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1 STATE OF FLORIDA
CONSTITUTION REVISION COMMISSION
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COMMISSION MEETING
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DATE: January 27, 1998
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TIME: Commenced at 9:00 a.m.
11 Concluded at 5:00 p.m.
12 PLACE: The Senate Chamber
The Capitol
13 Tallahassee, Florida
14 REPORTED BY: KRISTEN L. BENTLEY
JULIE L. DOHERTY, RPR
15 MONA L. WHIDDON
Court Reporters
16 Division of Administrative Hearings
The DeSoto Building
17 1230 Apalachee Parkway
Tallahassee, Florida
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1 APPEARANCES
2 W. DEXTER DOUGLASS, CHAIRMAN
3 CARLOS ALFONSO
CLARENCE E. ANTHONY
4 ANTONIO L. ARGIZ (ABSENT)
JUDGE THOMAS H. BARKDULL, JR.
5 MARTHA WALTERS BARNETT
PAT BARTON
6 ROBERT M. BROCHIN
THE HONORABLE ROBERT A. BUTTERWORTH (A.M. ONLY)
7 KEN CONNOR (EXCUSED)
CHRIS CORR
8 SENATOR ANDER CRENSHAW
VALERIE EVANS
9 MARILYN EVANS-JONES
BARBARA WILLIAMS FORD-COATES
10 ELLEN CATSMAN FREIDIN
PAUL HAWKES (A.M. ONLY)
11 WILLIAM CLAY HENDERSON
THE HONORABLE TONI JENNINGS
12 THE HONORABLE GERALD KOGAN (EXCUSED)
DICK LANGLEY (ABSENT)
13 JOHN F. LOWNDES
STANLEY MARSHALL
14 JACINTA MATHIS
JON LESTER MILLS
15 FRANK MORSANI
ROBERT LOWRY NABORS
16 CARLOS PLANAS (EXCUSED)
JUDITH BYRNE RILEY
17 KATHERINE FERNANDEZ RUNDLE
SENATOR JIM SCOTT
18 H. T. SMITH
ALAN C. SUNDBERG
19 JAMES HAROLD THOMPSON
PAUL WEST
20 JUDGE GERALD T. WETHERINGTON
STEPHEN NEAL ZACK
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IRA H. LEESFIELD (ABSENT)
22 LYRA BLIZZARD LOGAN (ABSENT)
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1 PROCEEDINGS
2 SECRETARY BLANTON: All unauthorized visitors, please
3 leave the chambers. All commissioners indicate your
4 presence. All commissioners indicate your presence.
5 CHAIRMAN DOUGLASS: We have a fair quorum. If you
6 could get everybody into the chamber.
7 SECRETARY BLANTON: All commissioners indicate your
8 presence. Quorum call. Quorum call. All commissioners
9 indicate your presence.
10 (Quorum taken and recorded electronically.)
11 SECRETARY BLANTON: Quorum present, Mr. Chairman.
12 CHAIRMAN DOUGLASS: All right. We'll come to order,
13 please, Commissioners. Okay. If everybody would take
14 their seats, we are going to get underway.
15 SECRETARY BLANTON: All unauthorized visitors, please
16 leave the chamber. All commissioners indicate your
17 presence.
18 CHAIRMAN DOUGLASS: If you haven't signed in, sign
19 in. All right, if everybody will take their seats, we
20 will begin our session this morning. Before we start, let
21 me say how happy and pleased we are that Commissioner
22 Sundberg is back with us. And also, Commissioner
23 Sundberg, you need to know that everybody in this group
24 has prayed for you and your family and we are just
25 grieving with you.
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1 But we are also delighted to have you back and know
2 that as you get into this work, this will help some to
3 relieve a lot of what you have gone through. That's not
4 to say that what you will have happen to you here is bad,
5 but it is time-consuming and interesting. But I think all
6 of us want you to know that we are and were with you
7 during your time of trial and we are glad that you are
8 back.
9 COMMISSIONER SUNDBERG: Thank you, Mr. Chairman.
10 CHAIRMAN DOUGLASS: So, if you would all rise, I will
11 ask Reverend Candice McKibben, the singles minister of
12 East Hill Baptist Church in Tallahassee to give the
13 opening prayer. Reverend McKibben.
14 REVEREND: Would you join your heart with mine in
15 prayer. Dear God, our creator, our parent ruler of the
16 universe, remind us that there is a power beyond our own
17 power on which we may rely when called upon to make
18 critical judgments that affect many lives, not only today
19 but in the years and decades ahead.
20 Father, grant wisdom, discernment, compassion and a
21 sense of justice to these who review the Constitution of
22 this great state. Grant each a clarity of thought and
23 expression so that communication is open and purposeful.
24 May the revisions made, O God, uphold goodness and
25 truth and the welfare of all who call themselves
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1 Floridians. Amen.
2 CHAIRMAN DOUGLASS: From Nims Middle School here in
3 Tallahassee, as I call your names, if you would come
4 forward and stand in front here and then you can lead us
5 in the pledge. Alfred Scruggs, Jamichael James, Sherry
6 Bass, Amber Gordon, Matt Rogers, Cassie Willis, Rebecca
7 Lambright. Just spread across the front there. Shalanda
8 Johnson, Kiara Wesley and Gracie Mosely. We are delighted
9 to have these young people to lead us this morning. If
10 you will turn and face the flag and lead us in the Pledge
11 of Allegiance please.
12 (Pledge of Allegiance.)
13 CHAIRMAN DOUGLASS: These young men and women will be
14 our pages today. So, remember you have a page button when
15 you need a Coke or a glass of water or to send a note,
16 they are available to work for you and we are delighted to
17 have them. We'll now proceed to the daily order of
18 business and I'll recognize the chairman of -- rules
19 chair, Commissioner Barkdull.
20 COMMISSIONER BARKDULL: Thank you, Mr. Chairman.
21 Members of the Commission, you have on your desk a yellow
22 packet which has proposals and explanations by the staff.
23 This will follow the purple packet we had yesterday. And
24 if you want to mark on your calendar where the break
25 occurs, it is on Page 5 on the right-hand side above
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1 Proposal No. 169 commences the yellow packet. Until we
2 reach that area, we will be using the purple-covered one
3 that we used yesterday.
4 CHAIRMAN DOUGLASS: Commissioner Barkdull, my packet
5 has Proposal 148 as the first one in the yellow packet.
6 COMMISSIONER BARKDULL: I'm following the
7 instructions of the director. I see that the packet says
8 148, and I'll find it in the appropriate place on the
9 calendar. The schedule for this week is on your desk on
10 the front page of the calendar, and you will note that we
11 have committee meetings tonight, finance and tax in the
12 entrance lobby, select committee on initiatives in Room
13 301 tomorrow morning. Tomorrow morning, 8:00 a.m., style
14 and drafting in 309. Noon tomorrow, select committee on
15 sovereign immunity in Room 309.
16 You will receive, during the course of today, a block
17 calendar which indicates the public meetings, this type --
18 which indicates a change from the original one, as I
19 indicated yesterday, that backs up a hearing from a Friday
20 to a Thursday in St. Petersburg.
21 You will also receive, or it's on the back of this,
22 is your hotel information that has the hotels that the
23 block of rooms have been reserved in and the appropriate
24 number to call for reservations. A copy of this is also
25 being sent to your home office.
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1 Please note that on these hotel reservations, because
2 of the season, they are only going to be held to about --
3 one of them is February the 13th, the other one is
4 February the 11th. So, if you are going to plan to attend
5 the public hearings, you need to get your reservations
6 made and that will be our individual responsibilities to
7 do it.
8 CHAIRMAN DOUGLASS: Commissioner Barkdull, it is my
9 understanding, the Windham in Fort Lauderdale, if we don't
10 do it by a certain date, there won't be any there, it is
11 very hard to make reservations.
12 COMMISSIONER BARKDULL: That's what I just announced,
13 Mr. Chairman.
14 CHAIRMAN DOUGLASS: That one is particularly
15 difficult, the other one is not.
16 COMMISSIONER BARKDULL: Well, both of them have got
17 deadlines.
18 CHAIRMAN DOUGLASS: Correct.
19 COMMISSIONER BARKDULL: That's it, Mr. Chairman. And
20 I remind people, some people have mentioned to me, they
21 want to withdraw proposals. They can do it at the end of
22 the calendar or when we reach them today in the calendar,
23 they can announce that they wish to withdraw them. That
24 concludes the report of the rules committee.
25 CHAIRMAN DOUGLASS: Commissioner Barton, you rise.
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1 COMMISSIONER BARTON: Mr. Chairman, I had a question
2 relative to the public meetings. Do we know the times
3 those will be held because that might make a difference
4 whether somebody needed a hotel reservation or not.
5 COMMISSIONER BARKDULL: I assume that they will start
6 at 9:00 in the morning.
7 CHAIRMAN DOUGLASS: I think one of them starts in the
8 afternoon, I believe the one here.
9 COMMISSIONER BARKDULL: I'm talking about the ones
10 other than the one here. Which I assume the one here will
11 be the afternoon before a session of some type.
12 CHAIRMAN DOUGLASS: That's correct.
13 COMMISSIONER BARKDULL: The other two, the one in St.
14 Pete and the one in Fort Lauderdale will be at 9:00 in the
15 morning.
16 COMMISSIONER BARTON: My other question is, what
17 would be the order -- or the discussion subjects that we
18 would be covering?
19 COMMISSIONER BARKDULL: I can't tell you at this
20 point. I think that the committee and the Chair will work
21 that out after the style and drafting committee begins to
22 put some of these proposals together. If that's not
23 possible to be availed, well then we will have to make a
24 selective of topics because we certainly will be expected
25 to have a freewheeling public hearing such as we have had
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1 in the past.
2 I think it is the Chair's thought that as we get --
3 for instance, merit retention for trial judges, which we
4 have had, would have a pro and con speaker. If we go to
5 the reduced Cabinet, that would probably have a pro and
6 con speaker, and so forth, on certain items that were
7 thought to be of major concern of the citizens. It'll be
8 a structured public hearing.
9 CHAIRMAN DOUGLASS: Commissioner Morsani, you rose.
10 Oh, she answered your question. Commissioner Ford-Coates.
11 COMMISSIONER FORD-COATES: If I could ask a follow-up
12 question. Will there be a beginning and ending time
13 publicized on those hearings?
14 COMMISSIONER BARKDULL: We will have an ending time
15 publicized, certainly.
16 COMMISSIONER FORD-COATES: So we could get that as
17 soon as possible I would hope. Also, the comment on the
18 public hearing in Tallahassee would probably start in the
19 afternoon; according to this calendar, we are not
20 scheduled for any kind of session the day after the public
21 hearing in Tallahassee. We are scheduled the following
22 weekend.
23 CHAIRMAN DOUGLASS: That may be changed.
24 COMMISSIONER BARKDULL: Tallahassee can be adjusted.
25 COMMISSIONER FORD-COATES: I would just reiterate,
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1 you know, as soon as possible is helpful because many of
2 us are trying to make commitments for March and would like
3 to finalize that. Thank you.
4 CHAIRMAN DOUGLASS: Any further questions of
5 Commissioner Barkdull? Okay. We have a matter on
6 reconsideration, the matter that we had yesterday,
7 Proposal 168. Commissioner Barkdull.
8 COMMISSIONER BARKDULL: Corr's proposal from the last
9 day, not yesterday.
10 CHAIRMAN DOUGLASS: All right. The director asked us
11 to TP for a minute. Commissioner Corr just arrived and
12 they are getting a copy to pass out. So, we'll move to
13 the special order, Proposal 105 by Commissioner Planas,
14 and I see he's been unable to get here today either. What
15 is the recommendation of the rules committee on Proposal
16 105? Commissioner Barkdull.
17 COMMISSIONER BARKDULL: I know you excused him
18 yesterday for medical reasons, I assume that carries over.
19 CHAIRMAN DOUGLASS: Same reason today.
20 COMMISSIONER CONNOR: Yes, I talked with him
21 yesterday and I understand his appointment was actually
22 going to be today.
23 COMMISSIONER BARKDULL: He is going to be here?
24 COMMISSIONER CONNOR: No, sir, his appointment, as I
25 understand, medical appointment, was going to be today.
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1 CHAIRMAN DOUGLASS: Commissioner, did he tell you
2 whether or not he wanted us to go ahead and consider this
3 or did he want us to wait on it?
4 COMMISSIONER CONNOR: I'm sorry, he did not indicate
5 that. We didn't discuss that, we just talked about his
6 situation.
7 CHAIRMAN DOUGLASS: Is he in reasonably good shape
8 you think?
9 COMMISSIONER CONNOR: I just know that he has
10 complaints and he's having them investigated is all I
11 really know.
12 CHAIRMAN DOUGLASS: Commissioner Barkdull, what is
13 your recommendation?
14 COMMISSIONER BARKDULL: I recommend that we take them
15 up as we come to them.
16 CHAIRMAN DOUGLASS: All right. Proposal 105 was
17 referred to the committee on legislative and withdrawn for
18 lack of quorum. I think it was probably discussed there.
19 Would you read Proposal 105, please?
20 READING CLERK: Proposal 105, a proposal to revise
21 Article III, Section 15, Florida Constitution, and Article
22 VI, Section 4, Florida Constitution, increasing the term
23 of office of State Representatives and State Senators,
24 increasing the number of years such officers may serve.
25 CHAIRMAN DOUGLASS: All right. Would someone on the
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1 legislative committee care to explain this? Commissioner
2 Thompson.
3 COMMISSIONER THOMPSON: Sorry, I'm not really
4 prepared to do that at this point. Let me be sure. We
5 discussed this a couple of times and had a potential
6 amendment. Debbie, did we have a potential -- now, wait,
7 you are not staff on that committee. We had a potential
8 amendment, and what it boiled down to is, we were
9 recommending to Commissioner Planas to change his proposal
10 to allow 12 years of membership in each house of the
11 Legislature, and I don't think this does that.
12 CHAIRMAN DOUGLASS: The title does not. I am
13 looking. I think you are right.
14 COMMISSIONER THOMPSON: And I think he had a
15 potential amendment. I just don't think we ought to take
16 this up without him being here.
17 CHAIRMAN DOUGLASS: Do you move to TP it, temporarily
18 pass it?
19 COMMISSIONER THOMPSON: Yes, let's do that.
20 CHAIRMAN DOUGLASS: Okay. Without objection, it will
21 be temporarily passed. And we may take it up as soon as
22 possible. I think this is one we are all pretty well
23 ready to debate. All right. The next proposal is
24 committee substitute for Proposal 170 by the committee on
25 executive and Commissioner Mills, recommended as a
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1 committee substitute and disapproved by the committee on
2 executive. Would you read it, please?
3 READING CLERK: Committee substitute for Proposal No.
4 170. Proposal to create Article IV, Section 14, Florida
5 Constitution; providing for the establishment of a
6 citizen's advocate to be appointed by the Governor to aid
7 the public in obtaining redress of grievances arising from
8 administrative actions of state agencies or local
9 governments.
10 CHAIRMAN DOUGLASS: All right. Commissioner Mills,
11 you are recognized.
12 COMMISSIONER MILLS: Mr. Chairman, this proposal is
13 both derived from several, specific suggestions we have
14 heard and the general context that the citizens in this
15 state are concerned about access to government, being able
16 to deal with bureaucracy, but not only that, this concept
17 of a citizen advocate or really, in some cases, you would
18 call it an ombudsman, is well tested both in the private
19 sector and the public sector in higher education.
20 And not only is it a way to help citizens solve
21 problems, it is a way to improve the management of the
22 system. What is an effective citizens' advocate or
23 ombudsman will collect data on those agencies about which
24 citizens complain and provide management data to, in some
25 cases, corporations, in this case, government, to improve
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1 its performance.
2 Are there other citizens' advocates anywhere in
3 Constitutions? No. Are there citizens' advocates in
4 statutes? A lot. My position is that it would augment
5 the status of the citizens' advocate position in Florida
6 by making it constitutional, by making it appointed by the
7 Governor, and by allowing that individual to help
8 citizens.
9 We have said this is a big state. We have said this
10 is a bureaucracy. It's not going to get smaller. It
11 seems to me that this is an opportunity to simply provide
12 citizens with a way to get assistance. I think the
13 concern that I heard expressed in the committee by those
14 that did not favor it was, why put this in the
15 Constitution. Well, my answer to that is it elevates this
16 function to a status where it has to be recognized on a
17 continuing basis. And the function, to me, in terms of
18 both management and helping the average citizen through
19 their problems is one that deserves to be in the
20 Constitution.
21 Many of us and others have means to obtain help. You
22 can go to your Legislature, you can go to people you know.
23 The average citizen, in dealing with this bureaucracy,
24 does not have that kind of assistance. There is a
25 citizens' assistance office, I have sort of a 20-year
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1 history with this, the citizens' assistance office which
2 is made by statute exists in the Governor's Office. I
3 think it needs increased visibility. We don't need
4 duplication. So language added by the committee removed
5 that duplication. I would be glad to respond to any
6 questions.
7 CHAIRMAN DOUGLASS: First question is, if you are
8 repealing a statute, that shouldn't be in the
9 Constitution, should it? You have a statement in there,
10 the Office of Citizens' Assistance is hereby repealed.
11 Shouldn't that be in the --
12 COMMISSIONER MILLS: Schedule.
13 CHAIRMAN DOUGLASS: -- schedule, or somewhere other
14 than in the Constitution itself?
15 COMMISSIONER MILLS: It should be in the schedule.
16 CHAIRMAN DOUGLASS: Then you would leave that to
17 style and drafting?
18 COMMISSIONER MILLS: I would leave that to the
19 excellent style and drafting committee.
20 CHAIRMAN DOUGLASS: Of which you are chairman. All
21 right. Commissioner Henderson.
22 COMMISSIONER HENDERSON: Mr. Mills, if you will yield
23 for a question. Since yesterday we replaced the Cabinet
24 with a triumvirate. Don't you think this might be a way
25 of giving something back to the people for access to their
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1 government?
2 COMMISSIONER MILLS: Yes, this would provide a
3 constitutional means for the public to have access to
4 government.
5 CHAIRMAN DOUGLASS: Commissioner Henderson, you are a
6 sore loser. Commissioner Barton.
7 COMMISSIONER BARTON: I have a question. How large
8 is this office going to be? I have dealt with a
9 bureaucracy a lot through the years and I don't think one
10 person is going to hack it.
11 COMMISSIONER MILLS: Well, Ms. Barton, that's why it
12 says the Legislature will determine that. What this
13 relies on is the good faith of the Governor, the
14 appointment of a good person, and the ability of that
15 person to advocate it effectively with the Legislature.
16 And by the same token that means that the Legislature
17 would keep this from becoming a bureaucracy.
18 CHAIRMAN DOUGLASS: All right. Any further debate?
19 Commissioner Zack.
20 COMMISSIONER ZACK: Commissioner Mills, will you
21 yield for a question?
22 CHAIRMAN DOUGLASS: He yields.
23 COMMISSIONER ZACK: Yesterday we did try to make the
24 Cabinet and particularly the Governor's Office stronger.
25 And as I see this proposal, if a person didn't vote for
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1 this or this failed, there's nothing to keep the Governor
2 from appointing such an advocate, is there?
3 COMMISSIONER MILLS: That's correct.
4 COMMISSIONER ZACK: My concern, if I could rise to
5 this issue, Mr. Chairman -- I guess I can.
6 COMMISSIONER MILLS: Go ahead, and we'll let you know
7 when you have to stop.
8 COMMISSIONER ZACK: My concern is the Wetherington
9 overriding issue, which is, what are we going to put on
10 the ballot. And I think this is important. Frankly I
11 would hope that there's a citizen ombudsman in various
12 departments. If we have three Cabinet offices, maybe each
13 one of them needs an ombudsman. I'm concerned that some
14 people will say that they don't have to do anything
15 further because we have this in the Governor's Office and
16 therefore it's not an issue they want to concern
17 themselves with.
18 My vote, which is for the proposal, but against
19 probably the ultimate putting it on -- among the things
20 for the citizens to vote on. We have talked about a
21 number of times -- and I think we needed to reemphasize
22 this earlier today, in view of what's been happening over
23 the last few meetings where we have had some very, very
24 good proposals, where I sincerely hope the Legislature
25 will review and adopt as they did a number of proposals of
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1 the previous Constitution Revision Commissions.
2 I do think that we have to make sure that we focus on
3 the major issues of this state that are going to require
4 the citizens to hopefully vote in favor of what we do,
5 which in the final analysis is what we have to continue to
6 focus on if we are to do a good job here.
7 COMMISSIONER MILLS: Well, I will gratefully accept
8 Mr. Zack's vote and then further explain. Actually, since
9 I've had the opportunity to review what we have passed,
10 Mr. Zack, and I think this is important, let's take a look
11 at what style and drafting is going to do.
12 The first thing I would suggest to you is that this
13 commission has done an excellent job. When we went around
14 this state the people in this state told us they were
15 concerned about access, they told us they were concerned
16 about the elections process, they were concerned about
17 education, they were concerned about the environment; who
18 would handle those things.
19 I think you would be surprised by the 30-some
20 proposals how many are easily considered as
21 noncontroversial. We have had proposals by -- that
22 Mr. Langley handled dealing with military law. As you go
23 through the proposals, you are going to begin to see, it's
24 possible, of those 30, to group about 19 as one proposal.
25 It's also possible to group those proposals as
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1 dealing with education, environment, access to government,
2 the judiciary. Having said that, there are only going to
3 be -- I think there's a likelihood that there are only
4 going to be seven or eight proposals. So, what I'm
5 suggesting to you, and why this happens to be appropriate
6 to this conversation, is while a citizen's advocate
7 wouldn't be appropriate for a separate proposition
8 standing by itself, coupled with other provisions dealing
9 with access to government, it makes sense, it would be
10 popular, it is the right thing to do.
11 And I think you need to judge the proposals based on
12 the overall application of what you are seeing come
13 through this commission. And I endorse what you are
14 saying in terms of saying, think about the majors, think
15 about what you are going to put in Article V, think about
16 what you are going to put in the executive. This is in
17 the executive branch. You have just taken away access
18 from the executive branch. This improves access to the
19 executive branch. So, it's only fair.
20 I mean, you have just reduced the citizen's access to
21 the executive branch, and that proposal is going to be
22 there and this proposal will be with it.
23 COMMISSIONER ZACK: I hear a procedure that I'm not
24 sure I agree with. When we are down the road, as we are
25 now, we start thinking about -- I'm sure each of us are
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1 thinking about the voter standing in the poll place, and
2 I'm not sure that one proposal with 19 subparts is one
3 proposal, it is kind of like the one interrogatory with A
4 through Z.
5 CHAIRMAN DOUGLASS: This is out of order. Your
6 comments were out of order. First of all, there's been no
7 determination on this, there's been no -- it's an opinion.
8 COMMISSIONER ZACK: As long as it's out of order,
9 I'll be happy to be seated, but I didn't want it to go
10 without saying --
11 CHAIRMAN DOUGLASS: I'm glad you did. Because what
12 Commissioner Mills said is not necessarily the case at
13 all. We will debate that at another time. The debate is
14 on his proposal to add a citizen's advocate to the
15 Constitution, and not how we put it on the ballot, if we
16 do. First of all, it has got to get enough votes to get
17 there. And that's what we need to be debating. And I
18 think you are out of order to discuss that, even though
19 you are chairman of the style and drafting, that's only
20 one vote.
21 I would ask that we stay germane. But you were
22 correct in raising it, Commissioner Zack. Is there any
23 debate or questions on this issue? Commissioner Barkdull.
24 COMMISSIONER BARKDULL: As an opponent.
25 CHAIRMAN DOUGLASS: As an opponent, all right. Is
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1 there another proponent? All right. Commissioner
2 Barkdull, you are recognized.
3 COMMISSIONER BARKDULL: Mr. Chairman, Members of the
4 Commission, I'm not so sure that this is a good idea, but
5 if it is a good idea and you really mean what it should
6 be, I think it ought to be a person appointed by the
7 Governor and the Cabinet and it ought to have a six or
8 eight or nine-year term and not be subject to the politics
9 of one administration coming and going as one appointee.
10 But frankly, we have got it in the statutes, I don't see
11 any real reason to move it into the Constitution and I
12 suggest that we leave it in the statutes.
13 CHAIRMAN DOUGLASS: Any further discussions?
14 Commissioner Evans-Jones.
15 COMMISSIONER EVANS-JONES: As an opponent.
16 CHAIRMAN DOUGLASS: As an opponent.
17 COMMISSIONER EVANS-JONES: Members of the Commission,
18 I don't think that it needs to be in the Constitution.
19 And I do think that we have the members of the House, the
20 members of the Senate who should be responding to the
21 needs of their constituency. And if they are not
22 responding to those needs, then they ought not to be
23 reelected.
24 And I think that's much closer to the people, much
25 easier access when they have a problem with the
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1 bureaucracy. I know many -- I see some of our fellow
2 legislators nodding that have certainly been in that
3 position. We do a great deal of casework and try to help
4 people. So, I would suggest that you have all of those
5 advocates out there doing this work anyway, and I don't
6 think we need to add to that.
7 CHAIRMAN DOUGLASS: Any further discussion before
8 Commissioner Mills closes? You are recognized to close.
9 COMMISSIONER MILLS: Mr. Chairman, Members of the
10 Commission, let me first respond to a couple of issues.
11 The issue of whether members of the Legislature can
12 adequately represent their constituents on issues before
13 the bureaucracy is one that I'm familiar with, it's one
14 that Commissioner Evans-Jones does very well, it's one
15 that a number of members of the Legislature do very well,
16 but that depends upon whether you are a member of the
17 Legislature.
18 And also, fortunately, or unfortunately, it depends
19 on your relationship with the member of the Legislature.
20 Many citizens, because they may have a bad relationship
21 with their member of the Legislature may not have quite
22 the same access to that assistance. With respect to some
23 legislators, and I know we had some outstanding examples
24 of that here, they are even-handed and they are going to
25 devote their time to dealing with citizens' problems, the
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1 more detail the better.
2 And, Mr. Chairman, with regard to my discussion as to
3 how things might be grouped, of course that is a decision
4 of the commission, I was simply responding to a question.
5 And it seems to me that there are some opportunities or
6 issues that are related. And the issue that was brought
7 up in debate is that there was reduced access to the
8 executive branch by what we did yesterday, that is we are
9 going to have less Cabinet activity, but it's relevant
10 that we balance what we do.
11 This is in Article IV, this gives increased access
12 for citizens. Gives them back something that we may be
13 taking away. It might help. I would urge you to endorse
14 this proposition. It should be in the Constitution. It
15 is the right thing to do. It helps balance other issues
16 that we have proposed.
17 CHAIRMAN DOUGLASS: All right. Everybody ready to
18 vote? Unlock the machine and we'll vote.
19 (Vote taken and recorded electronically.)
20 CHAIRMAN DOUGLASS: Has everybody voted? Lock the
21 machine and announce the vote.
22 READING CLERK: Twelve yeas and 16 nays,
23 Mr. Chairman.
24 CHAIRMAN DOUGLASS: By your vote, you have defeated
25 the proposal. I think we are ready now to move back to
24
1 Proposal 105. Commissioner Thompson. Well, he told me he
2 was ready and he disappeared. Here he is. Proposal 105,
3 I think you told me that you were ready to proceed on
4 that?
5 COMMISSIONER THOMPSON: I'm sorry, Mr. Chairman, I'm
6 not ready. We are trying to come up with the amendment.
7 Let me explain to you what the situation is there.
8 Commissioner Planas had talked about a potential
9 amendment. We did not have a quorum. We all conceptually
10 agreed on an amendment, and basically what it is, so
11 everybody can start thinking about it is, raise the terms
12 for House and Senate members from 8 to 12 years, very
13 simply. He had some other things there. He wanted to
14 change the --
15 CHAIRMAN DOUGLASS: Term of office.
16 COMMISSIONER THOMPSON: Yes, term of office and so
17 forth.
18 CHAIRMAN DOUGLASS: So, what you are going to do on
19 behalf of the committee then --
20 COMMISSIONER THOMPSON: Is offer that very simple
21 amendment, but we are trying to get it prepared and
22 distributed.
23 CHAIRMAN DOUGLASS: Okay. We'll get it considered.
24 And now we'll go to Proposal 168 by Commissioner Corr on a
25 motion to reconsider what's pending on and has been voted
25
1 to be reconsidered, has it, Commissioner Barkdull?
2 COMMISSIONER BARKDULL: It has not.
3 CHAIRMAN DOUGLASS: It has not. Okay, Commissioner
4 Corr's proposal, would you read the proposal which is on
5 for reconsideration?
6 READING CLERK: Proposal 168, Proposal to revise
7 Article IV, Section 6, Florida Constitution; providing
8 that an entity purportedly within an executive department
9 which is not subject to the direct supervision of the
10 agency head is a department providing that the amendment
11 does not affect the status of such entities to issue
12 revenue bonds before a specified date; and to create
13 Article XII, Section 23, Florida Constitution; providing
14 that the amendment does not affect the status of such
15 entities in existence on the effective date of the
16 adoption of the amendment.
17 CHAIRMAN DOUGLASS: Motion to reconsider by
18 Commissioner Barkdull. Commissioner Barkdull, you are
19 recognized.
20 COMMISSIONER BARKDULL: Yes, sir, Mr. Chairman,
21 Members of the Commission, this matter came up in the
22 debate yesterday on the downsizing of the Cabinet and
23 there was some concern about the fact that there would no
24 longer be availability of collegial responsibility as is
25 now provided in certain statutes for the Governor and the
26
1 Cabinet members. I know Commissioner Corr's proposal
2 received a unanimous vote of those of us that were present
3 at the time.
4 I certainly think that there's a great deal of wisdom
5 in having a direct line of responsibility. And I
6 generally favor that. But I do think that there was some
7 merit to the arguments that I heard yesterday about a
8 number of the statutes that have put collegial
9 responsibility on the Governor and the Cabinet or certain
10 Cabinet officers. I think that latitude should still
11 exist and that is the purpose of this motion.
12 I would suggest that if the motion passes, that the
13 matter be left pending to further address the Corr issues
14 to use -- of Commissioner Corr's proposal, and I would ask
15 at this time for an affirmative vote on the motion to
16 reconsider. And if that passes, then we would temporarily
17 pass reconsideration of the matter.
18 CHAIRMAN DOUGLASS: All right. Commissioner
19 Henderson.
20 COMMISSIONER HENDERSON: Mr. Chairman, I'll support
21 this motion in the interest of -- I appreciated the humor
22 and levity that the Chairman made of my being a sore loser
23 earlier, but I'm obviously interested in having the
24 ultimate work product of this commission something the
25 public can completely support.
27
1 And I know Commissioner Barnett and I are still very
2 much concerned about making sure that there's appropriate
3 access to whatever new creature we have created here,
4 triumvirate or otherwise. So that relates to the issue of
5 the certain appellate capacity with which the current
6 Cabinet acts.
7 Now, I do not believe that the Corr proposal as
8 amended affects that, but it might well be a vehicle for
9 us to fix this problem as we move down the road and look
10 at it a little bit more. So, I think the Corr proposal is
11 solid. I think we can tweak it with this and this will
12 give us the time to do it. So, I support the motion for
13 reconsideration.
14 CHAIRMAN DOUGLASS: Commissioner Corr.
15 COMMISSIONER CORR: Thank you, Mr. Chairman. I guess
16 I'm still a little confused. The original proposal that
17 passed unanimously just reinforces a limitation that's
18 already in the Constitution. So I -- I mean, if there's
19 something that was created out of another proposal
20 yesterday, then I'm certainly willing to work together to
21 sort of figure out what the challenges were.
22 But this proposal that we passed last time was pretty
23 straightforward and pretty simple, so I'm expecting that
24 there's something still that I don't understand. And
25 maybe there's a way, Commissioner Barkdull, that you can
28
1 help me understand it, or maybe I'm just not that smart.
2 CHAIRMAN DOUGLASS: Commissioner Barkdull to reply to
3 his question.
4 COMMISSIONER BARKDULL: In response to Commissioner
5 Corr's question, in the debate yesterday, it was the
6 understanding that the impact of your proposal that was
7 adopted at a previous meeting would prevent the
8 Legislature from assigning collegial duties to the
9 Cabinet.
10 And my purpose is to try to be sure -- I understand
11 your explanation, but it was the feeling of people here on
12 the floor that that proposal would have saddled us with
13 the inability of the Legislature to create collective or
14 collegial responsibility and we wanted to be sure that we
15 didn't do that.
16 CHAIRMAN DOUGLASS: All right. Any further
17 discussion? This is on the motion to reconsider the vote
18 by which this passed, which was unanimous when we passed
19 it, by Commissioner Barkdull. Unlock the machine and
20 let's vote.
21 (Vote taken and recorded electronically.)
22 CHAIRMAN DOUGLASS: Lock the machine and record the
23 vote.
24 READING CLERK: Twenty-one yeas and six nays,
25 Mr. Chairman.
29
1 CHAIRMAN DOUGLASS: All right. It is voted to be
2 reconsidered. Commissioner Barkdull, you are recognized.
3 COMMISSIONER BARKDULL: I move that we do not take it
4 up on the merits at this time, but temporarily pass it
5 until tomorrow afternoon.
6 CHAIRMAN DOUGLASS: Without objection, it is
7 temporarily passed. Now we move to Proposal No. 2 by
8 Commissioner Sundberg. Would you read it, please? It was
9 approved by the committee on declaration of rights.
10 READING CLERK: Proposal 2, a proposal to revise
11 Article I, Section 2, Florida Constitution; providing for
12 citizens to enjoy equal opportunity to employment,
13 housing, public accommodations, public education, and
14 other benefits and authorizing governmental agencies to
15 take actions to remedy the effects of past discrimination
16 in certain areas.
17 CHAIRMAN DOUGLASS: Commissioner Sundberg, you are
18 recognized.
19 COMMISSIONER SUNDBERG: Mr. Chairman, if you would
20 indulge me. This was temporarily passed at our January
21 meeting because of concerns that Commissioner Connor had.
22 And I have not had an opportunity to talk to him about
23 those concerns. If you could give us a little more time
24 to see if we can reach some accommodation on that. In
25 fact, I saw him earlier, I don't know --
30
1 CHAIRMAN DOUGLASS: He's here, he's back in the
2 telephone booth conducting business.
3 COMMISSIONER SUNDBERG: Maybe I could get him next.
4 Could we temporarily pass this?
5 CHAIRMAN DOUGLASS: We will temporarily pass it
6 without objection, take it up later in the morning.
7 COMMISSIONER SUNDBERG: Thank you.
8 CHAIRMAN DOUGLASS: Without objection, it is
9 temporarily passed until it's called again. And you can
10 get with Commissioner Connor. Proposal No. 135 by
11 Commissioner Henderson, approved by the committee on
12 finance and taxation. Commissioner Henderson.
13 COMMISSIONER HENDERSON: I am beginning to think that
14 we could have passed this about two weeks ago and gotten
15 it off of the agenda, but, you know, again, the issue is,
16 this afternoon finance and tax were trying to marry this
17 to a sister proposal. And so I ask for it to be deferred
18 until tomorrow.
19 CHAIRMAN DOUGLASS: What is the sister proposal?
20 COMMISSIONER HENDERSON: Mr. Chairman, there was a
21 proposal by Commissioner Mills which is similar. And F&T
22 passed out this proposal and has not given full
23 consideration to that one pending staff analysis by that
24 committee. That committee came back yesterday with a very
25 thoughtful staff analysis and has given us a couple of
31
1 options that will -- that will help us better define this
2 issue.
3 That is on the committee's agenda for this afternoon.
4 We have been working closely with Commissioner Scott on
5 this. And so we'll hopefully be in a posture tomorrow to
6 be exactly where we need to have it.
7 CHAIRMAN DOUGLASS: Commissioner Mills, is that what
8 you want to do?
9 COMMISSIONER MILLS: Yes, sir. The staff has
10 provided us with a couple of options to combine both of
11 them that I think will make this work.
12 CHAIRMAN DOUGLASS: Without objection, it will be
13 temporarily passed, but it's going to be taken up before
14 we leave this week.
15 Proposal 33 by Commissioner Barnett. Read it,
16 please.
17 READING CLERK: Proposal 33, proposal to revise
18 Article VII, Section 5, Florida Constitution, eliminating
19 the prohibition against levying a state income tax.
20 CHAIRMAN DOUGLASS: There is an amendment on the
21 table. Do you want to speak for the amendment, or is it
22 your amendment?
23 COMMISSIONER BARNETT: It is my amendment, Mr.
24 Chairman.
25 CHAIRMAN DOUGLASS: All right.
32
1 COMMISSIONER BARNETT: It actually was going to be
2 Commissioner Planas' amendment, but it doesn't appear that
3 he is going to be here, and so it is an amendment that I
4 agree with and my name is on there.
5 CHAIRMAN DOUGLASS: All right. Then, we should read
6 the amendment.
7 READING CLERK: By Commissioner Barnett, on Page 1,
8 Line 18, insert, No tax upon the income of natural persons
9 shall be levied unless authorized by a two-third's vote of
10 membership of each house of the Legislature. There shall
11 be exempt from any such tax not less than 45,000, which
12 amount shall be adjusted each year to reflect inflation.
13 COMMISSIONER BARNETT: Would you like me to explain
14 the amendment first?
15 CHAIRMAN DOUGLASS: Yes, go ahead.
16 COMMISSIONER BARNETT: Is the amendment on the desk?
17 CHAIRMAN DOUGLASS: Yes.
18 COMMISSIONER BARNETT: This amendment -- the
19 underlying proposal, it simply lifts the ban that
20 currently exists in our Constitution on the Legislature
21 imposing a tax on personal income. This amendment places
22 some restrictions on the Legislature in the event that it
23 chose -- it chooses to actually impose a tax on personal
24 income; and that is that it requires a two-third's vote of
25 both houses of the Legislature and exempts the first
33
1 $45,000 of income.
2 That is, the purpose, is to make sure that there's
3 broad-based support in the Legislature for imposing a tax
4 on income. And also, to protect families at the lower end
5 of the economic scale. The median income for a family of
6 four in Florida in 1995 was $44,600.
7 So, people at a median income level and below would
8 be, by this amendment, exempt from any tax if the
9 Legislature ever chose to impose a tax on income. There
10 is a language in the amendment also that adjusts that for
11 inflation. So, that is the amendment. And I would ask
12 you to adopt that before we debate the proposal.
13 CHAIRMAN DOUGLASS: All right. We are on the
14 amendment before we get to the merits of the proposal.
15 Does anybody care to address the amendment? Is it clear
16 to everybody? All right, we'll proceed to vote on the
17 amendment.
18 All in favor of the amendment, say aye. Opposed?
19 The Chair is in doubt, unlock the machine.
20 (Vote taken and recorded electronically.)
21 CHAIRMAN DOUGLASS: Lock the machine and announce the
22 vote. I do have good ears.
23 READING CLERK: Fifteen yeas and 14 nays,
24 Mr. Chairman.
25 COMMISSIONER BARNETT: For those opposed to a super
34
1 majority, and particularly who want to tax those who are
2 the poorest of the poor if we ever have an income tax.
3 That is a joke -- meant to be. This is actually a very
4 serious debate, and I'm very serious about this proposal.
5 I would like for you, for a moment, to please put
6 aside the politics, the political wisdom that this state
7 will never tax personal income and at least consider, in
8 this body, the merits of whether we should lift the ban on
9 a tax on personal income. I think we have plenty of time
10 to talk about the politics. I think that's talked about
11 all of the time.
12 I frankly believe that it is a myth that this state
13 will never tax personal income. I hope it happens sooner
14 rather than later, but I think it is a myth, and I think
15 in our lifetime this myth will be lifted and our
16 Legislature, in its wisdom, will address this subject.
17 Let me make it very clear. If you vote for this
18 proposal, you will not be voting to impose a tax on
19 personal income. You will not be voting to tax income.
20 All you will be doing, and it's significant, but all you
21 will be doing is lifting the constitutional prohibition
22 and giving a grant of authority to the Legislature, in its
23 wisdom, and at an appropriate time, if there ever is an
24 appropriate time, to consider income as a potential source
25 of revenue. And that is all that you are doing. This is
35
1 simply a lifting of the ban.
2 I think that Senator Scott, Senator Jennings,
3 Representative Webster, I think they have --
4 CHAIRMAN DOUGLASS: Commissioners Scott and Jennings.
5 COMMISSIONER BARNETT: I'm speaking about him in his
6 capacity as a Senator, Senator Scott, Senator Jennings,
7 members of the Legislature have been very circumspect in
8 the last several years in listening to the citizens of
9 this state on accountability and tax issues and have made
10 some very, very significant changes.
11 And I trust them. I trust them with this authority.
12 I trust them with the authority to consider income because
13 I believe that they have a sense of what's right and they
14 have the responsibility during various times, particularly
15 times of fiscal crises, to fund state government. And I
16 want to give them this tool, and I trust them to use it.
17 And that is what we are doing.
18 Florida, and you have all heard me say this several
19 times, you have heard others say it, I'm not a lone voice
20 in the wilderness on this, the State of Florida needs a
21 better revenue system. Currently we only -- there are
22 three things that you can look to to fund government, you
23 can tax property, you can tax consumption, and you can tax
24 wealth.
25 And our state has chosen not to tax wealth of
36
1 individuals, so it creates a lot of distortions in how we
2 fund government. When you take away one leg of a
3 three-legged school, there's not balance. And what this
4 does would allow some balance to come in our revenue
5 structure. It would give us the opportunity to look to
6 all three sources of potential revenue under appropriate
7 circumstances.
8 Florida is a very different state today than it was
9 in the 1920s when these types of provisions, this and the
10 ban on a corporate income tax, were put into the
11 Constitution in order to attract business and bodies to
12 the State of Florida. In 1973 we lifted, by
13 constitutional amendment, the ban on taxing corporate
14 income. It hasn't had any dramatic negative effects on
15 the State of Florida. In fact, the state has flourished,
16 flourished and thrived since that time. I think it is
17 time to now lift the ban on taxing personal income because
18 our state, today, is the most vibrant, dynamic, growing
19 state in the country.
20 Everybody wants to come to Florida. Many people come
21 to Florida to retire because of our weather and our
22 environment and our amenities, but others retire in this
23 state simply because we do not tax wealth. And they have
24 come to Florida to shelter that income.
25 Now, I'm delighted to have them. Some of them are
37
1 good friends of mine that I have met throughout the years,
2 but I think that they should participate and share in the
3 burdens of financing government and pay for the benefits
4 that they now get by being citizens of this state.
5 The issue is not the adequacy of the money we are
6 currently raising to pay for government, it's not that I
7 think we don't have enough money to fund governmental
8 functions, that is not the issue to me. There are other
9 issues. The first one I mentioned earlier is a balanced
10 revenue system, but there are issues such as fairness.
11 Taxes ought to be fair. The sales tax on which we rely
12 dramatically, the sales tax is not fair; it is a
13 regressive tax.
14 Commissioner Nabors' proposal to deal with exemptions
15 and exclusions will help a lot, the Legislature addressing
16 that will help a lot, but the sales tax is a regressive
17 tax and it taxes consumption, that's not fair.
18 Competitiveness. Our current tax structure does not
19 create a competitive environment. Thirty to 40 percent of
20 the sales tax, I'm told, is paid directly by business.
21 That doesn't create a competitive environment for business
22 in Florida. Almost 20 percent of our sales tax is paid by
23 tourism. We talk about exporting it, we export it to
24 tourist. Well, I suspect we'll have tourists a long time.
25 But, again, it is a competitive issue. That leaves the
38
1 balance paid by individuals. And as I said, it hits
2 individuals at the lower income levels much higher than
3 those at the higher income levels.
4 Another issue to me is responsiveness. Taxes ought
5 to be responsive to the changes in the nature of an
6 economy. And under our current structure, we don't have
7 the ability that we should have to respond rapidly to
8 changes in our economy and to respond to crisis.
9 There's -- some day there's going to be a crisis in this
10 state and we don't have the ability to respond.
11 Ultimately, our taxes, whether they are property
12 taxes or consumption sales taxes, they are going to reach
13 a level where the people just won't take any more. We see
14 that now with the property tax. They have about hit the
15 point on property taxes, people are tired of them, there
16 is too much, they have about hit the cap. And we are
17 getting there with the sales tax. We need another way for
18 our Legislature to be responsive to changes and to respond
19 to the needs of this state.
20 Reliability is another reason I think we need to look
21 at the sales tax. I said earlier, I think that the
22 current tax structure in Florida is a disincentive to
23 business development, at least the kind of business
24 development this state wants and should want to have. Our
25 inadequate revenue sources create a lot of problems. It
39
1 creates the distortion in the sales exemptions we have
2 now.
3 We try to attract businesses with special interest
4 exemptions. And we get a few, but historically all of the
5 studies show that really doesn't matter, what businesses
6 want is an adequate, educated workforce. They want
7 reliability, they want things that are not just pure
8 exemptions. We do not have the money to invest in human
9 capital in this state in the way we should. And we have a
10 large percentage of low-end wage jobs, not high-end wage
11 jobs.
12 An educational system, a good, adequate,
13 comprehensive educational system is what attracts
14 businesses to the State of Florida, the kind of businesses
15 we want, and we don't fund adequately the education
16 system, either the capital side of it, or as I heard
17 Senator Jennings say the other day and I thought she was
18 so right, it's now looking at the actual education side,
19 you know, getting into the education component. Those are
20 things that attract businesses. And that reliability and
21 those things, I think, come from a balanced revenue
22 system.
23 I ask each of you all, how could we afford not to
24 look at personal income tax? How can we, as a citizens'
25 group, representing the citizens of this state, how can we
40
1 as a group that really are not in the same awkward
2 situation I think that sometimes our elected
3 representatives are, how can we not afford to raise with
4 the people of this state the real cost to the individuals
5 of this state as not giving our Legislature a balanced
6 revenue structure from which they can make decisions and
7 choose and make public policy choices? I think that we
8 are the body that has to look at that. I think it is our
9 obligation to take this issue back out on our public
10 hearings.
11 Let's at least give it a majority vote and see what
12 the public reactions are. I think when the people of this
13 state are educated about the cost, the real cost to them
14 individually and as a citizen of this state of not having
15 this opportunity, there may be a lot more support for
16 lifting this ban than we think, particularly when it is
17 combined with the trust and respect they have for our
18 legislative leaders and what they can do.
19 So, I ask you to vote in favor of it. Let the people
20 comment in the next couple of months. We'll have another
21 chance to look at it again before it goes out on the
22 ballot. If we don't do this, it will be a long time
23 before the people get a chance to talk about it.
24 Taxes are painful, no one likes to pay them, but
25 people do like roads, schools, police forces, all of the
41
1 benefits of government. And it's our obligation, I
2 believe, to take our tax structure into the next
3 millennium, balanced, fair, reliable, and responsible.
4 I appreciate very much the attention you have given
5 me this morning. And I appreciate, Mr. Chairman, your
6 tolerance on this issue. And I'll be glad to answer any
7 questions.
8
9
10 CHAIRMAN DOUGLASS: Commissioner Wetherington?
11 COMMISSIONER WETHERINGTON: I hope we don't have a
12 need for an income tax in the state of Florida. However,
13 there's a very good likelihood that if we're going to
14 handle our problems in a responsible way that we might
15 have to do that. As a consequence, I think the
16 flexibility should be there to address those needs in
17 terms of responsible government.
18 I think a great deal of the problem that we have on
19 taxes is the fact that there is a widespread cynicism on
20 the part of the public in terms of how the government is
21 doing its job. People resent paying taxes to some extent
22 because they don't think the job is being done the right
23 way. That cynicism, however, among other things, can
24 change and I hope it does change and our government can
25 get better. And I hope that it does get better and there
42
1 may be a time in which the people have the sufficient
2 confidence in the government to know that it's going to
3 properly spend the money.
4 It seems to me that we're one of four states I think
5 in America that don't have an income tax. That means all
6 the other states including many very fine states have
7 decided that they have to have an income tax in order to
8 properly finance their government and provide the services
9 and protections that their citizens need.
10 The same thing can very easily become true in
11 Florida. We've been fortunate, I think, overall in not
12 having to do it but we could have to do it tomorrow if we
13 should have the means to do is. We should not have this
14 constitutional restriction.
15 Obviously the Legislature is not going to do it
16 unless there is a tremendous need. We know just through
17 the political process that that's a reality. If that need
18 arises, the authority should be there. And for those
19 reasons, I agree and will support this proposal.
20 CHAIRMAN DOUGLASS: Commissioner Brochin?
21 COMMISSIONER BROCHIN: They say that this is not
22 going to pass and that we should rise at least to debate
23 it. I think it's an excellent idea. And I think its time
24 has come not just to debate it but to pass it. But for
25 purpose of the debate, let me offer the following.
43
1 Forty-three states in our federal government impose a
2 personal income tax. Those Legislatures and Congress are
3 elected each and every year and each and every year they
4 go back and they impose an income tax and there's no claim
5 that it is infringing on their constitutional rights that
6 some tax is being opposed. Six states -- seven states
7 including the state of Florida -- do not have a personal
8 income tax. But only one state, that's Florida, has a ban
9 in its Constitution.
10 The other six states that prohibit an income tax or
11 don't have an income tax is not because there's a
12 constitutional ban, it's because their dually elected
13 members of the Legislature believe that that is not an
14 appropriate tool of financing state government at that
15 particular time. So 49 states in our federal government
16 have seen their way fit and clear to give the Legislature
17 the right to impose that tax.
18 Commissioner Barnett points out and I underscore,
19 that this is not a proposal to raise or impose any income
20 tax. It is a proposal that is consistent with our mission
21 to revise the Constitution. So when the Legislature
22 convenes over the next 20 years, they have the ability to
23 finance its state government with another source of
24 revenue.
25 Now the finance and tax meeting nobody of course
44
1 wants to come up and say they're in favor of this and they
2 danced around it quite gingerly and diplomatically. But
3 every one of them told us that the narrower your tax base
4 and the higher your rates, the more chaotic your tax
5 structure becomes as in the state of Florida. Personally,
6 I think the Legislature ought to impose an income tax.
7 For example, if they reduced the sales tax to
8 3 percent, cut the property taxes in half and imposed the
9 1 percent income tax to make up the difference, I think a
10 lot of people may support something like that, then we
11 wouldn't have one of the highest sales tax rates in the
12 country. Our property taxes would not be well above the
13 national average. And more important, we could get the
14 federal subsidy that income taxes bring by taking a
15 deduction on our income tax just like 43 other states do.
16 And then we would no longer in the state of Florida
17 subsidize the states of California state government and
18 Mexico, Arizona and all the others states that have income
19 taxes which are all subsidized through the federal tax
20 structure.
21 Florida citizens will then enjoy that subsidy as
22 well. The other six states that don't impose an income
23 tax, the only one of any size, is the state of Texas.
24 Florida is one of the fastest growing states in the
25 country. If we don't allow the Legislature another means
45
1 of financing our government in the next 20 years, I'm
2 afraid we will have failed our citizens miserably in not
3 being prepared. I voted against the amendment actually
4 because I was dismayed about the two-thirds' requirement.
5 It doesn't seem to me that we ought to put in a super
6 majority in our Constitution for a form of taxation that
7 43 other states and our federal government impose upon us
8 day by day. So I think this idea has not only come to
9 debate, I think this idea has come as a time to pass. So
10 I join in and support it.
11 CHAIRMAN DOUGLASS: Commissioner Morsani?
12 COMMISSIONER MORSANI: I would like to speak in
13 opposition if that's now in order.
14 CHAIRMAN DOUGLASS: Go ahead.
15 COMMISSIONER MORSANI: It pains me to speak in
16 opposition because Commissioner Barnett did such an
17 eloquent job in presenting her case. However, I think the
18 perception unfortunately in the public's mind becomes
19 reality. But let's review history just a little bit and
20 then move forward with some vision and possibly some
21 wisdom, not on my part necessarily with the wisdom, but
22 with this commission's wisdom.
23 You know, it took from 1845 to 1968 for our budget to
24 reach $4 billion. Also, that period of time, we, in 1968,
25 we had approximately 42,000 state employees. Four years
46
1 later we had a $16 billion budget and 73,000 employees.
2 The current budget which will probably come out in 1999,
3 42 to $44 billion in our state budget.
4 If we continue not to have examples of where money
5 has changed the thrust of government and public policy.
6 The current proposals which will be this evening from our
7 federal government, from our executive branch, that even
8 though we are going to propose a budget for the current
9 year in our federal government, rather than pay off any
10 part of our deficit that we have accumulated for the past
11 40 years or 30 years, we are going to increase the budget
12 by probably $100 billion in new programs.
13 Now that's not the state of Florida. But that's a
14 mirror of what we are confronted with in a perception of
15 our public. The real problem, and I think that
16 Mr. Brochin touched on it, in the public's eye, is how
17 we're developing government services, i.e., the management
18 of government which is suspect.
19 We debated a few days ago, a few weeks ago, about the
20 water management districts and their taxing policies and
21 the kind of monies they are currently taxing, the various
22 levels. I don't think that we can as a commission,
23 without having the economics and the database to
24 determine, for example 3 percent sales tax, 1 percent
25 income tax, so on and so forth, that Mr. Brochin so
47
1 eloquently articulated, without having -- if we have that
2 kind of information, that analytical data, I mean, we
3 could probably present something to the public.
4 But I don't think that this body or the economists of
5 this state or our university systems can produce those
6 numbers that we could be salesmen for this kind of policy.
7 Even though I imagine that most of us in this room agree
8 with the thesis that you have put forth and we want to
9 agree with that.
10 But there are other impediments that make this not
11 the right proposal for this commission. We want to do the
12 right thing. I want to do the right thing for our state
13 and for this commission. And even though I'm sympathetic
14 with the rhetoric, I don't think that it's a proper thing
15 at this time. We don't have the data to support our
16 thesis. And without that data, we would be suspect in the
17 public's eye.
18 Therefore, as much as I want to agree with you,
19 Commissioner, I must vote against this proposal and I
20 would hope that the other members would vote against this
21 proposal. It's with deep regret that I say that, but
22 that's where I am.
23 CHAIRMAN DOUGLASS: Commissioner Connor?
24 COMMISSIONER CONNOR: Mr. Chairman, I rise in
25 opposition to the proposal. Commissioner Morsani has
48
1 talked about the rhetoric associated with this debate.
2 Let me suggest to you what the reality is.
3 The reality is that this proposal is dead on arrival
4 in the public arena, plain and simple. And the reality is
5 that passing this proposal will probably do more to hold
6 this body in this repute in the eyes of the public than
7 passing any other proposal before this group. And it
8 probably, because of that, will do more to damage the
9 potential of passing whatever proposals come out of this
10 group because of the lack of esteem that will be accorded
11 the work of this commission by the inclusion of this
12 matter on the agenda.
13 In Gainesville I remember Professor Little talking
14 about the purpose of a Constitution being to organize the
15 functions of government and to limit the powers of
16 government as it relates to the people. Limiting the
17 ability of government to tax the people is most certainly
18 an appropriate constitutional matter. It is certainly
19 within the purview of constitutional jurisprudence, if you
20 will, to authorize the people to limit government from
21 imposing the most despicable form of taxes in the eyes of
22 the public.
23 The one single agency held in the greatest disrepute
24 in the federal government is the Internal Revenue Service.
25 The abuses of the Internal Revenue Service have been
49
1 spread upon the pages of the media of late but they are
2 not new to the public who has dealt with that agency. We
3 have, in our state Constitution, Article I, Section 23,
4 which has become a virtual shrine for many of you. I
5 would submit to you that the real purpose of that proposal
6 was to protect against informational and disclosural
7 privacy.
8 One of the reasons the Internal Revenue Service is
9 held in such low esteem is because it is so intrusive into
10 the daily lives of people. Notwithstanding whatever tax
11 credit we may get, what we do by passing this kind of
12 proposal and by only authorizing the Legislature to pass
13 an income tax is that we allow government to stick its
14 nose into the daily affairs and activities of the public.
15 Now, it's rather curious, I think, and somewhat
16 ironic that Commissioner Barnett in effect says, This is
17 not self-executing, this just provides the constitutional
18 footing to enable the Legislature to act. And we ought to
19 let the people debate that issue. I guarantee you no one
20 knows better than I that that argument did not wash with
21 this body when it came to the parental consent proposal.
22 And I guarantee you the support of the public is
23 overwhelming for that kind of proposal compared to this
24 kind of proposal, overwhelming.
25 It would be a grave mistake, I believe, for us to do
50
1 this. One of the things that attracts people to Florida,
2 one of the things you hear about about the fact that we're
3 one of seven states who don't do this is the fact that
4 they don't have an income tax in Florida, hurray for
5 Florida. Leadership is not finding a parade and getting
6 out in front of it, Oh, 43 other states are doing this,
7 let's join the parade. Let's get out in front and show
8 what kind of bold leaders we are; baloney.
9 Leadership, in my estimation, involves tying
10 government up, locking it down. Preventing it from being
11 able to grow by an ever increasing flow of funds because
12 there clearly is an inverse relationship between the size
13 of government and the amount of freedom that we enjoy.
14 If you want government to grow, you pass the proposal
15 and encourage the Legislature to pass that. If you want
16 your freedom to shrink, go ahead and do the same. But if
17 you want to have a hue and cry, the likes of which we have
18 not heard before -- you know, I haven't gotten one letter
19 that says, Please, Mr. Connor, we should restrict -- we
20 should lift the restriction on government so that it can
21 impose an income tax on us. I haven't gotten one.
22 Is there a compelling necessity, absolutely not. Is
23 it bad public policy, it absolutely is. Will it
24 enormously impact our goals as a body to make positive
25 changes in the Constitution of our state so that the
51
1 functions of government are better organized and so that
2 the powers of government as it relates to the people are
3 limited, absolutely.
4 CHAIRMAN DOUGLASS: All right. Further debate?
5 Commissioner Ford-Coates?
6 COMMISSIONER FORD-COATES: Not speaking as the tax
7 collector, no. Over the last 20 years, I've been involved
8 with the Women League of Voters in every tax study that
9 the League conducted in this state and every one of those
10 came down and said that an income tax is without a doubt
11 the fairest and most stable form of taxation that the
12 state of Florida could have. During that same time frame,
13 I've heard again and again, over and over, the people of
14 Florida do not want an income tax, it has no prayer of
15 passing. The people have spoken.
16 And I realized that after appointment to this
17 commission when I went and spoke to people and they asked
18 me about the income tax, my response to them was, The
19 people have spoken, they don't want it. And I found
20 myself saying that and then going back and thinking, Wait
21 a minute, the people haven't spoken. They haven't had a
22 chance to vote on an issue which is already in our
23 Constitution.
24 Yesterday we took the action to eliminate the Tax and
25 Budget Reform Commission. Previously, I had thought,
52
1 Well, I would like to see the public have a chance to vote
2 on this issue. And some people have said it's not the
3 time, it may damage the work of the commission. And I
4 have those fears also. But the reality is, there is no
5 other alternative. This commission is the only place in
6 the next 20 years that it's ever going to put this on the
7 ballot and give the public a chance to look at the issue.
8 The Tax and Budget Reform Commission perhaps could
9 have done that. They do not exist if the proposal as
10 adopted yesterday is voted on by the people. I would
11 suggest that the proposal as amended is very limited,
12 requires a two-thirds' majority. It is not a blank check
13 in no means, by no means, but it does give the option to
14 the state. I think it's time that someone stood up and
15 took the political chance to at least give the public the
16 opportunity to vote on this issue. And I think that the
17 restrictions, as placed in there, pretty much eliminate
18 the possibility of the abuses that we have seen from our
19 federal taxing system in that I don't think a two-thirds
20 majority is going to pass anything but the simplest and
21 smallest and most efficiently administered of income
22 taxes.
23 No Legislature is going to do anything but the best
24 possible product with these restrictions on it. And I
25 strongly urge you to stand up and take the political risk
53
1 of voting to give the public a chance to really finally
2 make their voice heard.
3 CHAIRMAN DOUGLASS: Commissioner Scott?
4 COMMISSIONER SCOTT: Commissioner Barnett and I agree
5 on 99.9 percent of the matters, it's just lately we
6 haven't. And it's a very eloquent presentation. And
7 philosophically in the purest sense, I would be one to
8 give the Legislature all options and we hear that time and
9 again on some other things that might come up here.
10 But I want to address a couple of points that were
11 made. First of all, this ideal that, Well, let's just
12 move this forward and give the public a couple of months
13 to comment on it and so forth, I would urge you not to do
14 that, particularly on something like this. Because what
15 happens, and I've seen it time and again in the
16 Legislature, you can start -- let's just take this
17 proposal if it were in the Legislature.
18 People go on and on about it. They read about it,
19 they start writing letters, they contact all of their
20 groups, they contact their clubs, their businesses, their
21 chambers, and whatever. And then a couple of months later
22 maybe they amend it so that it's something either totally
23 different or maybe somewhat innocuous, it doesn't matter.
24 They are against it and then legislators have a great deal
25 of trouble, as their representatives, trying to go back
54
1 and say, Well, I didn't really support that and so forth.
2 The point is this. You put something like this out,
3 I think that we're doing some pretty good work here in a
4 number of areas, may not agree with all of them, in fact,
5 maybe we should save this one to last and then if you
6 don't like what we're doing, you could put this out there
7 and kill everything else that we've done here.
8 We've done a lot of good things in the environment.
9 I think a number of other areas. So, let's don't vote for
10 this. If you don't think this should go on the ballot
11 with our package, let's don't vote to move it forward and
12 put it out there for a couple of months. Because what
13 you're going to do is, you're going to have an uproar that
14 will never be able to reach the people and say, Well, we
15 didn't really put that on the ballot or at least they will
16 have a negative impression of our entire package and
17 that's the way these things happen. And so I would urge
18 you not to do that.
19 I, frankly, don't think it fits Florida. I'm not
20 saying at some time it might in the future. But for right
21 now, we want people to come here and have businesses. We
22 want people that are young in their working years to come
23 to Florida because we need them, among other things, to
24 help support a lot of the elderly people who have come
25 here and who live a long time here and have very high
55
1 costs that they often have to rely on government either at
2 state or federal level.
3 So what's wrong with taxing them on the money they
4 spend? I mean, on the value which we do in property
5 taxes. What's wrong with taxing them? If they are going
6 to spend, they're going to buy new cars, they're going to
7 buy expensive cars, they are going to buy -- you know,
8 what's wrong with that? At least then they are paying and
9 contributing something. You don't take, and going the
10 opposite direction, take the burden and put it on people
11 who are working and producing jobs that help make Florida
12 more balanced and not just a bedroom community or
13 whatever, we've often been a retirement community.
14 There is one point that was made and this by
15 Commissioner Brochin and maybe others. This idea that it
16 is a subsidy because the federal government came along a
17 few years ago and took away the deductibility of the sales
18 tax. Well, just because they messed up like that, I don't
19 think that we should go and try to cure it by then going
20 to a personal income tax. So for some of those reasons,
21 plus I'm back to the main point, is let's don't put it out
22 there as a trial balloon because I think it could have an
23 adverse effect that we will have great difficulty
24 correcting should we decide not to put it on the ballot in
25 the end.
56
1 CHAIRMAN DOUGLASS: Commissioner Hawkes?
2 COMMISSIONER HAWKES: Thank you, Mr. Chairman. I
3 suppose that if you had asked me a few days ago, Are you
4 going to vote for the income tax, I would have said, No,
5 I'm not going to vote for the income tax. But as I sit
6 here and I contemplate and listen to the discussions, I
7 think that there are some thoughts that deserve your
8 consideration.
9 One, I'm not sure that we jeopardize everything we do
10 if we put an issue on the ballot that the voters of this
11 state clearly understand and have expressed their personal
12 views on. And to give them an opportunity to reassert
13 their opinion or to change what we think is their opinion,
14 I don't think it is necessarily bad. I know, as a member
15 of the Legislature, the press constantly beat up on me and
16 said, you know, You're not responsible because we don't
17 have a sales tax and you need to have a sales tax. And I
18 tried to explain to them that my constituents didn't want
19 a sales tax.
20 Well, this gives the people of the state of Florida a
21 chance to clearly say, you know, they do or they don't.
22 And I don't think it jeopardizes the rest of our product.
23 If making people mad was going to jeopardize our product,
24 perhaps Commissioner Rundle's proposal has jeopardized our
25 product because I've certainly heard far more about 167
57
1 than I have anything else.
2 CHAIRMAN DOUGLASS: It passed.
3 COMMISSIONER HAWKES: So the other thing, of course,
4 is being personally imposed. I mean, if it's an issue
5 that people can understand, I mean, I don't think that we
6 ought to have appointed judges at the trial court level.
7 But I understand that in south Florida their situation was
8 different so I voted for a local option, let people
9 discuss it, let people decide and let people cast their
10 opinion.
11 So if there is any value to a commission like this
12 where we don't have to worry about unfair taxing, that
13 we're doing something that we really didn't intend to do
14 because we're not running for reelection, then I think it
15 would be to give the people of the state of Florida a
16 chance to clarify their viewpoints and what they want to
17 do. And I happen to think that they are going to say no,
18 at least if they are consistent with the people as I think
19 I understand them in my district.
20 So I don't think it jeopardizes the product. I don't
21 think it's a bad thing to put it out there and let people
22 cast their opinions and I think it clarifies what
23 direction Florida's leaders and lawmakers ought to go in
24 depending upon the result of this. So with that, I'm
25 going to vote for your proposal, Commissioner Barnett, at
58
1 least at this point. Thank you.
2 CHAIRMAN DOUGLASS: Commissioner Barkdull?
3 COMMISSIONER BARKDULL: Thank you, Mr. Chairman. I
4 rise as an opponent of this proposal for several reasons.
5 First, I attended every public hearing and sat through all
6 the hours of it. There may be one or two that commented
7 on this provision in the Constitution but there was
8 certainly not any overwhelming demand by the public to
9 remove this proposal. And I also have not received, to my
10 knowledge, any correspondence asking me to vote to remove
11 this proposal.
12 I also call your attention to the fact that the
13 committee that considered this proposal spent a lot of
14 time going over it and I realize that their votes are only
15 recommendations and they ought to carry some presumption
16 and they disapproved this proposal. I now want to come to
17 two items that haven't been mentioned. The proposal says,
18 Let's tax people above a certain level. Is that a single
19 income or dual income? But more importantly, this is a
20 wedge in the class warfare.
21 There is a comment made by Commissioner Ford-Coates
22 that this was the only way to do it. Well, it's not the
23 only way to do it. I made this same comment 20 years ago
24 and I don't know that anybody has taken me up on it, but
25 it's still available and that's constitutional initiative
59
1 and it would be a simple initiative not one that has to be
2 expounded upon in great lengths on approval by the Supreme
3 Court, just repeal this prohibition, nobody has offered
4 that.
5 And last but not least, you want to wreck whatever
6 proposals we put out there, adopt this proposal.
7 CHAIRMAN DOUGLASS: Commissioner Smith? You're next,
8 Commissioner Corr.
9 COMMISSIONER SMITH: Thank you, Mr. Chairman. I
10 think that this proposal definitely shows vision and
11 courage. However, I think that we have to balance vision
12 and courage with reality. I'm not afraid to put something
13 on the ballot if it's something that the people want.
14 This is the people's Constitution. We are obviously aware
15 of the fact that this is not something that people like
16 anyway. People don't like being taxed and if we're
17 talking about correcting our tax structure and our tax
18 system, then I think with regard to that, I think we need
19 to have the necessary data and information to educate the
20 public. We don't have that ability as a commission to do
21 that. We simply don't. We may have five, six, seven,
22 eight, I don't know how many proposals going out. We're
23 not going to have time.
24 This is not going out, not as a proposal that will
25 allow the Legislature if there is an emergency or if there
60
1 is some need in the future for an income tax, this is
2 going out to the public. And here are these elitists
3 sitting around now trying to find another way to get in
4 our pocketbook. And let me just tell you, I'm one who
5 definitely believes that government should be out trying
6 to help the least of these.
7 This matter came to my mind in a way that I could
8 understand it. When Miami started dealing with its
9 homeless problem someone said, Let's tax -- let's impose a
10 one cent sales tax for the homeless and everybody said,
11 You've got to be out of your mind, that would never pass.
12 Then Dade County got sued and then almost every day we
13 began to find out how serious this problem was and how it
14 was a drain on our tourism. And how it was a big, big
15 problem. And then the people understood it.
16 Once the people understood it and they understood
17 that there was a need to raise the money, Dade County
18 commissioners voted 13 to zero to impose a one cent sales
19 tax and there hasn't been one bit of backlash, not one.
20 The visionaries who proposed this before the people were
21 educated as to why it was needed were just ahead of their
22 time.
23 What I'm saying is, we can wreck things if we're too
24 far ahead of the people. If the people understand that
25 there is a need for this, they won't go to the Legislature
61
1 and say, We've got to change this. They will institute a
2 citizen's initiative, or they will do whatever is
3 necessary. The people are not going to let their state go
4 under economically.
5 But until we show fiscal responsibility for the
6 monies already raised, until we educate the people why
7 with a combination of other tax proposals this is one part
8 of making it fairer, making it broader, making it a tax
9 structure for the future, until we educate the people to
10 that, I mean, let's be real, this is, in fact, a proposal
11 destined for failure, destined for ridicule of this
12 commission, destined to bring other issues that the people
13 have asked for, the people have told us, Please protect
14 our environment. The people have told us, Please, please
15 do something about our educational system.
16 The people have told us, Please look at restructuring
17 our government. We know it doesn't work now, but see if
18 you can do something to make it work better. They've told
19 us these things.
20 Hopefully we've heard from people who've told us,
21 Make the political process accessible to more than just
22 the two main political parties. They've talked to us
23 about human rights issues. But honestly, honestly, I
24 mean, intellectually, Commissioner Barnett, Commissioner
25 Brochin, I believe you're right. I believe this is
62
1 something that's inevitable. But until the people see
2 that it's necessary to change their Constitution and until
3 the people see that there are other proposals that are
4 going into place to make this a part of not only making
5 the tax structure fairer, but lessening the burden on
6 them, until that happens, I strongly suggest that we will
7 be doing a disservice. Vision, yes. Courage, yes.
8 Reality, no. And that's why I must vote no.
9 CHAIRMAN DOUGLASS: Commissioner Corr?
10 COMMISSIONER CORR: Thank you, Mr. Chairman. Well,
11 first of all, I keep hearing the song from the Twilight
12 Zone in my head because I'm sort of shocked that we're
13 here in Tallahassee in this chamber actually proposing a
14 state income tax. I mean, I never thought in my wildest
15 imagination, being a member of this commission, that
16 anybody would bring this to pass after the public
17 hearings, anybody would bring this up on the floor of this
18 CRC. But because it is, I guess we're in the position to
19 have to speak in opposition.
20 And I think what we've heard so far, is the only good
21 reason we've heard to put this on the ballot, has been
22 echoed by Commissioner Barkdull by Commissioner Smith, by
23 Commissioner Scott, the only reason to put this on the
24 ballot is if you want to kill everything else. This, as
25 Commissioner Connor said, this will seriously cripple the
63
1 credibility of the CRC instantly. If this passes and hits
2 the newspapers tomorrow, we're done.
3 There's been no argument even though we're hearing
4 what sounds like virtues of income tax, no argument here
5 holds water. Commissioner Brochin, with all due respect,
6 the idea that property taxes could come down, that sales
7 taxes could come down, is noble, but nowhere in this
8 proposal does it say that.
9 I would say that once government had the chance to
10 get the extra income, we'll never see the reducing of
11 those taxes to bring it down to equity. There was some
12 talk about need for more state income.
13 We've had 4 percent income growth in the last two
14 years. We have the highest budget we've ever had in
15 history. It's increased every year this decade. I would
16 say that we're finally in the Legislature -- and I haven't
17 been here in a couple of years -- we're finally in the
18 Legislature in the great position of having a little bit
19 of extra money to delegate. President Jennings might
20 think otherwise, but we've had budget surpluses. We don't
21 have a need for more state income.
22 The argument that this is a better tax, that it's a
23 fairer tax, would say it's wrong. Every presidential
24 candidate on both parties, maybe not every presidential
25 candidate, but candidates from both parties, have talked
64
1 about doing away with federal income tax over the last few
2 years. They all see the problems, the challenges within
3 income tax, not a better tax, do away with it on the
4 federal level.
5 In as far as Florida being the only state in the
6 nation that has abandoned its Constitution, I would say
7 that that doesn't make us followers, that doesn't make us
8 backwoods sort of, you know, country bumpkins without, you
9 know, we've heard talk of vision. I'd say it's the exact
10 opposite. We are leaders. We are the only Constitution
11 that bans an income tax. I'd say that's a model for
12 others to follow, not for us to follow others.
13 In closing, because I'm echoing what others have
14 said, let me just say because we're hearing virtues of
15 income tax that the exact opposite is true. An income tax
16 by its nature is evil. Commissioner Connor started to say
17 that. He talked about it a few minutes ago. A tax by its
18 nature is evil to tell somebody that by being successful
19 that they are going to be penalized is wrong. We, as
20 Florida, have never done that. We've been a state that
21 has been the growth state as Commissioner Scott has said.
22 Come to Florida, open a business, be successful, raise a
23 family with a vision for the future. Give them a reason
24 to be successful, that's what Florida is all about.
25 This proposal is the exact opposite. I would say we
65
1 need a strong show of support against it here. There is
2 no virtue in putting it on the ballot whatsoever.
3 CHAIRMAN DOUGLASS: All right. I've been reminded by
4 the rules chairman on issues with a lot of debate I should
5 ask for the proponents to be recognized first and let me
6 know who they are and then the opponents. And then the --
7 and I haven't done that much. So he's right. Also, he's
8 keeping time on the ten minutes that are limited in
9 debate. So far that's been good. And now we will go to
10 the close. You rise, Commissioner Scott?
11 COMMISSIONER SCOTT: Mr. Chairman, I'm not aware of
12 that rule. And if it's modeled after Senate rules, in
13 fact, in the Senate we often go back and forth. We might
14 line up debate, but we go back and forth. I'm not sure
15 what rule that is.
16 CHAIRMAN DOUGLASS: Me either, I just reported what
17 he told me. So we'll take that up later. Obviously, I
18 have been following the Senate rule, if that's the rule.
19 I've been doing what you said. Anyway, we'll take that up
20 later but I was just reporting. But the ten-minute rule I
21 know is in the rules and nobody has violated it in this
22 debate. Commissioner Barnett, you may close.
23 COMMISSIONER BARNETT: Thank you, Mr. Chairman. And
24 I want to thank the members of the commission for the
25 attention that you've given this issue and what I think is
66
1 a very good informed debate. One of the concerns that I
2 have that's been expressed in various ways by others, both
3 as a reason to do this and a reason not to do it, is that
4 the people of this state have never been educated about an
5 income tax. It's a myth about what an income tax does for
6 the state and doesn't do for the state.
7 They don't know what options are available if the
8 Legislature had a balanced revenue system from which to
9 make its choices. None of us really know. We can look at
10 examples in other states. We can study tax principles, we
11 can predict what some of those things will be, but the
12 people really react to this self-perpetuating myth that we
13 will never have an income tax and it's bad and, Oh, by the
14 way, let's don't ruin everything else on our ballot with
15 an income tax.
16 I think the people are smarter than that. I think
17 the people deserve an opportunity to speak to this. It's
18 not going to happen that the people are going to come
19 forward and say, Tax me. Please add some more taxes to
20 me. The people would repeal the sales tax and the
21 property tax if we gave them the option, I guarantee you
22 that would pass, or it would get a lot of attention.
23 So it's not whether the people want to be taxed on
24 income. No one wants to pay taxes. But I guarantee you
25 that if we have a balanced revenue system the facts are
67
1 available, the data is available to show that the
2 Legislature has increased options in how it taxes its
3 citizens and there would be the potential, the real
4 potential, for savings in areas of property tax, in areas
5 of sales tax, for changes to the sales tax, for changes to
6 the intangible tax.
7 Right now the intangible tax is a real burden on
8 economic development in this state and the Legislature is
9 addressing it. It costs money to make dramatic changes in
10 the intangible tax, it's a billion dollars of revenue.
11 Article V, we all want very much, I believe, to do the
12 Article V cost. It costs money. There have to be
13 options, a broad array of options available to the
14 Legislature. I'm not saying tax income, I'm not
15 advocating that. And I'm not asking anybody on this floor
16 to vote to tax income.
17 What I am advocating is vote for a balanced revenue
18 structure. Give the tools, the appropriate tools, to our
19 elected officials so that they can do their job, so that
20 they can give the citizens options, some of which will
21 benefit people who don't make a lot of money, who don't
22 have a lot of wealth. It will give them an opportunity.
23 What are we afraid of? I ask you what are you afraid
24 of? Are you afraid that the people will reject this? I'm
25 not. I'm not a bit afraid that the people of the state
68
1 will turn down a personal income tax. I believe in the
2 people. I believe that if they want to do that, and the
3 facts will come out if this goes forward about the
4 opportunities for change and betterment, frankly, the tax
5 situation of a lot of people, but if they reject it, I'm
6 not afraid.
7 I'm not afraid that the people will come out in
8 droves and vote against the rest of our proposals. I'm
9 not afraid of that, that's another myth in my judgment. I
10 think the people of this state are very smart. I think
11 they are very sophisticated about government. I think
12 they've done a pretty good job of letting government
13 officials know what they want and what they value, and I'm
14 not afraid of that.
15 We can structure this in a way that gives the
16 citizens a clear choice. So I ask you, What are you
17 afraid of? Are you afraid they'll tax your income? Are
18 we afraid personally? I don't think so. I don't think
19 so. This is an opportunity. This is an important
20 opportunity to give this state a foundation to take it
21 into the next millennium. The business community ought to
22 be behind this. The individuals ought to be behind it and
23 I would hope that you-all will be behind it today. And
24 again, I thank you very much for the attention given to
25 the issue.
69
1 CHAIRMAN DOUGLASS: All right. We'll proceed to
2 vote. Open the machine.
3 (Vote taken and recorded electronically.)
4 CHAIRMAN DOUGLASS: Has everybody voted? Record the
5 vote.
6 READING CLERK: Nine yeas and 23 nays, Mr. Chairman.
7 CHAIRMAN DOUGLASS: By your vote you have defeated
8 the proposal. We'll go back now, I think, Proposal 105.
9 Commissioner Thompson, I understand you are ready on
10 Proposal 105. Would you read it again, please? Read 105.
11 READING CLERK: Proposal 105, a proposal to revise
12 Article II, Section 15, Florida Constitution, and Article
13 VI, Section 4, Florida Constitution, increasing the term
14 of office of state representatives and state senators;
15 increasing the number of years such offices may serve.
16 CHAIRMAN DOUGLASS: All right. Before I recognize
17 you, Commissioner Thompson, let me commend the commission
18 on a very orderly and informative debate on the last
19 subject. It was not one that was easy to debate. It was
20 done in a great fashion. And I'm sure that -- the Chair
21 appreciates it. And, Commissioner Barnett, you may not
22 always be right, but you are never, like me, in doubt. We
23 appreciate your candor. Commissioner Thompson?
24 COMMISSIONER THOMPSON: Yes, Mr. Chairman and
25 Members, this is Commissioner Planas' proposal. It
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1 originally would have done two things. And as it's in
2 your special order book, it would have done two things.
3 One is it would have changed the terms of office for House
4 members from two to four years and for Senate members,
5 four to six years. That is in the State of Florida, of
6 course.
7 The second thing that it would have done was extend
8 the eight is enough amendment, that's the best way to
9 explain that probably, which would be the entire length of
10 terms in office, a time in office, from eight years to 12
11 years. The Legislative Committee agreed with Commissioner
12 Planas to just deal with the latter issue and that is just
13 an extension of eight-year terms to -- or time spent in
14 office to 12 years of time in office, consecutively. And
15 so, that's what we are recommending to you. In order to
16 do that, Mr. Chairman, I would first like to ask you to
17 take up the first amendment on the desk.
18 CHAIRMAN DOUGLASS: All right. Read the first
19 amendment on the desk by Commissioner Thompson.
20 READING CLERK: By Commissioner Thompson, on Page 1,
21 Line 11, through Page 2, Line 17, delete those lines.
22 COMMISSIONER THOMPSON: Okay. What we are doing here
23 is we are deleting -- if you are looking at Proposal 105,
24 we are deleting the language on Page 1 of that proposal
25 and the language at the top of Page 2 of that proposal.
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1 And the reason is, those things pertain to the change in
2 the term from two to four years and four to six years.
3 And we are leaving in, then, the change in language
4 at the very bottom of Page 2 and carrying on over to Page
5 3, which makes it clear that we are only proposing to you,
6 for your consideration, that you propose to the public
7 that we extend the time of -- length of service for
8 members of the House and Senate in Florida from eight to
9 12 consecutive years.
10 I have another amendment on the desk, Mr. Chairman,
11 that will make sure that that time began to run in 1992.
12 And I'll explain that if you will read the amendment. It
13 is an amendment to the amendment, isn't it?
14 Well, no, it's not an amendment to the amendment. We
15 are on this amendment first then to strike everything and
16 just go to 12 years.
17 CHAIRMAN DOUGLASS: All right. Everybody in favor of
18 the amendment that was just explained -- first of all,
19 does anybody want to be heard on the amendment? All
20 right, if you're not, all in favor of the amendment say
21 aye. Opposed?
22 (Verbal vote taken.)
23 CHAIRMAN DOUGLASS: No, it carries. Now, we have
24 another amendment on the table, which is amendment No. 2.
25 Would you read that amendment, please?
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1 READING CLERK: By Commissioner Thompson, on Page 3,
2 Lines 7 and Lines 17, after the word "years," insert
3 "since 1992."
4 CHAIRMAN DOUGLASS: Now, Commissioner Thompson on the
5 amendment.
6 COMMISSIONER THOMPSON: Thank you, Mr. Chairman.
7 Members, this is a simple amendment now. We are still
8 really on the text on the bottom of Page 2, and then
9 Page 3. That is what the proposal is before you. And
10 this amendment would simply add on Lines 7 and Lines 17 of
11 Page 3, the language, strike the period and add a comma,
12 and add the language, "since 1992." 1992 is when the
13 eight years began to run on people who were in office then
14 or have come in subsequent to that time.
15 Now what we wanted to be careful that we did not do
16 is add another 12 years at the end of that eight years
17 which would give people that were elected then 20 years.
18 And I don't think the public intended that. So we didn't
19 want to recommend that.
20 If you were -- whenever you were elected during that
21 time, you were still only going to have 12 years under
22 this proposal, whereas right now, you have eight years.
23 And that is the whole purpose of what we are doing. And
24 so that is the second amendment that clarifies when the 12
25 years begins to run. So, we are on the amendment.
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1 CHAIRMAN DOUGLASS: All right. On the amendment, all
2 in favor of the amendment, say aye. Opposed?
3 (Verbal vote taken.)
4 CHAIRMAN DOUGLASS: The amendment is adopted. Now,
5 on the proposal as amended, would you explain it now, what
6 it does?
7 COMMISSIONER THOMPSON: This proposal as amended now
8 is pretty simple. And what we all understand is eight is
9 enough, is going to be extended to 12 is enough. And we
10 think we have done the technical changes that are not
11 going to extend beyond that, but it would be a very simple
12 thing to explain to the public and for the public to
13 decide how they want to go. Commissioner Planas was very
14 strong in his belief that eight was not enough and that he
15 thought that the public would accept an extension to 12
16 there.
17 Those who think there should be no limit, but since
18 the public has spoken to that and spoken recently, I think
19 his attitude was, let's see if they won't accept 12
20 because that would be something that would be defensible.
21 CHAIRMAN DOUGLASS: Commissioner Barnett?
22 COMMISSIONER BARNETT: Is it covered somewhere else
23 in the language as to what would happen if a person was
24 filling part of an unexpired term? The 12 is enough would
25 apply to 12 -- to actual full terms or what would it do
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1 to -- if somebody is serving part of an unexpired term?
2 COMMISSIONER THOMPSON: Well, this deals with years.
3 So, whatever portion of an unexpired term you're involved
4 in would count on the years. And that's present language
5 in the Constitution, if you will notice. It says, If by
6 the end of the current term of the office the person will
7 have served in that office for 12 consecutive years. It
8 just changes eight to 12. And that's years.
9 COMMISSIONER BARNETT: Okay. So if somebody is
10 elected, leaves middle of the term in the Senate, they
11 serve two years and then they are elected again, they can
12 really only be elected for two more full terms; is that
13 correct?
14 CHAIRMAN DOUGLASS: That would make it 12.
15 COMMISSIONER BARNETT: But as opposed to the three
16 full terms plus the two unexpired, it's just -- I'm trying
17 to see how that's handled or dealt with.
18 COMMISSIONER THOMPSON: This language says 12
19 consecutive years is all you can serve, the way I
20 understand it. By the end of the current term of office,
21 a person will have served that long.
22 CHAIRMAN DOUGLASS: Commissioner Scott?
23 COMMISSIONER SCOTT: I believe, but it's a good
24 question, and I believe that the answer is -- for example,
25 we are about to have some special elections in the Senate,
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1 they would not be covered. In other words, I think an
2 unexpired term would be added on to whatever is there.
3 But it's a good question and we'll try to sort this out.
4 I asked the staff just now to try to get some
5 information if there is some further change. But under
6 current, in the Senate, because of the two-year term after
7 reapportionment, that is added on because it wasn't a full
8 term; in other words, a full term being four years. So, I
9 believe that same thing would apply, whatever the
10 unexpired portion would be added on but we'll check on it.
11 CHAIRMAN DOUGLASS: This only applies to the
12 Legislature; is that correct? This amendment?
13 COMISSIONER THOMPSON: That's correct.
14 CHAIRMAN DOUGLASS: It doesn't affect the eight is
15 enough everywhere else it applies.
16 COMISSIONER THOMPSON: Correct. And the other thing
17 is, in full response to your question, and I imagine
18 Commissioner Scott answered it more fully and I didn't
19 hear him because I was consulting with the staff, I think
20 I might have been incorrect. I think if you are in a
21 middle of a term, let's say, and this passes, it's like
22 when eight is enough passed and you were in the middle of
23 the term if you were in the Senate. The prohibition
24 against you serving beyond eight years didn't begin until
25 your next election so you could serve ten. If this
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1 passes, it will be 14. But it's not a new 14, don't
2 misunderstand me. This eight is part of that.
3 CHAIRMAN DOUGLASS: Commissioner Morsani?
4 COMMISSIONER MORSANI: I would like to ask a
5 question.
6 CHAIRMAN DOUGLASS: He yields.
7 COMMISSIONER MORSANI: What is the consensus, or do
8 you have a consensus as to the population at large? I
9 haven't -- I mean, personally, I am in favor of 12 years,
10 I didn't think eight was the right thing to start with but
11 that's my own opinion, so I'm in favor of it. But what is
12 the consensus out there in the public or is there a
13 consensus? If so, I would like to know what it is. The
14 group that led the fight for eight is enough, is there
15 any -- have we discussed that with anybody?
16 CHAIRMAN DOUGLASS: Commissioner Scott rises to
17 answer your question.
18 COMMISSIONER SCOTT: Because this happened, the eight
19 is enough, the people that sponsored that, said to the
20 Legislature, If you will do 12 years -- I don't know if
21 Senator Jennings remembers that -- then we will push the
22 eight is enough.
23 But the Legislature and the leadership at that time,
24 and Senator Crenshaw will remember -- he was not the
25 leader by the way -- reduced to do that. I mean, they
77
1 would not do it on their own. So that's why they went
2 forward. And I think there was a feeling among them that
3 maybe eight was, you know, too short because it's too
4 short for people to get a chance to develop fully to be
5 chairman of major committees and president and speaker.
6 CHAIRMAN DOUGLASS: Anybody else want to be heard on
7 this proposal? Commissioner Anthony?
8 COMMISSIONER ANTHONY: Mr. Chairman, I rise in
9 opposition to this proposal. I am totally opposed to term
10 limits. I don't think term limits do very much in regards
11 to safeguarding our local government, state government, or
12 at any level, do much for improving the quality of public
13 policy that is developed. But in 1992, in the general
14 elections, the public spoke and we often talk about that
15 this is the citizen's document, this Constitution. I
16 can't stand here and ask you to support something to undo
17 the actions of the citizens of this state.
18 It is similar to local government when we put a
19 general obligation bond before the voters and we say to
20 those voters, If you pass this general obligation bond for
21 schools, we will build more schools. And then the voters
22 go and they defeat this bond issue for schools. And then
23 that public policy body then goes and changes the votes
24 and vote to build and put more money into schools against
25 the will of the citizens of that entity. That is not
78
1 right.
2 Either we, as a legislative body, should have taken
3 charge and made decisions that reflected the desire of the
4 citizens or we give that authority to the citizens to make
5 that decision. Well, we gave that authority through our
6 Constitution, through the citizens' initiative process, to
7 make that decision. And the voters did, overwhelmingly,
8 make that decision.
9 We can't afford to usurp the voter's response to
10 their Constitution. We can't afford to second-guess the
11 voters in terms of their intent in this Constitution.
12 It's not right, it is not a good message and we should
13 support and maintain what they want.
14 I'm opposed to term limits, but I am more opposed to
15 undoing what the voters of Florida have done and spoken as
16 it relates to their Constitution. And I urge you to vote
17 no to this proposal.
18 CHAIRMAN DOUGLASS: Commissioner Barton?
19 COMMISSIONER BARTON: I also urge you to vote no, not
20 philosophically because I'm opposed to this. In fact, I
21 would like to see it be at least 12 years or more.
22 However, and I would like to add this point, that it was
23 over 70 percent of the voters who by the initiative
24 arrangement did vote for eight is enough. In fact, I
25 believe it was 76 percent. That is an overwhelming amount
79
1 and I think it is thumbing our noses at the voters to
2 recommend something other than what they have passed.
3 CHAIRMAN DOUGLASS: Commissioner Henderson?
4 COMMISSIONER HENDERSON: I rise in opposition to
5 this, echoing everything that's been said. But I want to
6 give a little different perspective. The few times during
7 the course of these proceedings, I have called upon some
8 of the experiences I had back in Volusia County. As we
9 said earlier, we have charter government there. And one
10 of the interesting things about the charter in our
11 community is that from the very beginning, since 1970, we
12 have had eight is enough, we've had term limits.
13 And so, it's made our experience in our community a
14 little bit different because we elect county commissioners
15 there for a temporary period of time, they can't really
16 succeed themselves, they come and they go. And it's made
17 for -- over the 25 years of looking at public policy
18 there, it is a little different. I had a unique
19 experience -- I lost track of what year it was -- probably
20 '90, '91. I was asked to go out and speak to a committee
21 of California Legislature on some environmental programs
22 that we were doing here in Florida. And it just happened
23 to be right after the term limits went into effect in the
24 California Legislature.
25 And you would have thought to the ceiling of the
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1 Legislature had fallen in and crashed down on those folks.
2 The Speaker of the House there had been their Speaker for
3 20 years. I was looking at a committee chairman in this
4 one committee who had been there for 25 years. These are
5 all professional full-time legislators who all of a
6 sudden, the voters made a change. We are going to have
7 eight is enough and these people were absolutely scared
8 about what was going to happen in the near future.
9 What has been unique about the process that we go
10 through is that we have been able to make decisions and
11 have debate on issues, incredible freedom, the freedom
12 that with the exception of Senator Scott and Senator
13 Jennings, we are not going to be on the ballot later this
14 year.
15 That freedom allows us to focus on the question of
16 what is the right thing to do. What is the right thing to
17 do without regard to who I've got to talk to in the lobby
18 to ask for political contributions, without regard to what
19 political action committees and all to go to seek support.
20 It focuses our attention on what is the right thing to do.
21 What was unique about our 25-year experience in
22 charter government and Volusia County is that that's how
23 we came to work everyday. You didn't have to worry about
24 that next election, you thought about what is the right
25 thing to do. This Legislature is not about professional
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1 full-time legislators as a job for a career. It's about
2 people coming here giving up their -- just like we've
3 done, giving up their day job for a while to come here to
4 debate some of the critical policy issues of the day.
5 Eight is enough, as we said yesterday, has changed
6 the nature of the Cabinet. Eight is enough has changed
7 the nature of the Legislature and it allows the
8 opportunity for us to focus on the right thing to do. It
9 would be the wrong thing for us to do, to suggest anything
10 otherwise.
11 CHAIRMAN DOUGLASS: Commissioner Freidin? You are
12 next, Commissioner Sundberg. Then Commissioner Zack, if
13 you still want to speak.
14 COMMISSIONER FREIDEN: People do change their minds
15 and often they change their minds based on experience that
16 they have had as a result of something that they did.
17 People made a decision in 1992, they have had the
18 opportunity to think about that decision, they have had
19 the opportunity to contemplate what it means now, with
20 people about to be leaving office and not being able to
21 run again.
22 The political climate, when that decision was made by
23 the voters of Florida, was a much more negative
24 antigovernment, political climate than I think exists
25 today. And I also think that by term limits, by
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1 shortening term limits, by restricting term limits, we are
2 doing something or we have -- the citizens do something
3 that runs directly contrary to what -- many of the things
4 we have voted favorably on in this commission.
5 For -- what I'm talking about is by having term
6 limits, you take away responsibility from the voters. You
7 take away their responsibility to know what their elected
8 officials are doing and to vote them in or vote them out
9 according to their conduct in office and according to what
10 they have stood for and what they have done in office.
11 And here we are, we have talked endlessly about
12 increasing voter participation, about increasing
13 participation of our electorate in the decision-making
14 processes of our state. And finding ways to get people
15 involved and by having shorter term limits. We are -- it
16 is like a preordained thing. And it says to the voters,
17 You don't really have to be paying attention because they
18 are going to be out anyway. I think it runs contrary to
19 that. I would support doing away with term limits. I did
20 support doing away with the term limits. I would support
21 any measure that would lengthen the term limit.
22 CHAIRMAN DOUGLASS: Commissioner Sundberg?
23 COMMISSIONER SUNDBERG: I proposed an amendment that
24 would have eliminated term limits altogether. I think it
25 is just -- I don't know why we should limit the citizen's
83
1 flexibility in terms of how long people -- their elected
2 representatives stay in office. If they want to limit
3 their terms, there is a very easy way to do it, and that's
4 to, you know, go into the booth and send them packing.
5 But I think it is not an accurate argument,
6 respectfully, Commissioner Anthony to say and others who
7 said, Well, we are thumbing our noses in the face of the
8 people who just so recently voted for term limits. They
9 didn't vote on this proposal. All they had to vote on
10 when they voted was one that said, across-the-board terms
11 will be limited for the offices, including Congress.
12 And so, we don't know, we don't know what their vote
13 would have been had the proposal been put to them that the
14 limits of executive officers, the Cabinet in particular,
15 will be limited to eight years. But the limits, the
16 limits on the Legislature, there will be limits but it
17 should not, you know, be that critical. It ought to be 12
18 years for many of the reasons that have been expressed
19 here. And that is, you know, you lose the benefit of the
20 institutional memory.
21 The other thing, apart from what Commissioner Freidin
22 has expressed, is the attitude or the culture that was
23 rampant at that time, and quite justified, I might say,
24 was the fact that the tradition in Florida, for very, very
25 long terms has not been so much in the legislative branch
84
1 as it has been in the Cabinet. I mean, the tradition in
2 Florida is Cabinet officers -- I mean, there were Cabinet
3 officers, if you can believe this, there were Cabinet
4 officers when I was a young boy and they were still here
5 when I came to go into court. That was still the
6 tradition in Florida and that may very well have been what
7 moved people to support this.
8 But they never had a chance at this one that says
9 eight years for Cabinet officers but 12 years for the
10 legislators. So I think that is simply not a valid
11 argument. And if you believe the people ought to have
12 more flexibility, and I think Commissioner Freidin says
13 they are entitled to change their mind, I don't view it
14 that way. They never get a chance at this one. But I
15 think it may tell us something. I think it may tell us
16 that in fact maybe they have rethought this issue. I
17 support this proposal.
18 CHAIRMAN DOUGLASS: Commissioner Zack?
19 COMMISSIONER ZACK: You know, yesterday we mentioned
20 Claude Pepper in this chamber in a very fond way. And
21 when I went to work for him as his legislative aide he was
22 72 years old and he had had a lifetime in government. And
23 his best years were his last 16 until he was 88 years old,
24 that's when we championed the elderly and the concerns of
25 the elderly, that's when he was chairman of the Rules
85
1 Committee. He had to have a lifetime of service before he
2 got to that point.
3 And I strongly oppose term limits, period. I voted
4 against term limits; however, with all respect to
5 Commissioner Sundberg and Commissioner Freidin, I've been
6 living in this state for the last four years and I don't
7 see a radical change in the view of the public as to how
8 they perceive government. And I believe that they have
9 the right to vote for term limits, I hope, with
10 retrospect. And not a four-year retrospect, it's going to
11 take longer than that, but at any time the people can have
12 an initiative and change this when they realize that it's
13 not good for them.
14 When we looked at the net ban issue, we said it was
15 just voted on by the people. Eighty-seven percent -- I
16 think it was 87 percent -- but it was most certainly over
17 70 percent, just like it was over 70 percent here, the
18 people spoke and spoke loudly. What more elitist
19 statement could we make when we look at the public and
20 say, Well, not only are we not going to listen to what you
21 said, but what you said is just a little bit wrong, you
22 just were off by four years.
23 If we are going to do something, and I'm opposed to
24 putting this in the Constitution as one of our
25 initiatives, but if we are going to do something, let's be
86
1 intellectually honest and say, We are opposed to term
2 limits. And if you can get the right number of votes,
3 then let's go ahead and put that on the ballot. But let's
4 not say that, you know, that you are just off a little bit
5 in what you believed. We ought to respect what the
6 citizens did. They have the opportunity to undo it.
7 We made the argument a minute ago in -- some of us
8 heard or I guess we all heard and some of us made
9 arguments, that we didn't know what the citizens would do
10 about tax reform. Well, we know loud and clear what the
11 citizens feel about this issue, and I urge you to vote
12 against this no matter how strongly you believe in the
13 concept.
14 CHAIRMAN DOUGLASS: Okay. Ready to vote. Unlock the
15 machine.
16 (Vote taken and recorded electronically.)
17 CHAIRMAN DOUGLASS: Lock the machine and announce the
18 vote.
19 READING CLERK: Eleven yeas and 20 nays,
20 Mr. Chairman.
21 CHAIRMAN DOUGLASS: By your vote, you have defeated
22 Proposal 105. Commissioner Barkdull?
23 COMMISSIONER BARKDULL: I would like to make an
24 announcement for the benefit of the House.
25 CHAIRMAN DOUGLASS: Go ahead.
87
1 COMMISSIONER BARKDULL: Because of the TV schedule
2 this afternoon that starts at 1:00 and also because of
3 some requests by some members for a longer period of lunch
4 time than an hour, it would be a policy to make a motion
5 that we recess at least by a quarter of 12, but promptly
6 return by 1:00.
7 CHAIRMAN DOUGLASS: All right. Let's see. Where
8 were we here? All right. The next proposal is Proposal
9 184 by the Committee on Ethics and Elections and
10 Commissioner Mills, recommended as a committee substitute
11 and approved by the Committee on Ethics and Elections with
12 a pending amendment, is on the table. New reading clerk,
13 Brandy Burke. We are delighted to have you and we'll get
14 a melodious voice instead of our baritone, I think. Would
15 you read it, please?
16 READING CLERK: Committee substitute for Proposal
17 No. 184, a proposal to revise Article VI, Section 1, of
18 the Florida Constitution, providing that the Legislature
19 shall prohibit certain conduct in connection with
20 elections.
21 CHAIRMAN DOUGLASS: Very good.
22 COMMISSIONER MILLS: Mr. Chairman, I think there's a
23 substitute amendment on the desk.
24 CHAIRMAN DOUGLASS: Excuse me. Our reading clerk,
25 she's not inexperienced, she's on the radio at FSU.
88
1 COMMISSIONER MILLS: Makes sense. Mr. Chairman, this
2 is the issue I discussed with you. We discussed this
3 thoroughly yesterday on the floor. I would say this, it
4 passed unanimously out of the committee. We have had an
5 enormous amount of good work by our staff trying to
6 accomplish the mission. The mission is to provide a means
7 of removing people from office for conduct during
8 elections which is currently not available.
9 Our problem is we are running right in between the
10 First Amendment's rights of communication and the ability
11 to make this effective. I've worked with Commissioner
12 Freidin, Commissioner Rundle and the staff and what I
13 would ask you, is if you can temporarily pass this, either
14 we will come out with something that is effective or we
15 will withdraw it. And at the moment, I think we have
16 something that -- we may have met one of the concerns, but
17 we may not have made sure it doesn't do much of anything.
18 CHAIRMAN DOUGLASS: That probably is an improvement
19 you're telling us; is that correct?
20 COMMISSIONER MILLS: Depends on your point of view.
21 CHAIRMAN DOUGLASS: All right. Without objection,
22 we'll temporarily pass it and allow them to try to make it
23 do nothing. Proposals number -- committee substitute for
24 Proposals 36 and 38 by the Committee on General
25 Provisions. It is recommended as a committee substitute
89
1 and it combined these two and was disapproved after they
2 did all of that by the Committee on General Provisions.
3 Would you read it, please?
4 READING CLERK: Committee substitute for Proposals
5 Nos. 36 and 38, a proposal to revise Article II, Section
6 7, Florida Constitution; providing a right to clean and
7 healthful air and water and providing for the abatement of
8 pollution and noise.
9 CHAIRMAN DOUGLASS: Commissioners Henderson and Mills
10 are both moving. Is that a run or do you want to speak?
11 Who wants to go first?
12 COMMISSIONER HENDERSON: Thank you, Mr. Chairman. I
13 only heard three people say, Oh, no, on the way as I was
14 walking across to get here.
15 CHAIRMAN DOUGLASS: The question was, what were they
16 saying, Oh, no, about?
17 COMMISSIONER HENDERSON: I don't know, Mr. Chairman,
18 I don't know.
19 CHAIRMAN DOUGLASS: You have the floor.
20 COMMISSIONER HENDERSON: Thank you. What I would
21 like to do is to introduce the proposal and say some words
22 about it. And I understand that Commissioner Mills has an
23 amendment which he will offer in just a second. If I may
24 proceed.
25 First of all and foremost, we've heard a few people
90
1 today talk about what we have done in this commission over
2 the course of the last several weeks with regard to the
3 environment. The truth is, we have taken some significant
4 action and I congratulate each of you for listening to the
5 public which came out at these public hearings to address
6 this issue.
7 You will recall that at our second public hearing,
8 the secretary of the Department of Environmental
9 Protection, Virginia Wetherell, came forward and said that
10 there is pitifully little in our Constitution with regard
11 to protection of our natural resources and environment and
12 proposed the issue of the environmental bill of rights.
13 In my thanks to you, I would say that we have gone
14 very far in a series of issues that I think we'll put
15 together which will give to the public of the state an
16 opportunity to do even more to protect our environment.
17 We have created a Fish and Wildlife Conservation
18 Commission. We have authorized bonding authority for the
19 protection of environmental and endangered lands. We
20 yesterday found a way to protect these lands for future
21 generations. Tomorrow we'll have a provision before us to
22 protect private lands, or good stewards of the land. And
23 these are all matters that I think command great public
24 support.
25 I would also tell you that it was with a little bit
91
1 of trepidation to decide whether we would go forward today
2 on this issue, because frankly, candidly, I think we have
3 developed a consensus on these environmental measures and
4 I do not want to do anything to jeopardize that consensus
5 because the environment is a bipartisan issue in the
6 state, because it has risen to a fundamental value.
7 As you know, the committee heard testimony on this,
8 as well as the matter which will follow property rights.
9 And the recommendation is to reject each of these. But we
10 have had some good debate on this floor earlier today on
11 the income tax and on term limits. And I think what
12 inspired me to at least bring this debate before the floor
13 is, frankly, Commissioner Brochin talked me into it with
14 his debate on education rising to the level of a
15 fundamental right.
16 Because when we agreed to that, we changed in our
17 mind an idea of what a right is. You know, for everything
18 else, it's in the Constitution. Rights are those things
19 that we pull back and protect to ourselves to be free from
20 governmental intrusion. And all of the things that are
21 set forth in the Bill of Rights follow that example.
22 But we did something different. We changed the
23 philosophy, we changed the fundamental thought when we
24 agreed to the concept of education being a fundamental
25 right because we accepted the notion that some things,
92
1 some things rise to the level of being a fundamental value
2 and should be protected. Now, we have a right to free
3 speech, to practice the religion of our choice and to
4 petition our government for redress of grievances, but I
5 would suggest to you that none of those rights are worth
6 much at all without the right to a clean and healthy
7 environment. And so that is an issue that is worth
8 discussing.
9 We have a provision in our Constitution regarding
10 environment, it is a policy statement. It says, Policy of
11 the state of Florida to protect our natural resources.
12 Last year, the voters of Florida approved two additional
13 amendments in the Constitution with regard to the
14 Everglades. And this year, the Governor asked the Supreme
15 Court for an advisory opinion on what the effect of those
16 amendments was.
17 And the Court came back with an advisory opinion that
18 said that those two provisions, Article II, Section 7, A
19 and B, must be read together. And in reading them
20 together, we find that they are not self-executing, that
21 it is merely a policy, it is merely a policy of the state
22 of Florida to protect our environment. We have the right
23 to enjoy our property, but it is merely a policy of the
24 state of Florida to protect our environment.
25 Now, when you see Commissioner Sundberg, and I'm
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1 talking in the back of the room, we are not talking about
2 the weighty issues of the day, we are talking about
3 another favored place of ours, it's called Montana. And
4 Montana, I'm going to read to you from the preamble of the
5 Montana Constitution. "All persons are born free and have
6 certain inalienable rights." They include the right to a
7 clean and healthful environment. Right up there, what
8 could be more basic? What could be more important?
9 I would suggest to you, as we have heard throughout
10 the state, that this is -- this is one of those issues
11 that rises to be a fundamental value. We heard that
12 throughout the state.
13 Mr. Mills has an amendment on the desk that takes
14 away the issue of whether or not this rises to the level
15 of a fundamental right. As I said earlier, I don't want
16 to do anything to jeopardize the consensus that we have
17 built on this issue. I don't want to do anything to raise
18 the specter of unlimited litigation out there. I would
19 suggest to you in good faith that the language that is
20 before you is an effort on our part to try to narrow it so
21 much so that it would not include any threat of additional
22 litigation but I know that there are others that share
23 that concern.
24 Mr. Chairman, I thank you for the opportunity to
25 address this issue. It is important that we be able to
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1 put forth issues in a proactive way, that's been a great
2 part about this process, it's allowed us to get these
3 other things to move forward. And so I thank you for that
4 opportunity.
5 CHAIRMAN DOUGLASS: All right. Commissioner Mills
6 moves that Commissioner Henderson and Commissioner
7 Sundberg be moved at our expense to Montana where they
8 prefer to be. And after that motion is unanimously
9 without objection, Commissioner Mills, you have the floor.
10 (Laughter.)
11 COMMISSIONER MILLS: Mr. Chairman, has the amendment
12 been read?
13 CHAIRMAN DOUGLASS: No, the amendment hasn't been
14 read. You would like it read. It's on the table. Please
15 read it.
16 READING CLERK: By Commissioners Mills and Henderson,
17 on Page 1, Line 14, through Page 2, Line 2, delete those
18 lines and insert lengthy amendment.
19 COMMISSIONER MILLS: Mr. Chairman, let me suggest to
20 you what this amendment says. It says precisely what
21 everyone has on his desk. It says, A policy statement
22 should be the policy of the state to conserve and protect
23 its natural resources and scenic beauty for the health and
24 welfare of its citizens and future generations.
25 The second sentence says, Adequate provisions shall
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1 be made by law for the abatement of air and water
2 pollution and of excessive and unnecessary noise and for
3 the protection of natural resources for future
4 generations.
5 What this has done by removing the statement on
6 absolute rights is, in my judgment and I think others,
7 that there is no additional standing created by this. It
8 is simply a policy statement for the Legislature and
9 others to consider and it states that we have a concern
10 for future generations.
11 To me, I had the opportunity of being chairman of the
12 Natural Resources Committee in the early '80s and I had a
13 public policy and an academic interest in trying to do the
14 right thing. Since I got out of the elected office I've
15 had a child. I now have a 3-year-old daughter. And now
16 my principal concern for the environment is what legacy
17 are we going to leave for her.
18 I've had an opportunity to see sunsets over the
19 Everglades, to walk on the beaches in Florida. And from
20 the time I got elected until the time I left the
21 Legislature, the entire state of Georgia moved to Florida,
22 10 million people. They didn't bring their schools. They
23 didn't bring any other resources. Florida was named for
24 flowers. In another 20 years, Florida could be named for
25 concrete. Now, don't get confused and think that this
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1 amendment is going to stop that. This is a general policy
2 statement about what we think about future generations.
3 You know, it strikes me, we talk about legacies and
4 we talk about taking care of our kids. We want to pass on
5 the most fundamental American values, we want our kids to
6 be better off than we were. Why would we say, I want to
7 pass on my personal resources, I want my child to be a
8 little bit better off economically than I was and why
9 would we impoverish them from the basic access to the
10 natural resources of the state? How can that be honest?
11 How can that be consistent with the fundamental value?
12 The other thing about what you've done on
13 environmental issues in this commission is very consistent
14 where we are in the year 1998. A new generation of
15 environmental policy is not regulation controlled. We
16 have now done that. The better approach to environmental
17 policy is to try to provide incentives to try to acquire
18 land, to try to respect property rights and everything
19 you've done has done that. This does not change it at
20 all, it simply is a statement that is consistent with that
21 recognizes the importance of future generations, and
22 absolutely expresses the values that you have expressed
23 and what you have passed.
24 I think that what the people have told us is that
25 among the values they are concerned about, education,
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1 environment, and criminal justice, that one of the things
2 that we need to preserve for the future is the
3 environment. And I want to make clear again that this
4 does not create any standing. I will be honest with you
5 on the floor every time. There are other issues we
6 discussed where I've said it would have an effect on
7 litigation standards. As far as I can tell, this would
8 have none. But it would have an effect in stating our
9 values for future generations. I'd be glad to accept any
10 questions, Mr. Chairman.
11 CHAIRMAN DOUGLASS: All right. This is on the
12 amendment. That's what we're on at the moment. You're
13 not ready for that, are you? We're on the amendment which
14 was read by -- it's Commissioner Mills' amendment to the
15 proposal. We need to act on that first. Commissioner
16 Morsani?
17 COMMISSIONER MORSANI: I think I have a question on
18 the amendment.
19 CHAIRMAN DOUGLASS: All right. He will yield to a
20 question on the amendment. Commissioner Mills?
21 COMMISSIONER MORSANI: Because in your -- the way I
22 am reading this, this is supposed to take the place of 36
23 and 38, it will be a substitute for both because in 38 you
24 state that the committee substitute mandates the state to
25 preserve and protect its natural resources. I think that
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1 changes the standing totally from what you just said; is
2 that incorrect?
3 COMMISSIONER MILLS: This is a substitute for all
4 that. That is no longer in there.
5 CHAIRMAN DOUGLASS: That's correct. This is a
6 substitute, or actually an amendment, or the substitute
7 for 36 and 38.
8 COMMISSIONER MILLS: This is a substitute for all of
9 that. This is the whole amendment.
10 COMMISSIONER MORSANI: This substitutes Virginia
11 Wetherell's bill of rights which I have a lot of problems
12 with.
13 COMMISSIONER MILLS: And I have a lot of problems
14 with too.
15 COMMISSIONER MORSANI: It eliminates that?
16 COMMISSIONER MILLS: It eliminates that.
17 COMMISSIONER MORSANI: I'll listen then.
18 CHAIRMAN DOUGLASS: All right. There's an amendment
19 on the table to the amendment. And I would ask that if
20 you can read it, to read it. I don't think we can read
21 it. Whoever wrote it must be a doctor or a judge. Who
22 wrote it? Dr. Barkdull, okay. Maybe we can get him to
23 read it and then you can write it in your handwriting.
24 Read it to us, please, Commissioner Barkdull.
25 COMMISSIONER BARKDULL: The purpose of the amendment
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1 is to strike part of Line 18 and like Line 19 which reads,
2 For the health and welfare of its citizens and future
3 generations. I have no problem with the second part that
4 mandates that the Legislature do something. I am
5 concerned about a standing that's created by these words
6 and that's the purpose of the amendment.
7 CHAIRMAN DOUGLASS: All right. Does your amendment
8 then strike for the health and welfare of its citizens and
9 future generations?
10 COMMISSIONER BARKDULL: Yes, sir.
11 CHAIRMAN DOUGLASS: That's your amendment to the
12 amendment?
13 COMMISSIONER BARKDULL: Correct.
14 CHAIRMAN DOUGLASS: Okay. Everybody understand that
15 amendment? Commissioner Mills?
16 COMMISSIONER MILLS: Mr. Chairman, will the gentleman
17 yield? This strikes Lines 18 and 19?
18 CHAIRMAN DOUGLASS: No. Not the whole thing.
19 COMMISSIONER BARKDULL: Not the whole thing of 18.
20 It starts with the underlying provision where you have
21 inserted for the health and welfare of its citizens and
22 future generations.
23 CHAIRMAN DOUGLASS: That's the language I understood
24 he's moving to strike. Can you read that now? Do you
25 think we got it where the reader can read it?
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1 COMMISSIONER BARKDULL: For the health and welfare of
2 its citizens and future generations.
3 CHAIRMAN DOUGLASS: All right. I'm going --
4 READING CLERK: By Commissioner Barkdull, on Page 1,
5 Lines 18 and 19, delete and strike "for the health and
6 welfare of its future citizens and generations."
7 CHAIRMAN DOUGLASS: That's close enough. Now this is
8 the amendment to the amendment. So the Barkdull amendment
9 would strike from what is now going to be, if you pass his
10 proposal -- I mean his amendment, the proposal -- but if
11 you strike this, the language, For the health and welfare
12 of its citizens and future generations, will be removed
13 from Commissioner Mills' amendment. Commissioner
14 Thompson?
15 COMISSIONER THOMPSON: Mr. Chairman, I just have a
16 suggestion. The first time any of us has seen the
17 amendment or certainly the amendment to it is now. And I
18 think this kind of thing is something that we kind of
19 informally workshopped a time or two and been able to come
20 up with something. You know, if it doesn't do anything,
21 it doesn't need to be done. If it does something, we need
22 to know what it does. I'd like to suggest to Mr. Mills
23 and Commissioner Henderson that we just kind of informally
24 workshop this thing and take it up at a later time.
25 CHAIRMAN DOUGLASS: I would point out, Commissioner
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1 Thompson, that this thing has been workshopped to death.
2 And the fact that you and I may have just seen it for the
3 first time doesn't mean it hasn't been workshopped by
4 committees and half the world. I think most people are
5 ready to move forward and vote on it.
6 Commissioner Rundle?
7 COMMISSIONER RUNDLE: I have a question for
8 Commissioner Barkdull if he would yield. Why is it that
9 you're recommending that language be stricken?
10 COMMISSIONER BARKDULL: Because I'm not sure that it
11 doesn't create a standing -- a private standing to bring a
12 lawsuit. I don't know the answer to it and it concerns
13 me. If it doesn't do anything, which as I understood some
14 of the comments, then we don't need it. If it's going to
15 do something, I want to know what it does. And what I'm
16 afraid it does is create a private right.
17 CHAIRMAN DOUGLASS: And your amendment states you
18 don't want to do that because it might?
19 COMMISSIONER BARKDULL: That's correct.
20 CHAIRMAN DOUGLASS: Commissioner Rundle, do you have
21 anything further? You can be heard, Commissioner Mills.
22 COMMISSIONER MILLS: Since this language is
23 relatively new to some people who I know legitimately want
24 to support this, I want to give them the opportunity to
25 support this and I would support Commissioner Thompson's
102
1 concept of workshopping it because I am confident that
2 Commissioner Barkdull's motion is not necessary and I'd be
3 glad to do this and I think we can do it --
4 CHAIRMAN DOUGLASS: Why don't we vote on his motion
5 to amend your amendment then? We're going to have to
6 schedule some more meetings if we keep putting these
7 things off. I think everybody is ready to vote on this.
8 COMMISSIONER BARKDULL: Does the gentleman yield?
9 CHAIRMAN DOUGLASS: Yes, he yields.
10 COMMISSIONER BARKDULL: What's the purpose of the
11 statement?
12 COMMISSIONER MILLS: The purpose of the statement is
13 the same purpose as the previous sentence. It's a
14 statement --
15 COMMISSIONER BARKDULL: Why do we need it?
16 COMMISSIONER MILLS: The policy of the state of
17 Florida does not include health or welfare of citizens and
18 future generations. Now, the first sentence has been in
19 the Constitution how long?
20 COMMISSIONER BARKDULL: I'm not interested in
21 attacking the first sentence.
22 COMMISSIONER MILLS: Well, I'm interested in
23 discussing the first sentence because it's been here 20
24 years and hasn't created a standing. This doesn't create
25 standing, it's a statement of policy for the state.
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1 COMMISSIONER BARKDULL: What is the purpose of
2 putting this in then?
3 COMMISSIONER MILLS: To have a statement of policy
4 for the state which provides guidance for legislators in
5 implementing the second line.
6 COMMISSIONER BARKDULL: If you want to put it under
7 the second line, it says they may do it by law, I'd be
8 happy to support it. But to say it's freestanding, I have
9 a lot of concern about it.
10 CHAIRMAN DOUGLASS: Commissioner Scott?
11 COMMISSIONER SCOTT: Mr. Chairman, I know this issue
12 has been around, but this language, this new amendment,
13 the first time we've seen it is right now. And I think --
14 I would like to move to temporarily pass this matter until
15 we get a chance to find out from some of our lawyers or
16 whatever we can see what's going on here. Because when it
17 says, Health and welfare of its citizens and future
18 generations, I mean, we need to find out. If it creates a
19 private right, at least we would know what's going on. So
20 I would move that we temporarily pass it until we get a
21 chance to look --
22 CHAIRMAN DOUGLASS: There's been a motion that we
23 temporarily pass it. Anybody opposed? If not, it's
24 temporarily passed.
25 All right. Committee substitute for Proposal 83 by
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1 the Committee on General Provisions, by Commissioner Corr
2 recommended as a committee substitute and disapproved by
3 the Committee on General Provisions. Would you read it,
4 please?
5 READING CLERK: Committee substitute for Proposal
6 No. 83, a proposal to revise Article X, Section 6, Florida
7 Constitution; providing conditions under which private
8 property is assumed to be taken for a public purpose.
9 CHAIRMAN DOUGLASS: All right. Commissioner Corr,
10 you're recognized.
11 COMMISSIONER CORR: Thank you, Mr. Chairman. First
12 of all, I should point out that the committee substituted
13 the entire original proposal. So the analysis you have
14 isn't the analysis of the proposal. But if you check on
15 No. 3 on the analysis, it is the only thing that now is
16 consistent with the proposal that's on the desk. So now
17 that everybody is confused, I'll try to explain what we're
18 doing.
19 The proposal that the committee did adopt is in the
20 red booklet however. This is a private property rights
21 proposal. Private property rights are the bedrock of our
22 government. All of our liberties are inextricably linked
23 to the fundamental right to hold private property. When
24 we lose those rights, we lose everything. Now every
25 Florida Constitution, from the very first one, has been
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1 very clear about the rights of Floridians to hold private
2 property.
3 Article X in Section 6 now is very clear. No private
4 property shall be taken except for a public purpose and
5 that full compensation therefore paid to each owner or
6 secured by deposit in the registry of the court and
7 available to the owner. That's a quote in Section 6 in
8 Article X, very clear.
9 But it turns out, like a lot of things we deal with
10 up here, that it is not that clear. Because what happens,
11 over time, since the original Constitution of 1837, what
12 constitutes a taking, has changed somewhat just because
13 the nature of a regulatory environment and the nature of
14 their state has changed. So what can happen now is
15 private property can actually be taken without the actual
16 transition of a deed or ownership, can be taken by
17 government through regulation.
18 Let me give you an example because this is kind of
19 complicated and I think everybody is ready for lunch. So
20 to get your attention, I'm going to make an example and I
21 hope I can be articulate and do a good job at it, but
22 maybe I can get some help with some others on this if not.
23 For the purpose of this example, if it's okay,
24 Mr. Chairman, I want to talk about Farmer Douglas, he's a
25 farmer in south Florida and central to the state.
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1 His family has been in the farming business and
2 agriculture for generations. They have cattle, they have
3 grown citrus over time, they have grown a number of row
4 crops, tomatoes and other things and have been pretty
5 successful over generations in the family farming
6 business.
7 But what's happened from time to time is that farmer
8 who's just been in the business of agriculture has had to
9 get pretty astute in a lot of things, mainly law and
10 zoning, because over time, his 1,000 acres, let's say, of
11 ranch land that he owns, that he's used for row crops and
12 cattle farming and whatnot, has got a lot of attention by
13 the county and the state.
14 The jurisdictions over it, the agencies that have a
15 say in what Mr. Farmer Douglas does on his land have grown
16 tremendously over the generations from the time his great
17 grandfather first started farming the property. And now
18 he has water management districts, he has zoning codes, he
19 has EPCs and EPAs and a number of multiple, 23 more
20 environmental agencies and others that have jurisdiction
21 over his property.
22 So he's had to get pretty smart. He's had to get
23 pretty sophisticated to stay in business. But let's just
24 say that what happens recently is Farmer Douglas came up
25 against, for the lack of again -- to use an example so I
107
1 don't get too specific, let's call them a fruit lizard.
2 Okay, so this is Farmer Douglas and fruit lizard. It
3 could be a rock and roll band but for now it's just going
4 to be a story.
5 And the fruit lizard all of a sudden gets a lot of
6 attention by let's say the Board of County Commissioners'
7 because a fruit lizard is starting to get to be an
8 endangered species and he's a little lizard about three
9 inches long, he's red, he looks like a hot dog with legs.
10 And he loves to eat tomatoes and he hangs around the crops
11 of Farmer Douglas and, for whatnot, I guess the state
12 continues to grow, development continues to occur, farming
13 continues to happen and the little fruit lizard is
14 starting to be endangered.
15 And so the Board of County Commissioners passes a
16 rule. They say that habitat for the fruit lizard is now
17 sacred, we've got to protect it. And what was once a
18 thousand acres of Farmer Douglas' family now becomes 800
19 because 200 acres is natural habitat for the fruit lizard.
20 Farmer Douglas goes to the Board of County Commissioners
21 hearings, he gets lawyers, he goes to public hearings and
22 in the final analysis, he still owns 200 acres of land but
23 he can't use it anymore for farming.
24 The question that this proposal addresses is, Did his
25 land just get taken or not by government? Now he still
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1 gets to pay taxes on it but he doesn't get to use it
2 anymore. We could use a number of examples from
3 agriculture to construction. It could be a single family
4 owner. It could be a commercial developer, it could be a
5 farmer. But I would dare say that this kind of example
6 happens every day in business here in Florida that a
7 property owner has his rights taken even though the deed
8 doesn't transfer, even though ownership hasn't
9 transferred, but the right to use that property no longer
10 exists.
11 Now, we've heard a lot on this floor about the
12 protection of our natural environment, we're going to hear
13 more. And nobody disputes that that's very important to
14 the future of Florida. But I think the forefathers of our
15 state and the people that come before us have also said
16 and been very certain about the right for Floridians to
17 hold private property. As we continue to look at the
18 rights of our future we also have to protect the rights of
19 private property owners. So this proposal again will
20 clarify what constitutes a taking in Section 6, Article X.
21 It's a simple principle-based issue and it belongs in our
22 Constitution.
23 It does not mean that we don't care about the fruit
24 lizard but it means that we care about the interests of
25 the private property owner as well. If government comes
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1 in and takes, government has to pay, it's as simple as
2 that.
3 Tax cap is a citizen's group. I had never heard
4 about until the recent last couple of months because I'm
5 naive to this political process and being appointed here,
6 I've started to hear about some of these things. And I
7 heard from this tax cap group that they have 930,000
8 signatures on a proposed constitutional amendment that
9 addresses this issue.
10 So back to some of the debate we've heard this
11 morning, on the final analysis, there is a lot of public
12 sentiment for this kind of issue as regulation continues
13 to grow. I would say in the very least this is worth
14 putting on the ballot to let people have a chance to
15 decide how sacred our private property rights are. I'll
16 close with that and take questions.
17 CHAIRMAN DOUGLASS: What you referred to has been
18 circulated, the staff analysis, everybody has it on their
19 desk. And as I understand the analysis, it says the
20 committee substitute completely replaces the language of
21 the original proposal and specifies that a taking includes
22 government regulation or action that, quote, so diminishes
23 or denies the use of private property as to cause a
24 significant loss of value without denying substantially
25 all beneficial use thereof and also permits a landowner to
110
1 bring a court action 12 months after giving written notice
2 even if the landowner has not yet exhausted all
3 administrative remedies. And it expressly requires that
4 full compensation will be determined by a jury.
5 COMMISSIONER CORR: That is correct. The analysis,
6 Mr. Chairman, is still the old analysis on Nos. 1 and 2
7 but is correct on No. 3.
8 CHAIRMAN DOUGLASS: On No. 3.
9 COMMISSIONER CORR: Yes, sir.
10 CHAIRMAN DOUGLASS: So that's what it does.
11 Commissioner Barkdull?
12 COMMISSIONER BARKDULL: I move, sir, that we do now
13 recess until the hour of 1:00 p.m. and continue with the
14 argument when we come back.
15 CHAIRMAN DOUGLASS: All right. Without objection, we
16 will be back. And be back promptly at 1:00 p.m. because
17 we're going on live television and I know that you
18 wouldn't want to miss that.
19 (Lunch recess.)
20 SECRETARY BLANTON: All unauthorized visitors please
21 leave the chamber, all commissioners indicate your
22 presence, all commissioners, indicate your presence.
23 CHAIRMAN DOUGLASS: All right, it is 1:00 on real
24 time. Actually, it is three minutes after. Our clock is
25 three minutes slow.
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1 SECRETARY BLANTON: Quorum call, all commissioners
2 indicate your presence.
3 CHAIRMAN DOUGLASS: I like the red one, Commissioner
4 Henderson. You had a red one up. Better make it green,
5 we may not get a quorum.
6 (Laughter.)
7 SECRETARY BLANTON: Quorum present, Mr. Chairman.
8 (Quorum taken and recorded electronically.)
9 CHAIRMAN DOUGLASS: All right. The meeting will come
10 to order. I believe we left in the middle of the
11 discussion on the proposal of Commissioner Corr.
12 Committee substitute for Proposal 83 on eminent domain.
13 And, Commissioner Corr, did you quite finish or do
14 you want to summarize for us your position quickly in
15 order to bring us up-to-date? Commissioner Barkdull?
16 COMMISSIONER BARKDULL: For the benefit of the
17 audience, I'd ask that the committee substitute be read.
18 CHAIRMAN DOUGLASS: All right. I'll ask the clerk to
19 read the Committee Substitute 83, please.
20 READING CLERK: Committee substitute for Proposal
21 No. 83, a proposal to revise Article X, Section 6, Florida
22 Constitution; providing conditions under which private
23 property is assumed to be taken for a public purpose.
24 CHAIRMAN DOUGLASS: All right. And as I understood
25 it, Commissioner Corr, you explained that this redefines
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1 or defines the term "taking" for the purposes of requiring
2 the State to pay for the property of an individual or
3 owner. And if the government action diminishes the value
4 of that property by 20 percent or more of its value; is
5 that a fair summary of where we are?
6 COMMISSIONER CORR: Not exactly.
7 CHAIRMAN DOUGLASS: Then straighten us out.
8 COMMISSIONER CORR: The original proposal had the
9 20 percent number in it. The new proposal that's in the
10 book does not.
11 CHAIRMAN DOUGLASS: What is the proposal in lieu of
12 that we are acting on?
13 COMMISSIONER CORR: This is the committee substitute.
14 Essentially in the committee, we got into some discussion
15 about putting some specific numbers in the Constitution.
16 And based on some of the input from the public and the
17 committee at that time, we moved to more of a, what I
18 believe is more of a principle-based proposal, that just
19 gets to the specific definition of what constitutes a
20 taking.
21 CHAIRMAN DOUGLASS: And so that's the part that's on
22 our summary that reads that, Taking includes government
23 regulation or action that, quote, so diminishes or denies
24 the use of private property as to cause a significant loss
25 of value without denying substantially all beneficial use
113
1 thereof. That's what you substituted for the 20 percent
2 requirement?
3 COMMISSIONER CORR: Yes, sir, that's correct.
4 CHAIRMAN DOUGLASS: And that's what we have before us
5 and what you are urging us to adopt; is that correct?
6 COMMISSIONER CORR: Yes, sir, that's correct.
7 CHAIRMAN DOUGLASS: All right. Is everybody now
8 comfortable with where we are on this? We have just begun
9 the debate. Do you know now how many people want to speak
10 for this that want to rise for it? How about opponents?
11 How many opponents do we have? Five opponents.
12 All right. For those that are opponents I know you
13 won't repeat what others have said. So, first of all, I
14 saw no proponents and I'll call on Commissioner Anthony as
15 the first opponent.
16 COMMISSIONER ANTHONY: Mr. Chair, at this time I'm
17 rising for a question of the proposer.
18 CHAIRMAN DOUGLASS: I have a feeling that it is not
19 friendly.
20 COMMISSIONER ANTHONY: It may be.
21 CHAIRMAN DOUGLASS: He yields.
22 COMMISSIONER ANTHONY: It may just be a question of
23 clarification. Commissioner Corr, is it accurate that
24 in -- that the Legislature created Chapter 70, the Bert
25 Harris Act, that has dealt statutorily with private
114
1 property rights; is that correct?
2 COMMISSIONER CORR: I don't think I can answer that
3 question. I don't know for sure.
4 CHAIRMAN DOUGLASS: I can answer it. It does.
5 COMMISSIONER ANTHONY: It does, okay. So you could
6 not tell me whether or not the Bert Harris Act has had
7 time to be implemented and actually showed some progress
8 in this area?
9 COMMISSIONER CORR: I can't tell you.
10 CHAIRMAN DOUGLASS: It was enacted in '95, I believe.
11 COMMISSIONER ANTHONY: So it is accurate what it was
12 just enacted two years ago and therefore if two years had
13 just passed that it may not have had the time to really
14 show that there is some balance when it comes to private
15 property rights, would you assess that, Commissioner Corr?
16 COMMISSIONER CORR: That can be an assumption, but I
17 can't validate it one way or the other.
18 CHAIRMAN DOUGLASS: All right. Do you want to
19 continue or is that all you had?
20 COMMISSIONER ANTHONY: I just had questions at this
21 point. I would like to --
22 CHAIRMAN DOUGLASS: You have other questions?
23 COMMISSIONER ANTHONY: No.
24 CHAIRMAN DOUGLASS: Do you want to speak in
25 opposition?
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1 COMMISSIONER ANTHONY: Not at this time.
2 CHAIRMAN DOUGLASS: Well, this is your chance.
3 Commissioner Anthony, while you're up, go ahead and state
4 your opposition.
5 COMMISSIONER ANTHONY: Mr. Chair, I'll leave the real
6 debate for others on this issue, but I would just ask the
7 commission to strongly oppose this proposal. The
8 committee voted unanimously, not one vote was in support
9 of this proposal, because there is right now consideration
10 and there has been a law in 1995, the Bert Harris, Jr.
11 Act, Chapter 70, that really talks about private property
12 protection and you'll hear stories upon stories about how
13 local government, government itself, is taking the use of
14 individual properties. And I will say to you that in
15 response to that, we have, in fact, dealt with that issue
16 from a governmental perspective.
17 And the Bert Harris, Jr. act deals with that
18 specifically. You will hear stories, war stories, that
19 local government has taken 80 percent of the use of
20 someone's property. I have not seen that specifically. I
21 have only heard of those rumors, if you will, on those
22 types of action on behalf of local government.
23 This is an overreaction. Private property rights
24 exist in our state. And this is not something that I
25 think needs to be dealt with in our Constitution but it
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1 has been dealt with statutorily by Chapter 70, the Bert
2 Harris, Jr. Act.
3 So let's let that work and let's not overreact on
4 some type of policy that really takes the pendulum way out
5 of proportion for us. Thank you. And I ask you to oppose
6 this.
7 CHAIRMAN DOUGLASS: All right. Commissioner
8 Sundberg, you had asked to be an opponent.
9 COMMISSIONER SUNDBERG: Thank you, Mr. Chairman.
10 First some questions. And in fairness, I must divulge
11 some prior history with this issue. I chaired the
12 Governor's Property of Rights 2 Commission some -- several
13 years ago where we spent, I don't know, like 18 months
14 studying this issue and came to a conclusion contrary to
15 what is being submitted by Commissioner Corr.
16 But, Commissioner Corr, so that, will you yield to
17 several questions? The first is, would you clarify for
18 me, you say full compensation for the taking is to be
19 determined by jury trial. Now by that do you mean the
20 jury simply will determine the amount that represents full
21 compensation?
22 COMMISSIONER CORR: That is what the intention of the
23 language is, correct.
24 COMMISSIONER SUNDBERG: In other words, the jury will
25 not determine whether or not a significant loss in value
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1 has occurred?
2 COMMISSIONER CORR: That is what the intention of the
3 language is.
4 COMMISSIONER SUNDBERG: Will you yield to another
5 question?
6 COMMISSIONER CORR: Sure.
7 COMMISSIONER SUNDBERG: Is it the intent then of the
8 drafter that whether or not there has been a significant
9 loss of value is to be determined as a matter of law by
10 the judge?
11 COMMISSIONER CORR: I don't understand the question.
12 And let me -- I'm out of my league here. I'm not an
13 attorney. I'm arguing the principle of whether when
14 property is taken from a private landowner by government
15 whether compensation is due or not. So I know we didn't
16 get a lot of hands for proponents when they were asked.
17 But if there are any of you out there that hold a law
18 degree that could help answer these questions, if we want
19 to indulge that, that would probably be, you would get
20 better answers.
21 COMMISSIONER SUNDBERG: And --
22 COMMISSIONER CORR: Rather than trying to paint me
23 into a corner, this is simply a principle-based issue.
24 Either when government takes land, compensation is due or
25 it is not. And I think that's the way you ought to vote
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1 on it.
2 COMMISSIONER SUNDBERG: And I'm not trying to paint
3 you in a corner, honestly I'm not trying to play lawyer
4 games with you.
5 CHAIRMAN DOUGLASS: Let me suggest, Commissioner
6 Corr, if you don't want to get painted in a corner, just
7 don't yield to questions.
8 (Laughter.)
9 COMMISSIONER SUNDBERG: Well, my point is this.
10 There is provision now for compensating property owners
11 for loss of their property. I mean, that's what our
12 eminent domain laws are all about, both in the
13 Constitution and in statute and the legislation, the more
14 recent legislation that was referred to by Commissioner
15 Anthony.
16 But the standard now is, and there has been a body of
17 law developed over a significant period of time as to what
18 a substantially -- a diminution, a diminution of
19 substantially all beneficial use and there is a lot of
20 case law about that. I don't know of any case law that
21 could guide a judge, and I think you are talking about the
22 judge making this determination rather than a jury, but
23 how that judge would be guided by what is a significant
24 loss. That's sort of like, you know, that's measured --
25 we say that that's measured by the length of the
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1 chancellor's foot.
2 It will just vary on what they had for lunch. That
3 concerns me. And I think you are, in effect, or what this
4 language seeks to do is to substitute that new standard
5 and I simply suggest to you that that is almost
6 standardless because, and there is, you know, when you
7 live in some organized society, the individual's rights
8 have to give way to some extent to the rights of the
9 community.
10 And what always is sought to be balanced, and I know
11 that's what you seek to do here is to balance the right of
12 the individual against the right of the community. I
13 suggest to you that there is a fairly good balance out
14 there now and that those who have been disappointed in
15 that balance have recently, what was that, two years ago,
16 that the new legislation was passed. And I think that's
17 what, I think they are trying to -- I think that's what
18 Commissioner Anthony is saying, let it work its way and
19 see if that doesn't address what has been at least the
20 perceived ills.
21 So I would, with all of my admitted biases, I would
22 speak against this proposal. It had honestly, I think, a
23 very, very careful and fair examination by some -- a
24 commission, present company excepted, and I'll even except
25 Mr. Henderson from that company, of people who gave it
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1 careful consideration and concluded that if for no other
2 reason, where in the world would we get the resources to
3 compensate people for whatever a significant diminution in
4 value of their property is now.
5 CHAIRMAN DOUGLASS: All right. You are not next, I
6 have a couple of others that were ahead of you,
7 Commissioner Connor, on opponents. Are you a proponent?
8 COMMISSIONER CONNOR: A question and a comment. A
9 question of Commissioner Sundberg, and then I wanted to
10 make a comment which I hope might be responsive to his
11 question.
12 CHAIRMAN DOUGLASS: He yields the floor to you to ask
13 him a question.
14 COMMISSIONER CONNOR: Commissioner, would you be kind
15 enough to explain what the Bert Harris property -- Private
16 Property Relief Act is and what its effect has been?
17 COMMISSIONER SUNDBERG: I am not prepared to explain
18 what its provisions are. And I'm not being facetious. I
19 think Commissioner Henderson can do that.
20 CHAIRMAN DOUGLASS: Commissioner Henderson can
21 explain that along with some others here.
22 COMMISSIONER SUNDBERG: And the Chairman.
23 CHAIRMAN DOUGLASS: Let's see, Commissioner Sundberg
24 yields to Henderson and Henderson yields to you.
25 COMMISSIONER HENDERSON: I think that's a very good
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1 and a very appropriate question. And I'd like to begin
2 answering the question by saying that I met Alan Sundberg
3 in that 18 months of purgatory we called the Property
4 Rights Study Commission and he did an outstanding job of
5 listening on this issue and weighing the myriad of public
6 interests that were involved in this question.
7 We, very much like the Constitution Revision
8 Commission, we held public hearings across the state. We
9 heard from everybody. Those that said we have gone too
10 far and those that said we haven't gone far enough.
11 What we learned, I say we as the commission, this is
12 a factor of the exercise that courts have muddled through
13 for 200 years. And what the commission concluded that is
14 now part of the Bert Harris Act, is that as complicated as
15 we have made things, we need a system that tries to create
16 an opportunity for people who have been, and the term is
17 unduly burdened, to find a way to have that resolved and
18 the Bert Harris Act was compromised.
19 Commissioner Corr and I have joked about and I would
20 be glad to show him the bullet holes that I have from
21 standing up for this compromise. What it does is that it
22 creates a new standard for what is compensable. The
23 constitutional standard, as enunciated in Lucas vs.
24 Coastal Commission by the United States Supreme Court came
25 out of Hurricane Hugo and I think many of us are familiar
122
1 with that case. Basically says the standard is
2 compensable of substantially all of the property that's
3 "taking" by regulation.
4 The standard that was developed by the Legislature in
5 the Harris Act which is now codified as a new Chapter 70
6 of the Florida Statutes, is a new statutory clause, a
7 statutory standard that is less than, less of a burden
8 than the constitutional standards. We created more of an
9 opportunity for people to come forward to try to deal with
10 this.
11 The standard is defined as an inordinate burden. It
12 is a lengthy definition, I don't want to take the time to
13 read it, but it is really not too different from what
14 Commissioner Corr just enunciated. And it is a common
15 sense definition if a person -- if a regulation
16 inordinately burdens property, then that person has the
17 opportunity to go forward.
18 Now the act has two parts to it. One is the right of
19 action. And in that, before you go forward, like the
20 provision says here, there is a time period local
21 governments have the opportunity to respond and say this
22 is what we are willing to do for you.
23 The second part of the statute comes right out of the
24 recommendation of the Property Rights Study Commission and
25 it is a mediation process, it is an alternative dispute
123
1 resolution process that is intended to bring all the
2 agencies together with the landowner and other affected
3 parties to try to resolve the dispute.
4 Now quick answer, because we asked this question to
5 people who appeared before us in committee, we wanted to
6 know what is the effect, what have you seen as the effect
7 of the Harris Act and we got some interesting answers.
8 The League of Cities and the Association of Counties told
9 us that the act has had a chilling effect, that local
10 governments have been recalcitrant to enact new
11 regulations for fear of how this would work out.
12 We heard from Department of Environmental
13 Regulation -- excuse me, Department of Environmental
14 Protection that no actions have been filed against them.
15 We heard from the Department of Community Affairs
16 that 19 actions have been filed against local government
17 regarding growth management plans and that most -- none of
18 these have made it to a courtroom yet, all of them are in
19 the process of mediation. That's the lengthy answer to
20 your question but I hope I didn't go on too long.
21 CHAIRMAN DOUGLASS: Commissioner Connor, there was
22 one other significant provision in there which he alluded
23 to but didn't explain exactly which is that it gave the
24 authority to the local governments or the governmental
25 units to make waivers or variances to avoid damaging the
124
1 property as one of the alternatives. That has not existed
2 before which has gone a long way towards resolving, I
3 think, most of these items in mediation that have come up.
4 So from the standpoint of that act itself, it's only
5 been in effect now for a little over two years, but it
6 is -- does have that provision which allows people to get
7 together and work out their problems. I think that was
8 the most, I don't see how that chilled anybody.
9 COMMISSIONER CONNOR: Well, I think, if I understand
10 it correctly, it was intended to have somewhat of a
11 chilling effect on public bodies from unduly burdening
12 private property for public benefit. So to the extent it
13 has had a chilling effect, some would say that has been a
14 salutary impact of the law.
15 If I may, I'd just like to respond to Commissioner
16 Sundberg's question of Commissioner Corr and I take a
17 little different view just based on the plain language of
18 the proposal. And I'm not thinking at this juncture of
19 advocating the proposal, I'm just trying to be responsive
20 to your question. But it strikes me, Commissioner, that
21 where it says, Government regulation or action that so
22 diminishes or denies the use of private property as to
23 cause a significant loss of the value without denying
24 substantially all beneficial use thereof, constitutes a
25 taking.
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1 An owner may bring an action claiming full
2 compensation for such taking. My perception of that have
3 language is that the jury would determine the extent of
4 the diminution in value. And whether or not it was
5 significant and the jury then would compensate, would
6 order or determine the compensation that should be made
7 for that taking.
8 I don't perceive it -- I don't read it the way you
9 read it, that is that the court as a matter of law would
10 determine whether or not a significant diminution had
11 occurred, I relate the words back for such taking, I
12 relate those words back to so as to cause a significant
13 loss of value.
14 So my sense is that a property owner who deems
15 themselves to be aggrieved by the regulations imposed by
16 government, and who perceives that they have suffered a
17 significant devaluation of their property by virtue of
18 such action has a right to bring a claim in court to seek
19 compensation for the effects of that diminution. That's
20 my perception of it.
21 COMMISSIONER SUNDBERG: Well, I appreciate that. We
22 just have to disagree on that in that it expressly
23 provides in that first sentence that it is the full
24 compensation that is to be determined --
25 COMMISSIONER CONNOR: For what has been taken.
126
1 COMMISSIONER SUNDBERG: Exactly. Once there is a
2 determination that there has been a taking, then a jury
3 will make a determination as to what the full compensation
4 should be. That's what makes a horse race.
5 CHAIRMAN DOUGLASS: We had another opponent, I think.
6 Commissioner Barkdull?
7 COMMISSIONER BARKDULL: Mr. Chairman, Members of the
8 Commission, the dialogue between Commissioner Sundberg and
9 Commissioner Connor just pointed out one of my
10 observations about the very sentence they were talking
11 about. This is a different standard of taking, it causes
12 a difference of opinion between lawyers. It's going to be
13 a burden to litigation. I don't think we need it. I
14 think we certainly ought to give Bert Harris a chance.
15 But even without that, I don't think we need this. We are
16 creating an entirely new standard of what constitutes a
17 taking in every city, a governmental body of any kind
18 would have to respond to it. I think it is a bad
19 proposal.
20 CHAIRMAN DOUGLASS: Now Commissioner Henderson.
21 COMMISSIONER HENDERSON: Thank you, Mr. Chairman.
22 I'll be very brief so as not to be redundant. This
23 measure is very similar to language which was proposed by
24 initiative. Commissioner Corr alluded to the fact that
25 about 900,000 signatures have been had on petitions
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1 relating to this issue.
2 However, I'll point out that those are in two
3 initiative petition drives which were rejected by the
4 Florida Supreme Court. The second one was 1997, the Court
5 rejected them primarily for the same reason. They said,
6 Well, it sounds like a simple idea but the consequences go
7 far more than what you are telling them about.
8 The reason for doing the Harris Act was a compromise
9 to try to see if we could work some things out. Very
10 interesting that there has been a recent study
11 commissioned by a number of the interests who are involved
12 in this process by Hank Fishkind, an economist in the
13 Orlando area, who found that basically the act is working
14 as intended, that the -- those purported governmental
15 actions that have gone too far, people have had a remedy
16 to come forward to try to get things resolved.
17 I think we have to give this an opportunity to work
18 out. I think that is happening. And to go any further
19 than that, I can tell you, will bring out an incredible
20 range of interest, nonetheless some of my friends and all
21 the local governments are significantly opposed to this
22 measure. County governments, city governments, public
23 interest groups, League of Women Voters, this is
24 something -- we need to give the Harris Act a chance to
25 work itself through.
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1 CHAIRMAN DOUGLASS: All right. Ready to vote?
2 Unlock the machine.
3 (Vote taken and recorded electronically.)
4 CHAIRMAN DOUGLASS: Has everybody voted? No? Lock
5 the machine and announce the vote.
6 READING CLERK: Nine yeas and 17 nays, Mr. Chairman.
7 CHAIRMAN DOUGLASS: Okay. As you can see, we have
8 some people that are missing in action that were here this
9 morning and I think are still here but they just haven't
10 come back from their long lunch. So hopefully if they are
11 within the sound of my voice they will return to their
12 duties.
13 All right. We will go back now to committee
14 substitute for Proposals 36 and 38 by the Committee on
15 General Provisions, Commissioners Henderson and Mills. We
16 were debating this and we temporarily passed it in the
17 middle of the debate. Do we need to read it again or are
18 we on the amendment or where are we? Thirty-six, 38.
19 COMMISSIONER BARKDULL: We are on the amendment to
20 the amendment.
21 CHAIRMAN DOUGLASS: We have an amendment with an
22 amendment to the amendment pending. That was Commissioner
23 Barkdull's motion to amend the amendment proposed by the
24 sponsor, Commissioner Mills. So we will discuss the
25 amendment to the amendment which was, as I understand it,
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1 to strike the language on Lines 18 and 19 that read, "for
2 the health and welfare of its citizens and future
3 generations"; is that right?
4 COMMISSIONER BARKDULL: That's correct.
5 CHAIRMAN DOUGLASS: And so that's what your motion to
6 amend, and it is to amend the amendment that's in your
7 hand that was filed by Commissioner Mills. Any further
8 debate on the amendment to the amendment?
9 COMMISSIONER BARKDULL: No, sir.
10 CHAIRMAN DOUGLASS: Commissioner Mills.
11 COMMISSIONER MILLS: Mr. Chairman, I just say that --
12 I want to agree to that amendment in an abundance of
13 caution and to fulfill the purposes that we articulated,
14 that I will endorse the amendment to the amendment.
15 CHAIRMAN DOUGLASS: All right. All in favor of the
16 amendment say aye. Opposed?
17 (Verbal vote taken.)
18 CHAIRMAN DOUGLASS: The amendment is adopted and now
19 we are on the amendment which is actually the new proposal
20 but it is an amendment as amended. So this will be, if
21 you adopt this, in effect, we will have to vote again but
22 it will be adoption of a proposal. And so it would be the
23 proposal as amended. Commissioner Mills?
24 COMMISSIONER MILLS: Well, Mr. Chairman, this does
25 now what we said it does, which is to guarantee, to direct
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1 the Legislature to make adequate provision for what it
2 currently says, Abatement of air and water pollution and
3 excessive and unnecessary noise, and adds, The protection
4 of natural resources for future generations. And I would
5 submit that does what the principles that we discussed
6 this morning, which are fulfilled by things like P-2000
7 and other preservation programs which the Legislature has
8 done and this would direct them to continue to do that.
9 CHAIRMAN DOUGLASS: All right. I think we've had a
10 pretty full debate on this. Are you ready to vote? Which
11 is on the amendment. All in favor of the amendment, say
12 aye. Opposed?
13 (Verbal vote taken.)
14 CHAIRMAN DOUGLASS: The amendment is adopted. Now
15 this vote will be on the proposal which, in effect, is the
16 amendment as amended. Unlock the machine -- Commission
17 Morsani, before we vote.
18 COMMISSIONER MORSANI: Yes, sir, I have one
19 question --
20 CHAIRMAN DOUGLASS: Yes, sir.
21 COMMISSIONER MORSANI: -- of all of you wonderful
22 legal minds. Could the state of Florida be sued by
23 citizens or citizens' groups because of putting in there
24 "the protection of natural resources for future
25 generations"? A future generation is my grandson in the
131
1 year 2020, is that -- if he decides to bring lawsuit
2 against the state of Florida, does that open up that
3 Pandora's box?
4 CHAIRMAN DOUGLASS: Commissioner Barkdull offered his
5 amendment to prevent that. Which he struck the language
6 which he thought might be interpreted that way. It was
7 his opinion and the opinion of the others that considered
8 it, that that language would not create a private right of
9 action.
10 Use your mike, please.
11 COMMISSIONER MORSANI: Do you feel good about that
12 second sentence, Judge? Commissioner?
13 COMMISSIONER BARKDULL: Well, that question was
14 addressed to me. The Legislature already is mandated to
15 by law provide for the abatement of air and water
16 pollution and of excessive and unnecessary noises. This
17 is adding a couple of more items to what they should do by
18 law. If they are subject to lawsuits for the first part
19 of that, which is already in the Constitution, then this,
20 if it is adopted, would grant the same status.
21 I am willing to leave that there where there could be
22 some effort. I'm not aware, I don't know whether it has
23 or hasn't been legislation -- or litigation in an attempt
24 to force the first part of it. But if we are going to
25 have the first part, I don't have any objection to having
132
1 this latter part in there, if it is by law.
2 CHAIRMAN DOUGLASS: All right. We already have the
3 first part is what he is saying and it is the opinion of
4 most of the ones on the floor that I talked to that this
5 does not create a private cause of action against the
6 Legislature, which this authorizes the Legislature to --
7 and that's why Commissioner Barkdull wanted that in there
8 in that position and not in the other position. And in
9 answer to your question, the greatest legal minds among us
10 seem to think that this would not create a private cause
11 of action.
12 Commissioner Anthony?
13 COMMISSIONER ANTHONY: Mr. Chairman, as chair of
14 General Provisions, this was the type of discussion that
15 was held in the General Provisions Committee because there
16 were so many questions and causes for concern of
17 litigation on verbiage such as this.
18 You know, in fact, can the state Legislature
19 guarantee for future generations these types of things.
20 Well, you know, that is a very vague question and is
21 ambiguous and for that reason, there was strong opposition
22 against any of this type of language and aspirational
23 language in the Constitution.
24 CHAIRMAN DOUGLASS: All right. I think we are ready
25 to vote. Unlock the machine and we will vote.
133
1 (Vote taken and recorded electronically.)
2 CHAIRMAN DOUGLASS: Has everybody voted except those
3 that are out for lunch? Lock the machine and announce the
4 vote.
5 READING CLERK: Sixteen yeas and 10 nays,
6 Mr. Chairman.
7 CHAIRMAN DOUGLASS: By your vote you passed the
8 proposal as amended. We will now move to committee
9 substitute for Proposal 64 by the Committee on Bonding and
10 Investments. And Commissioner Nabors recommended it as a
11 committee substitute and it was approved by the Committee
12 on Bonding and Investments. Would you read it, please?
13 READING CLERK: Committee substitute for Proposal 64,
14 a proposal to revise Article VII, Section 11, Florida
15 Constitution; providing for state bonds pledging all or
16 part of a dedicated state tax revenue for the full faith
17 and credit of the state for certain uses as provided by
18 general law.
19 CHAIRMAN DOUGLASS: All right. Are there amendments
20 on the table? Before Commissioner Nabors then, I'll ask
21 that the amendment on the table be read.
22 READING CLERK: By Commissioner Henderson on Page 2,
23 Lines 10 through 21, delete those lines and insert lengthy
24 amendment.
25 CHAIRMAN DOUGLASS: All right. I'll recognize
134
1 Commissioner Henderson on his motion to amend.
2 COMMISSIONER HENDERSON: Thank you, Mr. Chairman.
3 I'm going to try not to confuse and I'm going to try to
4 answer the Chairman's question. You will recall a few --
5 gosh, when we were also here, we handled the issue of
6 extension of bond authority for Preservation 2000 in
7 Proposal No. 39. And the language -- and how we did that
8 is we took the language out of 64 and made the amendment
9 which is before you now, the one you are all looking at,
10 it was just passed out. We tacked that on to 39 and
11 passed that out. That, if you will recall the debate on
12 that question, there was a lot of discussion about the
13 issue of full faith and credit.
14 Now we kept 64 around because there were other issues
15 that were there and we wanted to make sure we had taken
16 care of those. And this morning the question was raised
17 whether or not we needed to even deal with the issue of
18 full faith and credit. So what we are proposing, this
19 amendment strips out the language that is in 64, inserts
20 the language that we have already previously adopted
21 concerning extension of the bonds for land acquisition but
22 stripped out the language regarding full faith and credit.
23 So this takes care of the question, makes it a much
24 stronger proposal and this is the vehicle we need to move
25 this thing through.
135
1 CHAIRMAN DOUGLASS: All right. Let me see if I
2 understand what it is. We passed the provision relating
3 to P2000 and it was freestanding and the objection was
4 that where it was engrossed in the Constitution left
5 unanswered the question as to whether or not the cap on
6 issuing bonds that was applied to P2000 was carried
7 forward or was it eliminated. And what you are attempting
8 to do is to use this proposal by amending it to correct
9 that possibility?
10 COMMISSIONER HENDERSON: Correct.
11 CHAIRMAN DOUGLASS: So if you pass this, what you are
12 really doing is putting the P2000 proposal in the shape
13 you really want it to be in when it is submitted to the
14 voters?
15 COMMISSIONER HENDERSON: That is correct. It
16 eliminates the issue of whether or not you have to have a
17 separate election or whether or not you are pledging the
18 full faith and credit because the Legislature is not going
19 to do that. So we just take that question off the desk
20 and this makes it a lot simpler.
21 CHAIRMAN DOUGLASS: All right. Commissioner
22 Barkdull, you had questions on this. Does that answer
23 your questions?
24 COMMISSIONER BARKDULL: I don't know, I have to ask
25 Commissioner Henderson.
136
1 CHAIRMAN DOUGLASS: He yields.
2 COMMISSIONER BARKDULL: If we adopt this, sir, will
3 then any bonds issued under this provision be subject to
4 the cap that's provided for in Section A?
5 COMMISSIONER HENDERSON: I'm going to look over there
6 at my bond lawyer and say the answer is no, is that right,
7 Mr. Nabors?
8 COMMISSIONER BARKDULL: That's the way I read it.
9 CHAIRMAN DOUGLASS: Well, wasn't that the objection?
10 COMMISSIONER HENDERSON: That's what we are trying to
11 do, is get it out from under that.
12 COMMISSIONER NABORS: It is subject to the bond cap
13 that's in Section 11 of Article VII which is in that
14 provision, yes. If you look at Proposal 64, there is a
15 bond cap in Subsection A, this is placed in A. There's no
16 full faith and credit. It has to be a designated revenue
17 source. It is exactly the same as the current P2000
18 grandfather language is.
19 COMMISSIONER BARKDULL: Well, that's the point I
20 wanted to make earlier. What this proposal does is permit
21 unlimited issuance of full faith and credit bonds by a
22 passage of a law.
23 CHAIRMAN DOUGLASS: But he is offering an amendment,
24 as I understand it, to prevent that from occurring.
25 COMMISSIONER BARKDULL: That's not the response that
137
1 I got and the answer, that's my question. If this
2 proposal -- the amendment that is proposed, will that make
3 these bonds subject to the cap that's in Section A and I
4 understood the answer was no.
5 COMMISSIONER NABORS: The answer is --
6 CHAIRMAN DOUGLASS: Go ahead.
7 COMMISSIONER NABORS: If we look at the special
8 order, look at the special order bill, 64.
9 CHAIRMAN DOUGLASS: That's the one we are on.
10 COMMISSIONER NABORS: This amendment places --
11 substitutes the language in Lines 10 through 21. The
12 revenue limitations for revenue bonds is in Subsection A
13 which this is placed within. It's not a full faith and
14 credit, it is a pledge of a dedicated revenue source as
15 agreed upon by the Legislature, exactly the way the
16 current Preservation 2000 is and it falls within the
17 revenue cap in Subsection A of Section 11.
18 CHAIRMAN DOUGLASS: What he is saying, I think, is
19 your answer to your question is yes, not no.
20 COMMISSIONER BARKDULL: I don't understand how the
21 proposed amendment is controlled by Section A, they are
22 both freestanding.
23 CHAIRMAN DOUGLASS: All right. I'm going to suggest
24 that we temporarily pass this and the three of you-all get
25 together and see if you can arrive at some conclusion
138
1 where you can tell the rest of us what it does. Is that
2 agreeable with you, Commissioner Henderson?
3 COMMISSIONER HENDERSON: Well, only if you can
4 indulge Commissioner Crenshaw to help us out with this
5 because I trust his judgment on that too.
6 CHAIRMAN DOUGLASS: Well, we certainly would be
7 delighted to have Commissioner Crenshaw join that great
8 huddle in the sky. Is that all right with you,
9 Commissioner Barkdull?
10 COMMISSIONER BARKDULL: Yes, sir.
11 CHAIRMAN DOUGLASS: Okay. We will do that. We will
12 come back to this again. We are not going to leave it
13 until we get it straightened out. This is why bond
14 lawyers make a lot of money, Commissioner Morsani, nobody
15 understands it.
16 All right. We now move to proposal No. 187 by
17 Commissioner Connor. Would you read it, please? This was
18 disapproved by the Committee on Declaration of Rights.
19 Would you read it, please?
20 READING CLERK: A proposal to revise Article I,
21 Section 3, Florida Constitution; limiting conditions for
22 restrictions on the free exercise of religion.
23 CHAIRMAN DOUGLASS: All right. Commissioner Connor,
24 you are recognized to present Proposal 187.
25 COMMISSIONER CONNOR: Thank you, Mr. Chairman. And,
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1 Mr. Chairman, I have submitted an amendment which I
2 believe is being circulated now. Ladies and gentlemen,
3 let me, if I may, give you a little bit of background and
4 I hope clarification. If you will look at the staff
5 analysis, which accompanies this proposal, you will find
6 that in the case of Sherbert vs. Verner which was decided
7 in 1963 --
8 CHAIRMAN DOUGLASS: Wait a minute. Is the amendment
9 on the table?
10 COMMISSIONER CONNOR: That's why I am commenting
11 before we get to the amendment.
12 CHAIRMAN DOUGLASS: Well, you haven't offered the
13 amendment yet?
14 COMMISSIONER CONNOR: No, sir, but it is coming.
15 CHAIRMAN DOUGLASS: Okay. Go ahead.
16 COMMISSIONER CONNOR: The Court had indicated that
17 the free exercise clause contained in the First Amendment
18 was a fundamental right that could not be substantially
19 burdened by government action unless the government
20 demonstrated a compelling interest for doing so and used
21 the least restrictive means of accomplishing its
22 objective.
23 That principle which held way for 30-odd years was
24 not extended beyond its particular context which was a
25 context in which the Court said that the state could not
140
1 condition the availability of unemployment insurance on an
2 individual's willingness to forgo conduct required by a
3 religion.
4 So, for example, if you had religious scruples
5 against working on a given day of the week, and you
6 followed those religious scruples but in the process of
7 doing so then forfeited your right to unemployment
8 compensation if you got fired because you wouldn't work on
9 a particular day of the week, the Court in the Sherbert
10 case originally said that kind of law is violative of the
11 First Amendment because it's not narrowly tailored to
12 accomplish its desired objective.
13 Later on the case of Employment Division vs. Smith
14 was decided. And in that case, the Court affirmed a
15 statute that had the effect of precluding the ingestion of
16 peyote by Native Americans even though that was part and
17 parcel of their religious practices.
18 And the Court in effect applied a rational basis test
19 as it related to laws of general applicability. In other
20 words, it said in that case, this law was not intended to
21 burden religion per se. It was a law of general
22 applicability prohibiting the ingestion of controlled
23 substances and notwithstanding that it may be part of the
24 religious ritual of Native Americans to do so the state
25 may properly burden the exercise of their religion in that
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1 manner.
2 That ruling which then changed the standard of review
3 in religious liberty cases produced a huge outcry in an
4 enormously broad religious coalition who sought to pass
5 what was called the Religious Freedom Restoration Act
6 which in effect would say that even if you have a law of
7 general applicability, where it winds up burdening
8 religious practices, we are going to hold the Court -- or
9 the Court is going to employ this standard of heightened
10 scrutiny where the State has to demonstrate that it has a
11 compelling interest in passing the legislation and that
12 legislation is narrowly tailored to accomplish that
13 purpose.
14 A broad coalition of Christians and Jews, of Muslims
15 and other religious denominations of the National Council
16 of Churches and fundamentalist churches, just a huge
17 coalition came together in support of the Religious
18 Freedom Restoration Act and lo and behold, the Court
19 struck that down saying, No, we are going to, in effect,
20 as to laws of general applicability, we are just going to
21 require this lower standard which is, is there a rational
22 basis or a legitimate governmental interest and if it
23 burdens religion, so be it.
24 Let me tell you how that has worked in the real world
25 here in the state of Florida. In Dade County, when people
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1 had religious meetings in their homes, they were fined
2 $500 for violating zoning regulations. So, for example,
3 on a Sunday morning when folks had 60 people into their
4 home for religious worship, that was deemed to be a use in
5 violation of the zoning code and because it was a law of
6 general applicability they get fined 500 bucks. And under
7 the Employment Division vs. Smith case, that action by the
8 part of government is probably sustainable.
9 In Duval County, I am given to understand that some
10 people were bringing in contraband as part of religious
11 services to prisoners. And as a consequence of that, the
12 Department of Corrections completely eliminated the
13 conduct of communion services in prison.
14 Under the Employment Division vs. Smith case, they
15 don't have to show that they used the narrowest tailored
16 means of doing that, and there is obviously a legitimate
17 pedagogical interest at stake there. What this proposal
18 as amended would do, and I think all of you should now
19 have the proposed amendment, the proposed amendment just
20 simply strikes the second sentence. So that the only
21 language that's now proposed is the following: The first
22 sentence, The State or any political subdivision or agency
23 thereof may not substantially burden the free exercise of
24 religion even if the burden results from a rule of general
25 applicability unless the State demonstrates that
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1 application of the burden is in furtherance of a
2 compelling interest and is the least restrictive means of
3 furthering that compelling interest.
4 Now what that does is simply to say that with respect
5 to laws that burden the exercise of religious freedom, the
6 Florida Constitution will require the application of the
7 compelling interest test. And the State or the
8 governmental entity involved will be required to
9 demonstrate that its action is the most narrowly tailored
10 to accomplish whatever the compelling interest is. The
11 reality of it is that when you have a law of general
12 applicability, the Courts will almost always find that
13 there is a compelling interest.
14 CHAIRMAN DOUGLASS: Commissioner Connor, the
15 secretary reminds me that you are talking about the
16 amendment and it hasn't been read and that's why I asked
17 you if you were going to move it. If you are going to
18 talk about it, we are going to have to read it.
19 COMMISSIONER CONNOR: I beg your pardon, I do move it
20 and --
21 CHAIRMAN DOUGLASS: Now she will read it.
22 READING CLERK: By Commissioner Connor on Page 1,
23 Lines 21 through 27, delete those lines and insert,
24 Furthering that compelling interest, religious.
25 CHAIRMAN DOUGLASS: And you have been discussing now
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1 the amendment.
2 COMMISSIONER CONNOR: Thank you.
3 CHAIRMAN DOUGLASS: And you want a few more minutes.
4 COMMISSIONER CONNOR: I apologize. So the language
5 in the second sentence, frankly, was deemed by the
6 committee to be confusing. The ACLU and groups that it
7 represented didn't like it, and they said, If you will
8 take it out, we will support it. So now we have this same
9 kind of broad-based religious coalition who, according to
10 the ACLU representative, affirms this language because it
11 is the precise language that Congress put forth in the
12 Religious Freedom Restoration Act. What it does for
13 Floridians is, it gives a greater measure of protection
14 for the exercise of religion than is currently recognized
15 under the federal constitutional law.
16 I think that's a healthy and important freedom to
17 protect for our citizens. Religious freedom has been
18 deemed to have been eroded under the Employment Division
19 vs. Smith case at the federal level and this is a classic
20 example where we seek through the state Constitution to
21 accord greater protection to religious freedom than the
22 United States Supreme Court has been willing to recognize
23 in the Employment Division vs. Smith case.
24 CHAIRMAN DOUGLASS: The amendment now is what we're
25 on. And if we're going to adopt the amendment and debate
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1 the proposal, let's do it. Is that agreeable? All in
2 favor of the amendment, which you understand was to strike
3 the language, in effect, that's referred to in the
4 amendment, that's what it does. It just strikes that
5 language.
6 COMMISSIONER CONNOR: It strikes the language of the
7 second sentence. The language that remains is verbatim,
8 the provisions of the Religious Freedom Restoration Act.
9 CHAIRMAN DOUGLASS: So what you've done is strike the
10 language that says, The State or any public subdivision or
11 agency thereof may not substantially burden the exercise
12 of free speech, et cetera. You struck all that and now
13 we're dealing with just the first sentence as being added
14 to our existing Constitution?
15 COMMISSIONER CONNOR: Yes, sir.
16 CHAIRMAN DOUGLASS: All right. Now, all in favor of
17 the amendment say aye. All opposed?
18 (Verbal vote taken.)
19 CHAIRMAN DOUGLASS: The amendment is adopted. We're
20 on the proposal. Yes, sir, Commission Wetherington?
21 COMMISSIONER WETHERINGTON: Can I ask you a question
22 or two questions? One, taking your example of the 60
23 people that come to someone's private residence for let's
24 say a religious service in violation of the zoning laws,
25 under this proposal, the amendment that you put forth, I
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1 take it would the government not be allowed to enforce its
2 zoning laws under those circumstances?
3 COMMISSIONER CONNOR: The government would be
4 permitted to enforce zoning laws provided it could
5 demonstrate that it had used the most narrowly tailored
6 means of doing so. For example, there was nothing in the
7 zoning laws that would have prohibited that couple from
8 hosting a party, a social gathering over 60 people. But
9 when those folks were invited into their home to worship
10 in accordance with the dictates of the consensus, that was
11 deemed to be a violation of the zoning law because it was
12 a prohibited use in a residential area. And so they were
13 sanctioned for the violation of the ordinance.
14 COMMISSIONER WETHERINGTON: So you're saying in that
15 instance that if I can have a party and invite 60 people,
16 then I would -- I could have 60 people come over for
17 religious services and they could not enforce a regulation
18 prohibiting that?
19 COMMISSIONER CONNOR: I think that if they precluded
20 religions gatherings but permitted social gatherings,
21 arguably the State's action would not be the most narrowly
22 tailored to achieve its interest which might be quiet,
23 peace, and tranquility in the neighborhood. So I think it
24 would be harder to sustain the action of the zoning
25 authorities in that instance if we adopt this language
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1 than it would otherwise be.
2 COMMISSIONER WETHERINGTON: Did I hear you say also
3 that this proposal is supported by the American Civil
4 Liberties Union?
5 COMMISSIONER CONNOR: Yes, sir.
6 CHAIRMAN DOUGLASS: All right. Commissioner
7 Sundberg?
8 COMMISSIONER SUNDBERG: For a question, Commissioner
9 Connor.
10 COMMISSIONER CONNOR: Yes, sir.
11 COMMISSIONER SUNDBERG: What I'm really troubled by
12 is the exculpation of, you know, the rules of general
13 application or application of neutral principles of law.
14 For example, and I'd like to focus on the compelling state
15 interest, this is not a rhetorical question, but are fire
16 codes, are building codes deemed to be of compelling state
17 interest?
18 COMMISSIONER CONNOR: Yes.
19 COMMISSIONER SUNDBERG: They are?
20 COMMISSIONER CONNOR: They are. And they are codes
21 of general applicability.
22 COMMISSIONER SUNDBERG: Well, that's my point. But
23 they have been ruled to be of compelling State interest?
24 COMMISSIONER CONNOR: Yes, because the state has a
25 compelling interest in protecting the health and safety
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1 and that would not be deemed to be an undue burden on the
2 exercise of religion because you're required fire exits in
3 a church.
4 COMMISSIONER SUNDBERG: Sure.
5 CHAIRMAN DOUGLASS: All right. Before I go further,
6 Commissioner Corr, I want to apologize to you. I was told
7 that I didn't give you a chance to close on your proposal
8 and that was purely unintentional. And if you feel that
9 closing now would help, I'd be glad to move to reconsider.
10 COMMISSIONER CORR: I don't think it would help.
11 CHAIRMAN DOUGLASS: Okay. I'm sorry, I didn't intend
12 to do that. Commissioner Brochin was up, Commissioner
13 Smith, and you will be next. Commissioner Brochin.
14 COMMISSIONER BROCHIN: Question. People who are
15 affected by this proposal, what remedy would they have?
16 Is this going to put us in litigation?
17 COMMISSIONER CONNOR: Of course it will. The effect
18 will be to try to push back unwarranted government
19 encroachment on the ability of Floridians to exercise
20 their religions faith in accordance with the dictates of
21 their conscience.
22 COMMISSIONER BROCHIN: Understanding that the
23 exercise of free religion is a fundamental right, are you
24 concerned in any way about how much litigation will result
25 as a result of this proposal?
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1 COMMISSIONER CONNOR: I really am not. And this is
2 not a new standard. This standard of compelling interest,
3 narrowly tailored, we already recognize with respect to a
4 variety of different classifications of people under
5 Article I, Section 2. So it's not something that is
6 novel, it is not something that is new.
7 What it says is, that we so value the free exercise
8 of religion in our state that before the government may
9 burden it, even with a law of general application, A, it
10 has to demonstrate the compelling interest and it almost
11 always follows from a law of general application that you
12 can demonstrate the compelling interest. But, B, you have
13 to demonstrate that it's narrowly tailored to accomplish
14 that purpose.
15 COMMISSIONER BROCHIN: If I may. The analysis did
16 not include any data available from other states. Have
17 other states codified this test or interest either
18 statutorily or constitutionally? And if yes, what has
19 been their experience in terms of litigation?
20 COMMISSIONER CONNOR: I cannot answer that because it
21 is only recently that the Religious Freedom Restoration
22 Act was struck down -- well, it was 1997. So I think
23 Florida has an opportunity to be a leader in protecting
24 the free exercise of religion of its citizens against an
25 unwarranted or overly broad burdens that the State might
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1 otherwise seek to impose.
2 CHAIRMAN DOUGLASS: Isn't this already the law in
3 Florida?
4 COMMISSIONER CONNOR: No, sir, I don't believe it is.
5 In fact, we reviewed the cases that construe Article I,
6 Section 2, and found no cases that addressed this issue.
7 It was perceived to be, before Employment Division vs.
8 Smith, it was perceived that the law of the land under the
9 First Amendment was that a compelling interest had to be
10 demonstrated and had to be narrowly tailored before you
11 could burden it and then came down the peyote case.
12 People were stunned by that. And as I say, it produced
13 this coalition, the likes of which, I dare say, have never
14 been seen before in opposition to it and in the promotion
15 of the Religious Freedom Restoration Act.
16 Then that got stricken by the Supreme Court who said,
17 No, we're going to use a lower standard. And what this
18 says, No, just as we talked about, political speech having
19 been a preferred form of speech earlier, many believe and
20 I certainly affirm the notion, that free exercise of
21 religious faith ought to be a very strongly protected
22 right of our citizens and ought to be accorded the
23 strictest scrutiny when there are laws that burden that
24 free exercise.
25 CHAIRMAN DOUGLASS: Then the Florida court has not
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1 construed the existing religious freedom provision which
2 is different than the First Amendment, it's broader than
3 the First Amendment, much stronger; is it not?
4 COMMISSIONER CONNOR: Well, there's a good question
5 about that, Mr. Chairman.
6 CHAIRMAN DOUGLASS: Well, not the way the First
7 Amendment is interpreted, but the language itself is
8 certainly more specific.
9 COMMISSIONER CONNOR: I'm frank to tell you if you
10 look at Article III, Section 3, the second sentence, I
11 don't know what that means and it's not being construed to
12 my knowledge, religious freedom shall not justify
13 practices inconsistent with public morals, peace, or
14 safety. Nobody really knows what that means, but I think
15 it's fair to say that we don't know what the standard is
16 in Florida as it relates to the free exercise of religion
17 and that inasmuch as the Supreme Court has eroded -- I
18 mean, I think it's fair to say that religious liberty as
19 construed by the Supreme Court in its most recent cases
20 has been eroded in this country because the state is held
21 to a lower standard before it may be deemed to have been
22 all right to burden it. We then affirm that it's a
23 fundamental right which ought to be accorded the greatest
24 protection under the Constitution.
25 CHAIRMAN DOUGLASS: Commissioner Smith was up first.
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1 You're next, Commissioner Mills. Commissioner Smith is
2 recognized.
3 COMMISSIONER SMITH: Thank you, Mr. Chairman. As all
4 of you know, the Declaration of Rights Committee took on
5 some of the most divisive, controversial and heated issues
6 dealing with human rights and liberty. As the chairman of
7 the committee, I can tell you that I was floored when a
8 member of the ACLU and conservative religious groups stood
9 together urging the Declaration of Rights Committee to
10 pass this provision. Why was I surprised? First I was
11 surprised because naively I believed that Article I,
12 Section 2, adequately provided protections, religious
13 protections. And then we went through the case law in the
14 Religious Freedom Restoration Act and a series of
15 scenarios.
16 Secondly, I was surprised because I didn't fully
17 realize the import of the Federal Court decision which in
18 essence lowered the standard. The problem that we had at
19 the committee level was the second sentence, not only did
20 the committee feel that the second sentence should be
21 eliminated, but the coalition that had been put together
22 to lobby at this at the federal level and to lobby for
23 this at the state level fractured when the second sentence
24 was put in. And when they fractured, the committee
25 fractured. And therefore, I think it was voted out
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1 unfavorably.
2 However, I can tell you that my unfavorable vote
3 solely was because I thought the second sentence should
4 not be in there. All the questions that have been raised
5 today were brought up at the committee except for the fact
6 that the second sentence should not be in there. The most
7 broad coalition that I've ever seen came forward and was
8 represented as being fully in favor of this.
9 This nation was founded on the basis of religions
10 freedom. And if we are to error I think we should error
11 on the side of ensuring that the state, that our
12 government, does not infringe on people's right to
13 exercise their religion. But whether there is a fire
14 code, or whether there is a problem with 60 cars parked in
15 front of my house every Sunday morning or Saturday
16 morning, and it's a zoning code violation or whatever, the
17 government should have the right because of a compelling
18 state interest to take action in that regard.
19 But other than that, I really believe this is a very
20 important issue. And although I voted no at the
21 committee, I intent to vote yes with the broad-base
22 coalition and because I believe that freedom of religion
23 is one of the highest priorities that we have to deal
24 with. Thank you.
25 CHAIRMAN DOUGLASS: You support it as amended?
154
1 COMMISSIONER SMITH: Yes, sir, as amended.
2 CHAIRMAN DOUGLASS: Now, Commissioner Mills. You're
3 next, Commissioner Mathis.
4 COMMISSIONER MILLS: Mr. Chairman, does Commissioner
5 Connor yield for a question?
6 CHAIRMAN DOUGLASS: He yields.
7 COMMISSIONER MILLS: I had some of the same concerns
8 at committee and a question I had asked at committee I
9 think Commissioner Connor may have a direct answer to. It
10 also seems to me, at least my personal preferences,
11 individual freedom and religious freedom is a fundamental
12 right in the United States and ought to be.
13 So my initial question was, isn't this the law? And
14 in looking at the actual wording of the Florida
15 Constitution, it doesn't appear to directly do that. And
16 I offered, as an option, which may end up being an
17 equivalent, to simply say that free exercise of religion
18 shall be a fundamental right.
19 Now part of my question is, have we achieved the same
20 purpose because as I read this sentence, most of it
21 appears to be precisely the test for a fundamental right
22 which is requiring -- if I possess a fundamental right,
23 the State can override that interest if the State has a
24 compelling interest. And then they must do so in least
25 intrusive means and that is a test as I understand it. If
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1 you could just help me and tell me in what way, if any,
2 this is distinct from a fundamental rights test.
3 COMMISSIONER CONNOR: I'll be pleased to try to do
4 that. Now, in answer to that question, I have an almost
5 three-page letter from Professor Miginly (phonetic) --
6 CHAIRMAN DOUGLASS: Your time is up, you have to
7 summarize it in about 45 seconds.
8 COMMISSIONER CONNOR: -- who says that that proposed
9 language doesn't solve the problem, that it would solve
10 the problem of a law that was directly intended to burden
11 religion. But as to a law of general applicability, which
12 only incidentally burdens religion, it wouldn't provide
13 the protection necessary and, see, Commissioner Sundberg
14 seems to be affirming that view. And so I think that this
15 is necessary to accomplish the protection that I believe
16 all of us want Floridians to be able to enjoy.
17 CHAIRMAN DOUGLASS: Commissioner Sundberg?
18 COMMISSIONER SUNDBERG: Would you believe,
19 Commissioner Connor, that, in fact, when it comes to First
20 Amendment rights, laws of general application, for example
21 a tax law that applies to newspapers to the same extent
22 that it does all other businesses, is constitutional
23 without demonstrating any compelling state interest?
24 COMMISSIONER CONNOR: I was surprised to learn it
25 from reading the analysis, frankly. And that's what
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1 provoked the hue and cry that led to the Religious Freedom
2 Restoration Act.
3 COMMISSIONER SUNDBERG: And I didn't even read the
4 summary.
5 CHAIRMAN DOUGLASS: All right. Commissioner Mathis,
6 do you rise for a question?
7 COMMISSIONER BROCHIN: I do.
8 CHAIRMAN DOUGLASS: Instead of a do you believe, this
9 is a question. Okay. Commissioner Brochin.
10 COMMISSIONER BROCHIN: Did you or the committee study
11 the effect, if any, that this proposal would have on
12 prayer in our public schools?
13 COMMISSIONER CONNOR: I think it's fair to say that
14 the view was that it would not affect prayer in public
15 schools. And the ACLU indicated that if they felt it
16 would, they could not support it. So there is no intent
17 to do some kind of end run here and no hidden agenda in
18 that regard.
19 CHAIRMAN DOUGLASS: Commissioner Smith?
20 COMMISSIONER SMITH: Just briefly. Let me just say,
21 that question was put directly to the head of the ACLU.
22 We called him to the microphone and had him answer the
23 question on the record. And he said if they had any
24 concern about that, there is no way they could support it.
25 And I think that's a legitimate concern that we also had
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1 as well.
2 CHAIRMAN DOUGLASS: Commissioner Mathis, you've been
3 patient. It's your turn.
4 COMMISSIONER MATHIS: As always. I had litigated
5 these issues at the trial court level and worked with
6 small local government entities in the central Florida
7 community who feel like they can adopt ordinances against
8 churches without having any real basis especially on the
9 development of churches and churches acquiring additional
10 lands when it didn't affect the health, safety, or welfare
11 of the community.
12 So I have seen the need for this type of language to
13 clarify and to avoid litigation in order to enforce church
14 rights. And I also see this as a real step forward. And
15 while I've heard the issue that it may bring on some
16 litigation, I can truly say from my experiences in central
17 Florida, it may very well forgo and answer some and
18 prevent litigation.
19 CHAIRMAN DOUGLASS: Thank you, Commissioner Mathis.
20 Anything further? Commissioner Wetherington? Question to
21 Connor?
22 COMMISSIONER WETHERINGTON: Yes. Would it be fair to
23 say that this proposal would prevent the government from
24 discriminating against the religious people?
25 COMMISSIONER CONNOR: I think that we do have
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1 protections that relate to the exercise of religion in
2 terms of preventing discrimination from occurring. What
3 this would do, I think, is to ensure that laws, which were
4 not intended to address religious practices, but which
5 nonetheless had an impact on religious practices could not
6 unduly burden their exercise, their free exercise of their
7 religion, if there was a better way to skin the cat on
8 government's part. In other words, if government could
9 accomplish its objective without burdening the free
10 exercise of their religion.
11 COMMISSIONER WETHERINGTON: And protecting people and
12 their religious exercise is a value significantly
13 important so that you're willing to, if necessary, if we
14 have to have litigation to protect those rights, then
15 that's okay?
16 COMMISSIONER CONNOR: It's absolutely okay with me.
17 I believe that we ought to push back against government
18 anytime it encroaches on the exercise of religious freedom
19 or free speech or one of these other traditional
20 fundamental rights that we've held so dear.
21 And I believe the courts, for all the criticism I may
22 have on some occasions about courts, are the means by
23 which those rights are given practical meaning by
24 protecting that. So I think there is a role for
25 litigation in our society particularly when it expands
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1 freedom and limits the reach of government in areas that
2 we deem near and dear.
3 CHAIRMAN DOUGLASS: Commissioner -- everybody is up
4 here. These are questions that we're getting now. And
5 one of them that somebody asked me was does this have any
6 effect on these religions, for example, like the religions
7 that sacrifice animals.
8 COMMISSIONER CONNOR: We talked about that very issue
9 as well. And I don't think there was anybody -- I'm
10 trying to remember -- I know for instance the Santeria in
11 Dade County have sacrificed goats, I think, as part of
12 their religious practices.
13 CHAIRMAN DOUGLASS: I thought it was chickens.
14 COMMISSIONER CONNOR: Or chicken -- well, I believe
15 Judge Kogan mentioned goats. I had thought it was
16 chickens too. Probably chickens and goats, I don't know.
17 But what would have to occur, Mr. Douglass, in order for
18 the State to -- if the State had passed a law that did
19 burden the exercise of that right, it would have to
20 demonstrate that it had acted in the most narrowly
21 tailored way to accomplish its objective. Then and only
22 then would such an impingement be deemed to be acceptable.
23 CHAIRMAN DOUGLASS: So the animal protection laws
24 wouldn't apply then?
25 COMMISSIONER CONNOR: No, I think the State might
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1 very well demonstrate that it has a compelling interest in
2 protecting humane treatment of animals. The question then
3 would be, did the State act in whatever way it acted in
4 the way most narrowly tailored to accomplish its interest.
5 CHAIRMAN DOUGLASS: Okay. Commissioners Smith and
6 Mills and Freidin. Who wants to go first? Ladies first.
7 Commissioner Freidin; is that all right? That's fine.
8 I'm trying to work this through and I'm having a hard time
9 with it. I just wanted -- maybe you can clarify this.
10 And maybe it's been clarified but I just didn't get it.
11 Does this mean -- if this is part of our Constitution,
12 does that mean that a zoning ordinance that would make it
13 difficult for a church to expand because of some -- let's
14 say the government had -- the local government had a
15 historical district, which I guess was the case in City of
16 Bourne vs. Florice, (phonetic) that a historical interest
17 of the community at large in preserving a historical area
18 would not overcome the desire of the church to expand on
19 neighboring property.
20 COMMISSIONER CONNOR: I think, Commissioner Freidin,
21 these are cases that are determined on a case-by-case
22 basis and I think -- I can certainly envision instances,
23 where applied, that the ordinance or law which was in
24 effect may operate as in the application in a given case
25 to be in violation of the constitutional provision. The
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1 State would have to demonstrate, and this, by the way, is
2 not an unfamiliar standard. Laws that burden -- laws that
3 make distinctions based on race, for example, you have to
4 demonstrate a compelling interest and you have to show
5 that the law is narrowly tailored.
6 When we addressed the sexual orientation provisions
7 that are going to be proffered here, the folks are going
8 to argue that same standard should be applied there. So
9 this is not an unfamiliar standard and it's not filled
10 with a lot of nuances. It's well established. And what
11 we're saying is we place this kind of priority on the
12 exercise of religious freedom.
13 CHAIRMAN DOUGLASS: Commissioner Freidin, follow up.
14 COMMISSIONER FREIDIN: I guess I don't know enough
15 about constitutional standards here, but would, for
16 example, let's use this historic district example. Would
17 the maintaining of the integrity of a historic district be
18 a compelling state interest?
19 COMMISSIONER CONNOR: I would think the answer to
20 that would be yes because typically laws of general
21 application are deemed to be laws which reflect a
22 compelling interest.
23 CHAIRMAN DOUGLASS: All right. Commissioner Mills.
24 COMMISSIONER MILLS: Mr. Chairman, there is another
25 part of the test. Will Commissioner Connor yield for this
162
1 question? The first part of the sentence seems to be also
2 to perhaps provide additional assurances for those that
3 are concerned about too great an impact. It says, The
4 state of any political subdivision or agency thereof may
5 not substantially burden the free exercise of religion.
6 Now, in other words, I think it's worth pointing out
7 and discussing that this does not have an impact on --
8 have some effect in dealing with but substantially burden.
9 COMMISSIONER CONNOR: Right. A diminimus kind of
10 impact would not qualify here.
11 COMMISSIONER MILLS: And I think that's relevant to
12 kind of put on the record in terms of the examples. So,
13 in other words, some of these examples I think that will
14 be argued would be diminimus impact, to have a substantial
15 burden on the free exercise of religion would have to
16 actually, I presume, raise the bar. You actually have to
17 be impinging upon the exercise of religion, not just
18 affecting zoning.
19 COMMISSIONER CONNOR: I think that's right. In other
20 words, does this law of general application substantially
21 burden the exercise of one's religion. I think that a
22 zoning ordinance might well meet the compelling interest
23 test. Then the next question is, and that gets addressed
24 on a case-by-case basis, was it sufficiently narrowly
25 tailored to meet that interest.
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1 And then I think what you could well have are
2 occasions where an ordinance or a statute might be deemed
3 to be unconstitutional as applied in a given instance.
4 And there are some instances where it may be
5 unconstitutional on its face. But our constitutional
6 jurisprudence is well developed and is accustomed to
7 dealing with those kinds of challenges.
8 CHAIRMAN DOUGLASS: All right. Commissioner
9 Sundberg, we just about spent most of the time on this we
10 can afford in view of the long afternoon ahead. Unless
11 you have something, go ahead, but make sure it is
12 something new. I think Commissioner Connor almost has
13 closed three times here.
14 COMMISSIONER SUNDBERG: Well, I really want to take
15 exception, I believe, to a statement by Commissioner
16 Connor because I think it's important and I'm going to
17 support this. But did you say, Commissioner Connor, that
18 laws of general application are ordinarily, that there's
19 ordinarily a compelling interest?
20 I mean, most laws of general application are judged
21 by a rational basis test. Tax laws are laws of general
22 application. So aren't laws of general application, for
23 which there is a compelling state interest, aren't there
24 few of those as opposed to all laws of application that
25 are being compelling standards?
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1 COMMISSIONER CONNOR: My recollection is, and I
2 certainly stand subject to being corrected, is that
3 Justice Scalia may have made the very comment in
4 observation that as a practical matter it wasn't difficult
5 for courts to find a compelling interest warranting the
6 passage of laws of general application. But then there
7 was that second prong that had to be addressed. Okay.
8 Let's assume we find that compelling interest. Was it
9 sufficiently narrowly tailored to achieve its ends?
10 COMMISSIONER SUNDBERG: I obviously disagree with
11 Justice Scalia if he said that. But I will agree with
12 Judge Wetherington if he says that's the test.
13 CHAIRMAN DOUGLASS: Well, is that Judge or
14 Commissioner Wetherington? Commissioner Wetherington
15 wants to respond there, I think. You're next.
16 COMMISSIONER WETHERINGTON: I think basically
17 Commissioner Connor is right. The zoning power, for
18 example, is a part of the exercise of the police power.
19 And the police power has generally been viewed as one of
20 the powers that has been determined to be under a
21 compelling governmental interest. So the analysis would
22 then shift over, I think, as he correctly analyzed, as to
23 whether this was the narrowest way to do it.
24 And then the second question would be, was there a
25 substantial impact? For example, inviting 60 people to
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1 somebody's home, that might not be a substantial
2 encroachment upon the free exercise of religion in that
3 particular example. But I think that Justice Scalia is
4 basically right where the police power is exercised, it is
5 generally held to be a compelling governmental interest.
6 CHAIRMAN DOUGLASS: All right. Commissioner Smith.
7 COMMISSIONER SMITH: Mr. Chairman, I'm going to waive
8 my right to respond. I just urge Commissioner Connor in
9 closing to try to mention a few of the organizations who
10 supported this as best you can.
11 CHAIRMAN DOUGLASS: All right Commissioner Connor,
12 you're recognized to close.
13 COMMISSIONER CONNOR: The ACLU, the Liberty council,
14 everybody from Chuck Colson and Jerry Falwell on one hand
15 to the heads of the National Council of Churches, on the
16 other hand. Christians, Jews, non-Christians, just a
17 whole very broad spectrum. And I believe that that broad
18 base of support will translate in support for the people
19 of Florida for this proposal.
20 CHAIRMAN DOUGLASS: All right. Prepare to vote.
21 Unlock the machine and we'll vote. Somebody better move
22 to reconsider. You've got 22 votes, Commissioner Connor.
23 (Vote taken and recorded electronically.)
24 CHAIRMAN DOUGLASS: Lock the machine and announce the
25 vote.
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1 READING CLERK: Twenty-three yeas and three nays,
2 Mr. Chairman.
3 CHAIRMAN DOUGLASS: Twenty-three votes. With all
4 those groups together, I guess it was hard to find the
5 three votes. Didn't leave anybody else out much, did you?
6 Okay. Commissioner Henderson, do you rise for some
7 purpose?
8 COMMISSIONER HENDERSON: Mr. Chairman, just to let
9 you know that we're ready to go back to 64 when you're
10 ready.
11 CHAIRMAN DOUGLASS: All right. I was going to
12 proceed though with the next order and then we'll come
13 back to that. The Proposals 126 and 125 are offered by
14 the same commissioners and I've been asked by them to
15 reverse the order which is agreeable with the Rules
16 Committee. So we will take up first Proposal No. 125 by
17 Commissioners Mathis, Connor, Hawkes, Evans and Alfonso.
18 Hawkes was here this morning, Commissioner Hawkes was. He
19 isn't here this afternoon and ask -- it was disapproved by
20 the Committee on Declaration of Rights but I will ask that
21 it be read and we'll proceed to debate and I'll recognize
22 Commissioner Mathis as the proponent. Would you read it,
23 please?
24 READING CLERK: Proposal 125, a proposal to revise
25 Article I, Section 2, Florida Constitution; providing that
167
1 born and unborn natural persons are equal before the law
2 and have inalienable rights.
3 CHAIRMAN DOUGLASS: Now, Commissioner Mathis, you're
4 recognized. And if you can get Commissioners Connor and
5 Sundberg to get out of your line of fire, you may proceed
6 to speak. You did it.
7 COMMISSIONER MATHIS: There is no more important
8 issue for this generation than how we define human life
9 and how we protect human life. On January 22nd, 1973 our
10 United States Supreme Court issued an opinion on Roe vs.
11 Wade. That was 25 years ago. It was also 30 million
12 children ago. Thirty million lives have been lost to
13 abortion. If you take the average cost of abortion over
14 the last 25 years from $175 to $400 each and you average
15 it out to $250 per abortion, you come up with abortion has
16 generated over $7.5 billion in revenue.
17 If you take U.S. News and World Reports article which
18 shows that abortion continues at a rate of 1.4 million
19 children per year, then abortion generates $35 million per
20 year. Abortion is big business. But I propose to you
21 that it is not the type of business that we in the state
22 of Florida want. Life is sacred. And we could not
23 give -- while we cannot give a person life, we should and
24 must afford life our highest regard and our highest
25 protections.
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1 Article XIV in significant part of the United States
2 Constitution says, Nor shall any state deprive any person
3 of life, liberty, or property without due process of law
4 or deny to any person within its jurisdiction equal
5 protections of the law. In our Constitution, Section 2,
6 Basic Rights, All natural persons are equal before the law
7 and have inalienable rights among which are the right to
8 enjoy and defend life and liberty. And this is all I
9 asked is that we as a Constitutional Revision Commission
10 give the people of Florida an opportunity to state their
11 position and their regard for life.
12 In quoting from Professor J.P. Witherspoon in a law
13 review article that's cited in Francis Shaffer's book, How
14 Should We Then Live, and Professor Witherspoon is speaking
15 in light of the Supreme Court's decision in Dred Scott
16 that the government should be forever again prevented from
17 defining the concept of a person so as to exclude any
18 class of human beings from the protection of the
19 Constitution and the safeguards it establishes for the
20 fundamental rights of human beings including slaves and
21 peons, Indians, aliens, women, the poor, the aged,
22 criminals, the mentally ill or the retarded and children,
23 including the unborn, from the time of conception.
24 You know, abortion is not new. Abortion was
25 practiced freely in the Roman empire. But I say that we
169
1 as a society, in looking back on what has happened since
2 the Supreme Court decision in Roe vs. Wade, need to change
3 our position and to state a value on human life and to
4 retreat from defining a group of humans as not human. You
5 know, abortion has been an issue of convenience.
6 Yes, we hear the horror stories about rape and incest
7 and the health of the mother. But only 1 percent of
8 abortions involve rape. Rather, 76 percent of people
9 seeking abortions cite concern about having a baby would
10 change their life. Fifty-one percent cite problems with a
11 relationship or wanting to avoid single parenthood as
12 their reason for abortion. And, you know, 44 percent of
13 women who got an abortion in 1994 had already had one.
14 Abortion has become a method of birth control. And I
15 submit to you that human life should be valued more. And
16 I really think infanticide is our next step. We've seen
17 some of it whether it's the Susan Smiths who decide their
18 children are inconvenient and seek to get rid of them. Or
19 young people who have children and leave them neglected as
20 they go out to seek their life.
21 And I've also heard the arguments about, Well
22 submitting young ladies will go out and seek abortions in
23 other ways. I say there is a better balance.
24 Opposition to abortion is not an endorsement for the
25 coat hanger just as opposition to slavery is not an
170
1 endorsement of lynching. These are difficult issues that
2 we are facing. But I submit to you that we need to value
3 life as we deal with these difficult issues and that we
4 need to weigh these issues rather than define a group of
5 human beings as subhuman and throwing them away.
6 You know ending apartheid was not easy and I'm sure
7 it's not easy now. There are many difficult issues that
8 need to be addressed. Ending abortion is not easy and
9 there are many difficult issues that need to be addressed.
10 But the sanctity of human life needs to be in that
11 balance. We need to consider that when considering how to
12 protect the health of the mother. We need to consider the
13 life of the infant when considering what to do in cases of
14 rape or what alternatives are open to young women in cases
15 of rape. We need to balance this better than we as a
16 society has done.
17 When Commissioner Henderson talked about preserving
18 our environment for future generations, some of us in this
19 room are much more concerned about preserving our future
20 generations. Ending the atrocity of abortion will not end
21 our problems but it will provide a better basis for our
22 policy. The full protection of life that our founding
23 fathers preserved only for a few, we could fully extend
24 that protection of life to all, both born and unborn.
25 I submit to you that rather than quote from polls, we
171
1 should submit this issue to the people of Florida and let
2 them vote.
3 CHAIRMAN DOUGLASS: All right. Further proponents?
4 The introducers, Mathis, Connor, Hawkes, Evans and
5 Alfonso, do any of you want to speak, Commissioner Evans?
6 Commissioner Alfonso? Commissioner Connor, you're
7 recognized.
8 COMMISSIONER CONNOR: Thank you, Mr. Chairman.
9 Ladies and gentlemen, I have no doubt that if this session
10 were in convention in the aftermath of the decision in the
11 Dred Scott case, that there would be any number of folks
12 on their feet saying that it is absolutely incumbent that
13 we as a people take a stand in behalf of human freedom and
14 human life.
15 The fact that the United States Supreme Court
16 declared, as the highest judicial body in the land, that
17 the black man had no rights that the white man was
18 required to respect, did not end the discussion. Indeed
19 Mr. Lincoln, in the aftermath of that decision, made this
20 statement: The candid citizen must confess that if the
21 policy of the government, upon vital questions affecting
22 the whole people is to be irrevocably fixed by decisions
23 of the Supreme Court, the people have ceased to be their
24 own rulers, having to that extent practically resigned
25 their government into the hands of that imminent tribunal.
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1 We know what the history of this country was in the
2 aftermath of the Dred Scott decision. The people of this
3 country said, in no uncertain terms, We will not treat
4 human beings as property, plain and simple. Ladies and
5 gentlemen, I would submit to you today that the unborn
6 child is in the same vulnerable position that Dred Scott
7 was in, that the unborn child has no rights which must be
8 respected by others.
9 Ladies and gentlemen, I would submit to you the right
10 to life is the foundation of all other rights. It is that
11 right without which no other right can exist. The right
12 to freedom of religion that we've just been discussing,
13 freedom of expression, freedom of association, those are
14 rights that are reserved to the living. And unless we
15 first preserve the foundational right of all other rights,
16 those other rights are meaningless. Ladies and gentlemen,
17 I would submit to you that the right to life is superior
18 to the Constitution, it's not derived from the
19 Constitution.
20 The right to life is an endowment upon mankind by the
21 Creator, plain and simple. And we know from the inception
22 of our republic that our forefathers deemed it the role of
23 government, the place of government to secure the rights
24 that had been conferred upon us by the Creator.
25 We've done a pitifully poor job of that in the last
173
1 25 years as it has related to unborn children. Let me
2 suggest to you folks that when Justice Blackman stated
3 that he, inasmuch as philosophers and theologians had not
4 been able to determine what it was that the mother carried
5 in her womb, then the Court would not be so presumptuous
6 as to make that determination.
7 Let me suggest to you that that's a spurious
8 argument. We've known throughout the ages what it is that
9 a mother carries in her womb. It is very simply her
10 unborn child. It is a person. It is a person who is
11 weak. It is a person who is vulnerable. It is a person
12 who is exposed because of their weakness and vulnerability
13 to all kinds of exploitation.
14 One in three pregnancies in this country end in
15 abortion. One in three. Statistically the most dangerous
16 place in America has become the mother's womb. I would
17 submit to you that ought not to be. I would submit to you
18 that the Court erred in Roe vs. Wade when it invented a
19 right to abortion. I would submit to you that the Court
20 erred in Roe vs. Wade when it declared the laws of 50
21 states as they related to abortion unconstitutional.
22 Ladies and gentlemen, I would submit to you that we
23 have an obligation to speak our consciences. Commissioner
24 Henderson in the Floridian paper, number one, makes this
25 statement at the very beginning, A Constitution is more
174
1 than the basic law of the land. It is a place to express
2 our fundamental values. Ladies and gentlemen, I would
3 submit to you that the first fundamental value that we
4 ought to be willing to express is that every person, black
5 or white, rich or poor, whole or handicapped, male or
6 female, born or unborn, has a God-given natural right to
7 life which we as participants in self-government will
8 ensure will be protected through the ages.
9 I urge you to affirm what our forefathers deemed to
10 be a self-evident truth and that is that all of us have
11 been endowed by our Creator with a right to life and that
12 the role of government ought to be to protect that
13 precious life. Thank you.
14 CHAIRMAN DOUGLASS: Proponents? Anybody in
15 opposition want to speak? Commissioner Wetherington is
16 recognized for a question to Commissioner Connor.
17 Commissioner Connor, this is a Connor afternoon.
18 COMMISSIONER WETHERINGTON: Does this proposal
19 overrule, attempt to overrule Roe vs. Wade?
20 COMMISSIONER CONNOR: In reality the effect of the
21 proposal would be that it would not take effect. As long
22 as Roe vs. Wade remains the law of the land, because, as
23 you know, that where the Court has determined that there
24 is an area of protection recognized by the federal
25 Constitution, the states may not diminish that protection.
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1 And the protection I am speaking of is the protection of
2 the woman to choose whether or not the baby in her womb
3 will survive to birth or not.
4 COMMISSIONER WETHERINGTON: I respect very much what
5 you have said, but would the people of Florida be adopting
6 an unconstitutional provision if they adopted this
7 proposal?
8 COMMISSIONER CONNOR: As currently interpreted by the
9 Supreme Court of the United States, I think the answer is
10 yes. I would make the observation that on more than 120
11 occasions in the past, the United States Supreme Court has
12 reversed its prior holdings. And I believe that we as a
13 people ought not, as Mr. Lincoln says, to surrender our
14 decision-making up to that eminent, and I respect the
15 Supreme Court, to that eminent tribunal. But I would
16 submit to you that fundamentally the Roe vs. Wade decision
17 is flawed because it elevates the right of privacy over
18 the right to life.
19 And my view is that the right of privacy is a right
20 that is derived from subordinate to, and flows out of that
21 foundational right to life and that kind of wrongheaded
22 logic out to be eschewed by the people of Florida even if
23 we cannot enforce it at this time.
24 CHAIRMAN DOUGLASS: All right. Any further debate?
25 If not, prepare to vote. Unlock the machine.
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1 (Vote taken and recorded electronically.)
2 CHAIRMAN DOUGLASS: Commissioner Mathis, did you want
3 to close or did you consider Commissioner Connor's a
4 close?
5 COMMISSIONER MATHIS: The vote being taken, we will
6 move forward.
7 CHAIRMAN DOUGLASS: If you think you can change it,
8 we will back it up. Has everybody voted that's present?
9 Lock the machine and announce the vote.
10 READING CLERK: Nine yeas and 18 nays, Mr. Chairman.
11 CHAIRMAN DOUGLASS: All right. The next proposal is
12 Proposal No. 126 by Commissioners Mathis, Connor, Hawkes,
13 Evans and Alfonso. Disapproved by the Committee on the
14 Declaration of Rights. Would you read it, please?
15 READING CLERK: Proposal 126, a proposal to revise
16 Article I, Section 2, Florida Constitution; providing that
17 the basic rights of natural persons accrue at the point of
18 their conception and continue until their natural death.
19 CHAIRMAN DOUGLASS: All right. Commissioner Mathis,
20 you are recognized and this time remind me you get to
21 close, okay?
22 COMMISSIONER MATHIS: Good enough. I think with the
23 right to abortion the door has been opened. The Court has
24 separated aliveness from personhood. But there are issues
25 that are broader than abortion that we need to address and
177
1 establish a fundamental principle.
2 Life is a fundamental right, our Constitution is
3 clear about that. And the State does have a compelling
4 interest in protecting that life. And I would like to see
5 the Floridians, given an opportunity to speak directly to
6 this issue, of whether a life -- whether there is a right
7 to live a life and whether that right should be protected
8 beyond the ordinary political process.
9 Changes in technology and medical advances and
10 scientific research have compelled us to reaffirm and
11 clarify the value that we as a society place on human life
12 and to prevent the devaluation of human life, these
13 balances of the fundamental right to life where we also
14 see increasing financial incentives to limit medical care,
15 so we need to address some very clear issues.
16 And abortion should not be the issue that drives how
17 we address these other issues. There are issues of
18 cloning and the issue of whether a cloned life is a real
19 life. There is the issue of research that's done on
20 embryos. There is the issue of physician-assisted suicide
21 and mercy killing and euthanasia and there is also the
22 issue that the staff analysis deals with about how we deal
23 with the wrongful death of a child while that child is in
24 the mother's womb.
25 I do not think that abortion should be the driving
178
1 force on how we address these complicated issues that will
2 be facing our society and our state.
3 Protecting human life from conception to natural
4 death will not get rid of abortion, but it will provide
5 guidance to us as to how we address these other
6 complicated issues that will be facing us in the new
7 millennium.
8 I guess we have to look at it from what's been called
9 the Wetherington test, does this belong in the
10 Constitution? I think it does. It has to be a guiding
11 principle for us as we live our lives. You know, when
12 they asked me to serve on this Constitution Revision
13 Commission, in thinking of the issues that I thought were
14 important to bring before the body, there were some issues
15 that we have addressed in this session, but I think there
16 is no more fundamental issue than the issue of life and
17 our protection of human life and I know it is not popular.
18 But I would have done a disservice to come before
19 this body and not bring this issue up for discussion. And
20 I think anyone who feels that we should foreclose a
21 discussion of certain issues because they agree or
22 disagree does a disservice to this body. We are here to
23 discuss fundamental principles that will guide this state
24 for the next 20 years or so. And I think this issue is
25 worthy of that consideration.
179
1 CHAIRMAN DOUGLASS: Commissioner Mathis, thank you.
2 Proponent, Commissioner Barton?
3 COMMISSIONER BARTON: Actually, I have a question.
4 Commissioner Mathis, my question to you would be, is the
5 difference in this proposal that it would also protect the
6 conceived child and the mother of the child who is
7 conceived?
8 COMMISSIONER MATHIS: Yes, Commissioner Barton, this
9 issue here is much broader than the previous issue in
10 Proposal 125. And it would protect both the unborn child
11 and it would also protect the mother. And it would also
12 protect the old and the elderly and the infirmed that
13 everyone would be given the right to live a life from
14 their conception to their natural death and that the State
15 would choose every reasonable means to protect that right.
16 So, yes, to answer your question.
17 CHAIRMAN DOUGLASS: All right. Other proponents. I
18 think the other people who introduced this, Commissioner
19 Evans, do you want to comment? You are recognized.
20 COMMISSIONER EVANS: Just one brief comment. I think
21 you-all are aware that I have a friend who gave birth last
22 May 23rd to a baby at 23 weeks. And I just want to give
23 you some information on hospital policy. Their baby was
24 born at 510 grams and the hospital policy at Arnold Palmer
25 was that if the baby weighs less than 500 grams they will
180
1 take no action to save the baby's life.
2 And in reality, the -- my friends, when they
3 questioned their OB-GYN concerning that policy, because,
4 10 grams isn't very much, the OB-GYN did say that he had
5 never known when the parents wanted the hospital to take
6 action to save the life, he had never known the hospital
7 not to.
8 But the policy is that at 500 grams they will not
9 take action to save the life.
10 CHAIRMAN DOUGLASS: And this would rectify that in
11 your opinion?
12 COMMISSIONER EVANS: I think that it would strengthen
13 the parents' position, yes.
14 CHAIRMAN DOUGLASS: Okay. Thank you. Now, other
15 proponents, Commissioner Connor?
16 COMMISSIONER CONNOR: Commissioner Wetherington, your
17 question of me earlier, I think, bears directly on my
18 position on this issue. In effect the unstated question,
19 I think, is, Well, why would you put forward a proposal
20 which we know runs afoul of current constitutional
21 jurisprudence?
22 Ladies and gentlemen, the simple answer to that is
23 because our consciences compel us to do so. We believe in
24 the strongest of terms that Roe vs. Wade was wrongly
25 decided and in as much as in God's province, as some of us
181
1 have had the opportunity to serve on this commission at
2 this time in history, we believe we would be remiss if we
3 didn't bring your attention our concern about what we
4 believe to be the gravest, single, moral wrong in our
5 culture.
6 The position that this body has adopted, I don't know
7 if you appreciate it or not, but here is where we are.
8 This is a commission that has affirmed abortion at any
9 age, at any stage of the pregnancy, by any means,
10 regardless of the methodology, and without so much as in
11 the case of a minor child requiring parental consent.
12 Ladies and gentlemen, while this is an issue that
13 engenders great consternation and differences of opinion,
14 I would submit to you that that position is a position
15 that is at variance with mainstream American thought.
16 Let me make this observation about the personhood of
17 the unborn child. With advances in biotechnology and
18 fetal medicine, we are seeing incredible changes on the
19 scene. I read an interesting article in recent U.S. News
20 and World Report about fetal surgery that was aimed at
21 overcoming fetal deformity and the patient was the unborn
22 child in the womb who was operated on.
23 With the advent of fetal technology, with cryogenics,
24 with in vitro fertilization, the length of time that we
25 can sustain life in an artificial environment outside the
182
1 womb rapidly advances. With the advents of fetal
2 technology and fetal medicine, the length of time for
3 viability keeps falling backwards.
4 The day will come, ladies and gentlemen, maybe in the
5 next 20 years before this next commission meets, when we
6 will be able to sustain the life of a child from
7 conception to viability outside the mother's womb in an
8 artificial medium. You may say, Oh, that can never be.
9 We have folks telling us in two years they will clone
10 human beings, that day will come.
11 And we are going to have to decide what it is we are
12 dealing with. We have ducked the issue of personhood
13 because of this tension between the mother who carries the
14 baby and the baby herself. But we are going to have to
15 come to grips with that very difficult issue of what is
16 it? Is it property, is it something that you can harvest
17 its body for spare parts? Use the residual for heaven
18 only knows what?
19 I would submit to you, ladies and gentlemen, this is
20 a profound question that we are ducking and refusing to
21 debate. I would submit to you that there is no important
22 question and there is no more important right to protect
23 than this right to life and we urge your support of the
24 proposal.
25 CHAIRMAN DOUGLASS: Commissioner Connor, we are on
183
1 the floor. I would have risen to a point of privilege for
2 the body to say -- okay, Commissioner Smith.
3 COMMISSIONER SMITH: Thank you. I had no intention
4 to speak on this issue. Obviously, as a member of the
5 Declaration of Rights Committee, I had heard a lot and
6 spoke a lot on the issue. However, since this is a
7 discussion of record, I think it is important to state as
8 a member of this commission that this commission has taken
9 no action whatsoever that in any way affects the law that
10 existed at the time we convened with regard to when a
11 woman has the right to choose, what age a female can get
12 an abortion, or disturbed in any way the relationship of a
13 minor and her family and physician in making a decision of
14 the choice.
15 We have taken no action whatsoever that changed the
16 state law. We have taken no action whatsoever that
17 affects the federal law. And so with regard to whatever
18 the debate may be on this issue that obviously divides
19 America, is a hotly contested issue, is an issue of
20 conscience and passion for both sides. I think it is
21 important that I rise to state that as I did in the
22 Declaration of Rights Committee.
23 And so while I disagree on the merits with my friend
24 Mr. Connor, I also disagree with his interpretation of the
25 action that we as a body have taken. And I must state for
184
1 the record what I see as the position this commission has
2 taken.
3 CHAIRMAN DOUGLASS: That was what I was going to
4 state but you did it much more eloquently than I would
5 have. Commissioner Wetherington?
6 COMMISSIONER WETHERINGTON: In one of the earliest
7 Supreme Court cases that was decided Calder vs. Bull,
8 there was a discussion by Justice Iredell and Justice
9 Chase concerning whether or not the natural law was
10 superior to the United States Constitution. And the
11 natural law theory is probably that which was really
12 invoked in Roe vs. Wade. Your statement of the natural
13 law position concerning your position is as good
14 supporters, it has good history, so it is not in any way a
15 weightless kind of position. It is a position I have
16 great respect for. And you state it extremely well, and
17 extremely passionately.
18 On the other side, we also have a competing value,
19 which some might argue would be a natural right and that
20 is the woman's freedom of choice. So we have got the
21 competition here between rights that perhaps are both
22 sacred and equal, and entitled to the greatest possible
23 weight in our value system.
24 Under our system of government, the United States
25 Supreme Court, under our system of jurisprudence, has been
185
1 designated as the ultimate arbiter to resolve these very
2 difficult kinds of decisions whether they are right or
3 whether they are wrong.
4 And they have resolved this issue at least up to now.
5 And it is my feeling that we have to respect that
6 resolution whether we agree with it or whether we disagree
7 with it. It seems to be that under our system of
8 government that it is a decision that we have to respect
9 and as a constitutional body, which this body is, I think
10 we have to respect the Constitution of the United States
11 as it is interpreted by the United States Supreme Court.
12 That's not, I genuinely mean to state, and I think
13 for everybody, that nobody here does not have very deep
14 concern for the values that you spoke to. And I don't
15 know that there is anybody here really that favors
16 abortion as such. I think there are many here that favor
17 a woman's freedom of choice. I don't know that anybody
18 thinks that abortion is a good thing, they may think it is
19 a necessary thing.
20 So I want to join a little bit in what Commissioner
21 Smith said in saying that we are not, the commission
22 itself is not changing the law. I think what we are doing
23 is we are simply respecting the state of the United States
24 constitutional law, which we are bound by. As a
25 constitutional commission, I think we would be required to
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1 honor the United States Supreme Court decision in this
2 case.
3 CHAIRMAN DOUGLASS: All right. You know,
4 Commissioner West wants to be recognized. You have been
5 heard from a whole lot this afternoon. I think
6 Commissioner West we haven't heard from much and it is
7 your turn.
8 COMMISSIONER WEST: Thank you very much,
9 Mr. Chairman. And I really want to approach this from a
10 little bit of a different perspective and I am so thankful
11 for your comments, Commissioner Mathis.
12 I want to take your minds back to World War II and
13 that's something that I don't know a whole lot about, I am
14 too young to know that, but I remember talking to my dad
15 and to my uncle who served in the armed forces and tried
16 to pick up the pieces in Europe after it had just gone
17 crazy.
18 And after it was the law of the land that the final
19 solution be implemented, horrific things, I never saw it,
20 my uncle did, I never got a chance to see it, I'm glad I
21 didn't, but I'm so glad things like the Holocaust Center
22 where we will never forget the atrocities of World War II.
23 I mean, we think of Auschwitz, we think of Sobibor and
24 Treblinka and those things just put fear in us that, could
25 that have happened in a civilized society? And I would
187
1 submit to you that before Hitler murdered one single Jew,
2 his disrespect for life came with the unborn. And let me
3 just try to share with you historically some of the
4 progression of what happened in Nazi Germany.
5 First, abortion was legalized. Next because of, and
6 I shudder to think that maybe some of the language that
7 was used in Roe vs. Wade, that said that the unborn is a
8 nonperson, well, that's exactly where Hitler started. And
9 after it was the non-born, then it was the mentally
10 incompetent. And all of a sudden, the German hierarchy
11 started to begin to tell their people when life was
12 important.
13 I have been silent most of the time and I learned so
14 much and I can say looking amongst this body that I have
15 voted with everybody on something, okay. Not by, you
16 know, design, but I have been able to see just a bunch of
17 wisdom coming from this body, I really have.
18 And my plea to you is to remember that life is so
19 precious. Historically the Jewish and Christian
20 religions, those of which I am the most familiar with,
21 have supported the idea of life at conception. And the
22 Old Testament Psalmist said, Behold I am fearfully and
23 wonderfully made, in my mother's womb was I conceived. So
24 historically we can look back historically.
25 I would just hate to think that I would pass on to my
188
1 kids and my grandkids the legacy of having an opportunity
2 to stand up, and I certainly don't have a lot of the
3 persuasive skills that I have seen demonstrated in this
4 body and I am so thankful that I have had an opportunity
5 to be part of this. But my plea to you would be to stand
6 on the side of life and if we were to err, and I don't
7 think we are erring, it is to stand on the side that
8 protects -- that provides protection to life.
9 CHAIRMAN DOUGLASS: Commissioner West, I might
10 compliment you to say that you underestimated yourself.
11 It was a very fine presentation. Commissioner Mathis, do
12 you want to close?
13 COMMISSIONER MATHIS: Alice Walker was asked to write
14 a brief synopsis or an article for a magazine and she had
15 lunch with the writers and she had shared with the writers
16 and they were discussing it back and forth and they were
17 making suggestions on changes she should make to this
18 writing. And Alice was very hesitant, didn't want to make
19 the changes. And finally, rather than being cordial,
20 congenial, and kind, they said, Alice, and I'm quoting
21 here, they said, If you want us to publish your article,
22 you have to make these changes.
23 And she gathered together her manuscript and she
24 stood up to leave. And she said, Listen to me, all I have
25 to do in life is save my soul. Well, I have been given
189
1 and you have been given the opportunity to address
2 fundamental issues that I think save the soul of the
3 state. I am glad that when the Constitutions previous to
4 ours wrote out my rights as a black woman, that nobody
5 stood up and said, Well, our previous Constitutions, you
6 know, we have to go ahead and go, because those guys were
7 smart. I remember on whose shoulders I stand. And a lot
8 of times that included standing against the general whims
9 of society.
10 But we are called to a higher purpose. This proposal
11 is it protects life. Let us discuss the balance between
12 the mother's life and the unborn child's life. Let us not
13 say that while this unborn child may be alive he is not a
14 person. Let us draw the line. There is no line that says
15 that any human being is not a person. Let us state that.
16 And I would submit to you by not saying that, we are
17 saying the alternative.
18 By not taking a stand for parental consent, we have
19 made a statement. And I say this is a strong statement to
20 make. Let us balance this, let us be wise and let us
21 stand against the tides of this time and be reasonable.
22 And I would like to give the balance of my time in close
23 to Commissioner Connor.
24 CHAIRMAN DOUGLASS: Very well. Commissioner Connor.
25 COMMISSIONER CONNOR: Just a brief remark directly in
190
1 response to Commissioner Wetherington for whom I have the
2 greatest admiration and respect. I would submit to you,
3 Commissioner Wetherington, that those of us who disagree
4 with the court ruling under our laws and under our
5 democratic republic, are privileged to fight for change in
6 lawful means through the system and that's what we are
7 seeking to do here. This is the very kind of venue that
8 would provoke a change that could provoke a
9 reconsideration of the case.
10 We have not resorted to any form of civil
11 disobedience. We show our respect for the Constitution
12 and for our constitutional system by seeking to work in
13 and through the system. So please don't for one moment
14 suggest that I have a frivolous view of the Constitution
15 by seeking to overturn a Supreme Court decision which I
16 think is fundamentally erroneous. And I know you don't
17 intend that to be the implication.
18 Secondly, I would submit to you, ladies and
19 gentlemen, that we do take a stand by our actions, and by
20 our failure to act. And I could not agree more with
21 Commissioner Mathis than when she says when we have an
22 opportunity to effect change but fail to do so, we bear
23 some accountability for the preservation of the status
24 quo. I urge you to support this proposal which honors and
25 respects life. Thank you.
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1 CHAIRMAN DOUGLASS: All right. Prepare to vote.
2 Unlock the machine.
3 (Vote taken and recorded electronically.)
4 CHAIRMAN DOUGLASS: Everybody voted? Lock the
5 machine and announce the vote.
6 READING CLERK: Eleven yeas and 18 nays,
7 Mr. Chairman.
8 CHAIRMAN DOUGLASS: All right. By your vote, you
9 have defeated Proposal 125. Now Proposal 17 by
10 Commissioner Riley, disapproved by the Committee on the
11 Declaration of Rights, referred to the committee again,
12 disapproved by the Committee on Declaration of Rights, and
13 amended and consideration deferred on January -- to
14 January 26. Would you read it, please? It's No. 17.
15 READING CLERK: By Commissioner Riley, on Page 1,
16 Line 21, delete "gender."
17 CHAIRMAN DOUGLASS: I think we adopted that already.
18 The title now should read, Providing that no person shall
19 be deprived of any right because of sexual orientation; is
20 that correct, Commissioner Riley?
21 COMMISSIONER RILEY: Yes.
22 CHAIRMAN DOUGLASS: Read it.
23 READING CLERK: Proposal 17, a proposal to revise
24 Article I, Section 2, Florida Constitution; providing that
25 no person shall be deprived of any right because of gender
192
1 or sexual orientation.
2 CHAIRMAN DOUGLASS: All right. The word "gender" has
3 been stricken from that by previous amendment and it was
4 deferred for further action today. It was adopted
5 according to -- right. So we are now on the provision
6 which is limited to, as I understand it, Commissioner
7 Riley, providing that no person shall be deprived of any
8 right because of sexual orientation; is that correct?
9 COMMISSIONER RILEY: Yes.
10 CHAIRMAN DOUGLASS: And you are recognized to present
11 the amended proposal.
12 COMMISSIONER RILEY: Deja vu all over again. But I
13 will do that. This is not an easy subject and it is
14 something that many commissioners and people have shied
15 away from. Homosexuality and sexual orientation is not a
16 party subject. However, we know that between 10 and
17 15 percent of the general population is, in fact, either
18 lesbian or gay.
19 And more than likely, those of us in this room, I
20 guarantee you, have friends that are homosexual, may well
21 have daughters or sons or nieces or nephews who are gay or
22 lesbian.
23 I gave you some facts yesterday, but let me give you
24 a few more because I think the statistics are very
25 disturbing. And let me give you some on the youth. If
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1 you think it is difficult to be a gay or lesbian adult,
2 being a gay or lesbian youth is even worse. And it is not
3 something that a person, by the way, wakes up and decides
4 one day that they are going to be a homosexual like I'm
5 going to be an architect. That's not a decision that a
6 person makes. And I think science has shown us that.
7 I don't know why any youth would choose a lifestyle
8 like that because statistics tell us that 30 percent of
9 all teen suicides are gay and lesbian. Forty percent of
10 all homeless youths are gay and lesbian.
11 Twenty-eight percent of all high school dropouts are
12 homosexuals. And 50 percent of males and 20 percent of
13 females are harassed and assaulted in school that are also
14 gay and lesbian.
15 So we don't doubt that it is difficult and surely we
16 don't doubt that there is discrimination. The polls tell
17 us that there is discrimination. There is discrimination
18 in employment, there is a whole variety of areas. In
19 employment, I gave you some statistics yesterday, that
20 tell us that over 75 percent of men and women who are
21 homosexuals hide the fact because they know that they will
22 be discriminated against in their workplace. They will be
23 fired, they can be fired. They will not get a promotion,
24 they can -- though they don't have to get a promotion,
25 they can be discriminated against.
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1 There is discrimination in housing. As of today,
2 there are 19 states that have executive orders or
3 legislation on the books that protect gays and lesbians
4 against discrimination, Florida is not one of those
5 states.
6 However, there are in our state nine counties or
7 municipalities that do have ordinances or codes that
8 prevent discrimination in employment and in housing. And
9 there is another area of discrimination that gets a great
10 deal of discrimination, another area, and that's in the
11 family life. You don't have an opportunity to adopt, more
12 than likely, if you are gay or lesbian. And if you happen
13 to have children, you have a very high risk of losing
14 those children if you declare that you are a gay or
15 lesbian.
16 You may have heard of the case of Mary Ward in
17 Pensacola. She was married and had a young daughter who
18 was seven years old and she was divorced. And her
19 husband, ex-husband, sued for custody of the
20 seven-year-old daughter because Mary Ward was in a loving
21 and lesbian relationship.
22 That fact didn't make any difference to the judge
23 when he awarded custody of the seven-year-old to the
24 father because he said that child should grow up with
25 other options. The father had been convicted of murder,
195
1 he had shot a previous wife six times, reloaded his gun,
2 shot her six more times, went to prison, and when he came
3 out at some point in his future, he got custody of his
4 daughter because he had a more acceptable home life. I
5 question that that's very fair.
6 And let me address just briefly the same-sex marriage
7 issue because that's going to be a question. And I am not
8 sure what putting sexual orientation in as the protected
9 class in the Constitution is going to do. I would suggest
10 that will be tested in court. If that's a problem to you,
11 I would ask that you look back at all of the proceedings
12 that we have had since the 16th of June, and I'm not a
13 lawyer, but everything I hear, it often comes down to a
14 decision by the courts.
15 So many things that we have decided and so many
16 things that we have debated the bottom line is it is a
17 question, what exactly is that going to mean, it has got
18 to be decided by the courts. So does it mean same-sex
19 marriages, I don't know. That's a decision for the
20 courts. And I know that that's an issue with some people.
21 But I would suggest that that is not a reason to keep
22 some protection for an extremely vulnerable group of
23 people that live in our state and I would ask you to
24 support putting sexual orientation in as a protected class
25 on that last line in Section 2 of Article I. Thank you.
196
1 CHAIRMAN DOUGLASS: All right. Commissioner
2 Wetherington?
3 COMMISSIONER WETHERINGTON: I think the first thing I
4 want to observe is exactly what the proposal is. This is
5 a proposal that says, and simply says, that the government
6 cannot discriminate against persons because of sexual
7 orientation. It doesn't go beyond that, it is not a
8 statute, it doesn't regulate all the areas of housing and
9 employment or any of those other important issues. It is
10 as it stands a specific limitation as it applies to other
11 classes that are defined in the Constitution.
12 So the question then is a simple one. The question
13 is whether the government should discriminate against any
14 group of people and it is any firm conviction that the
15 government shall not discriminate against any group of
16 people and if there is one place that we have got to agree
17 on, and our history has shown us, is a tremendous
18 importance to where the government is concerned, we have
19 got to all be treated in an equal manner.
20 And I think that regardless of what people's views
21 may be about a given minority, that's not the point. The
22 point is that we are all persons in this county, we are
23 all entitled to be protected by the laws, we are all
24 entitled to be treated equally by our government and none
25 of us should be discriminated against by the government.
197
1 CHAIRMAN DOUGLASS: Commissioner Morsani?
2 COMMISSIONER MORSANI: I'm rising in opposition, am I
3 in order?
4 CHAIRMAN DOUGLASS: I think Commissioner Freidin
5 wants to speak for --
6 (Off-the-record comment.)
7 CHAIRMAN DOUGLASS: Go ahead, Commissioner Morsani.
8 COMMISSIONER MORSANI: Thank you, Commissioner
9 Freidin. I happen to think we already have too many
10 exemptions in that, you know, I really think we have
11 covered so much of this when we included -- which I was
12 100 percent for -- when we went female and male and which
13 you call it whatever we want, in Article I, and I
14 certainly am 100 percent in support of that.
15 However, what is going to be the next group of people
16 that we are going to select in society that we must call
17 out to, quote, protect? We recently, in our last two or
18 three votes, we decided some that we weren't going to
19 protect as groups and suddenly we want to identify another
20 group of people though that deserve to be protected or
21 should be called out in our Constitution.
22 I disagree with some of the conclusions, Commissioner
23 Riley, with all due respect, I am a small employer and
24 many of you know this, and now we have about 300 people,
25 but we do have homosexuals, both male and female in our
198
1 employment. They have been promoted. They have not been
2 discriminated against at any time either during their
3 employment process or in their employment.
4 And also, I guess it is hard to bring up -- another
5 family situation -- but we have two men in our family who
6 are homosexuals. Unfortunately one of them at 40 years
7 old died of AIDS two areas ago and it was a very
8 unfortunate thing in our family. And yet we always had
9 family reunions and he was included. In fact, another
10 gentleman who happens to be -- I used to baby-sit for him,
11 so he is a few years younger than I am, but he's about 55,
12 and he is a homosexual.
13 A dear man, a good friend, who is also currently
14 doing genealogy, am I using the word correctly, for my
15 family and so on and so forth, and he does that. He is an
16 artist, he is a very accomplished gentleman in Tucson,
17 Arizona.
18 There has been no discrimination in our family of
19 these two men. And we are good friends, as a matter of
20 fact. Strange as it may seem, we discussed this matter.
21 I believe if he was in this room he would say these are
22 not issues, that these are bygone issues. Now, I know
23 that Mr. Smith even would disagree with me on the race
24 issue, maybe, but that's okay. But I do think we have to
25 look to the future and not the past, that's where I
199
1 disagree sometimes with my dear friend Mr. Smith.
2 Because what we have today and what tomorrow is going
3 to bring is entirely different. We are still in the lynch
4 mob basis, we are not a lynch mob in this society today.
5 Why we are continuing to raise issues with people amazes
6 me that we are not looking at the future, we are not
7 looking at 20 years out. We are not looking at the laws
8 that have been adjudicated by our Supreme Court and by our
9 local courts and by the fact that we do have case law to
10 govern our jurisprudence and our rules and regulations
11 there in this nation.
12 We don't need to have another exemption in our
13 Constitution. And Commissioner Riley, I think you are
14 right. I think you are so right when you said what would
15 this precipitate in the future. And I guarantee you it
16 would do a lot.
17 You know, I'll tell you a quick story in business. I
18 did own a big truck dealership, Kenworth dealership, and
19 one day I got a letter in the mail from the Social
20 Security Administration that said that one of our
21 employees was changing their name and his name was T-O-N-Y
22 and the new name was T-O-N-I-E. And so we said, Well,
23 what do we have here? As I said, I have been around the
24 world a few times and to a few quilting bees but I never
25 had to handle a problem like this before.
200
1 So I called my legal counsel and they said, Please,
2 don't call us again because we don't know what to tell you
3 to do. So what did we do in this situation? This
4 gentleman who is one of our mechanics, and he was a very
5 good mechanic, he had been promoted on a regular basis,
6 been given merit increases and was well thought of in our
7 company, happens to be still well thought of. But he was
8 going to have a sex change. And after we got that notice
9 we called him in and said, We don't know how to address
10 this in our company, but would you please help us address
11 this issue?
12 And he said, Well, I am going, I am getting my
13 hormone shots and so on and so forth and then I'm going to
14 have a sex change operation. Well, now he said, I want to
15 have a meeting and tell all the employees. I had 127
16 people in that company and so he held a meeting and he
17 told all the employees what was happening.
18 Well, now, ladies and gentlemen, if you have never
19 been around a bunch of truck drivers and a bunch of
20 mechanics and go out there with all the skilled and
21 unskilled labor, you haven't lived real well yet. If you
22 want an experience. So now then what do we do, we said.
23 So now then all of a sudden the men don't want him in
24 their rest room, and the women don't want him in their
25 rest room. So I spent $10,000 to build him a rest room
201
1 and then he didn't want to use that rest room. You talk
2 about problems in sexual orientation, you never
3 experienced them until you experience that.
4 Now, I tell you that story because it was a very
5 painful. It was certainly painful for this man who later
6 became a woman. And he and I discussed it and we said,
7 How can we help you? And we really were serious, How can
8 we help you? How do you get over this? If you have never
9 gone through that process, you have not -- you don't know
10 how to explain it. You don't know how to handle it.
11 There is no advice, there is not a psychologist or a
12 psychiatrist or anyone that can help a poor old country
13 boy used car dealer how to get over that problem. And I
14 don't think all of you in this room would get much help
15 either regardless of your intellect.
16 I don't think we need another -- to put another class
17 of protection in our Constitution. We need to look at the
18 future and let's have some vision. It is changing. I
19 don't agree that there is discrimination, broad-based,
20 certainly there is always going to be discrimination. It
21 wasn't very long ago in Boca Raton County Club no Jews
22 could become a member, that was terrible discrimination.
23 I belonged to a men's -- no, pardon me, that's not
24 true. There was a men's club in Tampa, Florida called the
25 University Club that I was invited to join and this was
202
1 back in the '70s. And so I will tell you I refused to
2 join because it didn't have women, it didn't have blacks.
3 I stood up for our rights. Today that club has women
4 and has blacks and has Jews as it should. So why are we
5 living in the past, ladies and gentlemen, with these kinds
6 of proposals? I urge you to vote against this proposal.
7 It is not in the best interest. We don't need it. We
8 don't need these kinds of changes in the Florida
9 Constitution.
10 CHAIRMAN DOUGLASS: Commissioner Freidin?
11 COMMISSIONER FREIDIN: I agree with Commissioner
12 Morsani. We do need to look to the future and that's why
13 this proposal should receive your favorable consideration.
14 Because this is the first time that this has ever been
15 discussed to my knowledge on the floor of a Constitution
16 Revision Commission. This is the wave of the future.
17 The gay and lesbian community is experiencing, and
18 has experienced for years, dramatic discrimination. And
19 the reason it hasn't been discussed before is because it
20 is only in the last 20 years that the gay and lesbian
21 community has been willing to and brave enough to come out
22 and express to other people that they are gays and
23 lesbians. And that's why this is an issue for today and
24 for the next 20 years, just as adding religion and race
25 into our Constitution were issues for days past.
203
1 You know, when I was growing up in Miami Beach,
2 Florida, my father-in-law played the piano in hotels, my
3 father-in-law is Jewish and my father-in-law would go to
4 work in the evening and he would walk through a door that
5 on the front door of the hotel said, "No Jews. No dogs."
6 Now, today, those signs aren't there and we are not
7 going to take our protection for -- against -- abridging
8 rights on the basis of religion out of the Constitution,
9 but what we need to examine is the fact that when that was
10 happened, which I'm not going to say how many years ago
11 that was because I have already said it was when I was a
12 little girl, but when that was happening, it wasn't
13 considered to be something that anybody really wanted to
14 do anything about. It required a movement of the people
15 of the state of Florida to understand the issue. And
16 that's really what we are talking about here.
17 Now, Commissioners, when Chairman Douglass introduced
18 this proposal, he mentioned that it had been disapproved
19 by the Declaration of Rights Committee, that it had come
20 to the floor and it had been re-referred to the
21 Declaration of Rights Committee and I want to give you an
22 explanation of why because I want to challenge each of you
23 to go through the process that I went through when I made
24 the motion to have it reconsidered at the Declaration of
25 Rights Committee because I voted in favor of an
204
1 unfavorable recommendation, I am now sorry to say, and was
2 sorry immediately after I did it, but I voted against this
3 proposal at the committee level and I want to talk to you
4 about why I did that. And I want to talk to you about the
5 process that I've gone through since the time that I did
6 that.
7 I voted -- at the time I voted, I made a statement
8 that while I favored rights for gays and lesbians, that I
9 felt that this wasn't something that we should put in our
10 Constitution now because perhaps it would be too
11 controversial. I was harking back to all the wisdom that
12 was imparted upon us when we started our process here back
13 in June about don't do any lightning rod issues. Don't
14 put anything out there that might bring out all the nay
15 naysayers. Don't put anything out there that the people
16 of Florida will react violently against because that will
17 ruin everything else.
18 And I heard a lot of discussion about that today and
19 I think it was very appropriate that we've had that
20 discussion on issues that are a little bit less emotional
21 than this one. So I fell into that and I voted, no. And
22 I went home and I read in the paper the next morning what
23 I had done. And I didn't like the way it looked.
24 I felt ashamed of myself because I felt that I had
25 not stood up for what I knew in my heart of hearts was
205
1 right and then the calls and letters started coming.
2 There were even letters to the editor of the Miami Herald
3 about this. About how could the Constitution Revision
4 Commission take the position that this is too politically
5 difficult, that this is too politically controversial to
6 even deal with.
7 And so I started thinking further and then I started
8 talking to people who called me and said, I am gay, I am
9 lesbian, let me talk to you about this issue. And these
10 people expressed to me discrimination that was very, very
11 difficult for me to listen to because it was so clear that
12 the pain that they experience on a day-to-day basis was so
13 deeply felt and so unremitting that their lives are almost
14 impossible to live.
15 It was pointed out to me that gay and lesbian
16 teenagers have the highest rate of suicide and one might
17 ask, why? And that goes along with one of the things that
18 I have heard as an argument against this proposal. I have
19 heard it said that we shouldn't grant special rights to
20 people who choose a lifestyle. And I asked some of the
21 people that had called me about that, Well, how do I
22 answer that? What do I say about that? And then a person
23 looked at me and said, Ellen, who would ever choose this
24 lifestyle? This is a very, very difficult thing to be.
25 Everybody wants to be like everybody else. Everybody
206
1 wants to be the same. Nobody wants to be different.
2 People don't want to be singled out. This is not a matter
3 of choice. This is a matter of something that you have
4 when you are born and there is not probably a good
5 scientific explanation for it although there are some
6 genetic studies that support the fact that it is genetic,
7 but I don't think that they are conclusive.
8 I think, Commissioners, that there is not a single
9 person in this room who wants to see discrimination in the
10 state of Florida. I think that we need to be very clear
11 on what this proposal does. This proposal doesn't say
12 that if you own a restaurant that you can't discriminate
13 in your hiring. This proposal simply says that the
14 government can't discriminate in hiring.
15 There are cases, there are reported legal cases,
16 there is case after case that I'm aware of, in which the
17 government of our state, and our local governments, other
18 states discriminate against people on the basis of the
19 fact that they are known to be either gay or lesbian. We
20 owe it to the people of our state to be sure that there is
21 no discrimination.
22 You know, I think that you might be surprised, by the
23 way, if you put this out there. Most people and even, I
24 will tell you this, in having conversations on this
25 subject with other members of the commission, there are
207
1 even members of the commission who are lawyers in this
2 room that did not know that gay people are not protected
3 against discrimination in employment and are not protected
4 against discrimination in housing where the two -- which
5 seem to be the two areas in which most of the
6 discrimination arises.
7 But I think that you may be surprised that when
8 people are told that there are no laws except in very few
9 local areas, that there are no general Florida Statutes or
10 the Constitution doesn't -- when people are told there are
11 no laws that protect gay people from discrimination,
12 according to three different polls that I have read, one
13 done by Time magazine, one done by Yanklovich Skelly, and
14 another one done by Greenberg Research, Inc., all of them
15 say that around 70 percent of the Americans say that
16 people -- that gay and lesbians should be protected in
17 housing and employment against discrimination.
18 There are ten states -- if we were to put a
19 protection against governmental discrimination in our
20 Constitution to protect people on the basis of sexual
21 orientation, we would be in the good company of ten states
22 and the District of Columbia in which all kinds of
23 terrible things haven't happened in those other states.
24 You know that our structure of government is based on the
25 premise that the more you know about a subject the more
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1 you can talk about the subject, the more you can learn
2 about the subject, the better decision-making process
3 there is and that's how we arrive at the truth. That's
4 what's called the marketplace of ideas.
5 I would submit to you that we should advance this
6 proposal now, that we should let the people of the state
7 of Florida talk about it. And the reason that I think we
8 should do that is because I think in our heart of hearts
9 most of us feel that it's just right. I commend to you
10 this proposal and I hope you will vote favorably.
11 CHAIRMAN DOUGLASS: All right. Commissioner Brochin?
12 How many more proponents are we going to have? Raise your
13 hand if we're going to have more. And how many opponents?
14 Okay. Go ahead. It's getting late in the day.
15 COMMISSIONER BROCHIN: Actually, I don't rise as a
16 proponent. I actually don't rise as an opponent and I
17 don't rise with any questions.
18 CHAIRMAN DOUGLASS: You just rise.
19 COMMISSIONER BROCHIN: Well, I'm actually rising --
20 CHAIRMAN DOUGLASS: You're tired of sitting. We
21 understand.
22 COMMISSIONER BROCHIN: No, I actually rise and hope
23 that as I speak I can clarify in my mind which way to vote
24 on this issue. And the way I want to do that is try to
25 put this in some constitutional context. Commissioner
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1 Wetherington is correct. Government should not and, in
2 fact, does not discriminate based on anything. It
3 shouldn't discriminate against anyone.
4 Section 2, the first sentence that's already in the
5 Constitution, tells us that all natural persons are equal
6 before the law and have inalienable rights. I differ in
7 the sense that we have now added women to the list. In
8 deed, we have not.
9 What we have done and what we have is a list, before
10 we started with this Constitution, of three categories at
11 the end of Section 2 that our Constitution specifically
12 identifies as groups of people that no person shall be
13 deprived of any right because of, and we've listed three
14 categories, race, religion, and physical handicap. This
15 commission has not added women to that list. This
16 commission has added national origin.
17 So as it stands now, we believe that there are four
18 categories of people who deserve special mention and
19 somehow should be afforded that right to be mentioned in
20 our Constitution such to the extent that they shall not be
21 deprived of any right. So the question for me and I
22 believe the question for us is, do we add sexual
23 orientation to that list?
24 And I have struggled and spoke about and discussed
25 the ones that are on the list when we came, and now by
210
1 adding national origin, what is it about those categories
2 that are in common? What is it that allows them to be
3 mentioned?
4 I would suppose historically there would be some form
5 of deep-rooted discrimination in the past because
6 discrimination goes on day in and day out. It could be
7 because you're overweight, or underweight, you have blonde
8 hair, brown hair, we're not trying to eliminate
9 discrimination, we're trying to pick categories where the
10 discrimination has been so infectious in the past that we
11 want our Constitution to protect them.
12 We also want to be sure that it is some
13 characteristics that people want to exercise freely such
14 as religion or characteristics that they can't change,
15 their color. But it also includes physical handicap,
16 something they may not have been born into, but may have
17 had some event change their life. Now, I cannot conclude
18 that people of sexual orientation are not discriminated
19 against, that would be dishonest.
20 People of different sexual orientation, I have to
21 conclude, as a group of people suffer great
22 discrimination. They are subject to that because they are
23 indeed different. And for us to say otherwise, I think
24 would not be very honest with ourselves.
25 I also have to agree and conclude that this is not a
211
1 lifestyle or characteristic that one chooses to be and
2 thus also adds to the element of adding it to that list.
3 So the question I have is, is the discrimination so deep
4 rooted in our state not only past which should be
5 considered, but in the future that we should add it to
6 that list. And as I've risen to speak, I have not
7 convinced myself either way but want to somehow place this
8 into some constitutional context as we decide this very
9 critical issue.
10 CHAIRMAN DOUGLASS: Commissioner Sundberg? I don't
11 know that anybody has addressed the subject of what sexual
12 orientation means. And the proponents might want to tell
13 us that.
14 COMMISSIONER SUNDBERG: I do not rise to define
15 sexual orientation, I think it's sort of like pornography.
16 I think we know it when we see it. I rise simply to -- I
17 was going to say all the things that Commissioner Brochin
18 said and that is that clearly I don't think there can be
19 any question that people don't have a choice about sexual
20 orientation any more than they have a choice about their
21 color or their gender or their national origin. People
22 are Eskimos because they are born to Eskimo parents. They
23 are Native Americans because they are born to Native
24 American parents. They don't have any choice about that.
25 Are they discriminated against?
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1 Commissioner Brochin has said if we're being honest
2 with ourselves, and this is not something that's been late
3 blooming, I mean, as long as I can remember, we've all
4 been party to the jokes and the exclusion of people who
5 had a different sexual orientation. So we come down and
6 Commissioner Brochin says, Well, is it so deep rooted that
7 it deserves mention in our Constitution? And,
8 Commissioner Brochin, I say to you when a circuit judge of
9 this state makes a decision with respect to child custody
10 that would overcome a record of murder convictions then it
11 has to be, in my estimation, so deep rooted in our society
12 that, yes, indeed, it does deserve mention in our
13 Constitution.
14 CHAIRMAN DOUGLASS: Commissioner Barton?
15 COMMISSIONER BARTON: Since the question has been
16 raised, I had made some notations here for myself about
17 what sexual orientation meant because I'm honestly not
18 quite sure. But I felt pedophilia was a sexual
19 orientation. I think people who rape as a way of sexual
20 expression, that's sexual orientation. Maybe a Peeping
21 Tom has a sexual orientation or someone who has a penchant
22 for exposing himself or herself. I'm very concerned about
23 what does sexual orientation mean.
24 I'd like to add too, one of my best friends happens
25 to be a lesbian and she became one later in life, I guess,
213
1 because she was married, she has two children. I don't
2 think that putting this in the Constitution is going to
3 alleviate the discrimination that some people show toward
4 her because of their own bias, nor do I think it's going
5 to change her life in any way to add that to the
6 Constitution.
7 I wish her well, I wish that all -- well, in fact,
8 why don't we just say lesbians and homosexuals. Why do we
9 have to have politically correct language if that is,
10 indeed, who we are trying to protect with this particular
11 addition to the Constitution. For that reason and because
12 of the questions that I have about what it means, I am
13 going to vote against it.
14 COMMISSIONER FREIDIN: If I may just respond on this
15 question of, Does this include pedophilia and Peeping Toms
16 and that sort of thing, those are criminal acts and this
17 does not -- I don't think that any court or any legal mind
18 would include the commission of a crime in this suggestive
19 provision. All this says is a right can't be denied. But
20 people don't have a right to commit any kind of crime.
21 CHAIRMAN DOUGLASS: All right. Further debate? If
22 not -- Commissioner Connor?
23 COMMISSIONER CONNOR: Mr. Chairman, I rise in
24 opposition to the proposal and I don't think we ought to
25 kid ourselves about the potential impact when we say,
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1 Well, I don't know what the courts would be likely to do
2 if we include this in the Constitution or not. I do think
3 we can gather good insights about what is likely to happen
4 based on cases in other jurisdictions and based on the
5 provisions of our own state Constitution. I would tell
6 you that I think you should understand that if you include
7 this provision in our state Constitution it is likely to
8 transform our culture. You have to decide whether or not
9 you agree with the kind of transformation that will take
10 place.
11 I think the probabilities are overwhelming, for
12 instance, that it would legitimize homosexual marriage in
13 the state. The Supreme Court of the state of Hawaii
14 concluded based on the inclusion of gender as we spoke
15 about earlier in this list of protected classes when you
16 applied that explicit provision and applied it to the
17 jurisprudence that related to equal protection under the
18 Federal Constitution that there was a presumption against
19 the state law that limited marriage to heterosexual
20 marriages.
21 And I think if you take this language and you read it
22 in light of Article I, Section 23, our explicit privacy
23 provision, that you ought to conclude that more probably
24 than not the effect of this provision will be to provide a
25 license or a sanction for same sex marriages. The same
215
1 would be true, I think, for adoption. We've had a state
2 law that has prohibited adoption by same sex couples.
3 Let's not kid ourselves about what the prospective
4 implication of this would be. So I don't think we ought
5 to hide behind this, Golly, gee whiz, I don't know what
6 the Court would do. I think we have a rational basis for
7 assessing what the likely result would be.
8 And I dare say that's an intended result of, if not
9 the sponsor of the proposal, those who are advocates
10 outside of this body of the proposal who think it would be
11 good public policy for us to authorize same sex marriages.
12 That it would be good public policy to authorize adoption
13 by same sex couples of children.
14 Now if we affirm that, ladies and gentlemen, I would
15 submit to you that is a dramatic change in the landscape,
16 it's a dramatic change in the role of marriage, it's a
17 dramatic change in the nature of the family unit. There
18 are all kinds of additional implications that may flow out
19 of that with respect to insurance laws, with respect to
20 inheritance laws and things of that nature.
21 I would submit to you that when private acts have
22 adverse public consequences society has a legitimate
23 interest in protecting the public from those consequences.
24 We all know that by way of history, for example,
25 homosexual sodomy accounts for more than half the AIDS
216
1 cases in our state. That has a tremendous impact on
2 health care. It has a tremendous impact on public health.
3 And let's not kid ourselves about the significance of that
4 and the implications of it.
5 We know from the experience of those who study life
6 tables and life expectancies that, at least according to
7 one sociologist, a fellow by the name of Paul Cameron, he
8 has reported that while the median age of death of married
9 American males was 75, for homosexual American males it
10 was 42. For homosexual males infected with AIDS virus it
11 was 39. We know that it typically costs well over
12 $100,000 to treat an AIDS patient from diagnosis until the
13 ultimate terminal event.
14 Ladies and gentlemen, those are significant
15 interests, I would submit to you, that the public has in
16 this regard. When you pass this provision, if you pass
17 this provision, what it does is what we've talked about
18 earlier, it creates a new standard of review by courts for
19 our laws. You must demonstrate a compelling state
20 interest and you must demonstrate that the law was
21 narrowly tailored to accomplish that compelling interest.
22 So let's not kid ourselves about what we're talking
23 about. If you affirm these notions that we should extend
24 marriage to same sex couples, adoption to same sex
25 couples, that we should extend the affirmation of the
217
1 state to these relationships in the same way we have
2 traditionally to marry the heterosexual relationships,
3 then you ought to affirm the proposal.
4 If you don't, if you think the State has a legitimate
5 interest in making these distinctions, then I would
6 suggest to you that you want to examine very, very
7 carefully whether or not you want to take what is more
8 than a small step. This is a giant leap and I think you
9 simply ought to be aware of and appreciate in its totality
10 the nature of the consequences that are associated with
11 it.
12 And I would submit to you, ladies and gentlemen, that
13 it isn't necessarily limited to state action issues.
14 Article I, Section 2, last sentence, says, No person shall
15 be discriminated against on the basis of. I guarantee you
16 there are a lot of folks who may be affected by laws
17 relating to housing, employment, or whatever who have
18 moral or religions scruples that affect the decisions that
19 they make -- that they feel they are entitled to make --
20 under the First Amendment freedom of association.
21 So I think you need to understand that this may well
22 go beyond the arena of what we typically perceive as state
23 action. This is a dramatic change in the landscape, let's
24 acknowledge that honestly and let's address the issue
25 head-on.
218
1 CHAIRMAN DOUGLASS: All right. To close,
2 Commissioner Riley.
3 COMMISSIONER RILEY: Commissioners, I want a world of
4 Frank Morsani's, that's what I want. I want all of the
5 employers in the state of Florida to have the kindness in
6 their hearts to do the things that Frank Morsani has done,
7 but that's not the case so let's not pretend that that's
8 the case.
9 I would like the Constitution that in the last
10 sentence of Section 2, it simply reads, No person shall be
11 deprived of any right. No person shall be deprived of any
12 right. No heightened scrutiny, no need for adding race,
13 religion, national origin, sexual orientation, gender, but
14 that's not reality either. Is this going to change the
15 world for Commissioner Barton's friend, no. Is this going
16 to stop discrimination against gays and lesbians, no. No
17 more than adding race to stop discrimination for
18 African-Americans and people of other colors, no.
19 Will it help fight discrimination, yes. Does it
20 exist, yes. In 1994 Barry Goldwater said, and I quote,
21 Discrimination against gays and lesbians is real. It
22 happens every day. I am a conservative Republican and the
23 conservative movement was founded on the simple tenent
24 that people have a right to live life as they please as
25 long as they don't hurt anyone. Doing the right thing
219
1 takes guts and foresight but that's why we're here, to
2 make tough decisions that stand the test of time.
3 I think it's that time. I think this is a tough
4 decision and I would ask that we have integrity, fairness,
5 tolerance and decency, acknowledge the fact that there is
6 discrimination, acknowledge the fact that it does need to
7 be acknowledged and vote for this proposal. Thank you.
8 CHAIRMAN DOUGLASS: Thank you, Commissioner Riley.
9 Now we'll prepare to vote. Unlock the machine.
10 (Vote taken and recorded electronically.)
11 CHAIRMAN DOUGLASS: Has everybody voted that's
12 present in the room? Unlock the machine and announce the
13 vote.
14 READING CLERK: Fourteen yeas, 16 nays, Mr. Chairman.
15 CHAIRMAN DOUGLASS: Let me compliment all of you on a
16 very orderly and informative debate on a very sensitive
17 and difficult subject. I can assure you whoever said if
18 you put this on the ballot it would turn them out, we'd
19 have a big turnout on the election. Because it is a
20 controversial and sensitive subject and it was well
21 debated and well presented by both sides. We're going to
22 take a recess until 4:00 on that clock and be right back
23 in here and get going again. But I think we need to take
24 a break here. We're going to take up Proposal No. 2 by
25 Commissioner Sundberg immediately upon coming back.
220
1 Commissioner Sundberg, did you understand that?
2 COMMISSIONER SUNDBERG: Yes, sir.
3 (Brief recess.)
4 SECRETARY BLANTON: Quorum call. All commissioners
5 indicate your presence. All commissioners indicate your
6 presence. Quorum present, Mr. Chairman.
7 CHAIRMAN DOUGLASS: Take your seats, please.
8 Proposal No. 2 by Commissioner Sundberg. Approved by the
9 Committee on Declaration of Rights consideration deferred
10 to January 26th. Would you read it, please? We have a
11 new reader.
12 READING CLERK: Proposal 2, a proposal to revise
13 Article I, Section 2, Florida Constitution; providing for
14 citizens to enjoy equal opportunity to employment,
15 housing, public accommodations, public education and other
16 benefits and authorizing governmental agencies to take
17 actions to remedy the effects of past discrimination in
18 certain areas.
19 CHAIRMAN DOUGLASS: Commissioner Sundberg, you're
20 recognized on your proposal.
21 COMMISSIONER SUNDBERG: Mr. Chairman, I would like to
22 move an amendment. There should be an amendment on the
23 desk.
24 CHAIRMAN DOUGLASS: There is an amendment on the desk
25 and it's moved. Would you read it, please?
221
1 READING CLERK: By Commissioner Sundberg on Page 1,
2 Lines 25 through 28, delete the words, all citizens shall
3 enjoy equal opportunity to employment, housing, public
4 accommodations, public education and other benefits of
5 citizenship.
6 CHAIRMAN DOUGLASS: All right. Does everybody
7 understand the amendment? We're on the amendment.
8 Commissioner Sundberg on the amendment.
9 COMMISSIONER SUNDBERG: Mr. Chairman, I do not intend
10 to -- I don't see Commissioner Connor and I wanted his
11 affirmation --
12 CHAIRMAN DOUGLASS: He is here.
13 COMMISSIONER SUNDBERG: -- with his approval. We
14 debated this at length during our last gathering. We
15 temporarily passed it because of some concerns that
16 Commissioner Connor had. We met this morning and this
17 amendment represents our attempt to address those
18 concerns.
19 CHAIRMAN DOUGLASS: Commissioner Connor is in the
20 chamber now.
21 COMMISSIONER SUNDBERG: Commissioner Connor, I was
22 speaking to the amendment that we're deleting that the --
23 the sentence that says, "Also shall enjoy equal
24 opportunity," because of your concerns. And so we recur
25 back then to where we were having eliminated that if there
222
1 were any -- and I think some of the concerns that
2 Commissioner -- I don't want to put words in his mouth --
3 but I think some of his concerns were that this language
4 might increase the breadth of the reach of this
5 constitutional provision beyond those people -- pardon me,
6 beyond the classes that have been traditionally identified
7 as protected classes.
8 So we did remove that and, in fact, the last vote, I
9 think, makes it crystal clear then that there are no
10 hidden balls here, that this is only intended to address
11 those traditional protected classes when it comes to
12 affirmative action. So with that, I'm prepared to move
13 forward with the vote.
14 CHAIRMAN DOUGLASS: We're on the amendment before we
15 go on the other. Now what the amendment does, as I
16 understand it, tell us again because I think I understand
17 that it deletes everything and substitutes on Lines 25
18 through 28 and substitutes the words, All citizens shall
19 enjoy equal opportunity to employment, housing, public
20 accommodations, public education and other benefits of
21 citizenship.
22 COMMISSIONER SUNDBERG: It deletes that language.
23 CHAIRMAN DOUGLASS: It adds that, doesn't it?
24 COMMISSIONER SUNDBERG: No, it deletes that language
25 and what it does then -- what it does, essentially,
223
1 Mr. Chairman, is delete that sentence and the rest of the
2 language in the proposal remains the same. In other
3 words, the language with -- specifically referring to
4 affirmative action remains the same but it deleted that
5 sentence.
6 CHAIRMAN DOUGLASS: So what I read, this amendment
7 would delete; is that correct?
8 COMMISSIONER SUNDBERG: Exactly. It would delete
9 that sentence and otherwise it remains the same. And it
10 also has a title amendment to clear it up.
11 CHAIRMAN DOUGLASS: All right. Commissioner Freidin,
12 you rise on the amendment.
13 COMMISSIONER FREIDEN: Yes, a question.
14 CHAIRMAN DOUGLASS: Okay.
15 COMMISSIONER FREIDEN: Commissioner Sundberg, how
16 does this amendment impact women?
17 COMMISSIONER SUNDBERG: It impacts them not at all as
18 I see it. Negatively you mean?
19 COMMISSIONER FREIDIN: Yes.
20 CHAIRMAN DOUGLASS: State the question, I'm not sure
21 I heard it.
22 COMMISSIONER SUNDBERG: That has already been
23 addressed by another amendment. Have we not already said
24 all natural persons, male and female alike, so that's --
25 COMMISSIONER FREIDIN: With this amendment this
224
1 doesn't change that?
2 COMMISSIONER SUNDBERG: Doesn't change that one whit,
3 no.
4 CHAIRMAN DOUGLASS: All right. Anybody else on the
5 amendment? All in favor of the amendment say aye.
6 Opposed?
7 (Verbal vote taken.)
8 CHAIRMAN DOUGLASS: Carried. Now to the main
9 proposal as amended with that language deleted.
10 COMMISSIONER SUNDBERG: For all of the reasons that
11 were expressed when we initially addressed this issue, and
12 keeping in mind that this is narrow in its scope in that
13 it seeks only to authorize governmental agencies, the
14 state and its agencies and educational institutions, it
15 authorizes them to put in place affirmative actions which
16 will address only current -- the present effects of past
17 discrimination.
18 That is a rather high standard as it has been
19 interpreted by the federal courts. It requires a clear
20 showing in a record that there has been past
21 discrimination and that, in fact, the effects of those
22 past discriminations continue forward.
23 And it applies to women and any other traditional
24 class who in the past have been discriminated against and
25 it provides for Commissioner Freidin the sort of thing,
225
1 the women set-asides, and that sort of thing. And all
2 this does is permits and places in our Constitution the
3 guarantee that governmental agencies may continue to do
4 that which they are doing right now.
5 CHAIRMAN DOUGLASS: Commissioner Lowndes, you are
6 recognized.
7 COMMISSIONER LOWNDES: I'd like to ask Commissioner
8 Sundberg a question.
9 CHAIRMAN DOUGLASS: He yields.
10 COMMISSIONER SUNDBERG: I yield.
11 COMMISSIONER LOWNDES: Does this change existing law?
12 Does this add or give people the authority to do things
13 they can't do now?
14 COMMISSIONER SUNDBERG: No, it does not. What it
15 does is embed in the Constitution that which is now
16 legally permissible.
17 COMMISSIONER LOWNDES: Since these programs exist, at
18 least they do in our area. They exist in all the
19 municipalities and counties and whatnot, do you have a
20 concern that this is put on the ballot as defeated, that
21 it will have an adverse effect?
22 COMMISSIONER SUNDBERG: That's a possibility. But I
23 think what is a great possibility, I think the people of
24 Florida, particularly at this time where you've had
25 Proposition 209 in California, which can put in doubt the
226
1 validity. You've had the Hopwood decision, that I think
2 it is far more important that we do embed this into the
3 Constitution and let the people speak to this.
4 COMMISSIONER LOWNDES: I agree with you it's
5 important but my fear is, sincere fear, that if it's
6 defeated, there's a lot of anti-affirmative action to
7 foot. And if it's defeated, that it might have a really
8 detrimental effect on the good programs that exist.
9 COMMISSIONER SUNDBERG: I understand your concern. I
10 think it's worth the risk.
11 CHAIRMAN DOUGLASS: Commissioner Barkdull.
12 COMMISSIONER BARKDULL: Does the gentleman yield?
13 COMMISSIONER SUNDBERG: Yes.
14 CHAIRMAN DOUGLASS: He yields.
15 COMMISSIONER BARKDULL: Commissioner Sundberg, take
16 actions necessary to remedy the present effects of past
17 discrimination. Would that include monetary amounts to be
18 appropriated by the necessary city, county, municipality
19 or state that's affected?
20 COMMISSIONER SUNDBERG: No, Commissioner Barkdull. I
21 think that, you know, those are terms of art. They have
22 never been construed to include reparations if that's what
23 you're driving at.
24 COMMISSIONER BARKDULL: Well, that's what I'm driving
25 at. And I don't see any limitation in this. And what I'm
227
1 concerned about is, if we have put this in the
2 Constitution and it's adopted by the people, the people
3 are going to come up before state agencies, political
4 subdivision, municipalities, counties, public colleges and
5 universities, community colleges, school districts,
6 special district and other governmental instrumentalities
7 and say, It's now authorized that you can appropriate
8 money to cure past discriminations. And I don't think
9 that that's what you intend.
10 And I don't know that this is any limitation on what
11 kinds of actions are necessary to remedy the present
12 effects of past discrimination. There is no limitation on
13 that.
14 COMMISSIONER SUNDBERG: And that's my intent, not to
15 limit the sort of actions that these agencies may take if
16 they are disposed to do so.
17 COMMISSIONER BARKDULL: Which would include money.
18 COMMISSIONER SUNDBERG: It certainly doesn't require
19 that; in other words, may they? I guess they might if
20 they think reparations are appropriate, I don't know.
21 COMMISSIONER BARKDULL: Could they do that now with
22 the tax money?
23 COMMISSIONER SUNDBERG: I guess they could. I guess
24 they could.
25 COMMISSIONER BARKDULL: Then I don't know why we need
228
1 it in the Constitution.
2 COMMISSIONER SUNDBERG: Well, that's the same
3 response I gave to Commissioner Lowndes.
4 CHAIRMAN DOUGLASS: All right. Further debate or
5 questions? Commissioner Morsani?
6 COMMISSIONER MORSANI: Commissioner Sundberg, and I
7 don't remember the -- of course it's not in my purview, so
8 I don't remember the court case, but back to Commissioner
9 Barkdull's question, in the -- what was the case recently
10 that, and it had to do with the racial case in the '20s
11 where they just got remuneration based upon that court --
12 what was that -- and it sounds like to me we're opening up
13 that can of worms. I believe the state just paid several
14 million dollars. And to insert this kind of thing without
15 having some limitations in there, we're opening a whole
16 can of worms?
17 COMMISSIONER SUNDBERG: We would open up the same can
18 of worms that the commissioner sitting in front of you
19 opened up and urged on the Florida Legislature and in
20 their wisdom they thought it appropriate to do that. And
21 if any of these agencies deem that to be appropriate,
22 certainly this would not preclude them from doing so.
23 It's certainly not the thrust of it, that's, you
24 know, I don't see the governing bodies of these agencies
25 doing that except under the most extraordinary of
229
1 circumstances which Ms. Barnett brought to the attention
2 of the Florida Legislature that that was a very
3 extraordinary circumstance.
4 COMMISSIONER MORSANI: Well, I think the question,
5 couldn't that -- couldn't you have -- couldn't that be
6 amended to eliminate that possibility in that first --
7 where you say, May take actions necessary to remember --
8 remedy? Couldn't you insert some language in there to
9 assure that or wouldn't that be proper?
10 COMMISSIONER SUNDBERG: Well, I'm sure you could, but
11 as I responded to Commissioner Barkdull, that would -- I'm
12 not disposed to do that if there's a majority here
13 disposed to do that. If there's a majority here that's
14 disposed to do it, yeah, that could be done. I would not
15 limit -- I would not start trying to limit the state and
16 its agencies who are described here in the manner in which
17 they seek to remedy the present effects of past
18 discrimination. To date, except for the case you refer
19 to, they have done it by programs that ensure equal access
20 to opportunity by these classes.
21 COMMISSIONER MORSANI: I would support an amendment
22 if Judge Barkdull and others think they can get one in
23 there.
24 CHAIRMAN DOUGLASS: Commissioner Wetherington, do you
25 have a question?
230
1 COMMISSIONER WETHERINGTON: I do.
2 CHAIRMAN DOUGLASS: He yields.
3 COMMISSIONER WETHERINGTON: Is there any question at
4 all under the present Constitution that Florida has this
5 power and maybe in some instances this duty without this
6 language being put in?
7 COMMISSIONER SUNDBERG: My response is, I don't know
8 about a duty. I think, yes, they do have the power.
9 COMMISSIONER WETHERINGTON: Okay. There is nothing I
10 know about in the Hopwood decision or any other decision
11 that would put that power in question, is there?
12 COMMISSIONER SUNDBERG: No, not at all. I didn't
13 mean to imply that.
14 COMMISSIONER WETHERINGTON: So the power is there.
15 And the question then is, Why are we putting it in
16 particularly in light of the fact that the words
17 "affirmative action" are frequently used to confuse and
18 cause misapplications and misinterpretations and possibly
19 bring about the thing that Commissioner Lowndes is talking
20 about?
21 In other words, if there is nothing to be gained and
22 the possibility of an adverse vote on something like this
23 which sends out a very controversial and possibly negative
24 message, why do we want to do it?
25 COMMISSIONER SUNDBERG: Because I think there is
231
1 something to be gained.
2 COMMISSIONER WETHERINGTON: What is that?
3 COMMISSIONER SUNDBERG: The fact, just like there was
4 that thing to be gained, I thought we all agreed, that the
5 words "male and female" were not necessary that that power
6 was there. I think that's to be gain. I think it sends a
7 message that Florida stands in the position of being in
8 favor of and that the people of Florida, through their
9 fundamental document, speak to this issue, that's what's
10 to be gained. In terms of a legal requirement or duty of
11 power, you're absolutely right.
12 COMMISSIONER WETHERINGTON: But haven't we said in
13 other context that language which is aspirational, in
14 effect, it doesn't really change things, that many
15 instances we agreed with the sentiment, we agree with the
16 idea, but we feel that that's not the kind of thing that
17 we ought to be doing. It may not be substantially
18 advancing the ball in some fundamental way.
19 COMMISSIONER SUNDBERG: And you'll have to judge
20 that, Commissioner Wetherington, because we have, in
21 certain instances, taken that position and in others we
22 have not. Just like the male and female alike or whatever
23 that language was. I don't think that added anything to
24 the power.
25 Am I out of order, Mr. Chairman?
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1 CHAIRMAN DOUGLASS: We're going to have to break the
2 caucus up, gentlemen. And unauthorized people, please
3 leave the floor. All right. Proceed.
4 COMMISSIONER WETHERINGTON: As I said, I'm totally
5 100 percent in favor of the concept --
6 COMMISSIONER SUNDBERG: Then I'll appreciate your
7 vote.
8 COMMISSIONER WETHERINGTON: -- but I have some real
9 concerns about whether mischief is going to come out of
10 this along the lines that Commissioner Lowndes has said,
11 that really worries me about this.
12 COMMISSIONER SUNDBERG: I have greater confidence in
13 the citizens of Florida.
14 CHAIRMAN DOUGLASS: Commissioner Mathis?
15 COMMISSIONER MATHIS: Will Commissioner Sundberg
16 yield for a question?
17 CHAIRMAN DOUGLASS: Yes, he does.
18 COMMISSIONER SUNDBERG: I certainly will.
19 COMMISSIONER MATHIS: Commissioner Sundberg, under
20 the Supreme Court's decisions in Crowson and Atiran which
21 now require a showing or a demonstration of past
22 discriminations in order to just, or in order to provide a
23 basis for remedial programs, do you see that this
24 constitutional provision will address that issue in any
25 way?
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1 COMMISSIONER SUNDBERG: No, I don't think it
2 addresses that issue, I think it incorporates it. The law
3 that's existing I think is incorporated.
4 CHAIRMAN DOUGLASS: All right. Ask those people that
5 left the floor to come back, we are getting ready to vote
6 on this. I ran them off, let's get them back.
7 Commissioner Smith.
8 COMMISSIONER SMITH: Thank you, Mr. Chairman. First
9 of all, you are looking at an affirmative action baby. As
10 I told you briefly the last time we talked about this, I
11 was born in an all black hospital, went to all black
12 schools, and then I met whites as equals for the first
13 time in the jungles of Vietnam.
14 I was in the first class of students at the
15 University of Miami that had more than one black student.
16 I was the first African-American Assistant Public
17 Defender, the first African-American Assistant County
18 Attorney. And I can assure you that with regard to my
19 entering the University of Miami, that they could have
20 found a white student to take my place. But they made a
21 decision that we should give blacks as well as whites an
22 opportunity for this type of education.
23 And in the public defender's office before I was
24 hired they found whites to hire instead of people like me.
25 And the same with the county attorney's office. But a
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1 decision was made to provide equal opportunity and that's
2 really what it is.
3 You are right, Commissioner Wetherington, there are
4 people that try to make this seem complicated, that it is
5 quotas. Blacks are not in favor of quotas. As I said
6 before, our quota was zero for a long time. And that's
7 illegal for quotas.
8 And I have been losing sleep thinking about the
9 question that you and Commissioner Lowndes raised. It is
10 a legitimate question. But I have decided to move forward
11 with this because of what I see as inevitable reality.
12 When Proposition 209 was put before the people of
13 California by those who oppose affirmative action, the
14 language was, The state of California shall not
15 discriminate against or grant preferences to any
16 individual or group based upon race, sex, color, et
17 cetera, it was 27, 29 words. That seemed very, very, you
18 know, very American, very fair, very equal. And polls
19 were done and many people who voted for that didn't
20 realize that in effect it dismantled affirmative action
21 programs.
22 The city of Houston took the initiative. They said,
23 well, basically what you and Commissioner Lowndes are
24 saying. They said, Now, look, 209 just passed, we already
25 have an affirmative action program. Now are you sure we
235
1 want to move forward on this?
2 So what they did was they took the initiative and
3 they framed the issue so there wasn't confusion. And the
4 issue in Houston was framed as follows, quote, "Shall the
5 charter of the city of Houston be amended to end the use
6 of affirmative action for women and minorities in the
7 operation of the city of Houston employment and
8 contracting including ending the current program and any
9 similar programs in the future?"
10 If Proposition A passes, that would have ended
11 affirmative action and that same California language would
12 have moved forward. This issue is not going to go away.
13 We all know that there was, there is a group called the
14 Florida Civil Rights Initiative Group that was trying to
15 get enough votes to put this on the ballot. And it has
16 been reported in the news media that at least for 1998,
17 they have discontinued their efforts.
18 But it is not going to go away. And the question is
19 whether we are going to allow the Florida Civil Rights
20 Initiative Group, that is opposed to affirmative action,
21 to frame the issue by putting a wolf in sheep's clothing
22 and having people do what they think is really a very
23 American thing and that is to say everybody is equal, but
24 in effect, through the back door, eliminate affirmative
25 action programs.
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1 Now I think that the question raised by Commissioner
2 Morsani is a legitimate question. I personally, and
3 Commissioner Sundberg and I have not discussed this, did
4 not intend for the effort to be involved with reparations.
5 That is not any statement about my feelings about that,
6 and I didn't intend for this particular proposal to do
7 that.
8 And I think that hopefully we can, if this is
9 something the commission wants to do, have language that
10 people feel comfortable with, that if that's what we want
11 to do, that's what we are going to do, nothing more, and
12 nothing less.
13 With the few minutes I have, let me just tell you why
14 this is important because there are thousands of people,
15 good people, like my mechanic friend, who really and truly
16 believe that we should just look to the future and it is a
17 legitimate feeling they have.
18 One of the issues we are concerned about is housing
19 and let me just share with you something that just
20 happened down in Miami a couple years ago involving Hamlet
21 Estates. And I quote, All prospective tenants of this
22 place were asked to fill out a questionnaire asking for
23 name, address, place of employment and type of apartment
24 needed. After the prospective tenants walked out,
25 employees would write down comments under a space labeled
237
1 remarks.
2 The names of the black applicants were transferred to
3 a waiting list and their questionnaires were coded in the
4 upper left-hand corner with, quote, D/A, end quote, short
5 for, didn't answer. No one on the waiting list was ever
6 called. If a black applicant called back to inquire about
7 an apartment, they were told that someone tried to call
8 them, but the agent didn't get an answer.
9 Among the remarks that were found by the housing
10 organization were these remarks, quote, was light skinned
11 but uncertain if she is Spanish or black descent, end
12 quote; quote, doesn't look like a D/A, but speaks like
13 one, end quote; quote, Jose has D/A blood, end quote;
14 quote, has kinky hair, but I don't think he is black, end
15 quote.
16 A Hispanic couple was placed on the waiting list
17 apparently because of remarks the husband worked -- where
18 the husband worked. The remarks was -- were, quote, we
19 must be careful on this D/A because he works at a business
20 with a lot of other D/As, end quote.
21 This is from the Herald, a brief part of the
22 editorial on this. It says, What's worse is not that the
23 managers at Hamlet Estates would put black apartment
24 applicants' names on waiting lists that was immediately
25 dispatched to the twilight zone or that Hamlet employees
238
1 assessed blacks' worth by their pigmentation and grade of
2 hair, no, the worst disgrace is that these are just
3 extreme indications of something that happens all the
4 time, housing discrimination. The problem is that most
5 people aren't stupid enough to put it in writing and leave
6 it around for employees who get dismissed and angry to
7 turn it in.
8 Education, this was an issue posed in the
9 desegregation case involving the University of Maryland in
10 the case of Podboresky (phonetic) versus Kerwin. This was
11 the issue: The question posed in this case, and this is
12 in the 1990s, is whether a public university racially
13 segregated by law for almost a century and actively
14 resistant to integration for at least 20 years thereafter,
15 may, after confronting the injustice of its past,
16 voluntarily seek to remedy the resulting problems of its
17 present by spending 1 percent of its financial aid budget
18 to provide scholarships to approximately 30
19 high-achieving, African-American students each year. And
20 the answer was no.
21 Now, I can understand from your view that we want to
22 look forward and some people see me as extremely liberal
23 and radical. This is what Arthur Ashe said before his
24 death when he was asked about AIDS. He said -- they asked
25 him whether the killer virus AIDS was his most difficult
239
1 challenge in life. And he replied, and I quote, Not a
2 very radical guy, my most difficult challenge has been to
3 carry the daily burden of being black in America, end
4 quote.
5 So after 250 years of slavery, 100 years of
6 American-style apartheid, balanced against 30 years of
7 haphazardly-enforced affirmative action, there are really
8 people who honestly believe that the field is level.
9 Let me share with you something I hope people don't
10 take personally because this is just an allegory, but
11 someone was asked a question by an individual like you,
12 Commissioner Morsani, and said, Let's just forget the
13 past. And I know this is exaggerated, but take it in the
14 context it was meant.
15 This is what he said, and I quote, The white team and
16 the black team are playing the last football game of the
17 season. The white team owns the stadium, owns the
18 referees, and has been allowed to field nine times as many
19 players. For almost four quarters the white team has
20 cheated on every play and as a consequence the score is
21 white team 140, black team 3. There are only ten seconds
22 remaining in the game.
23 As the white quarterback huddles with his team before
24 the final play, a light suddenly shines from his eyes and
25 he says, So how about it, boys, what do you say, from here
240
1 on out, let's play fair.
2 I suggest to you that affirmative action is nothing
3 more than an opportunity to open up opportunities for
4 everyone. Affirmative action is not a handout, as most
5 people think, because only qualified people should be
6 allowed to go to school or get a contract. Affirmative
7 action got me in school, but hard study, good grades got
8 me my degree.
9 Affirmative action can get someone a contract, but
10 performance on the contract gets you paid. And so it is
11 not a handout. And those who say that affirmative action
12 is discrimination against whites, and I say it is not, at
13 one time white males were the domain of all the benefits,
14 whether it is education, opportunity, et cetera, and
15 although white males today make up 33 percent of the
16 population, they make up 80 percent of the tenured
17 professors, 80 percent of U.S. House of Representatives,
18 90 percent of U.S. Senate, 92 percent of Forbes 400,
19 97 percent of school superintendents, 99 percent of
20 professional athletic team owners and 100 percent of U.S.
21 presidents.
22 So I don't think that white males have been
23 discriminated against, it is just that others, women, and
24 people of color have been allowed to participate.
25 Others who say that white, that affirmative action
241
1 stigmatizes you, they say, H.T, you got in on affirmative
2 action, don't you feel stigmatized because people say you
3 are an affirmative action lawyer? And I say, no, I don't
4 feel stigmatized because as Commissioner Connor pointed
5 out, there is no stigmatization greater than the
6 stigmatization that came in Dred Scott.
7 Let me read verbatim what it said, we think -- the
8 question is are black people protected by the
9 Constitution. We think they are not, and were not
10 intended to be included. They have for more than a
11 century before been regarded as being of an inferior order
12 and altogether unfit to associate with the white race.
13 And so far inferior that they had no rights which the
14 white man was bound to respect. That is what offends most
15 people.
16 This is the part that offends me, and I quote, And
17 what the Negro might justly and lawfully be reduced to
18 slavery, for his benefit. There can be no stigmatization
19 greater than that. I'm proud to be an affirmative action
20 baby.
21 Lastly, let me just say this, if we don't -- and for
22 Commissioner Wetherington and Commissioner Lowndes, two of
23 the finest lawyers in here, you know how important it is
24 to be able to frame the issue. If we don't frame the
25 issue in such a way that we can protect an attack on the
242
1 affirmative action programs, which we know is coming --
2 I'm a lawyer for the University of Miami and we are asking
3 the same questions you are asking now, What does all this
4 affirmative action changes in the law mean?
5 They are asking it all around the state. And people
6 are causing confusion with regard to it and they are
7 saying things that are not accurate. And so what I'm
8 asking is if he believes -- first of all, do we believe
9 affirmative action provides equal opportunity, is a modest
10 step toward that? Do we think it is a good idea? If we
11 think so, then I think that we need to move to inoculate
12 and to protect our affirmative action programs from the
13 challenges that we know are certain to come.
14 And for that reason, and because there is a time
15 limitation, I am not going to state the other ten minutes
16 of the speech that I had with regard to this. I ask you
17 to please join with me and those who believe that equal
18 opportunity is Florida of the future -- let me close by
19 saying this: I believe that our preamble to our
20 Constitution should be simply this, one people, one
21 Florida, equal opportunity for all. That's what I think
22 our preamble should be.
23 We go all over, and I'm sure Senator Jennings and the
24 others go all over and brag about the fact that Florida
25 today is where America is going to be in the future. We
243
1 are the prototype of America. Let's lead, let's show
2 America how to deal with this problem. We shouldn't deal
3 with it the way California dealt with it.
4 Let's show how people can work together and how
5 people can share in the pie. Because that's all it is
6 about. We have got a limited pie, can everybody
7 participate, can everybody share in the pie. And I think
8 our vote to provide constitutional protection for those
9 entities of government that want to give everybody a fair
10 chance, that want to give the H.T. Smiths of the next 20
11 years a chance to go to law school -- remember this,
12 please remember this, Commissioner Morsani, think about
13 the effect it was -- what did you think, as a descendent
14 of a slave, what do you think my slave
15 great-great-grandparents passed to me? Nothing. They
16 couldn't even be allowed to read.
17 One of the greatest advantages is having things
18 passed down. When my mother died, I had nothing but a
19 bill. We haven't been able to pass things down. We
20 haven't been able to pass down a legacy of education, a
21 legacy of owning a business, an opportunity to work in my
22 father's business. We had nobody -- I am the first person
23 in my family to even go to college.
24 It is hard for you to see what effect it has had for
25 generation after generation after generation to be
244
1 property and then generation after generation after
2 generation you can't even learn to read and then
3 generation after generation -- and finally there is a
4 generation that is allowed to read, and there is one
5 person in the family that can go to college. But
6 everything is not equal. And so I just urge you to
7 consider that.
8 And Commissioner Wetherington and Commissioner
9 Lowndes, I would ask you to consider the fact that
10 affirmative action will be on the ballot in '98 through us
11 in a very positive way that can protect it, or in 2000 by
12 the enemies of affirmative action in sheep's, a wolf in
13 sheep's clothing. Please support this. Thank you.
14 CHAIRMAN DOUGLASS: Commissioner Barkdull.
15 COMMISSIONER BARKDULL: Mr. Chairman, Members of the
16 Commission, I didn't want to speak on this issue but I
17 think I have to because of some of this language.
18 I'm no stranger to supporting equal protection, I am
19 for affirmative action. Forty-four years ago this coming
20 summer I was instrumental in removing from the ABA
21 questionnaire what your race was. Twenty-two years ago at
22 this time I was instrumental as a trustee at the law
23 school at the University of Florida for there being
24 affirmative action for students.
25 My problem with this proposal as it is written is the
245
1 fact that it says that you cure past discrimination in the
2 purchase of goods, services and the expenditures of public
3 monies.
4 I don't know how you cure that except by the
5 expenditure of public monies. And I would support this if
6 there was a limitation in this that indicated that this
7 did not call for any reparations, but until that is there,
8 I've got to vote against it.
9 CHAIRMAN DOUGLASS: All right. Any further
10 discussion? All right. Close, Commissioner Sundberg.
11 COMMISSIONER SUNDBERG: Commissioner Barkdull, and I
12 didn't mean to be flip, I'm not doing very well at much of
13 anything today. And, Commissioner Morsani, I have no
14 problem with putting, however you want to say it, maybe
15 institute programs necessary to remedy, or if that's too
16 broad for you, or if you want the statement in here, This
17 shall not include reparations, that's all right with me.
18 But I will agree to do that in any fashion that's
19 acceptable to you, that makes it clear that it does not
20 include reparations. And nobody is for a moment
21 questioning anybody's commitment here and sincerity in
22 what they did.
23 And perhaps Commissioner Smith and I have been
24 exposed to more challenges than the rest of you, and
25 that's certainly a concern, Commissioner Lowndes, you
246
1 know. If we fail in this attempt, does it send some kind
2 of message?
3 As Commissioner Smith says, it is out there now. I
4 know in the educational venue, we are seeing it
5 constantly. We are trying to figure out what we can do in
6 terms of scholarships, admissions that doesn't run afoul
7 of the law. We are getting requests for public record
8 production with great consistency by groups that have very
9 high-sounding names, but I suggest to you they want to do
10 away with affirmative action in education.
11 I know that the state university system now has a
12 committee looking at this whole issue of how do we
13 maintain diversity, which I think we all hear in this
14 group. And Commissioner Smith is correct, the attacks are
15 always clothed in high-sounding, principled names.
16 And if we do, if we do embody this in this
17 Constitution, and somebody wants to take it out, when they
18 are on the attack, it is going to be clear what they are
19 trying to do. Because they are going to be eliminating
20 language that makes it clear that Florida stands for the
21 proposition that its agencies and political subdivisions
22 may, to foster greater equality, have these kinds of
23 programs.
24 And in fact, if this proposal comes from this group,
25 with the prestige that it enjoys, it stands a much greater
247
1 probability of being accepted by the public than if those
2 amongst us who are not organized and constituted as we are
3 here today are put in the position two years, four years
4 from now from trying to stave off some sort of move to
5 eliminate any affirmative action programs by the state
6 agencies.
7 Do you have some language to suggest for me,
8 Mr. Smith?
9 CHAIRMAN DOUGLASS: Well I think you are closing and
10 we are going to vote. Commissioner Morsani, he closed and
11 I think we have got to -- we can't just keep doing this.
12 If you wanted to amend it, you should have amended it
13 before closing.
14 COMMISSIONER SUNDBERG: Well, I'm sorry,
15 Mr. Chairman.
16 CHAIRMAN DOUGLASS: We have all these speeches and
17 that's not a proper way to handle this at all. You either
18 vote for it or against it the way you presented it in
19 argument. And you come up on the very last close and you
20 want to amend it. It is pretty clear-cut what the issue
21 is.
22 COMMISSIONER SUNDBERG: Do have an amendment,
23 Mr. Smith, that you would like to offer?
24 CHAIRMAN DOUGLASS: We are going to vote.
25 (Off-the-record comment.)
248
1 CHAIRMAN DOUGLASS: All right, if you want to take
2 the time.
3 COMMISSIONER MORSANI: Mr. Chairman?
4 CHAIRMAN DOUGLASS: Yes, sir, Commissioner Morsani.
5 COMMISSIONER MORSANI: I haven't done this all these
6 meetings, because I don't like to do it, but I'm going to
7 ask, I hate to say these two, TP this and let's -- we can
8 fix this language and we can pass it to, I see some,
9 Ms. Freidin disagrees with me. That surprises me.
10 (Laughter.)
11 COMMISSIONER MORSANI: That we could fix it, see if
12 we can fix this language to embody this. I am not opposed
13 to this.
14 CHAIRMAN DOUGLASS: All right. You are making a
15 motion to temporarily pass it --
16 COMMISSIONER MORSANI: And fix the language.
17 CHAIRMAN DOUGLASS: -- and if it is without
18 objection, it will be temporarily passed, for the third
19 time.
20 COMMISSIONER CONNOR: Mr. Chairman.
21 CHAIRMAN DOUGLASS: Commissioner Connor.
22 COMMISSIONER CONNOR: Since we are in that mode,
23 Proposal 107 --
24 CHAIRMAN DOUGLASS: Wait a minute, we haven't done
25 this one yet.
249
1 COMMISSIONER CONNOR: I'm sorry, we hadn't voted on
2 it. Excuse me.
3 CHAIRMAN DOUGLASS: Commissioner Barkdull, he has
4 made a motion to temporarily pass it.
5 COMMISSIONER BARKDULL: What is the view of the
6 movant, Commissioner Sundberg?
7 COMMISSIONER SUNDBERG: And I will agree to that,
8 temporarily pass until tomorrow so we can get the language
9 addressed.
10 CHAIRMAN DOUGLASS: Without objection, it will be
11 temporarily passed. It is passed until replaced on
12 special order.
13 Now Commissioner Connor.
14 COMMISSIONER CONNOR: Thank you, Mr. Chairman.
15 Parental consent was up on reconsideration yesterday but
16 inadvertently was not taken up, and I ask for unanimous
17 consent for the matter to be placed on reconsideration and
18 deferred to the first week in February.
19 CHAIRMAN DOUGLASS: All right. You have to have
20 unanimous consent, I believe, because the time passed for
21 reconsideration.
22 COMMISSIONER CONNOR: I think it was by inadvertence
23 that that happened. The effect, as the secretary informs
24 me, is that it expired. I don't think that was the
25 intent, that it expire, and I am simply requesting --
250
1 CHAIRMAN DOUGLASS: What he is requesting is
2 unanimous consent to allow reconsideration of 107, which
3 is the parental consent matter. And if anybody objects,
4 it can't be put on reconsideration. Commissioner
5 Barkdull.
6 COMMISSIONER BARKDULL: I urge that the body agree
7 with the motion by Commissioner Connor because it was in
8 some misunderstandings in a three-cornered conversation
9 that this occurred. And it should be carried into
10 tomorrow's calendar.
11 CHAIRMAN DOUGLASS: If there is no objection, I will
12 entertain a motion that we have no more three-cornered
13 conversations. Let's have four cornered.
14 COMMISSIONER BARKDULL: Mr. Chairman, I have a
15 problem in hearing which is, I'm joined by others in this
16 chamber.
17 CHAIRMAN DOUGLASS: All right. We are down toward --
18 aren't we supposed to go out and leave at 5:00?
19 COMMISSIONER BARKDULL: We need to act on this
20 motion.
21 CHAIRMAN DOUGLASS: Well, we are ten minutes 'til on
22 my clock. Okay.
23 COMMISSIONER BARKDULL: Mr. Chairman, I think we need
24 to act on the Connor motion.
25 CHAIRMAN DOUGLASS: I just asked was there any
251
1 objection and hearing none it is granted.
2 COMMISSIONER HENDERSON: Mr. Chairman.
3 CHAIRMAN DOUGLASS: We are going to let the motion go
4 back on the calendar, is that what you want, or do you
5 want to take up the motion?
6 COMMISSIONER CONNOR: For the February session was
7 the motion.
8 CHAIRMAN DOUGLASS: Commissioner Mills?
9 COMMISSIONER MILLS: Let me, as I understand what I
10 heard, that we would return to consider the motion to
11 reconsider tomorrow.
12 COMMISSIONER CONNOR: That was not my motion.
13 CHAIRMAN DOUGLASS: The secretary tells me that the
14 way to do it would be to vote to reconsider it right now
15 and then defer it until when you requested.
16 COMMISSIONER MILLS: But --
17 CHAIRMAN DOUGLASS: Commissioner Mills.
18 COMMISSIONER MILLS: Well would the secretary --
19 CHAIRMAN DOUGLASS: We will let it roll over until
20 tomorrow and in the meantime you can get it straight. Now
21 that we have waived the rules and you have moved
22 reconsideration, we will roll it until tomorrow and then
23 you can decide what you need to do with it in consultation
24 with the secretary.
25 COMMISSIONER CONNOR: Thank you.
252
1 CHAIRMAN DOUGLASS: All right, Commissioner Barkdull.
2 COMMISSIONER BARKDULL: I am ready for announcements,
3 if that's where you are.
4 CHAIRMAN DOUGLASS: Well I don't think we have time
5 to take up another proposal.
6 COMMISSIONER BARKDULL: We have got committee
7 meetings that are scheduled and people that are here for
8 those committee meetings at 5:00.
9 CHAIRMAN DOUGLASS: That's correct. And Commissioner
10 Scott rises.
11 COMMISSIONER SCOTT: I just want to remind the
12 members of the Finance and Tax Committee that we are
13 meeting at 5:00 in EL, our usual place, and try to dispose
14 of the rest of these issues. If everybody would be close
15 to on time, we will get going.
16 CHAIRMAN DOUGLASS: They ought to be on time this
17 time, Commissioner Scott.
18 Commissioner Connor.
19 COMMISSIONER CONNOR: Mr. Chairman, I'm not sure if
20 the announcement has been made because I had to leave
21 early, but the Select Committee on Sovereign Immunity will
22 meet at noon tomorrow, place to be announced, I'm not
23 sure.
24 COMMISSIONER BARKDULL: It is on the calendar.
25 COMMISSIONER CONNOR: Room 309.
253
1 COMMISSIONER BARKDULL: 309.
2 COMMISSIONER CONNOR: Thank you.
3 CHAIRMAN DOUGLASS: Any further announcements?
4 Commissioner Barkdull.
5 COMMISSIONER BARKDULL: Move we recess until 9:00
6 a.m. tomorrow morning.
7 CHAIRMAN DOUGLASS: Without objection we are in
8 recess until 9:00 a.m. tomorrow morning. See you tomorrow
9 morning.
10 (Session adjourned at 4:50 p.m.)
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1 CERTIFICATE
2
3 STATE OF FLORIDA:
4 COUNTY OF LEON:
5
WE, JULIE L. DOHERTY, KRISTEN L. BENTLEY and
6 MONA L. WHIDDON, Court Reporters, certify that we were
authorized to and did stenographically report the foregoing
7 proceedings and that the transcript is a true and complete
record of our stenographic notes.
8
9 DATED this ______ day of ____________, 1998.
10
11
_________________________________
12 JULIE L. DOHERTY, RPR
13
14 _________________________________
KRISTEN L. BENTLEY
15
16
_________________________________
17 MONA L. WHIDDON
Court Reporters
18 Division of Administrative Hearings
1230 Apalachee Parkway
19 Tallahassee, Florida 32399-3060
(850) 488-9675 Suncom 278-9675
20 Fax Filing (850) 921-6847
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