Proposed Amendment 6 does not make sense for Florida

The polls are open tomorrow, and another round of misleading advertisements from supporters of Amendment 6, the so-called “Victim’s Rights” Amendment have hit the airwaves and social media. Proposed Amendment 6 on the upcoming Florida ballot, which includes the language known as ‘Marsy’s Law’, does not make sense for Florida. It’s being touted as the victim’s rights amendment, but Florida already has one of the robust victim’s rights protections in the country. And because of the bundling of proposed Amendments, it also does some things that are completely unrelated to victim’s rights: adjusting the retirement ages of judges, and a provision modifying administrative rulings.

Henry Nicholas’ most recent mug shot

The supporters of Amendment 6 are well-funded by the billionaire co-founder of Broadcom, Henry Nicholas. Nicholas, himself an accused drug trafficker, has purportedly put up most of the $36 million ($36.95 million, at last report) for the misleading advertising that promotes the proposal. The ads are deliberately misleading about the rights that Amendment 6 will and will not create. One of the claims is that Amendment 6 will give the victim’s and their families a right to be heard. However, those specific rights are already granted by the Florida Constitution. In addition, Florida already has victim notification for courts dates, inmate release, and a state’s right to speedy trial. The campaign for is a charade under the guise of victim’s rights, when several of the ads are outright lying to make Amendment 6 look like it will create rights that are already enshrined at the constitutional level.

The Florida Constitution, Section 16, “Rights of accused and of victims,” reads in relevant part:

“Victims of crime or their lawful representatives, including the next of kin of homicide victims, are entitled to the right to be informed, to be present, and to be heard when relevant, at all crucial stages of criminal proceedings, to the extent that these rights do not interfere with the constitutional rights of the accused.”

Florida’s Constitution grants Florida victims more rights than under the Federal Constitution yet preserves the rights of those accused to due process and trial by jury. Additional victims’ rights are already codified in the Florida Statutes, Chapter 960 which specifically provides for “Victim Assistance”. The commercials are misleading about Florida law.

What the ad campaigns neglect to mention is that the Amendment will impede on the rights of the accused, and likely run into conflict with the U.S. Constitution. The ads neglect to mention that Amendment 6 is an unfunded mandate that will create a burden on law enforcement. The ads neglect to mention that the Amendment is vague and unenforceable: not only does the proposal fail to allocate financial resources to implement the changes, it will also likely cost a great deal more when it is challenged in the courts.

Clemente Aguirre gets the good news, via Florida Innocence Project

A news item that just came out highlights another problem with Amendment 6. The Amendment also contains a provision that limits how long collateral attacks can challenge a conviction (such as appeals, and motions for newly discovered evidence). Today the Florida Innocence Project announced the exoneration and release of another wrongly convicted individual. Clemente Aguirre had been on death row for 12 years, even though DNA evidence pointed to another person, and that person had admitted committing the crime. Aguirre’s appointed attorney failed to test any of the blood evidence that eventually exonerated Aguirre, scoffing at the idea of hiring a “CSI Las Vegas blood whisperer”. Florida very nearly executed an innocent man, and the error could not have been corrected if Amendment 6 was in place as written.

The News-Press recommends voting no on Amendment 6, saying most of the proposed amendments are a “train wreck.” The Naples Daily News is against it, as are several Florida papers. Opposition runs the gamut, from the ACLU and the Florida Association of Defense Lawyers, to the Florida Bar’s Criminal Law Section, to Save My Constitution, a group of republican former lawmakers including Connie Mack and former Lt. Governor Jeff Kottkamp, who has also written in opposition to the CRC bundled proposals. Unifying the fight is the principle that legislating at the Constitutional level is generally a bad way to govern. Others who have spoken out against Amendment 6 include the State Board of the League of Women Voters of Florida, Eighth Circuit State Attorney William Cervone and Public Defender Stacy Scott, and respected Board Certified Criminal Law attorneys such as David Redfearn and Denis deVlaming.

Henry Nicholas has spent tens of millions of dollars to mislead Florida voters about the need for Amendment 6. The slick commercials suggest that victims don’t have equal rights in Florida, but they are not telling the truth. The proposed amendment does not make sense, it is unnecessary, and does not have a place in Florida’s Constitution.

Supreme Court Oral Arguments on Two Ballot Issues start this afternoon at 2:00 PM

Proposed Amendment 6 and proposed Amendment 8 were both found to be misleading, and circuit courts in Leon county enjoined the state from including either on the ballot. This afternoon, starting at 2:00 pm with Amendment 8, followed by arguments on Amendment 6 at about 2:40, the Supreme Court will hear oral arguments on both issues. You can watch live on their video feed at gavel-to-gavel.

Marco Island Man, 75, Arrested for Pulling Weeds

Rollin Cale

Poor Rocky Cale was arrested this week for pulling aquatic weeds. Rollin ‘Rocky’ Cale, 75, and some other members of the Model Yacht Club removed some aquatic weeds two months ago so they could launch their john boat to maintain some buoys. Apparently, this was the protocol that had been in place for years for maintaining that section of the lake. There is a Florida statute that requires a permit to remove aquatic weeds, Sec. 379.501, and makes it a misdemeanor if the person does it due to “reckless indifference or gross careless disregard,” though that does not seem to be the case for Mr. Cale, as he and his group had apparently believed that they were authorized for the removal. It looks like a bad arrest.

The backstory is that Cale, as head of the Marco Island Community Sailing Center, had earlier disputes with parks manager Samantha Malloy and the city, who had ultimately locked out the Sailing Club during that dispute. So the legal action being taken now smacks of retribution for the earlier dispute, and the city is investigating how it went down. It may have started as a littering complaint for the weeds that had been pulled and were sitting there, as Malloy first contacted code enforcement, who apparently referred her to FWC, and there was a littering charge the State Attorney decided not to pursue. It is all a lot of overzealous enforcement brought on by a pile of weeds… weeds that Cale helped dispose of after he was contacted. This should have been resolved with a phone call, not by involving law enforcement.

The sad thing is, this poor 75-year-old man, who has volunteered countless hours to his community through the sailing club and the model yacht group, etc, had to go to jail over this. It was an inadvertent infraction by a whole group of people, and there certainly doesn’t seem to be the ‘reckless indifference’ necessary to sustain the charge. Mr. Cale was completely cooperative, and had no idea there was a prohibition on the plant removal. And instead of just giving him a summons with a court date, they issued a capias warrant and had him arrested and booked into jail. On top of that, the Marco Eagle reports that the weeds were scheduled to be sprayed and destroyed. He basically did them a favor, but no good deed goes unpunished. Every government official involved in this arrest should be ashamed of themselves. Sad.

Another Proposed Amendment has been Stricken from the Ballot by a Judge

Recently a Leon County judge prevented another proposed amendment from the CRC, the Constitutional Revision Commission (Amendment 8). As we have discussed at length before, the CRC chose to combine amendment proposals, which has led to several lawsuits seeking to strike the amendments due to the language describing them to voters being confusing. The court that ruled on the previous challenge, striking Amendment 13, found that the language in the summary amounted to outright “trickeration.” The judge in this case found that the language “fails to inform voters of the chief purpose and effect of this proposal.” There are additional challenges to other Amendment proposals regarding the summary language still pending. Also, former Supreme Court Justice Harry Anstead has filed a petition with the Supreme Court to strike all six of the bundled amendment proposals. And just this week, a group of former legislators, including former Lt. Gov. Jeff Kotkamp and former congressman Connie Mack have announced that they will be working together to fight the CRC proposals, and the process in whole. Their group is called Save My Constitution, and it is comprised of all republicans.

Ultimately, the apparent pattern consistent in the CRC proposals suggests a deliberate intent to get the proposals passed, even at the risk of misleading the public. The CRC’s explanation that they combined the proposals to reduce ballot fatigue don’t ring true: there are just as many issues being propagated, but they are packaged with together to attempt to increase the likelihood of passage with voters. Many of the issues really don’t belong in the Constitution, the CRC is using the Amendment process to skip the hard work of legislating in line with the statutory scheme: they want to cram disparate issues together under a positive sounding title and summary, and hope the voters go for it. Unfortunately, that plan relies on “hiding the ball” from voters, and instigated the numerous challenges now in the court system. These rulings will be appealed, and the Supreme Court will likely be the final arbiter, but the pattern has become apparent. And now the challengers are two-for-two in striking the misleading proposals. The Supreme Court will hear the appeal of the dog racing proposal next week.

*UPDATE* The 1st DCA has sent the issue regarding proposed Amendment 8 directly to the Supreme Court for review, as well. It appears the Court has accepted jurisdiction, though not set the case for argument yet.

Florida Needs to Seal All the Juvenile Records

Redacted Mug Shot of the 9-Year Old Child

Yesterday, a nine-year old boy was arrested for striking and threatening his family members. I found out about this because after he was arrested, his mugshot was published online. The mugshot was then picked up by one of the many mugshot publishing web outfits, which promptly put it on Facebook, where it was viewable by their thousands and thousands of subscribers. It then got picked up by other websites, which also re-published his name and photograph.

The News-Press covered the story, but had the editorial restraint not to publish the boy’s name or photograph. I have also edited the photograph, and will not be publishing the boy’s name.

To be clear, there has been nothing improper. The child was charged with several felonies (though he has not been convicted at this time, and it is rather unlikely that the State Attorney’s office will seek to convict him.) Prosecutors will likely be most concerned with getting him counseling to head off a lifetime of violence. But, due to the charges, it is permissible for the Sheriff’s office to publish the photograph. Thanks to First Amendment rights, once media outlets are in possession of the information, they are allowed to publish it. I commend the News-Press from declining to identify the child, though they lawfully could have done so.

I think what’s at issue here is the fact that juvenile arrests are not confidential under Florida law. The criminal case file will be confidential, including the convictions of delinquency for any child unless they are prosecuted as an adult. Ironically, if alternative sanctions are pursued, or the charges dropped, the disposition of the case is not available to the general public. However, the arrest information, including the mug shot and initial charges, are public information. And in this boy’s case, they are out on the internet, and liable to follow him for the rest of his life, regardless of the outcome of the case.  That’s the state of the law in Florida, at this time.

I am a strong defender of the First Amendment, and of the openness of government records. However, if there is anything that should not be public record, and there are quite a few protected areas under the law, criminal allegations against children should almost certainly be included. We won’t let the public know when children are found to be delinquent… but we’ll put their picture on display regardless of whether the charges are even pursued. It’s counter-intuitive to publish one and not the other. The legal discrepancy doesn’t make sense, and this law is a candidate for the Worst Laws in Florida.