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The Florida Bar Journal
February, 2014 Volume 88, No. 2

Page 6

Jury Instructions
In “Broadening Horizons: The Unnecessary Limitations of Florida’s Collateral Crimes Jury Instructions” (Dec. 2013), the authors suggest that Criminal Jury Instructions 2.4 and 3.8(a) be updated to more accurately reflect F.S. §90.404(2).

You may want to note to your readers that the Standard Jury Instruction Committee in Criminal Cases already did so via a report filed with the Florida Supreme Court in October 2012 and that the Florida Supreme Court has authorized the Committee’s proposal for publication and use in SC12-2031.

Judge Joseph A. Bulone, Clearwater
Chair, Standard Jury Instructions Committee in Criminal Cases

Wards and Guns
In response to “Grandparents, Guns, and Guardianship: Incapacity and the Right to Bear Arms” (Dec. 2013): “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.” Justice Jackson, West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943).

A “ward” does not lose any other right guaranteed by the Bill of Rights in the Constitution. E.g., they don’t lose their freedom of religion; they don’t lose their right to be secure in their papers and effects from search without a warrant; they don’t lose the right to an attorney or to confront their accuser. In fact, the current Florida law guarantees these rights, explicitly.

They don’t lose their right to a speedy trial, or to not be forced to self-incriminate. They don’t lose their right to be compensated for property seized by eminent domain, and so on.

These rights belong to individuals, not to the collective. Nowhere does it say that the Bill of Rights is conditional on not being wards of a guardian.

So where does it say that they lose their Second Amendment rights because they have a guardian? Not in the U.S. Constitution. Not in the Florida Constitution.

While exceptions have been made for people convicted of felonies or domestic violence, or commitment to a mental institution, there are many “wards” that are perfectly capable of responsibly exercising their Second Amendment rights who are NOT mentally unstable. Where does it say that they forfeit ANY of the rights guaranteed in the Bill of Rights?

Any such amendment to the guardianship laws to mandatorily restrict their right to keep and bear arms is unconstitutional.

Caroline S. A. Zoes, Brooksville

I write to inform you of a minor error on page 48 (first full paragraph) of The Florida Bar Journal (Dec. 2013): “The Second Amendment, included in the Florida Constitution by operation of the Privileges and Immunities Clause of the 14th Amendment [of the U.S. Constitution]….”

The clause, however, merely made the Bill of Rights applicable to the states (and not just the federal government). It has no relation whatsoever to state constitutions, other than the obvious limitation that they cannot be inconsistent with the U.S. Constitution.

J. Marcos Martinez, Ft. Lauderdale

Justice for All?
The present Florida Bar president, Eugene K. Pettis, has now made it clear that he is not talking or writing to me when he addresses the issues of importance to this organization. My sense of justice, and certainly of the judges sworn to uphold the law in Florida, appears to differ markedly from his vision in “The Inter-connectivity of Justice” (Dec. 2013).

How so? President Pettis suggests that since Florida Bar members were elementary students, it has been ingrained in us to pledge allegiance to “One nation, under God, indivisible, with liberty and justice for all.” In fact, I was completing my junior year at the University of Wisconsin in Madison, when the U.S. Congress amended the pledge to add the phrase “under God” in 1954. For the first generation or so, of my life, it was ingrained in me that we were a secular nation, where the law would apply to all, even those of us who believe that theology should be separate from matters of the state.

President Pettis then goes on to imagine a poll and its certain results: “[A]n overwhelming majority...irrespective of party affiliation, economic class, or religion,” would support “fair and impartial courts that are accessible to all.” Significantly, he avoids the issue of race, and the meaning of “all.”

President Pettis apparently believes those glittering generalities about fair, impartial, and accessible mean the same things to each of us. They do not. President Pettis then claims “our founding fathers, during the founding of this great country (recognized) that an effective and respected court system was essential to sustain a true democracy.” At the foreign law school where I received my legal education, that is, New York University School of Law, I never got that message. In fact, I learned that nothing in the U.S. Constitution gave any court or legal system the right to review legislation that is the work of the legislative and executive branches of government. Such a concept did not begin to take hold until the U.S. Supreme Court decision in Marbury v. Madison, 5 U.S. 837 (1803).

Further, in the legal training I received, apparently on another planet, I was taught to believe that the wisdom of the founding fathers, which generally applied to the federal government, had been modified significantly by the Civil Rights Amendments, that is, the 13th, 14th, and 15th, and such civil rights laws as 42 U.S.C. §1983, so that by the 20th century, U.S. constitutional provisions could be applied to restrict state actions, including discrimination under color of state law.

This Bar member concedes that Florida may not have that interpretation of the U.S. Supreme Court and the deference each state is supposed to show the supreme law of the land.

For instance, Florida apparently has followed a system which no longer recognizes civil rights laws at all. No continuing legal education is provided about them. No civil rights practitioner is entitled to certification for his or her knowledge or expertise.

President Pettis and I also fundamentally differ about the population to be served by our legal system. He writes: “In Florida, our judicial system is designed to insure fair and impartial courts, representative of all Floridians.”

I admit I have lived in Florida for the last 28 years of my life. But I have never regarded myself as a “Floridian.” I continue to practice law as an American. Apparently, that is my mistake. I will continue to make it as long as I can. No wonder then that three U.S. Supreme Court justices in 2000 decided that several of their brethren believed that the Florida state court system no longer could be trusted. Homilies by The Florida Bar president do not fill in the gaps for me.

Gabe Kaimowitz, Gainesville

[Revised: 01-28-2014]