Lloyd Dunkelberger
Voters should not be given a chance to decide the fate of a proposed constitutional amendment expanding rights for crime victims because the ballot language is misleading, lawyers opposing the measure told a Tallahassee judge Friday.
Leon County Circuit Judge Karen Gievers heard arguments on whether Amendment 6, approved by the Constitution Commission Revision, should remain on the Nov. 6 general-election ballot. The proposal would expand rights for crime victims, would raise the retirement age for judges and would change the way laws and rules are interpreted in judicial proceedings.
“However, in actuality, Amendment 6 does much, much more. Amendment 6, among other things, restricts the constitutional rights of those accused of crimes,” said Mark Herron, an attorney representing Naples defense lawyer Lee Hollander and the Florida League of Women Voters, who filed the legal challenge.
Herron said the ballot language does not inform voters of the full impact of the measure, including changes affecting the right to a speedy trial and the appeals process for criminal defendants.
“The summary and title, on the whole, fail to give voters information regarding the true scope of the amendment and its chief purposes by entirely omitting several significant changes made by the amendment,” Herron told Gievers.
But Barry Richard, a lawyer representing Marsy’s Law of Florida, said there are no constitutional rights “that are being eliminated by this amendment,” which he said advances a new set of rights for victims of crime.
Richard said for a court to remove an amendment from the ballot; it must find something “material” was left out of the ballot summary. If there are no rights being eliminated, then the challenge falls short of that legal standard, according to Richard.
He said the criminal defendant’s right to a speedy trial, protected by both the state and federal Constitutions, would not be changed by the proposal. But the amendment would give “a concomitant right to the same speedy trial” to crime victims, Richard said.
A key argument in the challenge is that the proposed amendment would eliminate a phrase in the Florida Constitution that outlines rights for crime victims but says they are established “to the extent that these rights do not interfere with the constitutional rights of the accused.”
Herron said Amendment 6 is fatally flawed because the ballot summary is “entirely silent” on the elimination of that phrase, which he characterized as an existing “fundamental” constitutional right for criminal defendants.
But Richard said the challengers are relying on a “partial clause” that would be replaced by the new rights language outlined in the proposed amendment.
“That’s not a free-standing phrase. It does not create a free-standing right in the Florida Constitution,” Richard said.
As another problem, Herron cited the ballot summary’s failure to mention that corporations and “other business entities” may be able to classify themselves as crime victims, if the amendment is adopted by voters.
Richard acknowledged it was unclear from the text of the amendment whether corporations could claim that right. But he said that was an “ambiguity” that would have to be resolved “in a different courtroom, in a different time” and should not be part of the ballot challenge.
Gievers closely questioned a lawyer from Attorney General Pam Bondi’ s office about whether the ballot title or summary “tells voters what the effect on the existing criminal justice system would be from the standpoint of the criminal defendants.”
Senior Assistant Attorney General Karen Brodeen told Gievers the summary does not contain that information because there would be no impact on the rights of criminal defendants.
“I don’t think that’s a valid argument. I don’t think there’s going to be any effect,” Brodeen said.
In addition to the challenge raised by Herron’s clients, a separate lawsuit, filed by Plantation Key resident Amy Knowles, is also asking the court to remove Amendment 6 from the November ballot. Gievers heard arguments in both cases Friday.
The major portion of the proposed amendment would expand existing rights for crime victims, while adding nine new rights in the state Constitution. The new rights for crime victims impact a number of areas, including setting bail, pretrial releases, restitution and the disclosure of information.
The proposal, known as “Marsy’s Law,” is part of a broader national movement stemming from the 1983 death of a California woman, Marsy Nicholas, who was stalked and killed by an ex-boyfriend.
In addition to the crime victims’ proposal, Amendment 6 would also raise the mandatory retirement age for judges from 70 years to 75. And it would eliminate an existing legal standard that requires a deferment to governmental agencies in the interpretation of laws and rules in judicial proceedings.
Gievers’ decision is likely to be appealed to the Florida Supreme Court, which is already reviewing six of the eight constitutional amendments placed on the ballot by the Constitution Revision Commission.
In total, there are 13 proposed state constitutional amendments on the Nov. 6 ballot. Each amendment must win support from at least 60 percent of the voters in order to be enacted.
Republished with permission of the News Service of Florida.
