It therefore empowers the Legislature.
Ballot Title & Summary Requirement – Fla Stat § 101.161(1)
Hometown Democracy v. Browning à there are two requirements running through a citizen’s initative review
Single Subject
Title and Ballot Summary must be Accurate
The purpose of this statute is to ensure that voters are advised of the amendment’s true meaning.
Voters never see the actual text of the proposal, rather, all they see on the ballot is the title and summary. Therefore, an accurate, objective, and neutral summary of the proposed amendment is the sine qua non of the citizen-driven process of amending the constitution.
The ballot must be fair and advise the voter sufficiently to enable him intelligently to cast his ballot, BUT
The summary does not need to explain every detail or ramification of the proposed amendment. It should tell the legal effect of the amendment and no more, but public policy statements are ok to include also.
In assessing the ballot & summary, the Court asks:
whether the ballot title and summary “fairly inform the voter of the chief purpose of the amendment” and
whether the language of the title and summary, as written, misleads the public
