Mark Eiglarsh, with The Law Offices of Mark Eiglarsh, and Melba V. Pearson, deputy director of the American Civil Liberties Union of Florida. Courtesy photos.

Miami lawyers have taken issue with a bundled amendment on the Florida ballot.

Along with a controversial proposal for victim’s rights, Amendment 6 also contains language that would raise the mandatory retirement age for Florida judges from 70 to 75. It would also assign responsibility to judges for determining if state agencies correctly interpreted the law.

Some in the Miami legal community say the three issues, bundled by the Florida Constitution Revision Commission, are totally unrelated.

Among those taking notes is Melba Pearson, deputy director for the ACLU of Florida, who says the amendment places voters in an unenviable position.

“Voters are forced to pick between the lesser of three evils,” Pearson said. “In our opinion, that’s completely wrong. Voters should be able to let their voices be heard on one topic.”


‘Not Opposed’ to Retirement Age Proposal

What’s Inside Amendment 6

    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 70 to 75;
    Deletes authorization to complete judicial term if half of term has been served by retirement age.

Pearson’s opposition to the amendment is shared by Miami-based criminal defense attorney Mark Eiglarsh.

“I’m opposed to it overall because of how it may interfere with my client’s rights, but I’m not opposed with raising the retirement age,” Eiglarsh said. “There are way too many phenomenal judges who are serving this community at 70. They shouldn’t be forced to retire when they could still be of tremendous service to the community. As the average life expectancy increases, so should the age of retirement.”

Despite enthusiasm for separate parts of the amendment, both Pearson and Eiglarsh are opposed to it overall.

The victim’s rights portion of Amendment 6 is the latest iteration in a spate of similar proposals to appear on state ballots in recent years. Modeled after the California Victims Bill Act of 2008, Amendment 6 is said to empower crime victims by enshrining their right to be heard at public trial. The proposal also contains language protecting victims from harassment and intimidation in addition to empowering them to demand speedy trials.

Pearson says the amendment is not only redundant to pre-existing protections in the Florida Constitution, but if passed, it would serve to create several legal headaches.

“The Florida Constitution in Article 1 provides victims three things. It provides them the right to be heard, the right to be informed and the right to be present at all stages of a criminal proceeding,” Pearson told the Daily Business Review, adding that Florida is ahead of most states with regards to legal protections for victims.

According to Pearson, who served as a Miami-Dade prosecutor for 16 years, the passage of Amendment 6 would erode pre-existing protections for those accused of a crime.

“There is already a provision in our constitution where it says victims have rights to the extent that it does not erode or infringe on the rights of the defendant,” she said. “That provision would be struck as part of Amendment 6.”

Eiglarsh echoed several of Pearson’s fears.

“My greatest concern with Amendment 6 is that it would delete language from the Florida Constitution that currently guarantees that the constitutional rights of the accused shall not be interfered with,” he said. “While I have always been a staunch supporter of victim’s rights, I don’t believe it should ever be at the expense of the rights of the accused to obtain due process.”


State Attorney Endorsement

But proponents disagree. They argue that the amendment would enable victims to have a more active role in the legal process heretofore denied to them.

The amendment is known as Marsy’s Law, named for victim’s rights donor and advocate Henry Nicholas’ sister who was murdered in 1983.

Among its high-level supporters is Miami-Dade State Attorney Katherine Fernandez Rundle, quoted in the Miami New Times as referring to the measure as “an opportunity for every Floridian to stand up to say that victims have rights and that they should be protected, they should be in our constitution.”

But both Pearson and Eiglarsh expressed reservations about the amendment’s planned changes to the speed of court proceedings.

“The proposed amendment reduces the amount of time in which you can file an appeal postconviction,” Pearson said. “It reduces it to two years for a noncapital, nondeath penalty case and five years for a death penalty case.”

This could have significant fallout, according to Pearson.

“Florida leads the country in exonerations from death row,” she said. ”We’ve had 27 exonerations. The majority of those people would’ve been wrongfully executed if this amendment was in place. Exonerating evidence doesn’t come out in year one. It comes out many years later. So if you cap it at five years you have someone who could be potentially wrongfully executed.”

Eiglarsh agreed the measure would leave defendants insufficient time to prepare for trial. And both litigators claim the amendment would add protections for corporations.

The official website for Amendment 6 lists Gov. Rick Scott, Attorney General Pam Bondi and gubernatorial candidate Ron DeSantis as supporters of the initiative.

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