Escolar Documentos
Profissional Documentos
Cultura Documentos
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.
Modern View
delegated powers having only those specific powers given to it in the Constitution and other powers derived by
implication from those powers specifically given.
In General
Peter v. Meeks
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.
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:
2) a bicameral Florida Legislature, in the face of undoubted inherent power to the legislature.
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
Many constitutional provisions which resemble grants of power cannot be explained as limitations
Example
It expressly provided for authority on the part of the legislature to empower the counties to assess and impose taxes
for county purposes.
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.
Many Florida cases claim the Florida Constitution is a limitation only on legislative power.
The court said that the state constitution is a document of limitation on all state power.
Self Executing and Non Self Executing Provision
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.
In General
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
Process
Petition
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
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.
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 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.
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
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
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.
Other Rules
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.
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
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.
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
5 ways to amend:
Peoples Initiative
Legislative amendment
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 cant 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.
2.
Whether the initiative violates the ballot title & summary requirements, specified in Fla. Stat.
101.161(1) (the truth in packaging requirement)
2.
There is a presumption in favor of the initiative going on the ballot, because the people proposed the
initiative, and it is the peoples constitution.
engaging in logrolling, or
2.
*** 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.
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 govt. This is better left up to the Legislature.
1.
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, its 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.
The purpose of this statute is to ensure that voters are advised of the amendments 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.
whether the ballot title and summary fairly inform the voter of the chief purpose of the amendment and
2.
whether the language of the title and summary, as written, misleads the public.
Advisory Opinion to AG
F: Proposed amendment didnt 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 govt were affected. Specifically:
Removal of the Governors approval or veto power over congressional redistricting, and
The effect of the judiciary of nominating and appointing 3 members to the commission,
H2: the ballot summary was also misleading by using the term non-partisan when picking the commission members
is indeed very partisan.
The Fla Court treats the work of the Fla Legis with great deference.
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.
The Standard a law should not be held invalid unless clearly unconstitutional beyond a reasonable
doubt (because of the presumption of constitutionality).
Theres 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 arent clear and theyre 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.
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 govt 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.
or if theres no remedy, or if its 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 doesnt provide for a private COA.
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.
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.
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 states governmental power
is inherent. The states 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 System
In the U.S. there is a federal system of governmentdivided 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.
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.
Example: 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 Power
Example: 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 Provisions
St. John Medical Plans, Inc. v. Gutman The provision here failed to provide necessary definitions and
procedureslacked 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 allowed
2. Standing conferred to state NOT citizens
Self Executing Provision: Legislature does not have to do anything to implement it.
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 citizens 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).
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.
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 Constitution
A 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.
The 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