con law - savior sheet

8/11/2019 Con Law - Savior Sheet

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Constitutional Law - FLORIDA

Homestead Exemption From Forced Sale. The FL Constitution (Article 10, Sec. 4) gives certain protectionto homestead propert , !hich consists o" residential propert (e.g., limited to one #main$ resident perperson) o!ned % natural persons up to &'acre !ithin a municipalit and 1 0 contiguous acres outside amunicipalit as !ell as personal propert up to 1000. *roceeds "rom sale o" the homestead propert retainhomestead status +F the o!ner has a good "aith intent to reinvest that in another homestead !ithin areasona%le time. omestead propert is protected "rom lev % creditors o" the o!ner B ! it is nprotected "rom "orced sale to satis" (1) ta-es, ( ) mortgages on the propert , (/) mechanic s liens (arising"rom improvements to the propert ), or (4) e uita%le liens involving "raud. 23T 5 The homestead must %e

esta%lished 6 F37 the lev o" the 8udgment creditor. omestead inures to the %ene9t o" the survivingspouse and minor children. Thus, homestead propert ma 23T %e conve ed % one spouse !ithout theother s consent and it ma %e "reel devised 32L: i" there are no surviving minor children or spouse.o!ever, the spouse ma !aive his;her homestead rights in an antenuptial agreement. +" homestead isa%andoned, the protection ma %e "or"eited.

nconstitutional Statutes. The FL Constitution re uires that statutes cannot %e vague or over%road, andthe should %e reasona%l related to a pu%lic purpose. A la! ma cover 32L: one su"#ect (and connectedmatter) and the su%8ect must %e %rie< e-pressed in the act s title. A la! ma $O! %e amended %re"erence to its title onl = appropriate portions o" the original te-t must %e set out in the amending act.la! >?ST include an enactin% clause stating5 #6e it enacted % the Legislature o" the State o" Florida$.Laws failing to comply with these requirements are nullities.

o @eneral and Special La!s. @eneral la!s appl uni"orml throughout the state. Special la!s re"er tospeci9c persons, places or things. For enactment o" a special la!, notice o" intention to see itsenactment must %e pu%lished in a local ne!spaper 37 thee must %e an approval % re"erendum vote o" the electors. A general la! o" local application is a la! limited to a geographic area that is esta%lished% population. The la! !ill appl to an area restricted % a minimum and ma-imum population 9gure.

The general la! o" local application is distinguisha%le "rom a special la! in that it does not re uire noticeor re"erendum.

Access to Courts. The courts shall %e open to ever person "or redress o" in8ur and 8ustice shall %eadministered !ithout sale, denial, or dela. +" the legislature a%olishes a cause o" action, a reasona%lealternative must %e provided unless the legislature can sho! a compelling pu%lic necessit or no alternativemethod can %e esta%lished.

Separation o& 'owers. ?nli e the ?.S. Constitution, the FL Constitution e-pressl incorporates the doctrineo" separation o" po!ers, mandating separation o" the e-ecutive, 8udicial, and legislative %ranches o" government. ncroachment occurs !hen one %ranch o" government usurps the "unction o" another %ranch.For e-ample, !hen the Legislature passes a statute !hich change 8udicial rules. ?nauthoriBed delegation o" legislative po!er occurs !hen the legislature delegates the po!er to ma e la! or "undamental policdecisions. For e-ample, !hen Congress gave the president the line item veto (o in FL, though).

E(ual 'rotection Clause. Similar to the "ederal la!s. The Court uses three di erent standards "ordetermining a la!s constitutionalit 5 rational %asis revie!, intermediate (or heightened scrutin ), and strictscrutin. Dhen a statute or ordinance in"ringes on the "undamental rights o" adults, the la! must pass themost e-acting standard o" revie! called strict scrutin . For an ordinance to !ithstand strict scrutin , it must%e necessar to promote a compelling government interest and must %e narro!l tailored to advance thatinterest (e.g., no less restrictive means o" accomplishing that tas ). Strict scrutin applies to classi9cations%ased on Race) Reli%ion) $ational Ori%in) or '*+sical Disa"ilit+. ere, the %urden rests on thegovernmental %od !ho see s to en"orce the statute or ordinance. Courts sometimes invo e intermediatescrutin (or heightened scrutin ) "or uasi'suspect groups such as A,E or ,E$DER . To !ithstand suchheightened revie!, the ordinance must %e su%stantiall related to the achievement o" an importantgovernment interest. @enerall spea ing, the %urden rests on the government see ing to en"orce the statuteor ordinance. The most common and least intrusive standard is the rational %asis test = it is used !hen thela! at issue does not involve a suspect classi9cation or in"ringe on a "undamental right. ?nder that test, astatute or ordinance must %e rationall related to the legitimate government interest and the %urden rests onthe person challenging the statute or ordinance.

Due 'rocess. The Eue *rocess Clauses o" the th (applica%le to the Federal @ov t) and 14 th Amendment(applica%le to the States) provide that the government shall not deprive a person o" his;her #li"e, li%ert , orpropert !ithout due process o" la!$. Eue process contemplates "air process;procedure = such as a "air trial =!hich re uires at least an opportunit to present o%8ections to the proposed action to a "air, neutral decision'


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ma er. Su%stantive due process concerns "undamental rights. The state must pass the strict scrutin testto inter"ere !ith "undamental rights contained in the ?.S. and state constitutions. -amples are5 ri%*t ttra el) pri ac+) otin%) and all st Amd. ri%*ts.

Suns*ine Law. ver person has a right to access pu%lic records and meetings o" the state and localgovernment. The legislature ma provide e-emptions % stating a pu%lic necessit 8usti" ing the e-ception solong as the la! is no %roader than is necessar to accomplish the stated purpose.

'ri ac+. The FL Constitution e-pressl provides a right o" privac. ver natural person has the right to %elet alone and "ree "rom governmental intrusion into his;her private li"e. FL s privac right is considered to %emore protective than the Federal right. -amples5 right to re"use li"e sustaining medical treatment, right todecide !hat to do !; children, etc. Eecisional *rivac v. +n"ormational *rivac 7asmussen Case5 *atientsued hospital "or names o" %lood donors a"ter he contracted aids. Held 5 *rivac interests o" %lood donorsout!eighed patient s right to get their names. Din9eld Case5 State agenc su%poenaed %an records aspart o" a criminal investigation. Held 5 State s interest in criminal investigation out!eighed the privac inone s %an records.

Finance. The State ma generall %orro! mone "or capital improvements such as %uildings, %ridges,airports, and roads. General Obligation Bonds are issued % the state or its su%divisions in order to 9nancecapital pro8ects "or a pu%lic purpose. 6ecause the ta-ing po!er o" the state is %eing used, there must %eauthorit to issue the %onds. Local @eneral 3%ligation 6onds must %e approved % the votes. Revenue Bondsare issued "or tradition a municipal purposes and are secured % the revenue o" the pro8ect (e.g., a toll%ridge). A re"erendum is 23T need "or approval o" 7evenue 6onds %;c the are not %eing secured !ith ta-dollars. *u%lic *urpose Test = e.g., an thing that increases tourist or enhances the local econom (%roadtest).

Or%ani/ed La"or. Right to Work . 2o one can %e deprived o" a 8o% in FL %ased on mem%ership or non'mem%ership in a union. Also, !or ers have a right to collective %argaining and to stri e 6?T pu%licemplo ees ma not stri e.

Constitutional Law - 0BE

CO00ERCE CLA SE

Commerce Clause. Dhen Congress regulates interstate commerce, con


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2ondiscriminator Ta-es. A nondiscriminator ta- !ill %e valid IF 5 (1) the ta- applies to an activit having asu"stantial nexus to the ta-ing state (i.e, there must %e signi9cant or su%stantial activit !ithin the ta-ingstate)H ( ) the ta- is &airl+ apportioned according to a rational "ormula (Ita-pa er has %urden o" proving un"airapportionment)H and (/) the ta- must %e "airl related to the services or %ene9ts provided % the state.?se Ta-es. e.g., ta-es imposed on goods purchased outside the state %ut used !ithin it. The are valid. Aninterstate seller ma %e re uired to collect a use ta- IF the seller has a suJcient ne-us !ith the ta-ing state (e.g.,maintains oJce in the ta-ing state) 6?T merel soliciting orders % mail and shipping orders into the state is 23TsuJcient.Sales Ta-. e.g., imposed on the seller o" goods "or sales consummated !ithin the state. The generall do notdiscriminate against interstate commerceH rather the issue usuall involves !hether there is a su%stantial ne-us%et!een the ta-pa er and the ta-ing state or !hether the ta- is properl apportioned.Ad Galorem Ta-es. Ad valorem propert ta-es are %ased on the assessed value o" the propert in uestion.Commodities in interstate commerce are entirel+ exempt "rom state ta-ation. +nterstate transportation "or thesepurposes %egins !hen the cargo is delivered to an interstate carrier 37 actuall starts its interstate 8ourne andinterstate shipment usuall ends !hen the cargo reaches its destinationH therea"ter the goods are su%8ect to localta-. 23T 5 A %rea in the continuit o" transit does 23T destro the interstate character o" the shipment unlessthe %rea !as intended to end or suspend the shipment. The validit o" ad valorem propert ta-es oninstrumentalities o" commerce (e.g., truc s or planes) depends on (i) !hether the instrumentalit ac uired a7taxa"le situs8 in the ta-ing state (e.g., !hether there are suJcient #contacts$ !ith the ta-ing state to 8usti"the ta-) and (ii) !hether the value o" the instrumentalit has %e properl+ apportioned according to the amounto" the #contacts$ !ith each ta-ing state = a ta- apportioned on the value o" the instrumentalit !ill %e upheld i" it"airl appro-imates the average ph sical presence o" the instrumentalit in the ta-ing state.# Eoing 6usiness$ Ta-es. e.g., generall permitted and ma %e measured % a Ci il Ri%*ts. ?nder the %roadl construed commerce po!er, Congress ma prohi%it'RI9A!E racial discrimination in activities that might have a su%stantial e ect on interstate commerce. 6ecause

almost an activit ta en cumulativel might have a su%stantial e ect on interstate commerce, the CommerceClause is an important %asis "or civil rights.State Action Re(uirement. 6ecause the Constitution generall applies onl to governmental action, to sho! aconstitutional violation #state action$ must %e involved. 23T 5 This concept applies to gov t and gov t oJcers atall levels = local, state or "ederal. 2ote, ho!ever, that state action can %e "ound in action o" seemingl privateindividuals !ho (i) per"orm e-clusive pu%lic "unctions (e.g., activities that are so traditionall the e-clusiveprerogative o" the state are state action no matter !ho per"orms them) OR (ii) have signi9cant state involvement(e.g., state action e-ists !herever a state aJrmativel "acilitates, encourages, or authoriBes acts o" discrimination% its citiBens).

RE!ROAC!I9E LA5SCO$!RAC! CLA SE. *rohi%its STAT S (not "ederal gov t) "rom enacting an la! that retroactivel impairscontract rights. +t does not a ect contracts not et entered into. For pri ate contracts) intermediate scrutin+applies ? e.g., state legislation that su%stantiall impairs an e-isting private contract is invalid unless thelegislation serves an important pu%lic interest and is a reasona%le and narro!l tailored means o" promoting thatinterest. For pu"lic contracts) strict scrutin+ applies ? e.g., legislation that impairs a contract to !hich thestate is a part .Ex 'ost Facto Laws. State or Federal @ov t ma not pass e- post "acto la!s (e.g., la!s that retroactivel alterscriminal o enses or punishments in a su%stantiall pre8udicial manner "or the purpose o" punishing a person "orsome past activit ). A statute retroactivel alters a la! in a su%stantiall pre8udicial manner i" it5 (i) ma es criminalan act that !as innocent !hen doneH (ii) prescri%es greater punishment "or an act than !as prescri%ed "or the act!hen doneH or (iii) reduces the evidence re uired to convict a person o" a crime "rom !hat !as re uired !hen theact !as committed. 23T 5 - *ost Facto Clauses appl onl to criminal cases.Bills o& Attainder. e.g., legislative acts that in


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The state >A: reasona%l gather and distri%ute in"ormation a%out its citiBens. Thus, there is no privac right toprohi%it the accumulation o" names and addresses o" patients "or !hom dangerous drugs are prescri%ed.

Ri%*t to 9ote. The right to vote is a "undamental right. Thus, restrictions on that right, other than on the %asis o" residence, age, and citiBenship, are in alid unless the can pass strict scrutin .

Ri%*t to !ra el. -amples5 (i) 1' r residenc to receive !el"are %ene9ts (invalid)H (ii) 1' r residenc to receivestate su%sidiBed medical care (invalid)H (iii) 1' r residenc to vote in the state (invalid)H (iv) /0'da residenc tovote in state (valid)H (v) 1' r residenc to get divorced (valid). 23T 5 The right to international travel is 23T a"undamental right = it is ho!ever protected "rom ar%itrar "ederal inter"erence % the th Amd Eue *rocess ClauseHthe rational %asis standard applies.

E AL 'RO!EC!IO$. +" a "undamental right or suspect classi9cation is involved, the strict scrutin standard is usedto evaluate the regulation. +" a &uasi'suspect classi(cation is involved, intermediate scrutin is used. +" theclassi9cation does not a ect a "undamental right or involve a suspect or uasi'suspect class, rational %asis standardapplies. 23T 5 For strict or intermediate scrutin to %e applies, there must %e intent on the part o" the government todiscriminate. +ntent ma %e sho!n % 5 (i) a la! that is discriminator on its "aceH (ii) a discriminator application o" a"aciall neutral la!H or (iii) a discriminator motive %ehind the la! (most diJcult to prove = here, a discriminatore ect is not enoughO the legislature s discriminator motive must also %e sho!n % , "or e-ample, evidence o" ahistor o" discrimination).

o S?S* CT CLASS+F+CAT+32S P 7ace, 2ational 3rigin, and Alienage (sometimes) FL Race) Reli%ion)$ational Ori%in) or '*+sical Disa"ilit+

o Q?AS+ S?S* CT CLASS+F+CAT+32S P @ender, Legitimac (e.g., nonmarital children)o 3T 7 CLASS+F+CAT+32S5 +nclude, age, disa%ilit , and !ealth. $O!E I$ FL) Disa"ilit+ is a S S'EC! CLASS.AGrmati e Action . @ov t action !hich FAG37S racial or ethnic minorities is su%8ect to the same strict scrutinstandard as is government action discriminating against racial or ethnic minorities. The government has a

compelling interest in remed ing past discrimination (e.g., discrimination !hich !as done in a persistent andreadil identi9a%le !a ). Dhere there !as no past discrimination, the gov t ma have a compelling interest inaJrmative action %ut the governmental action must %e narro!l tailored to that interest (e.g., in colleges !here#diversit $ is considered to %e a compelling interest, the school must onl consider race as a plus one amongman "actors as opposed to having race %e the de9ning criterion "or admission, !hich !ould not %e narro!ltailored to achieving the compelling interest o" ensuring a diverse student %od ).Aliena%e Classi cations. 6ecause o" Congress plenar po!er over aliens, "ederal alienage classi9cations are23T su%8ect to strict scrutin . Such classi9cations are valid i" the are no ar%itrar and unreasona%le. 3D G 7,state;local la!s on alienage A7 suspect classi9cations su%8ect to strict scrutin 6?T i" a la! discriminates againstalien participation in state gov t (e.g., voting, 8ur service, elective oJce), the rational %asis standard is appliedHalso, the rational %asis standard is used "or state and local la!s limiting certain non'elective oJces involvingimportant pu%lic polic (e.g., police oJcers, pro%ation oJcers, and teachers). #?ndocumented aliens$ are 23Tsuspect classi9cation = thus state la!s regarding them are su%8ect to rational %asis.

FREEDO0 OF S'EECHContent . Conduct. +t is presumptivel unconstitutional to place %urdens on speech %;c o" its content RC *T "orcertain categories o" unprotected speech (e.g., o%scenit , de"amation, etc.). Content'neutral speech regulationsare generall su%8ect to intermediate scrutin+ ? the must advance important interests unrelated to suppressiono" speech and must not %urden su%stantiall more speech than necessar to "urther those interests. Conductrelated speech can %e regulated % content'neutral time, place, and manner restrictions.

O er"readt*. +" a regulation o" speech or speech'related conduct punishes a su%stantial amount o" protectedspeech in relation to its plainl legitimate s!eep (e.g., a regulation outla!ing all 1 st Amd. activit in an airportterminalH a regulation prohi%iting all canvassers "rom going onto private residential propert to promote an case!ithout 9rst o%taining a permit), the regulation is "aciall invalid (e.g., it ma not %e en"orced against an one, noteven a person engaging in activit that is not constitutionall protected) unless a court has limited construction o" the regulation so as to remove the threat to constitutionall protected e-pression. +" the regulation is notsu%stantiall over%road, it can %e en"orced against persons engaging in activities that are not constitutionallprotected.

9a%ueness. +" a criminal la! or regulation "ails to give persons reasona%le notice o" !hat is prohi%ited (e.g., aprohi%ition o" #le!d$ speech), it ma violate the Eue *rocess Clause. This principle is applied some!hat strictl!hen 1 st Amd. activit is involved.

Cannot ,i e OGcials n&ettered Discretion. A regulation cannot give oJcials %road discretion over speechissuesH there must %e de ned standards "or appl ing the la!. +" a statute gives licensing oJcials un%ridleddiscretion, it is void on its "ace and spea ers need not even appl "or a permit. +" the licensing statute includesstandards, a spea er ma not ignore the statuteH he must see a permit and i" he is denied he can challenge thedenial on 1 st Amd. grounds.

$O!E 0andator+ Financial Support. Although the government cannot compel a person to e-press a message,it ma ta- people and use the revenue to e-press a message !ith !hich the disagree (e.g., a %ed producer can%e re uired to pa an assessment to support government sponsored generic advertising o" %ee" even i" the

advertiser thin s generic advertising is a !aste o" mone ). 3D G 7, it appears that people cannot %e compelle


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to su%sidiBe private messages !ith !hich the disagree (e.g., !hile la! ers ma %e compelled to pa %ar dues andgovernment teaches can %e compelled to pa union dues, the cannot %e compelled to pa sums to such privateassociations that !ill %e used to support political vie!s that, or candidates !hom, the do not endorse).RC *T+325 The gov t can re uire pu%lic universit students to pa a student activit "ee even i" the "ee is used tosupport political and ideological speech % student groups !hose %elie"s are o ensive to the student, as long asthe program is vie!'point neutral.

!I0E) 'LACE) > 0A$$ER RES!RIC!IO$S. The gov t has the po!er to regulate the conduct associated !ithspeech and assem%l , although the %readth o" this po!er depends on !hether the "orum involved is a pu%lic"orum, a designated pu%lic "orum, or a nonpu%lic "orum. *u%lic Forum. (e.g., streets, side!al s, and pu%lic par s).Eesignated or Limited *u%lic Forum (e.g., schoolrooms that are open "or a"ter'school use % social, civic, orrecreation groups). !*e %o ernment ma+ re%ulate speec* in pu"lic and desi%nated pu"lic &orums wit*reasona"le !'0 re%ulations t*at are 1i2 content-neutral) narrowl+ tailored to ser e a si%ni cant1important2 %o 4t interest and lea e open alternati e c*annels o& communication. 2on'pu%lic Forums.Speech and assem%l can %e more %roadl regulated here (i.e., gov t'o!ned "orums not historicall lin ed !ithspeech and assem%l and not held open "or speech activities such as militar %ases, schools !hile classes are insession, gov t !or places, etc.). In suc* locations) re%ulations are alid IF t*e+ are 1i2 iewpoint neutralA$D 1ii2 reasona"le related to a le%itimate %o 4t purpose.

$'RO!EC!ED S'EECH Re%ulation Based on Content. When regulating speech based on its content) therestrictions must be narrowly tailored to achieve a compelling gov!t interest% +nciting +mminent La!less Action.Speech can %e %urdened i" it creates a clear and present danger o" imminent la!less action. +t must %e sho!n thatthe imminent illegal conduct is likely and that the spea er intended to cause it. Fighting Dords. e.g., #truethreats$ (cross'%urning carried out to intimidate, "or e-ample) are 23T protected % the 1 st Amd. Speech also can%e %urdened i" it constitutes 9ghting !ords (personall a%usive !ords that are li el to incite immediate ph sicalretaliation in an average person). Dords that are merel anno ing are not suJcient. 2ote that the Supreme Court!ill not tolerate 9ghting !ords statutes that are designed to punish onl certain vie!points (e.g., proscri%ing onl9ghting !ords that insult on the %asis o" race, religion, or gender). 3%scenit . Speech is o%scene i" it descri%es ordepicts se-ual conduct that, ta en as a !hole, % the average person5 (i) appeals to the prurient interest in se-,using a communit standardH (ii) is patentl o ensive and an a ront to contemporar communit standardsH and(iii) lac s serious literar , political, or scienti9c value, using a national reasona%le person standard. 23T 5 T!odi erent standards are used in o%scenit = #appeal to the prurient interest$ and #o ensiveness$ (contemporarcommunit standards = local or state!ide)H #value$ (national standard). Also note, a land use (Boning) ordinancema limit the location or siBe o" adult entertainment esta%lishments i" the regulation is designed to reduce thesecondar e ects o" such %usinesses (e.g., rise in crime rates, drop in propert value, etc.) 3D G 7 regulationsma not %an such esta%lishments altogether. Ee"amator Speech. +" de"amator speech is a%out a pu%lic oJcial orpu%lic 9gure or involves a pu%lic concern, the 1 st Amd. re uires the * to prove all elements o" de"amation plus"alsit and some degree o" "ault. Commercial Speech. As a general rule, commercial speech is a orded 1 st Amprotection i" it is truth"ul = 3D G 7, commercial speech that proposes an unla!"ul activit or that is misleadingor "raudulent ma %e %urdened. An regulation o" commercial speech !ill %e upheld onl i" it5 (i) serves asu%stantial gov t interestH (ii) directl advances that interestH and (iii) is narro!l tailored to serve that interest.

'rior Restraints. 7arel are held to %e valid = gov t has heav %urden o" sho!ing that some special societal harm !ill other!ise result is speech is allo!ed. To %e valid, a s stem o" prior restraint must provide the "ollo!ingsa"egaurds5 (i) the standards must %e narro!l dra!n, reasona%le, and de9niteH (ii) in8unction must promptl %esoughtH and (iii) there must %e prompt and 9nal determination o" the validit o" the restraint.

FREEDO0 OF RELI,IO$

Free Exercise Clause. The Free -ercise Clause prohi%its gov t "rom punishing someone on the %asis o" herreligious %elie"s. The Free -ercise Clause cannot %e used to challenge gov t regulation ?2L SS the regulation !asspeci9call designed to inter"ere !ith religion (e.g., a la! that prohi%its the precise t pe o" animal slaughter usedin a ritual % a particular religious sect is unconstitutional). >oreover, the F C does not re uire religiouse-emptions "rom generall applica%le gov t regulations that happen to %urden religions conduct (e.g., a la! that

regulates conduct o" all people can %e applied to prohi%it the conduct o" a person despite the "act that his religious%elie"s prevent him "rom compl ing !ith the la!). RC *T+325 A state cannot re"use to grant unemplo ment%ene9ts to persons !ho uit their 8o%s "or religious reasons, as long as their %elie" is sincere. Also, the SupremeCourt has granted Amish an e-emption "rom a la! re uiring compulsor school attendance until age 1 , %ased onthe F C and the "undamental right to educate one s children.

Esta"lis*ment Clause. +" gov t regulation or action includes a pre"erence "or one religious sect over another, it isinvalid unless it is narro!l tailored to promote a compelling gov t interest (unli el ). +" a gov t regulation or actioncontains no sect pre"erence, it is valid under the sta%lishment Clause +F5 (i) it has a secular purposeH (ii) has aprimar e ect that neither advances nor inhi%its religionH and (iii) does not produce e-cessive gov t entanglement!ith religion.

7A2E3> #@7A6 6A@$ +SS? SStandin%. A person challenging the constitutionalit o" a government action must have standing to raise the

issue. +n order to have standing, a person must sho! that he is in8ured % a gov t action (in8ur in "act) and that a


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"avora%le decision !ill eleminate the arm. @enerall , a ta-pa er does not have standing to challenge the !a ta-mone is spent %;c an alleged in8ur is too remote.

con law - savior sheet

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