Michael Moline
Proponents of the Constitution Revision Commission’s victims’ rights proposal have filed the first written arguments in a Florida Supreme Court case testing whether the ballot language would mislead the voters.
The brief appeared shortly after the high court accepted a request by the Criminal Law Section of the Florida Bar to file a friend-of-the-court brief on behalf of the proposed amendment’s critics.
“The lower court erroneously stated that the amendment curtails defendants’ constitutional rights without disclosing it in the summary,” the brief argues.
“The amendment does not curtail any defendants’ rights. Those rights are set forth in Article I, sections 14, 15, and 16 of the Florida Constitution. A review of each of the rights listed in those sections clearly demonstrates that nothing in the amendment would adversely affect them.”
The Supreme Court has scheduled oral arguments for next Wednesday.
Barry Richard, the celebrated Tallahassee litigator who represents Marsy’s Law for Florida, a victim’s rights group defending the proposal along with attorneys from the Office of the Attorney General, signed the brief.
The proposal is sometimes known as “Marsy’s Law,” after a California crime victim. In addition to victims’ rights, the measure would raise judges’ retirement age from 70 to 75 and require them to defer less to agencies’ interpretation of regulations.
A Tallahassee trial judge ordered the amendment off the Nov. 6 ballot last week on the ground the title and ballot summary to be placed before voters were misleading.
“Because the title and summary do not meet the requirements of Florida laws … in fully, fairly, and accurately telling the voters the chief purpose of the proposed amendment, and because the title and summary are, in addition, misleading, the CRC’s proposal … does not meet ‘truth in packaging’ requirements for submission to the voters and must be removed from the ballot,” Circuit Judge Karen Gievers wrote.
Richard’s brief includes an itemized refutation of Gievers’ findings. For example, she ruled that the language doesn’t make clear that victims already have rights under Florida law.
“The summary accurately states that the amendment ‘creates rights for victims of crime,’” the brief says. “The amendment creates nine new rights that do not currently exist. There is nothing about the creation of new rights that implies that no other rights currently exist.”
Additionally, Gievers concluded the language was opaque as to the measure’s implications for defendants in juvenile proceedings.
Richard’s rebuttal: “The summary states that the amendment creates constitutional rights for victims and ‘authorizes victims to enforce their rights throughout the criminal and juvenile justice processes.’” (Emphasis in the original.)
Gievers also ruled that the title language doesn’t make clear its elimination of the “Chevron” doctrine — the presumption that judges must defer to agencies’ interpretations of their rules.
“This court has held that a ballot title cannot be read in isolation but must be read together with the summary,” Richards wrote, referring to the Supreme Court, itself. “The summary clearly explains the significance of the amendment’s repeal of the Chevron doctrine.”
The Bar’s criminal section includes more than 2,300 judges, defense attorneys, prosecutors, law professors, and students.
“The Criminal Law Section has a direct interest in ensuring that this proposal is fairly presented to the voters, as it will place significant new burdens on prosecutors, defense lawyers and judges,” the organization wrote in its motion.
