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December 10, 2018

Florida Law

Florida's constitutional amendments are a mixed bag

The Constitution Revision Commission, which meets every 20 years, has proposed eight constitutional amendments — many combining multiple measures. Five single-topic proposals from the Legislature or citizens were already slated for the ballot.

Jason Garcia | 6/28/2018

The Constitution Revision Commission, which meets every 20 years, has proposed eight constitutional amendments — many combining multiple measures. Five single-topic proposals from the Legislature or citizens were already slated for the ballot.

Technically, the Constitution Revision Commission, which wrapped up more than a year of work in May, put eight amendments on the November ballot.

But in reality, the panel, which is convened once every 20 years, crammed 18 measures on the ballot. It just chose to stuff many of them into single, take-it-or-leave-it questions. “There’s a bunch of log-rolling here,” says Ken Bell, a former Florida Supreme Court justice who is now a partner at Gunster.

Commission members, appointed by the governor, legislative leaders and the chief justice of the Supreme Court, say they chose to “group” ideas together — even wildly disparate ones, like an amendment that pairs banning oil drilling with banning vaping — in order to avoid creating an excessively long ballot that could have dissuaded many people from voting at all.

But a lot of the bundled measures conveniently pair a handful of broadly popular issues with something far more controversial, suggesting that the real goal was to find ways to sweeten the pot for voters. “I think that’s precisely what happened,” Bell says. “I think that’s probably the result of the appointment process. Prior constitution revision commissions had more people with legal expertise and experience in constitutional law. Here, it was really more composed of politically active people.”

Here’s a closer look at the commission’s work:

Amendments 6-13 originate from the Constitution Revision Commission.

  NO. 6

Rights of Crime Victims; Judges

Proposal

This amendment bundles three separate measures into one. The first would cement into the constitution a series of rights for people who are the victims of crimes. It’s part of a national campaign led by victims’ rights advocates who are pushing similar measures in other states. Among its guarantees is the right for victims to attend trials or any other public proceedings and to testify at pretrial release, sentencing or parole hearings. The second measure would raise the retirement age for judges from 70 to 75 but require them to step down immediately upon reaching that age rather than allowing them to complete their terms. And the third measure would forbid courts from deferring to a state agency’s interpretation when considering a challenge to a law or rule if the Legislature hasn’t spoken directly to the precise issue at hand. It’s a legal principle that courts have been following for years. It’s known as the “Chevron defense,” after a 1984 U.S. Supreme Court case involving the oil company.

Pro and Con

The victims’ rights movement was born out of the idea that courts have swung too far toward protecting the rights of criminal defendants and that victims deserve to have a stronger voice in the prosecution of their perpetrators. But some legal scholars and defense attorneys argue that giving victims a greater role in criminal proceedings turns them into emotional rather than legal proceedings — the modernday equivalent of public hangings — that interfere with the rights of defendants to fair trials. The strongest argument in favor of the changes to judicial retirement ages is that it would ultimately avoid situations where multiple judges on a single court have to step down at the same time — as will be the case when the terms of three Florida Supreme Court justices expire simultaneously. And critics of the Chevron defense have long argued that it has increased the power of unelected bureaucrats, while defenders argue that agencies have technical expertise in the fields they are regulating and thus are best suited to interpret laws and make policy decisions when there isn’t explicit legislative direction.

Political Context

The victims’ right measure was a priority for Gov. Rick Scott, who is running for U.S. Senate against incumbent Democrat Bill Nelson. Scott publicly embraced the idea a few weeks after the Feb. 14 mass shooting at Marjory Stoneman Douglas High School in Broward County. Meanwhile, many conservative legal scholars and free-market evangelists — including, most prominently, U.S. Supreme Court Justice Neil Gorsuch — have been itching to overturn the Chevron defense for years, claiming that it has contributed to the expansion of an innovationsquelching “administrative state.” And the commission, perhaps wary of sinking the whole package in controversy, wrote the amendment so that the judicial retirement changes won’t take effect until July 1 of next year — meaning it won’t have any effect on the looming Florida Supreme Court battle, in which Justices Barbara Pariente, Fred Lewis and Peggy Quince will have to retire on the same day in January that term limits force Scott out of the governor’s mansion.

  NO. 7

First Responder and Military Member Survivor Benefits; Public Colleges and Universities

Proposal

This proposed amendment collapses three vaguely related ideas into one. One measure would ensure death benefits are paid out to first responders and members of the Florida National Guard who are accidentally or illegally killed on the job and orders the state to waive “certain educational expenses” for their children who pursue career certificates or higher education. Another would make it harder for universities to impose or raise fees on students by requiring at least nine votes to do so from a university’s board of trustees and at least 12 votes from the Board of Governors. The third would establish the Florida College System within the constitution alongside K-12 and State University System.

Pro and Con

Everybody supports first responders and the military. But while making it harder for universities to raise fees should help with college affordability, it will also limit the schools’ ability to raise money and invest in things like new facilities and faculty recruitment. And establishing the state college system in the constitution affirms that each college should be governed by a local district board of trustees and provides for statewide oversight by the state Board of Education as provided by Florida statutes. College advocates say the measure is designed to cement the current system of governance in place similar to the constitutional governance authority given the K-12 and the State University System.

Political Context

The university fee restriction is another nod to Scott, who has battled with colleges and universities for years over tuition and fees and who has pressed a package of anti-tax constitutional amendments this year to coincide with his run for Senate. The death benefits for first responders and National Guard members were included to get it all passed.

Tags: Politics & Law, Government/Politics & Law

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