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Does Marsy’s Law allow victims to participate in appeals?

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Florida flag mapWhether the 2018 Marsy’s Law constitutional amendment gave crime victims the right to be heard in criminal appeals was robustly debated during a procedural rule amendment case before the Supreme Court October 6.

At issue was proposed Rule of Appellate Procedure 9.143. As originally prepared by the Appellate Court Rules Committee, the new rule would allow victims to submit statements and present during appellate oral arguments.

The Florida Public Defender Association and Tallahassee attorney Robert Berry objected, saying Marsy’s Law did not create any right for victims to participate in appeals and the committee’s proposal was a substantive matter interpreting the amendment that should not be addressed in a rules case.

The committee then modified its proposal to include an alternative to allow victims to petition the involved appellate court to seek permission to participate — something still opposed by the public defenders.

This was the court’s second oral argument on procedural rules affected by Marsy’s Law. On June 2, it had a less contentious oral argument about proposed Rule of General Practice and Judicial Administration 2.423, which would govern Marsy’s Law applications for most court records.

“The majority of the [Appellate Rules] Committee consistently concluded that the amendment’s provision 16(b)(6)(B) providing that victims have a right to be heard in any public proceeding. . . and any proceeding during which the right of the victim is implicated as well as 16(b)(6)(G)’s right to be informed of all post-convictions processes and procedures and to participate in such processes and procedures must include appellate proceedings if those provisions’ plain language are to have any meaning at all,” said committee Vice Chair Keith Upson.

But he added if the court agrees with the commenters and a minority on the rules committee that Marsy’s Law does not create the right for victims to be involved in appeals, then the rule should wait for the law to be developed.

That prompted Chief Justice Charles Canady to ask a question about the committee’s modified rule proposal.

“This seems to be more or less a procedural framework for someone to raise a right they think they might have,” Canady said. “It’s not really settling whether there’s a right or not a right, but at least arguably there’s a right and if somebody seeks to assert it, this is recognizing how they ought to do it.”

“That’s exactly what we’re trying to do,” Upson replied. “With the proposed revision…we have tried to leave the interpretation of the limit and extent of such participation entirely with the judiciary.”

In response to a question from Justice John Couriel, Upson said the committee acted now rather than waiting for a case in controversy to determine the scope of Marsy’s Law because the majority of the committee thinks the language clearly allows victim participation in appeals.

John Morrison, representing the Florida Public Defenders Association, disagreed.

“This is a substantive issue,” he said. “….The amended proposal still says the victim may file a motion and then the question is not whether the victim may participate, the only question is the scope of the victim’s participation.”

In response to a question from Canady, Morrison said the proposed modified rule removes the argument against allowing a victim to file a motion, which at least decides the standing question.

Canady then asked if the court couldn’t make it clear in its eventual rule opinion that approval of the committee’s proposal should not be considered as giving any constitutional legitimacy to victim participation in appeals until the court had a substantive case.

But Morrison said lower courts might consider that a sign anyway.

“The response would be, ‘The Florida Supreme Court already said I may file a motion.’ That’s the language of the rule. The question then is the proposed scope of the victim’s participation,” Morrison said. “….You can say that in your opinion…don’t defer to it and they do.”

He also said the modified rule could lead to each district court of appeal and the Supreme Court establishing a different policy on victim participation.

Morrison also disagreed that the plain language of Marsy’s Law gives victims the right to participate in appeals. He said the only part of the amendment that specifically mentioned the appellate process was a requirement that non-capital appeals be completed within two years.

“The drafters of this constitutional amendment clearly thought about appeals. They knew how to include language about appeals and they deliberately didn’t,” Morrison said.

Noting an earlier question from Justice Ricky Polston on whether victims should be allowed to file an amicus curiae, Morrison said that is in current rules and that would allow a case to naturally reach the court to decide the substantive issues, which then could be incorporated in a rule.

In its brief, the public defenders said the original rule proposed by the committee would cause several problems. The allowed victim statement would essentially be another brief in the case, the association said, raising questions about when it should be filed and if and when the defendant and state had a right to reply. And allowing the victim to make a statement at oral argument would raise similar issues.

Likewise, allowing the victim to submit additional documents might lead to filing information that is not properly part of the appellate record, the FPDA said.

The arguments over the appellate rule came after the court, on June 2, considered the proposed Rule of General Practice and Judicial Administration 2.423.

The rule was supported by the RGPJA Committee and, with a couple small exceptions, by the Florida Court Clerks & Comptrollers. It provides that local law enforcement agencies, when they file the initial criminal charges, will indicate whether the victim wishes to invoke Marsy’s Law protections.

Michael Schmid, representing the RGPJAC and who chaired a special joint subcommittee that drafted the rule, said the rule will bring uniformity to Marsy’s Law practices by law enforcement statewide.

“Right now we have no uniformity, different judicial circuits treat this information differently,” Schmid said. “….It depends on every single circuit how this filing information was treated. Thus, the system is not uniform and victims in one circuit are being treated differently from victims in another circuit.”

Canady asked about provision 5(b) in the Marsy’s Law constitutional amendment about whether crime victim information is automatically protected by the amendment unless the victims opt out, or whether victims must specifically opt in to be covered.

Schmid said that is a substantive legal issue that must be resolved by the courts, not a rules committee, and the subcommittee’s solution was to have law enforcement give the victim’s choice on the initial filing documents.

Canady asked if that weren’t actually deciding the issue since the tendency would be to check that the victim was seeking Marsy’s Law protections, making it an automatic right.

“We believe each circuit can make that determination,” Schmid said. “….It is structured in a way that each judicial circuit’s law enforcement agencies can make that determination and choose to opt in and automatically check the box…when filing that information, initially letting the clerks know that there is confidential information.”

Mark Caramanica, representing a coalition of news organizations, asked that the initial charging agencies file both a redacted and unredacted charging document so the redacted document could be released more quickly to the public and press.

But Schmid said that would require more work by law enforcement and Volusia County Clerk of Court Laura Roth, representing the Florida Court Clerks & Comptrollers, said that would slow down the process. Most charging documents, she said, are a page or two and can quickly be redacted. But if clerks get two separate documents for the same case, they will carefully check to make sure all the information is identical on both documents, which will take longer than a simple redaction.

Roth said clerks support the proposed Rule 2.423 but want one small addition. She said clerks anticipated by the time the rule was adopted an upcoming statewide uniform arrest affidavit would be ready and it would include a box for filers to indicate whether crime victims were seeking Marsy’s Law privacy protections.

But that standard form, which will also allow for electronic filing of the affidavits, isn’t finished yet. Roth said clerks want whatever forms are used to prominently disclose whether the victim is opting into Marsy’s Law.

While the rule requires that initial criminal filings only indicate whether the victim is seeking Marsy’s Law protections, subsequent filings, under Rule 2.420, must include a notice that the filing contains confidential information and give the location of that information in the filing.

The arguments came in In re: Amendments to Florida Rule of Appellate Procedure 9.143, Case No. SC20-1129 and In re: Amendments to Florida Rule of Judicial Administration 2.423, Case No. SC20-1128.

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