Florida Constitutional Law Outline

 

An Introduction to Studying Florida Constitutional Law

Introduction

the governmental power of the state does not flow from it's constitution.

The source of the state's governmental power is inherent. 

The state's constitution is essentially a limitation of that inherent power.

The Social Contract

         the surrender of a government of some freedom in order to gain the protection of society. 

Inherent Powers

         The government possesses the inherent power because of the very fact it is a government.

         State Inherent Powers

      3 areas of state inherent power

the power to organize to achieve its purposes

the power to raise the money necessary to achieve its purposes

the powers necessary to provide a relatively safe and orderly environment within its territory

a great deal of this power is encompassed within the state's police power (vague term)

      Modern View

the state is inherently sovereign at all times and in every capacity.

It is the organized embodiment of the sovereign power of the whole people.

By reason of this sovereignty, it possesses all powers, but only such powers, as are within the limitations of the state Constitution and without the prohibitions of the federal Constitution.

It can do no act, except in the exercise of this sovereign power and within these constitutional limitations.

         U.S. Government Powers

      delegated powers having only those specific powers given to it in the Constitution and other powers derived by implication from those powers specifically given.

The Concept of the State Constitution

Limitation on Inherent State Governmental Power

         In General

      Peter v. Meeks

State constitutions are limitations upon power of state legislature.

Each department of government has, without any express grant, the inherent right to accomplish all objects naturally within orbit of that department.

If you cannot find a prohibition under the state or federal constitution, Florida has the power to do so.

Striking a provision in statute

presume that legislature meant to make a change

Taking a provision out

Does not mean that power is not still there because legislative power is inherent so legislature always has the power.

      Eberle v. Nielson – Idaho Supreme Court

The state constitution is a limitation, not a grant, of power and court must look to state constitution, not to determine what the legislature may do, but to determine what it may not do, and if legislative act is not forbidden by state or federal constitutions, it must be held valid.

         Constitutional Language that Looks Like a Grant of Power

      Constitutional Language as a Legitimate Limitation on Power

some language in the 1968 Florida Constitution resembles more closely a grant of power than a limitation of power.

Example

the legislative power of the state shall be vested in a legislature of the State of Florida, consisting of a Senate & a House of Representatives.

Looks like a grant but in reality it is a limitation on inherent governmental power in that it requires:

         1) a republican form of government

         2) a bicameral Florida Legislature, in the face of undoubted inherent power to the legislature.

Weinstein v. Board of Public Instruction of St. John's County

Rule of Interpretation – expressio unius est exclusio alterius

         The principle is well established that, where the Constitution expressly provides the manner of doing a thing, it impliedly forbids its being done in a substantially different manner. Even though the Constitution does not in terms prohibit the doing of a thing in another manner, the fact that it has prescribed the manner in which the thing shall be done is itself a prohibition against a different manner of doing it.

Exceptions

         Constitution provision reaffirming power

      a constitutional provision couched in granting language is not always a limitation.

      Constitutional Language as a Reaffirmation of Existing Inherent Power

Many constitutional provisions which resemble grants of power cannot be explained as limitations

Example

         Article IX 5 1885 Florida Constitution

      It expressly provided for authority on the part of the legislature to empower the counties to assess and impose taxes for county purposes.

Professor Thomas Dye – Politics in States and Communities

Since the states originated as government of general sovereignty, they didn't need to enumerate their powers.

Although the states legislatures have general rather than enumerated powers (Congress), the putting constitutional authorization for specific state programs has grown to safeguard against court interpretations limiting legislative authority.

This view is shared by the Florida Supreme Court

Mistakenly Read as a limitation

sometimes the court's read such language as a limitation.

      Constitutional Language as an Allocation of Inherent Power

state constitution is useless as a granting document since the power is inherent but the Florida courts continue to describe the state constitution as a granting document.

Constitutional language phrased in granting language should be very cautiously treated as a limitation - expressio unius est exclusio alterius and more frequently as a reaffirmation of that inherent power.

         State Constitution as a Limitation on All Branches of State Government

      Many Florida cases claim the Florida Constitution is a limitation only on legislative power.

      Cawthon v. Town of De Funiak Springs.

The court said that the state constitution is a document of limitation on all state power.

Self Executing and Non Self Executing Provision

         St. John Medical Plans, Inc. v. Gutman

      test for determining whether a constitutional provision is self-executing

if 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 a sufficient rule, it speaks for the entire people and is self-executing.

      Public official breaches public trust for private gain shall be liable

must know how to enforce the right or protection, if it doesn't give a how, then it's not self executing.

      If it's non executing it becomes an unenforceable right

The Formal Amending Process

         In General

      5 way to amend Florida Constitution per Art.XI

1) Legislative proposal (Section 1)

joint resolution

3/5 membership in both houses

record all members votes in journal

2) Revision commission proposals (Section 2)

37 members

meet every 20 years

AG – house of rep

Gov – President of Senate

3 Supreme Court

3) Convention (Section 4)

Petition

         15% of state voters in last election

         15% of each ½ of the congressional districts

Vote

Election

Convention

4) Taxation & Budget Reform Commission (Section 6)

22 members

meet every 20 years

Gov

Speaker

President of Senate

5) Citizen Initiative provision (Section 3)

Single Subject

         one subject and matter connected directly therewith

Process

         Petition

         signed by 8% of voters statewide

         signed by 8% of ½ of congressional districts

         All must be approved by the electorate of the State

         60% must agree

         Must be reviewed by the Supreme Court

         Must be submitted for advisory opinion by the Attorney General

      Citizen Initiative provision (Section 3)

caused the most controversy

When enacted it allowed any section of the Florida Constitution to be amended in 1968

      Adams v. Gunther

the provision included only the power to amend any section in such manner that such amendment if approved would be complete within itself, relate to one subject, and not substantially affect any other section or article or require further amendments to accomplish its purpose.

      1972 Amendment

allow a change in more than one part of the florida constitution to be proposed by initiative so long as only “one subject and matter directly connected therewith is involved.

      Weber v. Smathers & Floridians Against Casino Takeover v. Let's Help Florida

Florida Supreme Court fould that the amended initiative provision should be broadly interpreted as being functional rather than locational so that the right of the people to propose changes by initiative would be expanded using the single subject requirement for legislation as a guide.

Fine v. Firestone and it's progeny made the Weber approach obsolete.

         The Single Subject Problem and the Ballot Summary Substance Problem

      Standard and Scope of Review of Proposed Constitutional Amendment

the Court limits its inquiry to two issues:

(1) whether the amendment violates the single-subject requirement of article XI, section 3, Florida Constitution, and

(2) whether the ballot title and summary violate the requirements of section 101.161(1), Florida Statutes (2003).

The Inquiry is governed by several general principles.

First, we will not address the merits or wisdom of the proposed amendment.

Second, “[t]he Court must act with extreme care, caution, and restraint before it removes a constitutional amendment from the vote of the people.”

         Specifically, where citizen initiatives are concerned, “the Court has no authority to inject itself in the process, unless the laws governing the process have been ‘clearly and conclusively’ violated.”

      Single Subject Requirement

Prevent

(1) engaging in logrolling or

         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.

         In addressing this issue the Court determines whether the amendment manifests a “logical and natural oneness of purpose

      a natural relation and connection as component parts

         A proposed amendment meets this 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.

(2) substantially altering or performing the functions of multiple branches of government.

         Preventing 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 grounds.

         Further, “the possibility that an amendment might interact with other parts of the Florida Constitution is not sufficient reason to invalidate the proposed amendment.”

         [R]ather, it is when a proposal substantially alters or performs the functions of multiple branches that it violates the single-subject test.

Single subject for citizen initiative is different from legislative single subject rule

      Ballot Title and Summary

must state in clear and unambiguous language the chief purpose of the measure.

Reasoning

constitutional amendment process relies on an accurate, objective ballot summary for its legitimacy.

Voters ... never see the actual text of the proposed amendment. They vote based only on the ballot title and the summary.

Therefore, an accurate, objective, and neutral summary of the proposed amendment is the sine qua non (essential component) of the citizen-driven process of amending our constitution.

Ballot Test

1) whether the ballot title and summary ... fairly inform the voter of the chief purpose of the amendment.

2) whether the language of the title and summary, as written, misleads the public.

Ballot summary should tell the voter the legal effect of the amendment and no more.

         Amendment by Interpretation

      Florida Constitution may be amended through less formal method of judicial interpretation

It can be interpreted by all branches and levels of government.

Aids in Interpreting the Constitution

         sames rules that apply in interpreting or construing statutes, the canons of construction are generally applied when interpreting constitutions

         Exception

      constitutions are receive a broader and much more liberal interpretation or construction than statutes because of their living document status.

         Primary Rule

      ascertain and give effect to the intent of the drafters, and the electorate which adopted the provision.

Must be interpreted in such a manner as to fulfill this intention rather than to defeat it.

      Criticized for their subjectivity.

         Other Rules

      Plain Meaning Rule

dictates that statutes are to be interpreted using the ordinary meaning of the language of the statute unless a statute explicitly defines some of its terms otherwise.

The law is to read, word for word and should not divert from its true meaning.

      Ejusdem generis

Where a law lists specific classes of persons or things and then refers to them in general, the general statements only apply to the same kind of persons or things specifically listed.

Example: if a law refers to automobiles, trucks, tractors, motorcycles and other motor-powered vehicles, "vehicles" would not include airplanes, since the list was of land-based transportation.

      Expressio unius est exclusio alterius

 The expression of one thing is the exclusion of another.

In construing statutes, contracts, wills, and the like under this maxim, the mention of one thing within the statute or other document implies the exclusion of another thing not so mentioned.

      In pari materia

laws of the same matter and on the same subject must be construed with reference to each other.

The intent behind applying this principle is to promote uniformity and predictability in the law.

      Noscitur a sociis

A rule of interpretation that states that the meaning of unclear language in a contract or other legal document should be construed in light of the language surrounding it.

Separation of Powers

In General

Fla. Const. Art. II, § 3

         Branches of government.--The powers 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.

U.S v. State

         State separation of power prohibition is express and the US is not.

Separation of Powers Concept

         Springer v. Government of the Philippine Islands.

      General Rule

Unless otherwise expressly provided or incidental to the powers conferred, the legislature cannot exercise either executive or judicial power; the executive cannot exercise either legislative or judicial power; the judiciary cannot exercise either executive or legislative power.

      Exceptions to the Rule of Separation of Powers

Property must not be taken without compensation, but with the help of a phrase, (the police power) some property may be taken or destroyed for public use without paying for it, if you do not take too much.

Professor Coffey Fall 2012

 

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 existing] provisions on the same topic so as not to conflict, to harmonize. 

If you can’t harmonize, you give effect to the latest provision because that is the most recent expression of the will of the people of Fla.

Remember: Fla Const Amends can never violate the U.S. Const.

 

Initiative Process

8% of the voters in the last presidential election in half of the congressional districts – for fair representation; goes to the nature of the fla const, to benefit the entire state and not just one pocket.

 

Initiative is filed w/ the secretary of state (custodian of state records),

then Atty Gen has to review the initiative, and is required under Art IV § 10 to request an opinion of the Fla Sup Court as to the validity of any initiative petition; then

the Fla Sup Court ultimately decides if its on the ballot or not.

 

Fla Sup Court decides only on:

1.      Whether the initiative violates the single-subject requirement of Art IX § 3, and

2.      Whether the initiative violates the ballot title & summary requirements, specified in Fla. Stat. § 101.161(1) (the “truth in packaging requirement”)

The FlaSupCrt DOES NOT:

  decide on the merits or wisdom of the proposed initiative, nor

  the public policy impact.    It’s the people’s const. and they have to decide, nor

  on the motivation of the legislatures in passing the law.

“the Court must act w/ extreme care, caution, and restraint before it removes a constitutional amendment from the vote of the people.”  Wrt citizen initiatives, the “Court has no authority to inject itself in the process, unless the laws governing the process have been ‘clearly & conclusively’ violated.”

 

In deciding whether an initiative should be removed from consideration by the voters:

(arg if you’re opposing the initiative):

1.      Is there a clear & conclusive violation

2.      The proposal is clearly & conclusively defective

This is a crazy hard standard because:

There is a presumption in favor of the initiative going on the ballot, because the people proposed the initiative, and it is the people’s constitution.

 

Single–subject rule serves 2 purposes: It prevents an amendment from

1. engaging in logrolling, or2. substantially altering or performing the functions of multiple branches of gov’t.

*** SSR also exists because the citizen initiative process does not afford the same opportunity for public hearing and debate that accompanies the other constitutional proposal and drafting processes.

 

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.

It puts people in a position of making a choice among evils and pushes bad law by attaching it to good law.  good idea + bad idea = makes voters have to make a decisional tradeoff.

 

  In addressing the issue 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)

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:

1. whether the ballot title and summary “fairly inform the voter of the chief purpose of the amendment” and2. whether the language of the title and summary, as written, misleads the public.

 

Advisory Opinion to AG

F: Proposed amendment didn’t meet the requirements of art. XI § 3 (citizen initiative – single subject) & Fla Stat § 101.161 (placing amend on the ballot – single subject + ballot title & summary)

H: the proposal constituted logrolling by both calling for apportionment by redistricting commission along with new standards for apportioning those districts.  There was no violation of the single-subject requirement, although multiple branches of gov’t were affected.  Specifically:

Removing the legislature from congressional redistricting & legislative reapportionment, Removal of the Governor’s approval or veto power over congressional redistricting, and The effect of the judiciary of nominating and appointing 3 members to the commission,

o Were found to be not either precipitous nor cataclysmic.

H2: the ballot summary was also misleading by using the term “non-partisan” when picking the commission members is indeed very partisan.

 

Interpreting the Fla Const

Constitutions receive broader and more liberal interpretation or construction than statutes because they are living documents, not easily amended, which demand greater flexibility than statutes.

When interpreting or construing constitutional provisions, ascertain and give effect to the intent of the drafters and the electorate which adopted the provision.  This is the primary rule for constitutional interpretation.

 

The Fla Court treats the work of the Fla Legis with great deference. Fla Courts defer the work of the Fla Legis as constitutional. There exists a presumption in favor of constitutionality.

o Therefore, the Fla Courts should attempt to read every statute with a constitutional construction if at all possible.

Every statute can be construed differently and there are potentially unconstitutional constructions.  The Fla Courtsavoid the unconstitutional construction if they can.

Doubts about constitutionality are analyzed in favor of constitutionality. The Standard – a law should not be held invalid unless clearly unconstitutional beyond a reasonable

doubt (because of the presumption of constitutionality).

 

There’s so much deference to the Fla Legis because the Court is balancing the Const w/ the Legislature, both of whom got voted in by the People.

 

The remedy to stupid laws is to change the legislature in the voting booth in Nov.

 

Bush v. Holmes

Plain Meaning Test - The   words   of the Const should be read as   clear & unambiguous ; not going out of your way to create ambiguities.

BUT sometimes words aren’t clear and they’re not plain, usually because of context. 

Available Interpretive Tools of Statutory Construction:

1. In pari materia – read the sentence contextually so it makes sense as a whole.  A provision must be construed as a whole in order to ascertain the general purpose and meaning of each part; each subsection, sentence, and clause must be read in light of the others to form a congruous whole.

2. Expressio unius est exclusio alterius –  the expression of one thing implies the exclusion of another.  Where the Const prescribes the manner of doing an act, the manner prescribed is exclusive, and it is beyond the power of the Legislature to enact a statute that would defeat the purpose of that constitutional provision.

 

The provisions are construed so that every word has meaning. 

 

Fundamental Principles of State Constitutional Jurisprudence

1. The people are the ultimate sovereign – all power is vested in and derived from the people.2. Unlike the federal Const, the state const is a limitation upon the power of gov’t rather than a grant of that

power.3. because general legislative or policy-making power is vested in the legislature, the power of judicial review

over legislative enactments is strictly limited.  When a legislative enactment is challenged under the state constitution, courts are without authority to invalidate the enactment unless it is clearly contrary to an express or necessarily implied prohibition within the constitution.

 

Ejusdem generis – where a general term is found in conjunction w/ a series of very specific terms, the meaning of the general term will be considered as restricted by the more specific terms.  EXCEPTION: The exhaustive list - Where a statutory list is exhaustive of members of the class in question, then general terminology following that list should not be considered limited solely to member of the same class.  (this follows from the common sense rule that all words in the statute should be construed to give them some meaning and not render them meaningless surplasage.)  Note: this exception applies to statutes and maybe to constitutions.

 

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.

 

JURISDICTION – Art V § 3

Inherency Doctrine P135

DCA can implicitly find a state statute unconstitutional via Art V 3(b)(1).

Distinguish 3(b)(1) & 3(b)(3): 3(b)(3) applies where DCA  explicitly declares a statute unconst.

 

MANDATORY APPEALS JURISDICITON OF FLA SUPREME COURT

When the FlaSC must hear the case

Mandatory jurisdiction of FlaSC is very narrow.

  This gives the court more time to qualitatively deliberate and come to rational decisions w/out being inundated w/ cases from every DCA.

FLORIDA   CONSTITUTIONAL LAW  

Chapter 1 - Introduction to Studying the Florida Constitution 

A.      INTRODUCTION 

The UNITED STATES Constitution GIVES powers while STATE Constitution LIMITS powers.  State governments have plenary powers limited by the provisions in the constitution in which the limitations

are placed upon the government by the people.  Federal government has granting/delegatory power which was given by the states themselves. 

 

Although the governmental power of the U.S. flows either directly or impliedly from its Constitution, the governmental power of a stateDOES NOT flow from its constitution.  The source of a state’s governmental power is inherent.  The state’s constitution is, therefore, essentially a limitation on that inherent power.  1.       Social Contract“Man 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.”  As a result of the social contract, government has a certain amount of control over the lives of those within its borders.  It is this control, given to government presumably in exchange for a relatively safe and orderly environment that is supposedly the essence of the social contract.  Whatever its original source, this power is considered to be inherent in government.  A government possessing this inherent power does not have to look for it in a document such as a constitution.   Government possesses it b/c of the very fact that it is a government.  The inherent power of the state may be divided roughly into 3 areas:

(1)     The power to organize to achieve its purposes;(2)     The power to raise the money necessary to achieve its purposes; and(3)     The powers necessary to provide a relatively safe and orderly environment within its territory. 

  Note:  This police power is a basic inherent power of government that is not enumerated anywhere in the constitution.  It is the sovereign right of the state to enact laws for the protection of lives, health, morals, comfort, and general welfare. 

 2.       Governmental Power in the American SystemIn the U.S. there is a federal system of government—divided between state and national levels of government.   The Constitutiondetermines how the governmental power is divided between state and national.  Unlike state governments, which have inherent power, the government of the U.S. is a 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.  

         Fed = delegated powers         State = inherent powers

 3.       The Modern View of the State’s Inherent Power“The state is inherently sovereign at all times and in every capacity.  It is the organized embodiment of the sovereign power of the whole people.  By reason of this sovereignty it possesses all powers, but only such powers as are within the limitations of the state Constitution and without the prohibitions of the federal Constitution.  It can do no act except in the exercise of this sovereign power and within these constitutional limitations.  

B.      THE CONCEPT OF THE STATE CONSTITUTION 1.       The State Constitution as a Limitation on Inherent State Governmental Power Peters v. Meeks  We look to the State Constitution, not to determine what the legislature may do, BUT to determine what it may NOT do.  If an act of the legislature is not forbidden by the state or federal constitutions, it MUST be held valid.  Where the Constitution expressly provides the manner of doing a thing[1], it impliedly forbids it from being done in any other way. 

         Facts: Appellants claim Broward County 1961 tax roll is invalid by arguing that Art. 8 Sec. 5 divested appellees (Legislature) of any power to levy property taxes b/c supporting statutes were unconstitutional. 

         Analysis:  The court held for the appellees (Legislature) b/c it was their inherent right to do their job.  It is a fundamental principle of constitutional law that each department of government has, without any express grant, the inherent right to accomplish all objects naturally within the orbit of that department. Power NOT revoked.

 Constitutional Language that Looks Like a Grant of Power(1) Constitutional Language as a Legitimate Limitation on Power

Example:  “The legislative power of the state shall be vested in a legislature of the State of FL, consisting of a Senate… and a House of Representatives…” 

  While this language looks like a grant of power, in reality it is a limitation on inherent governmental powers in that it requires: (1) a republican form of government; and (2) a bicameral FL Legislature. 

  Rule of Interpretation  When the Constitution prescribes the manner of doing an act, the manner prescribed is exclusive, and it is beyond the power of the Legislature to enact a statute that would defeat the purpose of the constitutional provision. 

 (2) Constitutional Language as a Reaffirmation of Existing Inherent PowerExample:  “It expressly provided for authority on the part of the legislature to empower the counties to assess and impose taxes for county purposes…”

  Unlike the U.S. Congress, state legislatures do not need specific constitutional delegations of power to pass particular kinds of laws. Congress may justify every law it passes as part of its enumerated powers, but the states originated as governments of general sovereignty, and therefore did not need to enumerate their powers.

  Although state legislatures have general rather than enumerated powers, the practice of specific constitutional authorization for state power has grown as a safeguard against court interpretations limiting legislative authority. 

 (3) Constitutional Language as an Allocation of Inherent PowerExample:  “That sovereign authority, conferred upon a court by constitution either directly or by authorized statute, to make adjudications, or binding decisions, as to controversies within a certain class of cases or causes…”

  The correct view is that the judicial power, like all state power, is inherent and the sections of the judicial article referred to, merely allocate this inherent judicial power among those courts to which the state is limited by the constitution. 

  An allocation of inherent judicial power among those courts that share it is not a grant in any true sense of the word; it is a form of limitation. 

 2.       Self-Executing and Non-Self-Executing ProvisionsSt. John Medical Plans, Inc. v. Gutman  The provision here failed to provide necessary definitions and procedures—lacked self-execution. 

         Facts:  Art. II, § 8 of the FL Constitution provides that any public officer/employee who breaches the public trust for private gain and any person/entity inducing such breach shall be liable to the state for all financial benefits obtained by such actions.

1.       Private action NOT allowed2.       Standing conferred to state NOT citizens

         Analysis:  A constitutional provision is self-executing when it appears it was intended to have IMMEDIATE EFFECT & ANCILLARY LEGISLATION IS NOT NECESSARY to the enjoyment of the right given or the enforcement of the duty imposed.

         Self Executing Provision:  Legislature does not have to do anything to implement it.         Non-Self-Executing Provision:  Legislature does have to do something to implement it. 

 Bryant Test for whether or not self-executingThe test for determining whether a constitutional provision should be construed to be self-executing, or not self executing 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 w/o the aid of legislative enactment.  If the provision lays down a sufficient rule, it speaks for the entire people and is self executing.  

 

3.       The Formal Amending ProcessArticle 11 (Amendments)—How to Amend

(1)     Section 1  Proposal by Legislature—may be amended by 3/5 joint resolution(2)     Section 2  Revision Commission—Every 20 years (37 members)(3)     Section 3  Initiative—People may propose Amendment(4)     Section 4(a)  Constitutional Convention - People can call a convention to revise entire constitution(5)     Section 5  Proposed Amendment shall be submitted to electors at next general election held more than 90

days after joint resolution(6)     Section 6  Taxation and budget reform commission—every 20 years (need 2/3 vote for revision)(7)     Section 7  Tax or Free Limitation—no new taxes unless approved by 2/3 of the voters

 

 

5 Specific Ways to Amend the Constitution(1)   Constitutional Convention(2)   Constitutional Revision Commission(3)   Tax & Budget Reform Convention(4)   Citizens Initiative(5)   Proposal by Legislature

          PETITION:  must contain amendment; title & summary; once 10% of signatures are collect and

certified by the Secretary of State, that is when Art. IV § 10 kicks in (AG will request SC opinion—writes a letter to SC justices and letters go out to potentially interested parties to file briefs.   AG also files an opinion as to whether it is valid.)

         The SC then checks for the single subject requirement and summary title review and ballot summary accuracy (must be reviewed).

         The amendment must be accurately represented not exceeding the chief purpose of the measure.  Substance must be clear & unambiguous.  15 word title in a way commonly referred to or spoken of (Armstrong Test).

         Standard of review is clearly and conclusively defective (empowers citizens to maintain control of their organic law). 

         The proposed amendment will be submitted to electors (goes on ballot).  Proposal by Legislature         Proposed by a joint resolution agreed to by 3/5 of membership of each house of the legislature.         Must embrace but one subject matter properly connected therewith and the subject shall be briefly

expressed in the title.  Art. III, § 6.         SC has power to review legislatively proposed amendments on grounds including ballot accuracy,

however, this is not required (Art. IV, § 10 does not apply).  The review is a little broader.  Legislative initiatives receive more deference than citizen’s initiatives.  This is true even though there is no constitutional requirement.

         No requirement that they be reviewed.         Standard of review by the court is that it should be approved UNLESS it is clearly and convincingly

defective (REVIEW IS IMPLICIT). 

 

 Single Subject Requirement

Must embrace but one subject and matter directly connected therewith. The single subject requirement serves two purposes.  It prevents an amendment from:

(1)     Engaging in 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.

         Court determines logical and natural oneness of purpose  Example:  In re Advisory Opinion to the AG—Save Our Everglades  Court concluded that the

proposed amendment was logrolling because it contained two objectives: (1) to restore the everglades; and (2) compel the sugar industry to fund it. While the people may have looked favorably upon the restoration objective, the second disfavored objective would have been passed as a result of the votes accumulated for the first. 

(2)     Substantially altering or performing the functions of multiple branches of government.   Example:  Advisory Opinion to the AG re People’s Property Rights Amendments  The court held

that because the amendment applied broadly to any type of land use and thus involved multiple levels and branches of government, it substantially altered the executive enforcement of established plans or the multiple levels of government involved in either the approval of plans and plan amendments or the implementation of established plans. 

 Advisory Opinion to the AG re Referenda Required for Adoption & Amendment of   Local   Government   Comprehensive   Land   Use Plans

Facts:  The Attorney General (AG) petitioned the court for an advisory opinion regarding the validity of a proposed amendment to the FL Constitution.  The AG is required by the Constitution to bring an action requesting an advisory opinion of the Supreme Court as to the sufficiency of the ballot title and summary.  The AG alleged that the amendment did not meet the single subject requirement of Art. XI, § 3 and the proposed ballot title summary did not comply with F.S. § 101.161(1).  The AG also petitioned the Court for an advisory opinion as to whether the Financial Impact Statement complies with F.S. § 100.371(6). 

Analysis (single subject):  The court held that although the local comprehensive land-use plan initiative would require referenda on both plan adoption and plan amendments, they still “may logically be 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.”  The second part of the test is whether a proposal substantially alters or performs the functions of multiple branches of government that it violates the single subject test.  The new plan here changed one thing, at the local government level--adoption of plans would require referenda. Even though it may affect multiple areas of the government, this would not be enough to invalidate on single subject grounds.  The statutory scheme already in place allows local governments to utilize a referendum process in regard to a plan amendment if the amendment affects more than five parcels of land. See § 163.3167(12), Fla. Stat. (2004) (“An initiative or referendum process in regard to any development order or in regard to any local comprehensive plan amendment or map amendment that affects five or fewer parcels of land is prohibited.”). Thus, this initiative would mandate a process already approved by the Legislature in certain instances. Although the initiative would override section 163.3167(12) with respect to plan amendments that affect five or fewer parcels, the nullification of an existing statutory provision does not in and of itself establish a single-subject violation.

Analysis (ballot title):  The ballot title was fine and fairly informs the voter of the chief purpose of the amendment and is not misleading.  However, the summary is misleading.  The summary should inform the citizens of the legal effects of the amendment and no more.  By stating “public participating in local government comprehensive land use planning benefits Florida’s natural resources, scenic beauty and citizens” it is misleading.  This is akin to an improper editorial and not an accurate and informative synopsis of the amendment.  It was inserted to draw on the citizen’s emotions.  It may be the purpose of enacting this amendment; however the chief purpose of the amendment was to require referenda when enacting land use plans. 

 Advisory Opinion to AG re: Limiting Cruel and Inhumane Confinement of Pigs During Pregnancy

Facts:  The Secretary of State submitted to the Attorney General an initiative petition which sought to amend the Florida Constitution to limit the cruel and inhumane confinement of pigs during pregnancy. In

turn, the Attorney General petitioned this Court for an advisory opinion relative to the validity of this initiative petition (hereinafter “proposed amendment”) according to article IV, section 10 of the Florida Constitution, and section 16.061, Florida Statutes (2001).

Analysis:  The Supreme Court held that the proposed amendment was functionally and facially unified and complied with the single subject requirement of Fla. Const. Art. XI, § 3, which prohibited an amendment that substantially altered or performed the functions of multiple branches of government.  The initiative petition and proposed ballot title and summary also met the legal requirements of Fla. Stat. ch. 101.161(1) (2001), which required a title and summary that provided fair notice of the content of the proposed amendment so that the voter would not be misled as to its purpose, and could case and intelligent and informed ballot. 

 The Integration of the Formal Amendment with the then Existing ConstitutionA constitutional amendment should be construed so as to be in harmony with the existing Fl Constitution, if at all possible.  However, where this is not possible, the amendment, being the latest expression of the will of the electorate, takes precedence.  Constitutional provisions are not retroactive in application, unless the intent to make them retroactive is apparent from the provisions themselves.  Thus, the general rule is that state constitutional amendments are to be give prospective application unless it is clear that the amendment was specifically intended to be retroactive in application.      State v. Division of Bond Finance of Dept. of General Services 

Facts:  There were certain bonds in this case for funding certain air pollution projects.   Art. VII, § 114, a 1970 amendment, authorized the issuance of bonds and pledging of full faith and credit and taxing power of local governmental agencies, without an election, “to finance the construction of air and water pollution control and abatement and solid waste disposal facilities.” 

Analysis:  Opponents claim that Art. VII §§ 11(a) and 12(a) generally require a vote of the electors to pledge full faith and credit.  It is true that these provisions were enacted by the people to limit the power of the legislature to issue these types of bonds whenever they want for however much they want.   However, Art. VII, § 14, being an amendment enacted in 1970, therefore after §§ 11(a) and 12(a), is a specific exception thereto.  Since it is that last expression of the will of the people, the amendment will prevail.  This is so where it cannot be harmonized with existing provisions of the constitution.   In adopting Art. VII, § 14 by a statewide election, the sovereign people of this state intended to provide an alternative method of financing state bonds without a referendum in certain particular instances.  The people created a specific exception to the requirement of an election in this type of bond validation proceeding. 

 Folks v.   Marion   County   Constitutional provisions, like statutes, do not operate retroactively, unless the intent to make them retroactive is apparent from the text itself. 

Facts:  Marion County issued bonds on property that were subject to taxation.  Homestead protection was then expanded by Art. X, § 7 of the FL constitution, which was adopted as an amendment on Nov. 6, 1934.  County issued refunding (refinancing) bonds on these newly protected homestead properties essentially renewing them after the adoption of the above amendment.  They claimed that it should not be taxed because of the new amendment. 

Analysis:  The Contracts Clause of the U.S. Constitution prohibits a state to make a law that impairs the obligation of contracts. The Homestead exemption amendment does not affect or impair the taxing power of bonds already issued and outstanding at the time the amendment was adopted.  The prior homestead property remains subject to taxation and the bonds are valid. 

 Amendment by InterpretationThe FL Constitution may also be amendment through the less formal method of judicial interpretation.   In effect, the FL Constitution is interpreted by all branches and levels of government and is, in effect, at times changed by such interpretations.  4.       Aids in Interpreting the Constitution

The canons of construction are generally applicable when interpreting or construing constitutions.  Nonetheless, constitutions are said to receive a broader and more liberal interpretation or construction than statutes because they are living documents, not easily amended, which demand greater flexibility than statutes. 

  The general rule when interpreting or construing a constitutional provision is to ascertain and give effect to the intent of the drafters, and the electorate which adopted the provision.  Constitutional provisions must be interpreted in such a manner as to fulfill this intention rather than to defeat it. 

  

[1] Exclusive and beyond power of legislature to enact statute that would defeat purpose