Category: Volume 45 Page 1 of 2

Community Development Districts (districts) have been used throughout Florida for more than thirty years to assist in the development and infrastructure of new communities. These districts provide a mechanism by which the government may finance new communities by essentially providing tax incentives. However, in the wake of Florida’s housing and real estate crisis, many developers and investors were forced into bankruptcy proceedings to reorganize or restructure their debts, including special assessments levied by a district. Simultaneously, districts have been forced to become creditors— despite their own objections at times—in bankruptcy proceedings to attempt to recover unpaid assessments. This Article discusses whether federal bankruptcy courts can constitutionally provide for the restructuring of assessments over a district’s objection.

The Authors begin by discussing the value that districts afford local governments, primarily through the financing of the development of new communities through special, long-term bonds that provide more favorable repayment terms and other benefits. Further, the Authors argue that states have the power to create laws under the Tenth Amendment, and that under the Eleventh Amendment, bankruptcy law cannot infringe upon certain rights guaranteed under the United States Constitution, particularly in the regulation of a local government’s own fiscal affairs. The Article also discusses the Rooker-Feldman doctrine, which provides that federal courts, with the exception of the United State Supreme Court, cannot review final judgments of state courts. Specifically, the Article provides that because state courts issue rulings on the methodology used by a district to levy the special assessments, allowing bankruptcy courts to order the restructuring of special assessments— over the objection of the district—violates the Rooker-Feldman doctrine.

The Authors conclude by providing that bankruptcy courts should not direct the restructuring of government assessments over a district’s objection because to do so would be in violation of the Tenth and Eleventh amendments of the United States Constitution, Florida state law, and the RookerFeldman doctrine. Further, the Authors opine that a bankruptcy court’s interference would be detrimental to local governments’ fiscal affairs and lead to increased costs for the public.

This Article provides a guide to government attorneys and practitioners as to how to handle lawsuits against government employees from start to finish, based on the premise that it is beneficial to the government, the public, the parties, and the justice system for government employees to receive the full benefit of representation by government attorneys.

The Author begins by asserting that there is a moral imperative to represent government employees, because not only do these employees rely on the government to represent them if they are sued for conducting the public’s business, but they also serve the interest of the public and provide essential government functions. The Author then analyzes the legal authority to represent government employees and the decision of whether to represent an employee coupled with the legal and ethical considerations that must be confronted in making that decision. The Author recommends advanced planning to develop a uniform representation policy with government bodies in order to avoid decisions based on individual personalities or politics.

The Article concludes by discussing government policy and strategy when representing government employees, including the different immunities and defenses that are uniquely available to government employees and ways to defend those particular methods of defense, handling trials of government employees, and the analysis and appeals of judgments against the employees.

The common law was originally regarded as a reflection of generally accepted social practices and customs. It has evolved into a method of juristic thought that may employ artful language, legal fictions, and other indirect means in the decision-making process. In Florida, the common law of England as it existed on July 4, 1776 was adopted by statute to the extent that it was consistent with the Constitution and state laws. Although the state legislature has exclusive lawmaking authority, the state courts have applied English methodology and traditions in developing Florida’s common law. The judicial practice of remolding laws in light of judges’ professional wisdom, skill, training, and insights has become widely accepted. This has resulted in an inconsistency with the principle of strict separation of powers among the branches of government.

This Article explores the development of the common law in Florida and the relationship between the common law and the rule of law. The Author examines the incompatibility of the common law with the core principle of separation of powers, as well as the emergence of judicial fiat, particularly in the field of negligence law and governmental immunity cases. In these types of cases, courts become policymakers when the state legislature is slow to respond to societal changes. The Author then discusses the impacts of judicial fiat, the proliferation of tort law and expansion of tort liability, and the distinctions between the rule of law and the common law. A fundamental concept underpinning the rule of the law in America is that government is not to be of men, but of laws and ideally insulates the law from the interests and whims of individuals. However, the modern common law methodology permits broad individual judicial discretion which may substantially affect the common law and have negative consequences for the rule of law.

The Author advocates that the rule of law is paramount and the principle of separation of powers is foundational in our federal and state constitutions. Although the common law may be dynamic, it should not be in such a state of flux that stability and predictability are impossible. Judicial discretion must be tempered by an adherence to stare decisis and deference to the legislature, particularly on significant matters of public policy, in order to preserve the rule of law and the integrity of our judicial system.

Many, if not all of Florida’s sixty-seven individual county property appraisers routinely collect property valuation data for purposes of assessment of ad valorem taxes, which are specifically determined under the authority of the Florida legislature. While local governments have the authority to levy special assessments under the Florida Constitution’s municipal home rule provisions, they do not have the authority to determine ad valorem taxes. However, the valuations and methodology used to determine ad valorem taxes in Florida counties can be used to assess special assessments under a local government’s municipal home rule authority. In 2015, Florida’s Supreme Court announced in Morris v. City of Cape Coral that the previously decided City of Boca Raton v. State test controls whether special assessments levied by a local government are valid exercises of municipal home rule authority.

This Article begins by giving a background of special assessments in Florida, describing the assessments as a mechanism to collect additional revenue, but distinguishing them from ad valorem taxes. Primarily, special assessments differ from ad valorem taxes in that taxes are levied based on the value of the property, whereas special assessments are levied to provide a particular benefit upon the land assessed. Special assessments, the Authors explain, are valid exercises of constitutional municipal home rule authority if they meet a two-prong test. Further, the Article provides an in-depth analysis of Morris, and describes the prong of the two-part test that is at issue, specifically whether the cost of any improvement or service “fairly and reasonably” is allocated amongst specially benefitted properties. The Article also describes the comprehensive databases that are maintained by property appraisers, and argues that because the data is already compiled in accordance with a property appraiser’s duties, it is economically sound—compared to other methods—for a local government to use this information in the determination of special assessments.

The United States Supreme Court in Graham v. Florida ruled that life without parole sentences for juveniles convicted of non-homicide crimes are cruel and unusual, and therefore unconstitutional, and required that convicted juveniles must have a meaningful opportunity for release. Miller v. Alabama followed, and the Court ruled that mandatory life without parole sentences for juveniles convicted of any crime violated the Eighth Amendment. Florida eventually responded in 2014 with House Bill 7035, which provides that juveniles convicted of a capital felony can only be sentenced to life without parole following a sentencing hearing, provides minimum sentences and factors judges should consider in sentencing, and allows for a sentencing review for convicted juveniles after fifteen to twenty-five years, but does not apply retroactively.

This Article discusses the effect of Miller and Graham on the states, particularly Florida, and the failure of House Bill 7035 to grasp the spirit of the Court’s decisions. The Article begins by discussing the history of juvenile sentencing and the evolvement of the Supreme Court’s interpretation of the Eighth Amendment, which eventually lead the Supreme Court to recognize that juvenile offenders should be treated differently than adults. The Article next discusses Graham and Miller, the states’ interpretations of these decisions, and the failure of House Bill 7035, while in technical compliance with the decisions, to comport with the spirit of the decisions. Contrary to the intent of Graham and Miller, the new law severely restricts judicial discretion in determining sentences because regardless of the factors a judge considers for each individual offender, he or she must still impose a harsh minimum sentence, in some cases forty years. In addition, the sentencing review does not provide meaningful opportunity for release and the law does not distinguish between younger and older youths. The Author then discusses other states’ laws that have better responded to Graham and Miller and suggests that Florida could better comply by permitting more judicial discretion and opportunities for sentence review, and applying the law retroactively. The Author also urges that all juvenile mandatory and life without parole sentences be abolished. The Author concludes by suggesting that Florida take further steps to protect juvenile offenders and ban young children from being tried as adults, and predicts that the Court’s philosophy that children are different will continue to develop and House Bill 7035 will eventually be held unconstitutional.

This Article analyzes the growing movement to legalize medicinal marijuana across the United States, and the present dilemma of marijuana remaining a prohibited substance under federal law while being legal under state law. The Author notes that this contradiction is particularly troublesome for healthcare providers who must authorize patients’ use of medical marijuana in states where medical marijuana is legal. The Author argues that this contradiction puts healthcare providers at risk of violating federal law by aiding, abetting, or conspiring with a patient to acquire a federally banned substance.

The Author discusses Florida’s past and current medical marijuana initiatives, focusing on problems with the language in those initiatives. The Author also analyzes the decision the United States Court of Appeals for the Ninth Circuit drew in Conant v. Walters, which distinguished that a physician is allowed to “recommend” medical marijuana, but is not allowed to “prescribe” medical marijuana. The Author argues that if Florida wants to move forward with medical marijuana legislation, clarity is needed concerning what kind of physician-to-patient communication is permissible when discussing medical marijuana treatment options with patients. The Author advocates that Florida lawmakers should not follow the unworkable distinctions used by the Ninth Circuit in Conant v. Walters. Instead, lawmakers should ensure that any kind of medical marijuana legislation incorporates language with a focus on open communication between physicians and patients regarding the use of medical marijuana by encouraging physicians to disclose as much information as possible to patients to ensure that patients are making well-informed healthcare decisions.

The United States Supreme Court has long determined what criminal punishments violate the Eighth Amendment by asking whether they fall short of the American people’s standard of decency. It has relied mostly on state legislation to reflect what people think is decent. In 1972, Justice Marshall suggested the Court should factor expert knowledge of the actual workings of death penalty systems into its analysis. The Author refers to this approach as “informed decency.” Marshall believed doing so would make the death penalty unconstitutional because the American people would reject it if better informed. This has come to be known as “the Marshall Hypothesis.” Some forty years later, in Hall v. Florida, the Court finally did something akin to what Marshall suggested with regard to a particular feature of the death penalty. The Court relied on the knowledge of professional psychological organizations to find unconstitutional the manner in which Florida determined ineligibility for the death penalty based on intellectual disability. In this Article, the Author explains that if such an informed decency is adopted on a larger scale, and applied to the death penalty itself, current views of experts in science and law would provide strong evidence to find the death penalty violates the American standard of decency and, as a result, the Eighth Amendment.

The public safety exception to the Miranda doctrine allows law enforcement officers to conduct interrogations without informing an individual of his or her Miranda rights and to use the individual’s responses as evidence against him or her in court. This exception allows officers to conduct un-Mirandized interrogations when the officer’s questions are reasonably prompted by a concern for public safety. Initially intended to avoid further danger to the public, the public safety exception has exceeded its intended bounds, resulting in an infringement upon the public’s Fifth Amendment rights.

This Article explains the reasoning behind the Miranda decision and tracks the various exceptions that have been created since that decision. The Author then discusses how these exceptions, particularly the public safety exception, have slowly eroded the constitutional protections of Miranda. The public safety exception, arising from the Supreme Court’s decision in New York v. Quarles, was intended to be a narrow exception distinguishing permissible “custodial questioning” from impermissible “investigatory questioning.” Since its creation, a number of circuits have expanded the public safety exception to include situations that involve no threat to public safety at all, representing a clear violation of the Fifth Amendment and a purposely narrow exception. The Author proposes a reverse Miranda warning that would allow officers to conduct custodial interrogation in the name of public safety, but would stop short of allowing the information obtained through these interrogations to be admissible at trial. By informing an individual that his or her answers to police questioning will not be admissible at trial, a reverse Miranda warning would still allow officers to perform public safety questioning while preserving the individual’s protection against selfincrimination, effectively balancing both the government’s and individual’s interests.

This Article examines the use and effectiveness of victim impact statements―a type of victim impact evidence―in criminal cases. These statements may be written or oral and are authorized for use in both state and federal courts. Although impact statements are considered the most simple and frequently used form of victim impact evidence, other evidence used by prosecutors may include professionally produced, edited, narrated, and musically scored videos and photographs designed to incite emotional reactions. These alternative forms of victim impact evidence may carry great potential for subjecting defendants to substantial unfair prejudice.

The Article analyzes selected cases in which courts in various jurisdictions, lacking guidance from the Supreme Court, have attempted to define the limits of what can be presented as victim impact evidence when it contains emotionally charged and perhaps inflammatory pictures or videos and may be substantially and unfairly prejudicial against defendants. The Article analyzes the degree of correlation between perceived benefits and detriments of victim impact statements versus the empirical evidence supporting such conclusions based on studies from the United States and other countries. The Article then presents and discusses the Author’s detailed and comprehensive survey of judges, prosecutors, and public defenders in the Ninth Judicial Circuit of Florida regarding the use of victim impact statements in actual practice. The responses include a number of suggestions from judges and trial lawyers on how to improve the victim impact evidence process and enable those who use, or defend against, this type of evidence to do so more effectively.

The Author concludes that, under normal circumstances, victim impact statements give victims a voice in the criminal justice process and that any perceived detriment is not entirely founded. However, when victim impact evidence consists of videos and photographs that are designed to inflame the emotions of juries and judges, they may carry with them a potential to be unfairly prejudicial. Due to the fact that the Supreme Court has declined to provide guidance to the allowable limits of victim impact evidence, lower courts have been left to the task of setting their own limits, making uniformity across state and federal jurisdictions difficult, if not impossible, to achieve.

In June 2015, the United States Supreme Court decided Obergefell v. Hodges, holding that it is unconstitutional for states to ban same-sex marriages. Because many states ban same-sex marriage by way of constitutional amendments, some state courts may eventually construe Obergefell as overturning these amendments in their entirety. However, this Article addresses the conceivable consequences of the Supreme Court’s holding by examining the possibility that some state courts may construe Obergefell as only partially invalidating state constitutional amendments banning same-sex marriage, leaving the door open to limitations on the benefits provided to same-sex couples. This Article begins by evaluating the various state constitutional amendments that preclude same-sex marriages, analyzing the reach of the Supreme Court’s holding in light of the expansive constructions of the state amendments. To help rationalize the various interpretations of state constitutional amendments concerning marriage, the Author explores stepparent and second-parent adoption statutes in regards to the legal benefits acquired by marriage.

This Article continues by discussing the scope of state constitutional amendments in relation to current demographics of co-habitating, unmarried partners. The Author suggests two ways state legislatures may treat unmarried partners in accordance with evolving demographics: (1) state legislatures may choose not to provide any of the benefits or burdens of marriage upon a couple who chooses not to marry; or (2) state legislatures may offer different benefits and burdens to couples depending on their status (i.e. married or unmarried but cohabitating). The Author concludes by emphasizing the potential effects the Supreme Court’s holding may have on the institution of marriage, whether it be by restricting a state’s ability to provide benefits to non-marital couples, or allowing some burdens imposed on same-sex couples by state constitutional amendments to remain unabated by the vague language imposed in Obergefell.