Tag Archives: crc

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

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

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

Florida Supreme CourtProposed 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.

Another Florida Constitutional Amendment Proposal has been Ordered off the Ballot

This week, a Leon County judge enjoined the State from including proposed Amendment 6 from appearing on the ballot. There have already been a couple provisions stricken, and now the court has found a third violates the “truth in packaging” requirement the the description accurately inform the public of the contents and effect of the proposed amendment. As we discussed on the last one, there is a pattern apparent that the CRC decided to try to cram the amendments through by hiding the ball, as well as bundling multiple issues into several of the proposals. The courts have been unimpressed, as challengers are now 3 for 3 in their attempts to strike the amendments.

Amdendment 6 was problematic not just because it combined disparate subjects: victim’s rights, term limits for judges, and de novo review of administrative hearings. Amendment 6 was also flying under the banner of “victim’s rights”, (as it’s being pushed by a special interest group promoting ‘Marsy’s Law’), however, it was misleading because Florida already has a Victim’s Rights component to its Constitution, and this amendment would not only create additional victim’s rights, but it would likely infringe upon due process rights of the accused, as required under the federal Constitution. The court found multiple reasons that the title and summary of the proposal are incomplete or outright misleading, and has ordered that it not appear on the ballot.

The issue has been appealed, and it appears the Supreme Court of Florida will hear argument on it September 5, which I believe to be the same day they will hear argument on proposed Amendment 8.

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.

There are Major Problems with Florida’s Proposed Constitutional Amendments

  • The constitutional revision committee has proposed several amendments to the Florida Constitution
  • Judge has thrown out the amendment relating to dog racing, finding “outright trickeration”
  • More Amendments have been challenged in court for misleading summaries

At least four of the proposed constitutional amendments intended for the fall ballot from the Constitutional Revision Commission [CRC] are now facing legal challenges that the ballot summaries mislead voters. This week, a judge in Tallahassee has ruled that one of them, Amendment 13-which would ban dog racing, cannot be placed on the ballot because the descriptive language that summarizes the measure would be misleading. The judge found that the Title and Summary of the language is “clearly and conclusively defective”. An amendment cannot go before voters if the Title and Summary of the ballot measure do not let the voter know the true effect and extent of what the amendment would do. In this case, for instance, the title suggests the amendment “ENDS DOG RACING” and ends wagering on dog races; but the amendment does not, in fact, accomplish that. The court found that the Title and Summary do not comply with the Constitutional and statutory requirements of “truth in packaging”, and that the language “hides the ball” and amounts to outright “trickeration“.

The language of the Title and Summary was crafted by the CRC, presumably to increase the likelihood of the amendments passing. After the CRC decided what amendments it wanted to place on the ballot, it combined several of them into joint ballot measures, sometimes with several issues (20 would-be Amendments became 8 ballot measures). That immediately jumps out as problematic, as generally Amendments are for broad areas of the law, not discreet issues. And the issues often don’t go together, for instance, vaping and offshore drilling have been combined into one ballot measure.  The likely reason is that the Commission, which is largely a partisan one, want to slide through less popular issues with popular-sounding ones which are more likely to pass. And to increase the likelihood of passage, the CRC created Title and Summary sections that may not clearly indicate the effect of the proposed amendments.

This sneaky tactic has opened the amendments to challenge from detractors, who are trying to keep the amendments off the ballot based on the misleading language that could trick the voter… and the dog racing amendment is the first casualty. There are several other amendments facing similar lawsuits: Amendment 8 relating to charter schools has been challenged for being “intentionally misleading” and has garnered support from a former Supreme Court justice, several counties have sued to stop Amendment 10 related to government structure, and importantly for this blog, the so-called victim’s rights amendment has been challenged as well.

I call it “so-called” victim’s rights amendment, because in addition to victim’s rights, it would also affect judicial retirement ages and affect judge’s ability to defer to agency findings… three quite disparate purposes. The suit has been filed by respected local attorney Lee Hollander, who points out that due to victim’s rights already enshrined in our Constitution, “there’s no need for it”, as we already have extensive victim protections. No only that, the new rights the amendment would impede on the rights of the Defendant, in violation of the Federal Constitution, and likely cost the state dearly to comply with the superfluous requirements. The challenge to the lawsuit focuses not on whether the amendment is necessary, rather it alleges that the Title and Summary mislead the voter.

You might notice a trend here… four unrelated groups have all filed suit on four different proposed amendments, and they all allege that the voters would be misled by the language of the proposal. Regardless if you support the cause of the amendments, it is essential for all of us to know what might end up being included in our state’s Constitution. The fact that there are similar complaints about multiple ballot measures, suggest that the misleading language was part of a deliberate ploy by the CRC to sneak some of these issues through. Most of these issues really shouldn’t be Constitutional amendments anyway, they are the type of issues that should be deliberated and legislated to fit our statutory scheme. Attorney General Pam Bondi indicates she’s going to appeal the first ruling, because she supports the ban, but the problem is not the subject of the proposal, but the misleading way it was presented. There will probably be more measures taken off the ballot as the suits go through the courts. The blame falls squarely on the CRC, which deliberately drafted these proposals to hide the ball and deceive voters. We should be glad when they are called out on their “trickeration”.