by Roberto Martinez, William J. Schifino, Jr., and William N. Spicola
Amendment 6 comprises three proposals that have to do with the judicial branch, though each is distinct from the others.
The first proposal significantly expands victims’ rights in the criminal justice system. Currently Fla. Const. art. I, §16(b), prescribes the rights of victims:
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.
If Amendment 6 passes, victims would be afforded the following constitutional rights, some of which are current statutory rights afforded to victims:
• The right to due process and the right to be treated with fairness and respect;
• The right to be free from intimidation, harassment, and abuse;
• The right to be reasonably protected from the accused and anyone acting on behalf of the accused;
• The right to have their welfare and their family’s welfare considered when the accused’s bail is set, including the right to have courts consider pretrial release conditions that would protect the safety and welfare of the victim and the victim’s family;
• The right to prevent the disclosure of information about victims or their families;
• The right to notice and to be informed about all stages of the criminal process regarding the defendant, including trials, pleas, sentencing, adjudication, release, escape, restitution, clemency, expungement, and parole;
• Victims would have the right to be heard at each stage of the defendant’s sentencing or potential release and to participate in pre-sentence reports and get copies of those reports;
• The right to prompt return of their property, the right to have the proceedings completed without unreasonable delay, and the right to get full and timely restitution; and
• The right to be informed of these rights and seek the advice of counsel regarding them.
Notably, Fla. Const. art. I, §16, currently states victims’ rights shall not interfere with the constitutional rights of the accused, but that language would be eliminated under Amendment 6, although the constitutional rights of the accused are still guaranteed by the Fifth and 14th amendments to the U.S. Constitution.
This proposal would also mandate that all state-level appeals and collateral attacks on any judgment be completed within two years from the date of appeal in noncapital cases and within five years from the date of appeal in capital cases. If those deadlines cannot be met, the court must enter an order specifying why. The proposal also requires courts to report to the speaker of the House of Representatives and the president of the Senate all cases in which the court entered an order saying the deadline could not be met.
The proposal specifies that it is self-executing and requires no implementing legislation. Without implementing legislation, it would be up to the judiciary to determine what constitutes “an unreasonable delay” or what is meant by a “prompt” conclusion of the case or “prompt” return of property. Some believe the requirements of this revision would unduly burden the judicial system.
Judicial Deference to Agency Interpretation
The second proposal abolishes the doctrine of judicial deference to administrative agencies. Fla. Const. art. II, §3 (Branches of Government), has an express separation of powers provision: “No person belonging to one branch [of the government] shall exercise any powers appertaining to either of the other branches unless expressly provided herein.” Under this provision, “the judiciary is a coequal branch of the Florida government vested with the sole authority to exercise the judicial power.”1
In 1952, the Florida Supreme Court established the doctrine of judicial deference.2 The doctrine holds that an interpretation of a statute by an agency charged with its administration is due great weight by the court and will not be overturned unless clearly erroneous. The rationale for the doctrine appeared to be that an agency had greater familiarity with the application of the statute than did a court, which presumably visited the statute only when lawsuits arose over it.
The effect of this doctrine is to allow the executive branch to exercise the powers of the judiciary, thereby eroding the independence of the judiciary, by requiring a court to accept the agency’s interpretation of a state statute except under very limited circumstances. The doctrine also, in effect, announces before the proceeding even starts that the court will defer to one of the parties, and not just any party, but the most powerful of all parties — the government — as to what the law is.
This revision will add §21 to art. V (Judiciary). It prohibits any state court or administrative hearing officer from deferring to an administrative agency’s interpretation of a state statute or rule and instead requires the interpretation to be de novo, as a court is required to do when it reviews matters of law.
Mandatory Judicial Retirement
The genesis of the third section of Amendment 6, raising the mandatory retirement age for state court judges from 70 to 75, was recommended by The Florida Bar’s Judicial Nominating Procedures Committee. Many jokingly refer to this mandate as the “constitutional senility” provision.
In 1956, art. V was amended to state that all justices and judges shall automatically retire at age 70. In 1972, the Florida Constitution was again amended to state that no justice or judge shall serve after attaining the age of 70 years, except upon temporary assignment or to complete a term one-half of which has been served.
This proposal would raise the retirement age to 75 and also delete the exception allowing one to complete a term one-half of which has been served. It has been pointed out that if each judge retires on his or her 75th birthday, every judicial vacancy will be filled by appointment, not by election. But judges retain the option to retire before the last day the law allows.
Interestingly, in 1956 when the mandatory retirement age was set at 70, life expectancy was 69.7 years. Today, life expectancy is approaching 80. The ultimate objective of this proposal is to retain experienced and knowledgeable judges, keeping in mind that no other elected office has a mandatory retirement age.
And by requiring a hard stop on a judge’s 75th birthday, there is virtually no chance we will ever again be facing three Supreme Court justices retiring on the same day.
1 Bush v. Schiavo, 885 So. 2d 321, 331 (Fla. 2004).
2 Gay v. Canada Dry Bottling Co. of Florida, 59 So. 2d 788, 790 (Fla. 1952).
ROBERTO MARTÍNEZ served as a commissioner on the 2017-18 Constitution Revision Commission and is a widely recognized litigation attorney and partner at Colson Hicks Eidson. A former U.S. attorney for the Southern District of Florida, he has a record of active service in education, both in Miami-Dade County and on a state level, serving as vice chair and as a member of the State Board of Education for several years. He received his J.D. degree from the Georgetown University Law Center and a M.S. in accounting and B.S. in economics from the University of Pennsylvania, Wharton School of Business.
WILLIAM J. SCHIFINO, JR. was appointed by Florida Senate President Joe Negron to the Florida Constitution Revision Commission. He is managing partner of Burr & Forman’s Tampa office and is a board-certified specialist in the area of business litigation. He recently completed his term as president of The Florida Bar for 2016-2017. He is also on the board of trustees for the University of Florida Levin College of Law.
WILLIAM N. SPICOLA is a regulatory compliance attorney in Tallahassee. He served as general counsel to the CRC, Governor Rick Scott, and DBPR. His experience includes director of Alcoholic Beverages and Tobacco, Pari-Mutuel Wagering chief attorney, Office of Insurance Regulation senior attorney, and Second Judicial Circuit assistant state attorney.