Florida Constitutional Law Outline
Professor Mills
Fall 2016
Introduction – state governmental power is inherent and the state’s constitution is a limitation on that inherent power.
Governmental power in the American System
Federal system of government – state and national levels government. The federal constitution determines how the power is divided between these two levels.
United States government – government of delegated powers having only those specific powers given to it in the Constitution and other powers derived by implication from those powers specifically given. (Only the powers delegated to it in the United States Constitution and such other powers as are convenient and proper to allow it to carry out the delegated powers.)
United States state government – inherent power where it possesses all power but only such powers as are within the limitations of the state Constitution and without the prohibitions of the federal Constitution.
Difference between state and federal constitution
State constitution is longer, more detailed and more easily amended.
The federal constitution limits power while the state constitutions grant power. State constitutions are more precise and length than the enumerated federal constitution.
State Constitutions predate the federal constitution. They are independent of the federal constitution and from one another.
State constitutions deal with different subjects. (You are a citizen of more than one thing.)
Citizens have two separate rights – Federal individual rights and State individual rights. States can give you more rights than the federal constitution BUT it can’t give you less (YOUR BASELINE IS THE FEDERAL CONSTITUTION)
With the implementation of the 14th Amendment and the subsequent SCOTUS opinions, the states could no longer violate the Federal Constitution.
Individuals’ rights are now heightened by the state constitutions. The state cannot provide less protection, but they can provide more protection than the federal government.
State constitutional rights can exceed the federal constitutional rights (look at Michigan v. Long)
Process to purpose and amend the FL Constitution (five different ways)
Legislature can place something on the ballot (passed by joint resolution; 3/5 of the membership (those present) of both houses, but must be voted on by the electorate)
Voters can place something on the ballot (must get 60% of the vote to pass)
Constitutional Convention to organize every district in the state (virtually impossible)
Constitution Revision Commission – has a free hand and can purpose pretty much anything but can’t interfere with the federal constitution (ex: discrimination)
Tax and Budget Reform Commission (meets every 10 years) introduces proposals to amend the FL constitution
History of FL Constitutions
1838 –First Constitution
1845 – Florida admitted to the Union
1861 – changed to incorporate “Confederate States of America”
1865 – changed back to “United States of America”; states were not being compliant with POTUS directions and created a very centralized government where the Governor had too much power. Military government was installed after the Civil War.
1885 – reconstruction of the FL Constitution that rejected the federal government, dispersed power making everything electable (judges, commissioners and the seven members of the cabinet) to make Governor’s power weak.
FL had the weakest governor in the union at this point. Evolution of distrust of the Governor’s centralized power.
1968 Revision – legislature created the Constitution Revision Commission and empowered a group to purpose changes to submit to the people to amend the Constitution (meets first 10 years then every 20 years after)
There was no way to amend the FL Constitution prior to this point so the Legislature dealt with the amendments. Set up ways to amend the FL Constitution perpetually through a constitutional revision commission that meets every 20 years.
1972 – overhaul that addressed the judiciary because the 1968 Revision didn’t
Michigan v. Long (1983) – If it’s strictly a state issue and does not involve a federal question, then the FL Supreme Court has the last word (NOT SCOTUS); use on final to compare state and federal rights, because state constitutional rights can exceed the federal constitutional rights
The insight to be derived from this decision is that as a State Supreme Court Justice you must state with specificity that you deciding the case based on state law, not federal law. If a you’re a state supreme court and it’s a state issue, then the state supreme court has the last word; however, if it interprets the federal constitution and federal law is used to decide the case, then SCOTUS can review and have the last word.
If you are no specific, then you are subject to review by SCOTUS.
If there are adequate state court grounds then the right is and can be increased; however, if the state court looked to federal law and based their decision on federal law then SCOTUS will interpret the state courts interpretation of their holdings.
This is important for state supreme courts because it gives the court the final word on state matters and SCOTUS wouldn’t have jurisdiction to review further and intrude on what state supreme courts decide.
Individual Rights
Article I
Article I, Section 23 – Right to Privacy
Every natural person has the right to be let alone and free from governmental intrusion into other person’s private life except as otherwise provided herein. This section shall not be construed to limit the public’s right to public records and meetings as provided by law.
State individual rights (Declaration of Rights) may protect a right that is simply not protected under the Federal Bill of Rights (i.e., Article 1, Section 23 recognizes and protects the right to privacy. There is no explicit provision in the Federal Bill of Rights recognizing a right to privacy.)
Introduction – there is no federal privacy provision. But the FL Constitution has explicitly enumerated a privacy provision. Everyone has a right to privacy; this language came from other cases including SCOTUS cases.
Florida Supreme Court identified the right of privacy as a fundamental right; therefore, making it subject to strict scrutiny. If the right attaches to a claimed privacy interest, the burden of proof shifts to the state to prove that a governmental interest on privacy both serves a compelling state interest and accomplishes its goal through the least intrusive means. Before the right to privacy attaches and the compelling state interest standard is applied, there must be a “legitimate” expectation of privacy. Determining whether an individual has a legitimate expectation of privacy in any given case must be made by considering all the circumstances, especially objective manifestations of that expectation.
Florida’s right to privacy is broad and deep, but it is not a guarantee against all intrusion into the private life of an individual (Kurtz)
However, in a state constitution there may be a provision that says: “we defer to SCOTUS interpretation of rights.” This usually is a reaction by the legislature when the FL Supreme Court issues an opinion with which they do not agree and therefore they tie the hands of the Courts to SCOTUS. à This issue then becomes can you tie your constitution to an unknown future? The answer, thus far, has been yes.
In re T.W., a minor (Fla. 1989) – Case dealt with a parental consent statute. FL Supreme Court declared unconstitutional as against the right to privacy.
FACTS: Underage girl that wants to get an abortion without asking her mom and wants to use the judicial provision in the FL Constitution that bypass pa
tors.)
the protective shielding for the eye was approved without hesitation because the absence of the protective eyewear could lead to problems for other motorist
The Court also upheld the requirement for protective headgear because “we believe that society has an interest in the preservation of the life of the individual for his own sake.” The governmental interest is to preserve the life and health of cyclist because it will cost the state more money. Motorcyclists do not have a constitutional right to ride the highways without wearing headgear prescribed by legislature for their protection. This is the right of others to be let alone.
Without violating anyone’s constitutional rights, legislature may impose a minimal inconvenience which affords effective protection against a significant possibility of grave or fatal injury.
(Another case from 1970 stated that the government has a compelling state interest because a flying object could easily strike a bareheaded cyclist and cause him to lose control of his vehicle, as well as the fact that wind or an insect flying into cyclist’s eyes could create a hazard to others on highway, FL statute requiring helmets and safety goggles is in the interest of health, safety and welfare of the public and constitutes a reasonable exercise of state’s police power.)
NOTE: Statute has been repealed. The privacy provision was adopted in 1980. Persons might have an expectation of privacy but State probably has compelling interest (preservation of life) and least intrusive means
Florida Bd. Of Bar Examiners Re: Applicant (Fla. 1984) – Question on past mental illnesses does NOT violate right to privacy
FACTS: An applicant for bar exam refused to answer question regarding past mental illness.
ISSUE: is the question a violation of the applicant’s privacy rights?
TEST: Is a privacy interest at stake (P’s buren)? Yes. Is there a compelling state interest (Gov’t’s burden)? Yes. Were the least restrictive means used (Gov’t’s burden)? Yes.
The Court believes that you, as an application, are applying for a privilege, but that there is still a reasonable expectation of privacy. There is a fundamental right to privacy that is implemented.
The argument goes as such:
REP – YES = Compelling? Least intrusive? If no to either question = unconstitutional
REP – NO = no need to look further
The State has indicated a compelling interest, so therefore we are looking at the “least intrusive means” aspect of the balancing test.
The applicant asserts that the provision is overly broad because it does not include a time limitation to disclosing medical/mental history.
The Court believes that the board, not the applicant, should be the judge of what part of the applicant’s past history is relevant. The fact that the information obtained in response to the Board’s inquiry is held in confidence by the Board and by this Court minimizes the intrusion on the applicant’s privacy. Moreover, the application question is limited to information relevant to an applicant’s “good moral character and fitness to perform responsibilities of an attorney.”
