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WHEN CATEGORY II MEETS CATEGORY III: SOVEREIGN IMMUNITY OR LIABILITY FOR THE CRIMINAL ACTS OF THIRD PARTIES ON MUNICIPALLY OWNED PROPERTY

In City of Belle Glade v. Woodson, the Fourth District Court of Appeal was presented with the issue of whether a municipality is entitled to sovereign immunity when a plaintiff brings a personal injury suit as a result of a third-party criminal attack on city-owned property. Woodson presents a hybrid in sovereign immunity case law that has not yet been addressed by Florida courts. Specifically, the case concerns whether, given the facts in Woodson, the city acted in its law enforcement capacity and thus was immune from suit based on Category II in Trianon Park Condominium Association v. City of Hialeah, or whether it waived its immunity and subjected itself to suit for its alleged negligent operation of the civic center under Trianon’s Category III.

CORRECTION OF ERRORS IN THE ASSESSMENT OF HOMESTEAD PROPERTY AFTER SMITH v. WELTON

The Weltons challenged Oklaloosa County Property Appraiser Timothy “Pete” Smith’s assessment of their homestead property because the increase in the assessment from the 1994 tax year to the 1995 tax year exceeded the limits set forth in Article VII, Section 4 of the Florida Constitution, also known as the Save Our Homes Amendment.’ The property appraiser included 15,000 square feet of improvements on the 1995 tax roll that had mistakenly been left off the tax roll since the Weltons acquired the property in 1972. In so doing, Smith relied on Florida Statutes Section 193.155(8), which provides that [e]rroneous assessments of homestead property assessed under this section may be corrected in the following manner:

(a) If errors are made in arriving at any annual assessment under this section due to a material mistake of fact concerning an essential characteristic of the property, the assessment must be recalculated for every such year.

If back taxes are due pursuant to s. 193.092, the corrections made pursuant to this subsection shall be used to calculate such back taxes.

WARRANTLESS SEIZURES PURSUANT TO THE FLORIDA CONTRABAND FORFEITURE ACT IN THE WAKE OF FLORIDA v. WHITE

In Florida v. White (White II), the United States Supreme Court brushed aside the Fourth Amendment’s Warrant Clause and held that the seizure of Tyvessel Tyvorus White’s vehicle in a public place pursuant to the Florida Contraband Forfeiture Act did not violate the Fourth Amendment’s proscription against warrantless searches and seizures. Police officers seized the vehicle two months after White was observed delivering cocaine from the car. On remand, the Florida Supreme Court in White v. State (White III) ignored a good portion of its earlier opinion in which it found that the warrantless seizure of White’s car pursuant to the Florida Contraband Forfeiture Act violated state constitutional due process principles.

In upholding the warrantless seizure of White’s car, the White II majority did not require the State to provide any compelling reasons for the warrantless seizure.

INTRODUCTION

Some years back, I was on a panel discussing the topic of teaching elder law in a law school curriculum. On that panel with me was my friend Howard Eglit, Professor at Chicago-Kent College of Law. Howard and I were talking about our presentation, and he offered me the following thoughts. Howard took the position that having elder law as a separate course made it ageism. If elder law issues were truly important, they would be integrated into a curriculum. Having a separate course would fall into that “ism” trap and actually work in a discriminatory fashion against the elderly.

THE ELDERLY AND CIVIL PROCEDURE: SERVICE AND DEFAULT, CAPACITY ISSUES, PRESERVING AND GIVING TESTIMONY, AND COMPULSORY PHYSICAL OR MENTAL EXAMINATIONS

Many elder law issues first become legally apparent during the course of civil litigation, such as when an elderly person is served with process, but fails to respond because of mental difficulties. In addition, many procedural rules directly affect the elderly, especially those rules concerned with preserving and taking testimony from persons who are ill or infirm. Likewise, because of the physical and mental deterioration associated with aging, the elderly are affected directly by procedural rules providing for compulsory physical and mental examinations. Furthermore, aging may affect one’s capacity to sue or be sued. Specialized procedural issues also arise. For example, when and how, if at all, can a guardian change an incapacitated elderly person’s domicile for purposes of diversity jurisdiction? A beginning course in civil procedure presents several opportunities to examine these and other elder law issues. This Article illustrates how they can be raised and addressed during the course of discussion in a civil procedure class.

ELDER LAW IN FEDERAL AND FLORIDA CONSTITUTIONAL LAW COURSES

I rather doubt that there is one generally accepted definition of “elder law.” Therefore, for the purposes of these comments, I will use the following: Interpretations of federal and Florida constitutional provisions in such a way as to bear on the concerns of people who may be described as elderly, even though those constitutional provisions make no direct reference to the elderly.

In the Federal Constitution, I identified and will discuss the following instances that I believe meet the definition above. It is not my intention that the list necessarily be in order of importance.

TEACHING ELDER LAW IN CONTRACTS

When I was asked to write a piece on “Teaching Elder Law in Contracts,” I agreed, even though, at that time, I did not cover any elder law topics in my contracts course. But the deadline was a long way off, and there would be plenty of time to figure out how to incorporate elder law in the course.

What fascinated me about the topic, however, was not how to raise elder law issues in core courses like contracts, but why raise those issues? The reasons were not self-evident. Why not discuss antitrust issues? Corporate issues? Business planning issues? AIDS issues? Before tinkering with a successful course, as I think my contracts course is, one should know why. Theory should precede practice.

To understand my thinking on this topic, you should know what I attempt to accomplish, not only in my contracts course, but also in my elder law seminar. In my contracts course, I teach both process and doctrines. As for process, I hope to teach students how to read and analyze statutes and cases and how the doctrine of precedent works. I also provide the students with some idea of the limits of language, rules, and “doing the right thing.”

THE INTERSECTION OF ELDER LAW AND CRIMINAL LAW: MORE TRAFFIC THAN ONE MIGHT ASSUME

There is a large body of literature for law school professors on the subject of pedagogy. One bibliography of such literature, which excluded pieces that discussed general curricular issues, located 209 articles for the period of 1993-1999. Some of these articles attempt to persuade professors to employ different teaching methodologies, while others encourage the discussion of a wide variety of issues previously excluded or marginalized in traditional law school core courses. Some suggest that traditional first-year law school courses should include the perspectives of clinicians. Others advocate for the discussion of diversity and multicultural concerns across the law school curriculum. For example, some critical legal scholars argue that issues concerning women and minority groups must be included because of the belief that traditional courses overrepresent the perspective of white heterosexual males. While other critics of legal education argue that law school should include more discussion of other disciplines such as economics, literature, or sociology, other scholars yearn for more discussion of morality and values in the law school curriculum and advocate for more discussion of international legal issues within traditional first-year law courses.

ELDER LAW ISSUES IN THE BASIC REAL PROPERTY COURSE

Property law is a dynamic and fluid substantive legal area. As society evolves, new issues continuously arise regarding the categorization of subject matter and whether the “res” can properly be delineated as property.’ However, as the well-known cliche states, “The more things change, the more they are the same.” Thus, most people still think of property as plain old dirt law, despite cases regarding the ownership of items in outerspace, squatters’ rights in cyberspace, property rights to body parts, postmarital claims to frozen human embryos, and other similarly diverse disputes.

INTEGRATING TAX AND ELDER LAW INTO ELDER LAW AND TAX COURSES

Now that upper-level elective courses in elder law have become well established in the curriculum at many law schools,’ this Symposium explores if and how law schools should teach elder law and selected tax topics that affect the elderly across the curriculum. In the past, the same question has been asked about other emerging fields. For example, when law school faculties recognized the educational importance of international law in a rapidly globalizing world, they developed new upper-level specialized public and private international law courses, and some international law faculty advocated the addition of units on related international law topics in some required core law school courses. As elder law becomes increasingly relevant, both because of the rapidly growing population of aging citizens with legal concerns and because of an expanding body of law that cuts across other areas of law, law faculty should similarly reassess and appropriately revise how these subjects are taught to address aspects of this dynamic field. In particular, the coverage of tax aspects affecting the elderly in elder law, estate planning, and the basic federal income tax and tax policy curriculum needs some revision.

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