Department of State, etc. v. Lee Hollander and SC18-1367 Department of State, etc. v. Amy Knowles , 256 So. 3d 1300 ( 2018 )

Supreme Court of Florida
____________
No. SC18-1366
____________
DEPARTMENT OF STATE, etc., et al.,
Appellants,
vs.
LEE HOLLANDER, etc., et al.,
Appellees.
____________
No. SC18-1367
____________
DEPARTMENT OF STATE, etc., et al.,
Appellants,
vs.
AMY KNOWLES,
Appellee.
October 25, 2018
PER CURIAM.
The Florida Department of State, Secretary of State Ken Detzner, and
Marsy’s Law of Florida, LLC appeal a judgment of the circuit court invalidating
and enjoining the Constitutional Revision Commission’s (CRC) Revision 1,
designated as Amendment 6 and titled “Rights of Crime Victims; Judges,” from
placement on the ballot. The First District Court of Appeal certified the judgment
to be of great public importance and to require immediate resolution.1 Because it
has not been clearly and conclusively demonstrated that the ballot title and
summary are misleading and do not reasonably inform voters of the chief purpose
of the proposal, we reverse the circuit court’s judgment and vacate the injunction. 2
I. BACKGROUND
Amendment 6 would amend section 16 of article I, amend section 8 of
article V, add section 21 to article V, and add a new section to article XII of the
Florida Constitution. Specifically, the CRC’s proposal is as follows, with the
additions underlined and the deletions stricken:
Section 16 of Article I of the State Constitution is amended to
read:
ARTICLE I
DECLARATION OF RIGHTS
1. We have jurisdiction. See art. V, § 3(b)(5), Fla. Const.
2. After holding oral argument on Wednesday, September 5, 2018, we
issued the following order on Friday, September 7, 2018:
[W]e hereby reverse the circuit court’s judgment and vacate the
injunction prohibiting the Secretary of State from action to place the
Constitutional Revision Commission’s Revision 1, designated as
Amendment 6 and titled “Rights of Crime Victims; Judges,” on the
ballot. No motions for rehearing will be permitted. Full opinion to
follow.
This is the full opinion.
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SECTION 16. Rights of accused and of victims.–
(a) In all criminal prosecutions the accused shall, upon demand,
be informed of the nature and cause of the accusation, and shall be
furnished a copy of the charges, and shall have the right to have
compulsory process for witnesses, to confront at trial adverse
witnesses, to be heard in person, by counsel or both, and to have a
speedy and public trial by impartial jury in the county where the crime
was committed. If the county is not known, the indictment or
information may charge venue in two or more counties conjunctively
and proof that the crime was committed in that area shall be sufficient;
but before pleading the accused may elect in which of those counties
the trial will take place. Venue for prosecution of crimes committed
beyond the boundaries of the state shall be fixed by law.
(b) To preserve and protect the right of crime victims to achieve
justice, ensure a meaningful role throughout the criminal and juvenile
justice systems for crime victims, and ensure that crime victims’
rights and interests are respected and protected by law in a manner no
less vigorous than protections afforded to criminal defendants and
juvenile delinquents, every victim is entitled to the following rights,
beginning at the time of his or her victimization:
(1) The right to due process and to be treated with fairness and
respect for the victim’s dignity.
(2) The right to be free from intimidation, harassment, and
abuse.
(3) The right, within the judicial process, to be reasonably
protected from the accused and any person acting on behalf of the
accused. However, nothing contained herein is intended to create a
special relationship between the crime victim and any law
enforcement agency or office absent a special relationship or duty as
defined by Florida law.
(4) The right to have the safety and welfare of the victim and
the victim’s family considered when setting bail, including setting
pretrial release conditions that protect the safety and welfare of the
victim and the victim’s family.
(5) The right to prevent the disclosure of information or records
that could be used to locate or harass the victim or the victim’s family,
or which could disclose confidential or privileged information of the
victim.
(6) A victim shall have the following specific rights upon
request:
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a. The right to reasonable, accurate, and timely notice of, and to
be present at, all public proceedings involving the criminal conduct,
including, but not limited to, trial, plea, sentencing, or adjudication,
even if the victim will be a witness at the proceeding, notwithstanding
any rule to the contrary. A victim shall also be provided reasonable,
accurate, and timely notice of any release or escape of the defendant
or delinquent, and any proceeding during which a right of the victim
is implicated.
b. The right to be heard in any public proceeding involving
pretrial or other release from any form of legal constraint, plea,
sentencing, adjudication, or parole, and any proceeding during which
a right of the victim is implicated.
c. The right to confer with the prosecuting attorney concerning
any plea agreements, participation in pretrial diversion programs,
release, restitution, sentencing, or any other disposition of the case.
d. The right to provide information regarding the impact of the
offender’s conduct on the victim and the victim’s family to the
individual responsible for conducting any presentence investigation or
compiling any presentence investigation report, and to have any such
information considered in any sentencing recommendations submitted
to the court.
e. The right to receive a copy of any presentence report, and any
other report or record relevant to the exercise of a victim’s right,
except for such portions made confidential or exempt by law.
f. The right to be informed of the conviction, sentence,
adjudication, place and time of incarceration, or other disposition of
the convicted offender, any scheduled release date of the offender, and
the release of or the escape of the offender from custody.
g. The right to be informed of all postconviction processes and
procedures, to participate in such processes and procedures, to provide
information to the release authority to be considered before any
release decision is made, and to be notified of any release decision
regarding the offender. The parole or early release authority shall
extend the right to be heard to any person harmed by the offender.
h. The right to be informed of clemency and expungement
procedures, to provide information to the governor, the court, any
clemency board, and other authority in these procedures, and to have
that information considered before a clemency or expungement
decision is made; and to be notified of such decision in advance of
any release of the offender.
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(7) The rights of the victim, as provided in subparagraph (6)a.,
subparagraph (6)b., or subparagraph (6)c., that apply to any first
appearance proceeding are satisfied by a reasonable attempt by the
appropriate agency to notify the victim and convey the victim’s views
to the court.
(8) The right to the prompt return of the victim’s property when
no longer needed as evidence in the case.
(9) The right to full and timely restitution in every case and
from each convicted offender for all losses suffered, both directly and
indirectly, by the victim as a result of the criminal conduct.
(10) The right to proceedings free from unreasonable delay, and
to a prompt and final conclusion of the case and any related
postjudgment proceedings.
a. The state attorney may file a good faith demand for a speedy
trial and the trial court shall hold a calendar call, with notice, within
fifteen days of the filing demand, to schedule a trial to commence on a
date at least five days but no more than sixty days after the date of the
calendar call unless the trial judge enters an order with specific
findings of fact justifying a trial date more than sixty days after the
calendar call.
b. All state-level appeals and collateral attacks on any judgment
must be complete within two years from the date of appeal in non-
capital cases and within five years from the date of appeal in capital
cases, unless a court enters an order with specific findings as to why
the court was unable to comply with this subparagraph and the
circumstances causing the delay. Each year, the chief judge of any
district court of appeal or the chief justice of the supreme court shall
report on a case-by-case basis to the speaker of the house of
representatives and the president of the senate all cases where the
court entered an order regarding inability to comply with this
subparagraph. The legislature may enact legislation to implement this
subparagraph.
(11) The right to be informed of these rights, and to be
informed that victims can seek the advice of an attorney with respect
to their rights. This information shall be made available to the general
public and provided to all crime victims in the form of a card or by
other means intended to effectively advise the victim of their rights
under this section.
(c) The victim, the retained attorney of the victim, a lawful
representative of the victim, or the office of the state attorney upon
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request of the victim, may assert and seek enforcement of the rights
enumerated in this section and any other right afforded to a victim by
law in any trial or appellate court, or before any other authority with
jurisdiction over the case, as a matter of right. The court or other
authority with jurisdiction shall act promptly on such a request,
affording a remedy by due course of law for the violation of any right.
The reasons for any decision regarding the disposition of a victim’s
right shall be clearly stated on the record.
(d) The granting of the rights enumerated in this section to
victims may not be construed to deny or impair any other rights
possessed by victims. The provisions of this section apply throughout
criminal and juvenile justice processes, are self-executing, and do not
require implementing legislation. This section may not be construed
to create any cause of action for damages against the state or a
political subdivision of the state, or any officer, employee, or agent of
the state or its political subdivisions.
(e) As used in this section, a “victim” is a person who suffers
direct or threatened physical, psychological, or financial harm as a
result of the commission or attempted commission of a crime or
delinquent act or against whom the crime or delinquent act is
committed. The term “victim” includes the victim’s lawful
representative, the parent or guardian of a minor, or the next of kin of
a homicide victim, except upon a showing that the interest of such
individual would be in actual or potential conflict with the interests of
the victim. The term “victim” does not include the accused. The
terms “crime” and “criminal” include delinquent acts and conduct
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.
Section 8 of Article V of the State Constitution is amended, and
section 21 is added to that article, to read:
ARTICLE V
JUDICIARY
SECTION 8. Eligibility.–No person shall be eligible for office
of justice or judge of any court unless the person is an elector of the
state and resides in the territorial jurisdiction of the court. No justice
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or judge shall serve after attaining the age of seventy-five seventy
years except upon temporary assignment or to complete a term, one-
half of which has been served. No person is eligible for the office of
justice of the supreme court or judge of a district court of appeal
unless the person is, and has been for the preceding ten years, a
member of the bar of Florida. No person is eligible for the office of
circuit judge unless the person is, and has been for the preceding five
years, a member of the bar of Florida. Unless otherwise provided by
general law, no person is eligible for the office of county court judge
unless the person is, and has been for the preceding five years, a
member of the bar of Florida. Unless otherwise provided by general
law, a person shall be eligible for election or appointment to the office
of county court judge in a county having a population of 40,000 or
less if the person is a member in good standing of the bar of Florida.
SECTION 21. Judicial interpretation of statutes and rules.–
In interpreting a state statute or rule, a state court or an officer hearing
an administrative action pursuant to general law may not defer to an
administrative agency’s interpretation of such statute or rule, and must
instead interpret such statute or rule de novo.
A new section is added to Article XII of the State Constitution
to read:
ARTICLE XII
SCHEDULE
Eligibility of justices and judges.–The amendment to Section 8 of
Article V, which increases the age at which a justice or judge is no
longer eligible to serve in judicial office except upon temporary
assignment, shall take effect July 1, 2019.
The CRC proposed that the following ballot title and summary be placed on
the ballot:
CONSTITUTIONAL AMENDMENT
ARTICLE I, SECTION 16
ARTICLE V, SECTIONS 8, 21
ARTICLE XII, NEW SECTION
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RIGHTS OF CRIME VICTIMS; JUDGES.–Creates
constitutional rights for victims of crime; requires courts to facilitate
victims’ rights; authorizes victims to enforce their rights throughout
criminal and juvenile justice processes. Requires judges and hearing
officers to independently interpret statutes and rules rather than
deferring to government agency’s interpretation. Raises mandatory
retirement age of state justices and judges from seventy to seventy-
five years; deletes authorization to complete judicial term if one-half
of term has been served by retirement age.
Lee Hollander, the League of Women Voters of Florida, Inc., and Patricia
Brigham filed a complaint in circuit court alleging that the CRC’s ballot title and
summary for Amendment 6 are misleading. Marsy’s Law of Florida, LLC
intervened. In a separate case, Amy Knowles filed a complaint alleging that the
same ballot title and summary are misleading and that the CRC proposal violates a
single-subject requirement. On August 27, 2018, after holding a hearing on cross-
motions for summary judgment in both cases, the circuit court struck Amendment
6 from the ballot.
II. ANALYSIS
Article XI, section 2 of the Florida Constitution provides that a constitution
revision commission shall be established and convened every 20 years to “examine
the constitution of the state, hold public hearings, and, not later than one hundred
eighty days prior to the next general election, file with the custodian of state
records its proposal, if any, of a revision of this constitution or any part of it.” Id. §
2(c).
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Section 101.161(1), Florida Statutes (2018), provides the following ballot
title and summary requirements “[w]henever a constitutional amendment or other
public measure is submitted to the vote of the people[:]”
The ballot summary of the amendment or other public measure and
the ballot title to appear on the ballot shall be embodied in the
constitutional revision commission proposal . . . . The ballot summary
of the amendment or other public measure shall be an explanatory
statement, not exceeding 75 words in length, of the chief purpose of
the measure. . . . The ballot title shall consist of a caption, not
exceeding 15 words in length, by which the measure is commonly
referred to or spoken of. This subsection does not apply to
constitutional amendments or revisions proposed by joint resolution.
The purpose of these clarity requirements is “to provide fair notice of the content
of the proposed amendment so that the voter will not be misled as to its purpose,
and can cast an intelligent and informed ballot.” Advisory Op. to Att’y Gen. re
Term Limits Pledge, 718 So. 2d 798, 803 (Fla. 1998) (quoting Advisory Op. to
Att’y Gen. re Right of Citizens to Choose Health Care Providers, 705 So. 2d 563,
566 (Fla. 1998)).
This Court’s review of the validity of a ballot title and summary under
section 101.161(1) involves two inquiries:
First, the Court asks whether “the ballot title and summary . . . fairly
inform the voter of the chief purpose of the amendment.” Right to
Treatment and Rehabilitation for Non-Violent Drug Offenses, 818 So.
2d [491, 497 (Fla. 2002)]. Second, the Court asks “whether the
language of the title and summary, as written, misleads the public.”
Advisory Op. to Att’y Gen. re Right of Citizens to Choose Health Care
Providers, 705 So. 2d 563, 566 (Fla. 1998).
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Advisory Op. to Att’y Gen. re Fairness Initiative Requiring Leg. Determination
that Sales Tax Exemptions & Exclusions Serve a Public Purpose, 880 So. 2d 630,
635-36 (Fla. 2004). As this Court has explained, “a ballot title and summary
cannot ‘fly under false colors’ or ‘hide the ball’ with regard to the true effect of an
amendment.” Fla. Dep’t of State v. Slough, 992 So. 2d 142, 147 (Fla. 2008).
“When the summary of a proposed amendment does not accurately describe the
scope of the text of the amendment, it fails in its purpose and must be stricken.”
Term Limits Pledge, 718 So. 2d at 804. However, “the title and summary need not
explain every detail or ramification of the proposed amendment.” Advisory Op. to
Att’y Gen. re Prohibiting Pub. Funding of Political Candidates’ Campaigns, 693
So. 2d 972, 975 (Fla. 1997).
This Court has detailed the following deferential standard of review:
“The Court must act with extreme care, caution, and restraint before it
removes a constitutional amendment from the vote of the people,” and
thus must approve an initiative unless it is clearly and conclusively
defective. Askew v. Firestone, 421 So. 2d 151, 154, 156 (Fla. 1982);
see also Smith v. Coalition to Reduce Class Size, 827 So. 2d 959, 963
(Fla. 2002) (stating that if the initiative meets constitutional
requirements, “then the sponsor of an initiative has the right to place
the initiative on the ballot”). Finally, the Court does not review the
merits or the wisdom of the proposed amendment. Advisory Op. to
the Att’y Gen. re Right of Citizens to Choose Health Care Providers,
705 So. 2d 563, 565 (Fla. 1998).
Advisory Op. to Att’y Gen. re Authorizes Miami-Dade & Broward Cty. Voters to
Approve Slot Machines in Parimutuel Facilities, 880 So. 2d 522, 523 (Fla. 2004).
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This Court reviews the trial court’s ruling regarding the validity of the ballot
language de novo. Slough, 992 So. 2d at 147.
In this case, the ballot title and summary comply with the statutory word
limitations. Additionally, the title and summary inform voters of the chief purpose
of the proposal and do not mislead regarding its scope and effect.
The CRC chose the title “RIGHTS OF CRIME VICTIMS; JUDGES,” and
the summary states that the amendment:
Creates constitutional rights for victims of crime; requires courts to
facilitate victims’ rights; authorizes victims to enforce their rights
throughout criminal and juvenile justice processes. Requires judges
and hearing officers to independently interpret statutes and rules
rather than deferring to government agency’s interpretation. Raises
mandatory retirement age of state justices and judges from seventy to
seventy-five years; deletes authorization to complete judicial term if
one-half of term has been served by retirement age.
Read together, the title and summary reasonably inform voters of the chief purpose
and effect of the proposed amendment, namely that it would create victims’ rights,
would require de novo review of agency interpretations of statutes and rules, would
raise judges’ and justices’ mandatory retirement age from 70 to 75, and would no
longer allow completion of a judicial term if one-half of the term had already been
served by retirement age. See Advisory Op. to Att’y Gen. re 1.35% Prop. Tax Cap,
Unless Voter Approved, 2 So. 3d 968, 974 (Fla. 2009) (“While the ballot title and
summary must state in clear and unambiguous language the chief purpose of the
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measure, they need not explain every detail or ramification of the proposed
amendment.”).
Regarding victims’ rights, the ballot title and summary explain that the
amendment would create victims’ rights, would require the judiciary to facilitate
these rights, and that the victims would be authorized to enforce their rights.
While the title and summary do not enumerate the specific victims’ rights that are
created and do not mention defendants’ rights, the title and summary are not
misleading because the actual text of the proposed amendment does not restrict any
existing defendants’ or victims’ rights or subordinate any existing defendants’ or
victims’ rights to the newly created victims’ rights. See Advisory Op. to Att’y Gen.
re Fla. Growth Mgmt. Initiative Giving Citizens Right to Decide Local Growth
Mgmt. Plan Changes, 2 So. 3d 118, 123 (Fla. 2008) (“Because the Smarter Growth
amendment will not conflict with or restrict any existing rights to subject local
growth management plans to local referenda, the lack of detail concerning the
petition process does not render the title and summary misleading.”); cf. Fla. Dep’t
of State v. Fla. State Conference of NAACP Branches, 43 So. 3d 662, 668 (Fla.
2010) (invalidating an amendment proposed by the Legislature and explaining that
“the ballot language did not inform the voters that the amendment would allow the
existing mandatory constitutional requirement in article III, section 16(a), requiring
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that districts be contiguous to be subordinated to the discretionary standards” for
redistricting outlined in the proposed amendment).
More specifically, the proposed victims’ right to a speedy trial would not
affect defendants’ rights. Subsection (b)(10) of the amendment’s text would create
a victims’ “right to proceedings free from unreasonable delay, and to a prompt and
final conclusion of the case and any related postjudgment proceedings.” And
subsection (b)(10)a. provides that “[t]he state attorney may file a good faith
demand for a speedy trial and the trial court shall hold a calendar call, with notice,
within fifteen days of the filing demand, to schedule a trial to commence on a date
at least five days but no more than sixty days . . . unless the trial judge enters an
order with specific findings of fact justifying a trial date more than sixty days after
the calendar call.” However, the defendant would still retain a right to a speedy
trial that would not be subordinated to the newly created victims’ right. Moreover,
if the amendment passes, the defendant may still waive his or her right to a speedy
trial, and a trial court could extend holding the trial beyond the 60 days by entering
an order with a justification for doing so even though the victim has demanded a
speedy trial. A defendant does not have a right to “unreasonable delay” that would
conflict with the newly created victims’ “right to proceedings free from
unreasonable delay.”
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Similarly, the time constraints and reporting requirements for appeals and
collateral attacks that the text of subsection (b)(10)b. would impose do not restrict,
conflict with, or subordinate any rights of defendants. Defendants do not have a
right to unreasonable delay in these proceedings. And the language of the
proposed text would allow proceedings to extend beyond the time periods with an
explanation from the appellate courts as to why they were unable to meet the time
constraints.
Furthermore, while the title and summary do not reference the victims’
rights that were added to the constitution in 1988, those already existing victims’
rights are incorporated in the proposed text of subsection (b)(6) but with more
specificity. Specifically, the text of proposed Amendment 6 would retain
subsection (a) of article I, section 16 (pertaining to defendants’ rights) and strike
the existing subsection (b) (pertaining to victims’ rights), but replace the stricken
victims’ “right to be informed, to be present, and to be heard when relevant, at all
crucial stages of criminal proceedings, to the extent these rights do not interfere
with the constitutional rights of the accused” with more specific language
regarding the victims’ right to be informed, present, and heard. Subsection (b)(6)
of the proposed amendment’s text states the following:
A victim shall have the following specific rights upon request:
a. The right to reasonable, accurate, and timely notice of, and to
be present at, all public proceedings involving the criminal conduct,
including, but not limited to, trial, plea, sentencing, or adjudication,
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even if the victim will be a witness at the proceeding, notwithstanding
any rule to the contrary. A victim shall also be provided reasonable,
accurate, and timely notice of any release or escape of the defendant
or delinquent, and any proceeding during which a right of the victim
is implicated.
b. The right to be heard in any public proceeding involving
pretrial or other release from any form of legal constraint, plea,
sentencing, adjudication, or parole, and any proceeding during which
a right of the victim is implicated.
c. The right to confer with the prosecuting attorney concerning
any plea agreements, participation in pretrial diversion programs,
release, restitution, sentencing, or any other disposition of the case.
d. The right to provide information regarding the impact of the
offender’s conduct on the victim and the victim’s family to the
individual responsible for conducting any presentence investigation or
compiling any presentence investigation report, and to have any such
information considered in any sentencing recommendations submitted
to the court.
e. The right to receive a copy of any presentence report, and any
other report or record relevant to the exercise of a victim’s right,
except for such portions made confidential or exempt by law.
f. The right to be informed of the conviction, sentence,
adjudication, place and time of incarceration, or other disposition of
the convicted offender, any scheduled release date of the offender, and
the release of or the escape of the offender from custody.
g. The right to be informed of all postconviction processes and
procedures, to participate in such processes and procedures, to provide
information to the release authority to be considered before any
release decision is made, and to be notified of any release decision
regarding the offender. The parole or early release authority shall
extend the right to be heard to any person harmed by the offender.
h. The right to be informed of clemency and expungement
procedures, to provide information to the governor, the court, any
clemency board, and other authority in these procedures, and to have
that information considered before a clemency or expungement
decision is made; and to be notified of such decision in advance of
any release of the offender.
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Importantly, no existing victims’ rights would be eliminated or restricted by the
text of the proposed Amendment 6.
In its order striking Amendment 6, the circuit court stated that “[n]either the
title nor summary reveals that the 2018 revision 6 expands the scope of Article I,
Section 16(b) beyond criminal proceedings to include the delinquency system.”
The circuit court was mistaken. The ballot summary expressly explains that the
scope of the amendment’s text includes the juvenile system with its statement that
Amendment 6 “authorizes victims to enforce their rights throughout criminal and
juvenile justice processes.” (Emphasis added.) There is no omission, much less a
material omission, regarding the application of victims’ rights in juvenile justice
processes.
Additionally, the circuit court stated that “Revision 6 contains language that
modifies the existing pretrial release section [of the Florida Constitution], with
neither the title or summary disclosing the impact on Article I, Section 14 to
voters.” Amendment 6’s text states the following regarding pretrial release: “(4)
The right to have the safety and welfare of the victim and the victim’s family
considered when setting bail, including setting pretrial release conditions that
protect the safety and welfare of the victim and the victim’s family.” Article I,
section 14 of the Florida Constitution (emphasis added) provides the following:
Pretrial release and detention.—
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Unless charged with a capital offense or an offense punishable by life
imprisonment and the proof of guilt is evident or the presumption is
great, every person charged with a crime or violation of municipal or
county ordinance shall be entitled to pretrial release on reasonable
conditions. If no conditions of release can reasonably protect the
community from risk of physical harm to persons, assure the presence
of the accused at trial, or assure the integrity of the judicial process,
the accused may be detained.
Because “the community” that must be reasonably protected for an accused to
receive pretrial release under article I, section 14 includes “the victim and the
victim’s family” entitled to reasonable protection under the text of proposed
Amendment 6, defendants’ pretrial release rights under the constitution would not
be restricted or subordinated by Amendment 6. Moreover, the text of the proposed
amendment does nothing to change section 14 or impose more restrictive
conditions than a court can currently impose. Therefore, the ballot title and
summary are not misleading for failing to mention the unaltered pretrial release
right of article I, section 14.
Further, the circuit court’s order mentioned the Appellees’ argument that the
title, “RIGHTS OF CRIME VICTIMS; JUDGES,” is incomplete and misleading
because it does not mention the proposed amendment’s text that would alter the
standard for reviewing agency interpretations of statutes and rules. However, this
Court has explained that “the ballot title and summary may not be read in isolation,
but must be read together in determining whether the ballot information properly
informs the voters.” Advisory Op. to Att’y Gen. re Voluntary Universal Pre-
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Kindergarten Education, 824 So. 2d 161, 166 (Fla. 2002). And, here, the summary
clearly explains that Amendment 6 “[r]equires judges and hearing officers to
independently interpret statutes and rules rather than deferring to government
agency’s interpretation.” Therefore, the ballot information is not incomplete or
misleading regarding the proposed text’s elimination of the so-called Chevron 3
doctrine.
Before this Court, Appellees argue that the ballot summary and title are
misleading because they do not inform voters that the term “victims” could
possibly be construed to include corporations. However, this is a complaint about
an ambiguity of the text of Amendment 6 rather than a complaint regarding the
nature of the summary. Nothing in Amendment 6 states whether or not crime
victims includes corporations; therefore, the summary accurately reflects the text
of Amendment 6. And this Court has held that it will not strike a proposal from
the ballot based upon an argument concerning “the ambiguous legal effect of the
amendment’s text rather than the clarity of the ballot title and summary.” Advisory
Op. to Att’y Gen. re Voter Control of Gambling, 215 So. 3d 1209, 1216 (Fla.
2017).
3. Chevron, USA, Inc. v. Nat’l Res. Def. Council, Inc., 467 U.S. 837 (1984).
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Accordingly, it has not been clearly and conclusively demonstrated that the
ballot title and summary are misleading and do not reasonably inform the voters of
the chief purpose of Amendment 6.
Finally, Appellee Knowles argues that the proposed amendment should not
be allowed to appear on the ballot because it violates a single-subject or anti-
bundling requirement. But no such requirement exists for CRC proposals. As this
Court has explained,
[u]nder article XI, Florida Constitution, a thirty-seven member
Constitution Revision Commission is required to convene, adopt rules
of procedure, examine the constitution, hold public hearings, and
prepare a report on proposed revisions. The report is published to the
electorate prior to election. No single-subject requirement is imposed
because this process embodies adequate safeguards to protect against
logrolling and deception. See Fine v. Firestone, 448 So. 2d 984 (Fla.
1984).
Charter Review Comm. of Orange County v. Scott, 647 So. 2d 835, 837 (Fla.
1994); see Term Limits Pledge, 718 So. 2d at 801 (“The single-subject requirement
applies only to the citizen initiative method of amending the constitution.”).
Consequently, because CRC proposals are not required to comply with a single-
subject requirement, Amendment 6 cannot be stricken for encompassing more than
one subject. 4
4. Amici argue that the CRC’s bundling of multiple subjects into one
proposed amendment violates voters’ federal right to vote. However, Amici do not
cite, and we could not locate, any reported Florida or federal case holding that the
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III. CONCLUSION
For the reasons explained above, we reverse the circuit court’s judgment and
vacate the injunction prohibiting the Secretary of State from action to place the
CRC’s Revision 1, designated as Amendment 6 and titled “Rights of Crime
Victims; Judges,” on the ballot. We order Amendment 6 to appear on the ballot for
the November 2018 general election. No motions for rehearing will be permitted.
It is so ordered.
CANADY, C.J., and POLSTON, LABARGA, and LAWSON, JJ., concur.
PARIENTE, J., dissents with an opinion, in which QUINCE, J., concurs.
LEWIS, J., dissents.
PARIENTE, J., dissenting.
Despite the enticing ballot title and summary for “rights of crime victims,”
this proposal 5 has the potential to affect all criminal and juvenile proceedings in
this State. Further, Amendment 6 bundles totally unrelated constitutional
proposals, which in itself is problematic for voters.
While the notion that crime victims should have “rights” in criminal
proceedings is itself non-controversial, the ballot language for Amendment 6 fails
First Amendment protects voters from having to make a choice regarding a
measure that potentially includes both desired and undesired outcomes.
5. This proposal is known as Revision 1 or Amendment 6 on the November
2018 ballot.
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to tell voters the full story. The ballot summary conspicuously fails to tell voters
that victims’ rights already exist in the Florida Constitution and, rather than
“creating” rights, Amendment 6 actually defines and expands these existing rights
into a laundry list of rights that are to be placed on equal footing with the
constitutional rights of the accused.
While generally every person can see herself as a victim, our constitutional
system rests on the very fundamental precept that those accused of crimes are
“innocent until proven guilty.” 6 That principle is the cornerstone of our criminal
justice system and the foundation for many of the rights set forth in the Bill of
Rights.
The ballot summary for Amendment 6 is misleading in numerous ways, the
most concerning of which is that the proposal “hide[s] the ball”7 as to its chief
purposes—expanding victims’ existing rights into a comprehensive manual of
specific rights, incomparable to any other list in the Florida Constitution, and
deleting important, existing constitutional language that ensures that victims’ rights
6. State v. Blair, 39 So. 3d 1190, 1192 (Fla. 2010); Fla. Bar v. Rose, 823
So. 2d 727, 732 (Fla. 2002) (“[A] defendant is innocent until proven guilty, no
matter what the charge and no matter how insidious the allegations.”); see art. I,
§ 14, Fla. Const.
7. Armstrong v. Harris, 773 So. 2d 7, 16 (Fla. 2000).
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do not interfere with the constitutional rights of the accused in criminal
proceedings. See art. I, § 16(b), Fla. Const.
In addition to failing to explain the constitutional status quo, the proposal
presents voters with numerous, completely unrelated proposals in addition to the
victims’ rights amendment: (1) article V, section 8, which sets a new mandatory
retirement age of seventy-five for judges and justices; (2) article V, section 21,
directing how judges should interpret statutes and rules; and (3) article XII,
directing that the increased retirement age for judges and justices shall be effective
only prospectively as of July 1, 2019, and therefore will not affect judges and
justices who already face mandatory retirement before that date.
This bundling, which was not subjected to procedural safeguards in the
Constitutional Revision Commission (CRC) hearing process, creates a misleading
ballot summary and forces voters to cast one vote for multiple, independent and
unrelated proposals. Thus, because the ballot title and summary for Amendment 6
are misleading and fail to give voters fair notice of the all-important decision to
amend several articles of the Florida Constitution, I dissent.
I. What the Ballot Language for Amendment 6 Fails to Tell Voters
First, I agree with the circuit court that the problem is not what the ballot
language says but “what the ballot summary (and actual language of the
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amendment) fails to say.” 8 The ballot language excludes significant information
regarding its changes, specifically (A) the existing balance between victims’ rights
and defendants’ constitutional rights, and (B) that the change in the mandatory
retirement age for judges and justices will apply only prospectively.
A. Changes to the Existing Balance Between Victims’ and Defendants’
Constitutional Rights
The ballot language for Amendment 6 conspicuously leaves out the fact that
victims’ rights already exist in article I, section 16(b), of the Florida Constitution,
which currently provides: “Victims of crime or their lawful representatives . . . are
entitled to the right to be informed, to be present, and to be heard when relevant, at
all crucial stages of criminal proceedings.” Art. I, § 16(b), Fla. Const.
The ballot language also fails to tell voters that article I, section 16(b)
currently includes the critical caveat that these rights exist “to the extent [they] do
not interfere with the constitutional rights of the accused,” art. I, § 16(b), Fla.
Const., and that Amendment 6 deletes this “30 year old existing constitutional
8. Advisory Op. to Att’y Gen. re Rights of Electricity Consumers re Solar
Energy Choice, 188 So. 3d 822, 837 (Fla. 2016); accord Hollander v. Dep’t of
State, Nos. 2018-CA-1525 & 2018-CA-1740, Final Judgment at 4 (Fla. 2d Cir. Ct.
Aug. 27, 2018) [hereinafter Final J.]; see Armstrong, 773 So. 2d at 12 (“[A]
proposed [constitutional] amendment [must] be accurately represented on the
ballot; otherwise, voter approval would be a nullity.”); Askew v. Firestone, 421 So.
2d 151, 155 (Fla. 1982) (citing Miami Dolphins, Ltd. v. Metro. Dade Cty., 394 So.
2d 981 (Fla. 1981)) (“Simply put, the ballot must give the voter fair notice of the
decision he must make.”).
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provision,”9 which ensures balance between victims’ and defendants’ rights. In
fact, Amendment 6 replaces this existing language with the following: “[V]ictims’
rights and interests are [to be] respected and protected by law in a manner no less
vigorous than protections afforded to criminal defendants and juvenile
delinquents.” Thus, Amendment 6 seeks to underhandedly uproot the long-
standing balance between the constitutional rights of the accused and victims. See
Final J., at 6; Amici FPDA Br. at 5.10
Instead of clearly explaining these changes, the ballot summary for
Amendment 6 merely states that the proposal “[c]reates constitutional rights for
victims of crime; requires courts to facilitate” these rights; and “authorizes victims
to enforce” such rights “throughout criminal and juvenile justice processes.”
However, Amendment 6 actually (a) expands victims’ existing rights, (b) applies
victims’ rights for the first time to juvenile delinquency proceedings, (c) grants
victims rights that, in the sheer breadth of the amendment, are more extensive than
9. Final J., at 7; see Advisory Op. to Att’y Gen. re 1.35% Prop. Tax Cap,
Unless Voter Approved, 2 So. 3d 968, 976 (Fla. 2009) (citing § 101.161(1), Fla.
Stat. (2007)).
10. Amici Curiae The Florida Public Defender Association (FPDA), the
Florida Association of Criminal Defense Lawyers, the Innocence Project of
Florida, and the American Civil Liberties Union Foundation of Florida are referred
to collectively herein as “FPDA.”
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the rights listed in the Florida Constitution for defendants,11 and (d) places victims’
rights on “equal footing” with the rights of the accused. Indeed, the majority states
that the “already existing victims’ rights are incorporated in the proposed text . . .
but with more specificity.” Majority op. at 14. Thus, it is clear that the ballot
summary’s use of “create” is misleading, and the ballot language for Amendment 6
fails to explain the full scope and effect of the proposal, making it difficult for
voters to “comprehend the sweep of [the] proposal.” Askew v. Firestone, 421 So.
2d 151, 155 (Fla. 1982) (quoting Smathers v. Smith, 338 So. 2d 825, 829 (Fla.
1976)).
In fact, the majority recognizes that the ballot title and summary “do not
mention defendants’ rights.” Majority op. at 12. On one hand, the majority
attempts to explain that the proposal will not affect defendants’ constitutional
rights. Id. at 13-14. However, this discussion is not only speculative but, more
significantly, inappropriate at this stage of review. As the majority acknowledges
in another portion of its discussion, we should not address the “legal effect” of the
proposal at this stage but, rather, limit our analysis to “the clarity of the ballot title
and summary.” Id. at 18 (quoting Advisory Op. to Att’y Gen. re Voter Control of
Gambling, 215 So. 3d 1209, 1216 (Fla. 2017)).
11. The rights the proposal “creates” for victims constitute 5 pages and 146
lines of new constitutional text—the most comprehensive constitutional text in our
state constitution.
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Nevertheless, because the majority asserts that the proposal will not affect
defendants’ constitutional rights, I have genuine concerns that the new,
comprehensive manual of victims’ rights created by Amendment 6 would, in fact,
impact our criminal justice system and the rights of the accused. At the least, these
changes will likely cause a wave of litigation in which the courts will be asked to
resolve conflicts between victims’ and defendants’ enumerated constitutional
rights—including defendants’ constitutional rights to speedy trial, due process, and
confrontation. See art. I, §§ 9, 16(a), Fla. Const.; see also Answer Br. of
Appellees, at 20-21.
Because the voters are not informed of the amendment’s removal of the
existing constitutional provision that states that victims’ rights exist “to the extent
[they] do not interfere with the constitutional rights of the accused,” art. I, § 16(b),
Fla. Const., in exchange for “victims’ rights and interests are [to be] respected and
protected by law in a manner no less vigorous than protections afforded to criminal
defendants and juvenile delinquents,” it is inevitable that the constitutional rights
of the accused will be adversely affected.
B. Increased Retirement Age for Judges and Justices Applies Only
Prospectively
The ballot language also fails to tell voters that its change to the mandatory
retirement age for judges and justices—increased from 70 to 75—does not go into
effect until July 1, 2019. As a result, a voter who may be inclined to vote “yes” on
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Amendment 6 to approve this proposal in hopes that a sitting judge’s term will be
extended—perhaps at the cost of his or her views on another proposal in the
amendment 12—would cast an uninformed vote. Thus, it is clear that the ballot
language does not tell voters the full story.
II. Misleading Bundling of Unrelated Constitutional Amendments
In addition to “hiding the ball” as to its true effect, the ballot language for
Amendment 6 puts voters in a difficult position by bundling multiple, separate and
unrelated proposals. See Detzner v. Anstead, No. SC18-1513, slip op. at 8-9, 11-13
(Fla. Oct. 17, 2018) (Pariente, J., concurring in result); City of Coral Gables v.
Gray, 19 So. 2d 318, 322 (Fla. 1944). As I explained in Anstead, the justification
for not requiring the CRC to meet the single-subject requirement was an
assumption that the CRC’s process embodies “adequate safeguards to protect
against logrolling and deception.” Slip op. at 9 (Pariente, J., concurring in result);
accord Charter Rev. Comm’n of Orange Cty. v. Scott, 647 So. 2d 835, 837 (Fla.
1994). “However, as CRC Commissioner Roberto Martinez, one of this Court’s
three appointees, explained, the[se] safeguards . . . do not exist.” Anstead, slip op.
at 9 (Pariente, J., concurring in result).
12. See Detzner v. Anstead, No. SC18-1513, slip op. at 8-9, 11-13 (Fla. Oct.
17, 2018) (Pariente, J., concurring in result).
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In addition to the significant changes regarding victims’ and defendants’
constitutional rights, Amendment 6 will (1) impose new obligations on the
judiciary in statutory interpretation by eliminating the long-standing Chevron 13
doctrine and (2) prospectively increase the mandatory retirement age of appellate
judges and justices. In other words, with this proposal, the CRC bundled
amendments to completely separate parts of the Constitution—not only to Article I
but to Article V. In fact, Commissioner Martinez made a motion to unbundle these
unrelated revisions, explaining:
Do [the three proposals in Amendment 6] all deal with the courts?
They do. But are they really related? They’re not. One deals with
the retirement age, one deals with judicial deference, and one deals
with the victims of crimes. They are not related. They are separate
proposals. By grouping these separate proposals together, effectively
what we’ve done is we’re log rolling.
....
. . . At no time have we had any public hearing on any of the
groupings. The public has not had an opportunity to tell us whether
or not they understand the grouping. There has been no process with
regards to having a public hearing on whether or not the grouping, in
fact, complies with the purpose of the—what we asked our legal
experts to do, which is does the grouping fairly inform the voters as to
what it is that they’re voting for or does it mislead.
And I submit to you that by grouping, what we have done, by
bundling different proposals together, . . . is we have undermined the
work that we have undertaken to make sure that each one of the ballot
summaries is clear and fairly informs the voters.
13. Chevron, U.S.A., Inc. v. Nat’l Res. Def. Counsel, Inc., 467 U.S. 837(1984).
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Constitution Revision Comm’n, Transcript, Full Comm’n Meeting, at 70-72 (April
16, 2018) (emphasis added). Commissioner Martinez further explained how the
CRC’s unilateral decision to bundle individual amendments undermines the CRC’s
“paramount objective” of giving voters a “very clear choice,” stating:
[A]s we have done it . . . we’re undermining the work that we have
spent months doing in making sure that each proposal is clear and the
voters have an opportunity to clearly vote for what it is to be
informed, to be clear as to what it is they are voting for.
Id. at 73-74.
I agree with Commissioner Martinez that the bundling in Amendment 6 is
improper and serves to only confuse and mislead voters, which should have
required this Court to strike the proposal from the ballot. See Anstead, slip op. at
9-10 (Pariente, J., concurring in result). As I explained in Anstead:
Bundling multiple, independent and unrelated proposals in this
way makes the task of voting significantly more difficult for Florida’s
citizens, requiring them to decide—in addition to weighing the
independent merits of each proposal—whether voting in favor of one
proposal they approve of is worth also approving a proposal they do
not favor. Voters should not be required to exercise their all-
important authority to amend the constitution under these restrictions.
Id. at 12. Likewise, Hank Coxe, one of this Court’s three appointees to the CRC,
wrote: “[A]ny voter would prefer to be asked 15 true or false questions as opposed
to struggling with multiple choices where none is the correct one.” Letter from
Hank Coxe at the Conclusion of His Service on the Constitution Revision
Commission, Fla. Supreme Ct. Historical Soc’y Magazine 20 (Summer/Fall 2018),
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https://flcourthistory.org/resources/Documents/2018%20Magazine/FSCHS_Histori
cal_Review2018_web.pdf. Indeed, absent this improper bundling, the CRC could
have presented to voters three separate, adequately explained amendments and
minimized voter confusion—devoting all 75 words of each ballot summary to each
proposal to ensure voters received the full story on each amendment. See Anstead,
slip op. at 9 (Pariente, J., concurring in result).
CONCLUSION
Amendment 6 repeals existing constitutional language—that victims’ rights
exist “to the extent [they] do not interfere with the constitutional rights of the
accused,” art. I, § 16(b), Fla. Const.—and replaces it with language that places
victims’ rights on equal footing with the constitutional rights of the accused. Yet,
the deceivingly favorable ballot language and improper bundling in Amendment 6
hides this reality from voters.
Thus, I agree with the circuit court that the ballot language for Amendment 6
is “misleading, not a fair and accurate summary and do[es] not provide voters with
the truth in packaging to which they are entitled.” Final J. at 10. In other words,
the ballot language for Amendment 6 does not “enable [each voter] intelligently to
cast his ballot,” Armstrong v. Harris, 773 So. 2d 7, 13 (Fla. 2000) (quoting Askew,
421 So. 2d at 155), and should have been stricken from the ballot.
Accordingly, I dissent.
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QUINCE, J., concurs.
Certified Judgments of Trial Courts in and for Leon County – Karen Gievers,
Judge - Case Nos. 372018CA001525XXXXXX and 372018CA001740XXXXXX
– An Appeal from the District Court of Appeal, First District, Case Nos.
1D18-3644 and 1D18-3643
Pamela Jo Bondi, Attorney General, Karen A. Brodeen, Senior Assistant Attorney
General, Amit Agarwal, Solicitor General, Edward M. Wenger, Chief Deputy
Solicitor General, and Jordan E. Pratt, Deputy Solicitor General, Tallahassee,
Florida,
for Appellant Department of State and Secretary of State
Barry Richard of Greenberg Traurig, P.A., Tallahassee, Florida,
for Appellant Marsy’s Law for Florida, LLC
Mark Herron and S. Denay Brown of Messer Caparello, P.A., Tallahassee, Florida,
for Appellees Lee Hollander, Patricia Brigham, and the League of Women
Voters of Florida, Inc.
Harvey J. Sepler of Rimon, P.C., Coral Gables, Florida,
for Appellee Amy Knowles
Philip J. Padovano and Thomas J. Seider of Brannock & Humphries, on behalf of
The Criminal Law Section of The Florida Bar, Tallahassee, Florida,
for Amicus Curiae The Criminal Law Section of The Florida Bar
Justin F. Karpf and Barbara J. Busharis, Assistant Public Defenders, Second
Judicial Circuit, on behalf of The Florida Public Defenders Association,
Tallahassee, Florida; Michael Ufferman of Michael Ufferman Law Firm, P.A., on
behalf of Florida Association of Criminal Defense Lawyers, Tallahassee Florida;
Seth Miller, on behalf of Innocence Project of Florida, Inc., Tallahassee, Florida;
Nancy Abudu and Kara Gross, on behalf of American Civil Liberties Foundation
of Florida, Miami, Florida,
- 31 -
for Amici Curiae The Florida Public Defender Association, The Florida
Association of Criminal Defense Lawyers, The Innocence Project of Florida,
and the American Civil Liberties Foundation of Florida
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