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1 STATE OF FLORIDA
CONSTITUTION REVISION COMMISSION
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COMMISSION MEETING
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DATE: February 23, 1998
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TIME: Commenced at 1:00 p.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 (EXCUSED)
CLARENCE E. ANTHONY (EXCUSED)
4 ANTONIO L. ARGIZ (ABSENT)
JUDGE THOMAS H. BARKDULL, JR.
5 MARTHA WALTERS BARNETT (EXCUSED UNTIL 4:09 P.M.)
PAT BARTON
6 ROBERT M. BROCHIN
THE HONORABLE ROBERT A. BUTTERWORTH
7 KEN CONNOR
CHRIS CORR (ABSENT)
8 SENATOR ANDER CRENSHAW
VALERIE EVANS
9 MARILYN EVANS-JONES
BARBARA WILLIAMS FORD-COATES
10 ELLEN CATSMAN FREIDIN
PAUL HAWKES
11 WILLIAM CLAY HENDERSON
THE HONORABLE TONI JENNINGS
12 THE HONORABLE GERALD KOGAN
DICK LANGLEY
13 JOHN F. LOWNDES
STANLEY MARSHALL (EXCUSED)
14 JACINTA MATHIS
JON LESTER MILLS
15 FRANK MORSANI
ROBERT LOWRY NABORS
16 CARLOS PLANAS
JUDITH BYRNE RILEY
17 KATHERINE FERNANDEZ RUNDLE
SENATOR JIM SCOTT
18 H. T. SMITH
ALAN C. SUNDBERG
19 JAMES HAROLD THOMPSON
PAUL WEST (EXCUSED)
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: Quorum call. Quorum call. All
3 commissioners indicate your presence. All commissioners
4 indicate your presence.
5 Quorum present, Mr. Chairman.
6 (Quorum taken and recorded electronically.)
7 CHAIRMAN DOUGLASS: All right. Would all
8 unauthorized persons please leave the chamber. Will the
9 commissioners and the guests in the gallery please rise
10 for the opening prayer given this afternoon by Fred Harris
11 of Tallahassee.
12 MR. HARRIS: Thank you, Mr. Chairman. Ladies and
13 gentlemen, let us prey.
14 Dear God, we stand on the threshold of a grand and
15 glorious future. We have the opportunity to participate
16 in a spiritual awakening for which this world has long
17 awaited. A time when we will recognize that we are all
18 children of one God and therefore brothers and sisters. A
19 time when we will embrace selfless service toward those in
20 need. A time when the predominant attitude will be one of
21 hope and expectation for better times to come. A time
22 when families will flourish and all endeavor to take the
23 highest path in their every decision. This future will be
24 when time and truth, beauty and goodness will be manifest
25 in all of our lives. But this effort will not appear
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1 magically by divine fiat. It requires our daily
2 participation and contribution to make it a reality. It
3 requires a society which is built on a foundation of
4 equality, justice, and opportunity for all. That
5 foundation of love begins with our Constitution which
6 recognizes the fundamental rights and obligations shared
7 by all.
8 God, please bless the people who comprise this
9 Constitution Revision Commission and grant them the
10 wisdom, strength, and vision necessary to discern the
11 divine pattern and incorporate it into the amendments that
12 they propose. Help them fashion a Constitution which will
13 secure our freedom, protect our rights, and promote the
14 highest good for the people of Florida, and in so doing,
15 set an example for the world. We ask, dear Lord, that you
16 daily grant us tolerance to honor each person's path to
17 you. That you encourage us to count our blessings and
18 remind us not to neglect our time with you for it is in
19 our personal relationship with you that we are able to
20 become centered in your love. Having become so centered,
21 help us become a conduit for your love, spreading it to
22 all those we encounter. Amen.
23 CHAIRMAN DOUGLASS: Please remain standing for the
24 pledge of allegiance led this afternoon by Commissioner
25 Clay Henderson and his son Craig. Commissioner Henderson
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1 and Craig.
2 (Pledge of Allegiance.)
3 CHAIRMAN DOUGLASS: I think there are some other
4 family members present. Commissioner Mills, would you
5 like to introduce us to your family if they are around
6 where we can see them.
7 COMMISSIONER MILLS: Yes, Mr. Chairman. My wife
8 Beth; my mother, Marguerite; and my daughter, Marguerite,
9 the three-year-old who is going to be a member of the
10 commission some day. And by the way she's going, it could
11 be ten years.
12 CHAIRMAN DOUGLASS: All right. We're glad to have
13 you. Commissioner Henderson.
14 COMMISSIONER HENDERSON: At our last gathering Frank
15 Morsani leaned over to me and said, You know, I've spent
16 more time with you in the last six months than my family.
17 And I thought that would be a good idea for Frank to meet
18 the rest of my family. So Judge Mary Jane Henderson, my
19 wife, and our daughter, Ardis, on the front row there.
20 CHAIRMAN DOUGLASS: All right, is there anyone else?
21 I do see, Commissioner Lowndes, you're bashful and timid.
22 Our other Commissioner Lowndes, Rita is up here. Rita,
23 we'd like to recognize you.
24 COMMISSIONER LOWNDES: She's been here so often, I
25 thought she was kind of a permanent member.
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1 COMMISSIONER FORD-COATES: Mr. Chairman, as long as
2 we are doing this, since I've never done this before, I'd
3 like to introduce my husband, Brian Ford-Coates, who is
4 the official observer.
5 CHAIRMAN DOUGLASS: He's been a commissioner without
6 vote because he's made every proceeding I think we've had
7 along with Commissioner Ford-Coates who's been one of the
8 most diligent attendees and people we've had.
9 Commissioner Barkdull, you're recognized.
10 COMMISSIONER BARKDULL: Mr. Chairman, Members of the
11 Commission, you have received in the mail last week the
12 proposed calendar for this week and you have on your desk
13 the calendar of the date. Be sure you have the one that
14 says under the date, Monday, February 23rd, corrected.
15 And then the pink packet that you have on your desk will
16 correspond to that calendar.
17 If you have one that does not have "corrected" on it,
18 please raise your hand and the staff will substitute it
19 because there was a correction made in it. At this time,
20 Mr. Chairman, I'd like to defer to Chairman Mills of the
21 Style and Drafting Committee for his report of that
22 committee which lays out the groundwork rules for this
23 week.
24 CHAIRMAN DOUGLASS: Commissioner Mills, you're
25 recognized.
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1 COMMISSIONER MILLS: Mr. Chairman, members, you have
2 a very brief two paragraph description of an overview of
3 the way we're going to handle the 58 remaining proposals
4 before you this week. Let me just give you the
5 background, thinking of the Chairman and thinking of the
6 committee when doing this. We have over the course of the
7 last months traveled several thousands miles and
8 considered hundreds of proposals and we have now dwindled
9 those down to some 58 proposals.
10 This would be our first opportunity to actually look
11 at all of those at one time, a bit of a forest through the
12 trees issue. We can begin to see what the forest looks
13 like. And the way that these have been organized are by
14 topics that we believe, as the Style and Drafting
15 Committee, and we solicit your advice will be logical for
16 public consideration. That is, there are a series of
17 issues that would pass that relate to the environment.
18 There's a series of issues that you would pass that relate
19 to education, series that you would pass that relate to
20 the judiciary, to criminal justice, et cetera.
21 What you have before you in the long list is an
22 attempt to classify those by those various categories.
23 Ultimately, it will be our task as a commission to group
24 those for ballot and to draft ballot language again with
25 the goal that the public will be able to understand to the
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1 maximum what we are doing. What you have before you
2 today, when you begin to consider these set of issues,
3 we've titled them, for example, the environment is one of
4 the first issues you'll consider. There are five or six
5 individual proposals that you've passed over this period
6 of months that relate topically to environment.
7 The method we would proceed with is, I've suggested
8 that we might limit debate on each of these topics since
9 we are relatively familiar at this point and that we would
10 consider each of these during that period of time. So we
11 will spend a couple of hours or an hour on the
12 environment, a couple of hours or an hour on elections.
13 And after that period of time, we will have -- some of
14 those proposals will have received 22 votes. Some of
15 those proposals will have received a majority of those
16 present and voting. And perhaps some of those will not
17 receive a majority.
18 The procedure from here is, because we are going back
19 to the public with three more hearings, just because
20 something does not receive 22 votes, but still receives a
21 majority, it was the thinking of our committee that they
22 should not at this point die. However, it was the
23 thinking of the committee that if at this point this --
24 and the wisdom of this commission in looking at all of the
25 proposals before us, if, in fact, a proposal is unable to
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1 get even a majority, it probably will never pass ultimate
2 muster and it will probably be diverting to the public to
3 consider those proposals.
4 So anything that gets a majority or 22 votes
5 continues to public hearings. Now the language that you
6 saw, you see in here relating to reconsideration was
7 simply a method to allow those voters -- to allow the
8 input of the public again. For example, if you get a
9 majority vote but not 22 and you're persuaded during
10 public hearings that this is a better idea than you
11 thought, this reconsideration will allow you to bump that
12 up to 22 votes.
13 Conversely, if during the public hearings you're
14 persuaded what you previously voted for 22 votes is not a
15 good idea, you're entitled to move to reconsider, if you
16 get a majority and take that up again and that can be
17 ultimately then killed.
18 At that point, we then go on to Style and Drafting to
19 group these and ultimately come back for final passage.
20 Now I suspect there are a couple of questions and I'll be
21 glad to address them. Commissioner Connor.
22 COMMISSIONER CONNOR: Commissioner Mills, I have a
23 question about the procedure. And let me tell you frankly
24 one concern I have is that -- and several instances when
25 members of the public have contacted me about proposals
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1 and lobbying the commission about those proposals on
2 matters that have already passed by a majority vote. I've
3 suggested to them that they keep their powder dry, wait
4 until the public hearing process to have input and be
5 heard at that time rather than burden the commission in
6 the interim by more paper, phone calls, E-mails, et
7 cetera.
8 And I'm concerned, frankly, that we, at least I have
9 been operating, perhaps mistakenly, under the premise that
10 for those matters that passed by majority vote they would
11 come to the public arena where the public would be heard
12 from. We could then take that information into account in
13 voting on proposals and we would have one last cut at
14 this.
15 So I'm -- I can appreciate the problem associated
16 with a rather large number of proposals that we have and
17 the desire to dwindle them down. But frankly, that's my
18 concern is that we would be asking members to pass again
19 without having had the benefit of public input which I, at
20 least, and members of the public understood they would
21 have before these matters were potentially eliminated for
22 lack of adequate consideration or lack of an adequate
23 vote.
24 COMMISSIONER MILLS: Well, that's a reasonable
25 question. That is the issue. If you want to, during this
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1 week of consideration dwindle down at all. We have a
2 week, and it's probably the most focused time we have
3 because we have focused it down to a number of issues.
4 And, of course, there has been considerable public input.
5 If you look at the breadth of the proposals, I think
6 you'll see that -- it's hard to foretell what this
7 commission will do. There are not that many that are
8 likely to be killed by a majority vote, but there are
9 some. And so the question that you have as a commission,
10 as to whether you want to adopt this report, is whether
11 you want to do that. There are, I think, Mr. Chairman, 56
12 proposals. And the issue is, is this the time? Do we
13 know enough after having, I guess, several months of
14 public and committee input make a determination.
15 That was, I believe, the thinking of the committee
16 and chairman that if at this point it was unable to get
17 even a majority, that it was unlikely in the future that
18 it would get the requisite 22 votes.
19 CHAIRMAN DOUGLASS: Commissioner Hawkes is next.
20 You're next, Commissioner Smith.
21 COMMISSIONER HAWKES: Thank you, Mr. Chairman.
22 Commissioner Mills, I can appreciate with 56 proposals
23 that it would be desirable to cut them down so that Style
24 and Drafting could have an easier time performing their
25 job but also so the public could have an easier time in
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1 offering their input to the commission. And instead of
2 maybe voting some up and some down, maybe if the
3 committee, the Style and Drafting Committee, came forward
4 and said, These are the proposals that have less than
5 maybe 18 votes when they passed.
6 And these proposals, we're not going to have a vote
7 on whether or not you support it or don't support it;
8 we're going to have a vote on whether or not you think it
9 ought to go forward or not go forward, change the question
10 so that if I vote no, I'm not voting against the proposal,
11 I'm voting against it going forward. And all we're doing
12 then is tying to narrow down the 56 to 40 or 50 or 20 or
13 whatever that number happens to be. But we start with
14 those that might have some question as to whether or not
15 they could receive 22 votes anyway if that would be
16 something the commission would support.
17 COMMISSIONER MILLS: Well, you also have that
18 information available before you in terms of how many got
19 more than 22 votes. But again, I think it was the feeling
20 of the committee at this point that this group is pretty
21 sensitive to public input. This group has had a lot of
22 time to think about these and that we may be coming to a
23 point at which it's time to make some final decision.
24 CHAIRMAN DOUGLASS: Commissioner Smith?
25 COMMISSIONER SMITH: Thank you, Mr. Chairman. First
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1 of all, I really appreciate the difficulty that Style and
2 Drafting has with regard to trying to decide how we're
3 going to get from where we are right now to the final
4 product. My input is as follows. One, I would hope that
5 with regard to those proposals that have already gotten 22
6 votes that we not vote again on those proposals at all at
7 this juncture.
8 We have some proposals, and I've discussed at least
9 one of them with a colleague that had won by one vote or
10 two votes, 14-13, 15-14. And a lot has to do sometimes,
11 as the Chair has indicated, with who is present. So with
12 a lot of those votes that are under 22, and I don't know
13 whether we want to just say under 22 or under 18 votes or
14 whatever. Obviously, I think that we should look at
15 readdressing those issues because I think that although
16 Commissioner Connor has a very good point about input of
17 the public, if, in fact, these are issues that I think
18 can't get the requisite number of votes eventually, at
19 least a majority vote, they are not going to get on the
20 ballot anyway.
21 So I really believe that there is a compromise in the
22 Style and Drafting recommendations and I would hope that
23 with regard to those that have 22 votes already that we
24 definitely move forward with having those issues, issues
25 that will be discussed at public hearing. And the other
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1 issues, 14-13 votes, 15-12 votes, things like that, I have
2 no objection in taking another crack at those.
3 CHAIRMAN DOUGLASS: Commissioner Nabors?
4 COMMISSIONER NABORS: The only comment I would add to
5 what Commissioner Smith said is, I understand the
6 procedure that we're going through, that even those who
7 got 20, 22 votes or even greater, that we would have the
8 opportunity to amend those by majority vote. If we just
9 wipe those off and take them up at the end, it would
10 probably take 22 votes to amend them. So there may be
11 some housekeeping we might need to do during this week,
12 even those who got more than 22.
13 CHAIRMAN DOUGLASS: Commissioner Mills, do you want
14 to address that?
15 COMMISSIONER MILLS: Well, Mr. Chairman, that was
16 part of the sense of the committee and the Chairman in
17 doing this has a fair opportunity to readdress some of
18 these issues before we get to ultimate pairing in a higher
19 extraordinary way. There are some amendments to some of
20 the various proposals that are still pending that are
21 probably wise, some that are technical, and others that
22 just may simply make sense to the body. So I think
23 Commissioner Nabors' point is probably well taken.
24 CHAIRMAN DOUGLASS: Commissioner Lowndes?
25 COMMISSIONER LOWNDES: Yes, I'm on the Style and
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1 Drafting Committee and I think the Style and Drafting
2 Committee has come up with a good plan. I'd like to point
3 out a couple of things about it. And one of them is that
4 when something gets 22 votes under the Style and Drafting
5 Committee's proposed plan, that's a final vote on it
6 unless it is put up for reconsideration. The -- and we
7 don't have to deal with it again unless a majority of the
8 people want to deal with it again.
9 The second point I would make is, I think we have to
10 come to a time when we would begin to prioritize things.
11 There are a lot of things we've talked about that are good
12 ideas. And if you deal with them separately and
13 individually and in a vacuum, you would say, That's a good
14 idea. But we've got to come to the proposition and decide
15 which one of these good ideas are the ones we want to put
16 in the Constitution because I don't think we can put all
17 56 or 58 or whatever on the ballot because I think if we
18 do, we are going to create a self-defeating circumstance.
19 So I think when we vote on these as in the style --
20 proposed for the Style and Drafting Committee, I think
21 that we need to prioritize. I think we need to decide
22 which one of our good ideas we want on the ballot. And I
23 think this gives us the opportunity to do that. Thank
24 you.
25 CHAIRMAN DOUGLASS: All right. Commissioner Smith?
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1 COMMISSIONER SMITH: Question of Commissioner
2 Lowndes. Commissioner Lowndes, let's just take an issue.
3 Judge Barkdull, Proposal 153 corrects the schedule which
4 deals with JQC. It had 22 votes, 22 to 0.
5 Now does that mean that that will not be voted on
6 again this week?
7 COMMISSIONER LOWNDES: Yes, it will be voted on this
8 week.
9 COMMISSIONER SMITH: It will be voted on this week?
10 COMMISSIONER LOWNDES: Yes, sir. And if it's voted
11 on this week and if it gets 22 votes, that is a final vote
12 with respect to that unless it's reconsidered. But in the
13 final vote -- the final, final vote is going to be when
14 that is grouped in a series of technical amendments.
15 CHAIRMAN DOUGLASS: All right. Somebody that hasn't
16 spoken. Y'all have both spoken. Somebody else that
17 hasn't spoken wants to speak? Now Commissioner
18 Wetherington I think is trying to go.
19 COMMISSIONER WETHERINGTON: I'm just trying to get
20 clear what we're going to be doing this week. We voted on
21 these things, how many times are we going to vote on them?
22 I mean, at some point or later, you know, we have to make
23 a decision on some of these things. And I think we can't
24 keep postponing and deferring. We've had 12 days of
25 public hearings, 5,000 letters and stuff like that. We've
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1 had a lot of input already and we've discussed these
2 things in committee and here a great deal. There's some
3 we have to keep working on that are very complicated and
4 are going to require maybe further analysis.
5 But it seems like we should be at the point where we
6 should be taking some votes this week and things that
7 clearly aren't going to make it, we should get rid of.
8 And in that spirit, I've got one that's a proposal I have
9 and I know it has a very slight majority and I'm probably
10 going to withdraw it because it isn't going anywhere.
11 CHAIRMAN DOUGLASS: What's the number? We'll do it
12 right now.
13 (Laughter.)
14 COMMISSIONER WETHERINGTON: I'll do it right now if
15 you want me to.
16 CHAIRMAN DOUGLASS: I didn't want to ask you -- to
17 see if I understand what you're talking about, today and
18 this week the items that will be on the agenda, no matter
19 what the vote was, except those that have died by not
20 getting a majority vote, anything that got over a majority
21 vote we'll run through them and vote. Those that get 22
22 votes, that will be a final vote on that proposal unless
23 somebody moves to reconsider; is that correct?
24 COMMISSIONER MILLS: That's correct.
25 CHAIRMAN DOUGLASS: So if there is no motion like on
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1 these 28 to nothings, if there is no motion to reconsider,
2 that's a final vote, it's over. Then those that get a
3 majority vote will go forward for public hearing along
4 with those that received the 22 votes and then when we
5 come back to our next meeting, we'll have nothing but
6 final votes; is that right? And reconsideration of those
7 that got 22 votes?
8 COMMISSIONER MILLS: That's correct. And as you
9 evaluate this proposal, think about the constraints we're
10 dealing with. We -- to take any final votes, final, final
11 votes this week before we go back to public hearings
12 doesn't make sense. I mean, in other words, 22 votes that
13 we say we made our final decision without potential for
14 reconsideration before going back to the public.
15 However, we have learned enough in the last four
16 months to know that there are some issues which need to be
17 changed. And furthermore, when you sit down and look at
18 the relationship of these issues to each other, and that
19 is when you look at all of the issues we've dealt with
20 that dealt with the judiciary, all the issues we've dealt
21 with that deal with elections, I think it helps your
22 perspective as to see which things that you wish to go
23 forward.
24 In other words, it is a useful process to discuss
25 these things in context on this day knowing that you have
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1 a chance to correct these, a chance to move some forward
2 and to face the public hearings and final decision, but
3 this is the first time you have had a chance -- it is the
4 first time you have had a chance to see the entire
5 spectrum of what you passed.
6 And so I think, Mr. Chairman, that it was the intent
7 of the committee to try to provide a fair process
8 considering the upcoming public hearings and to be fair to
9 the commission in terms of maximizing the commission's
10 input. Of course we're willing to accept all
11 reasonable --
12 CHAIRMAN DOUGLASS: And I'm going to recognize
13 Commissioner Henderson who has not been recognized. I'll
14 get back to you fellows that have been speaking before.
15 COMMISSIONER HENDERSON: I'm just trying -- thank
16 you, Mr. Chairman, Commissioner Mills, helping me
17 understand this. First of all, I think you've all done an
18 outstanding job of trying to bring this back together for
19 us to attempt to winnow (sic) this a little bit before we
20 go to public hearing. But I'm not sure about the
21 statements that are being made here about this might be
22 the last time we vote on something because the reality of
23 it is that if it gets 22 votes and it goes to public
24 hearing, then the next thing the committee is going to do
25 is to vote to group these things. And what will be back
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1 before us will be either -- would be something that --
2 we're getting close to ballot language at that point.
3 So you're going to look at a grouped question or
4 whether or not an individual matter is worthy of standing
5 on its own. So even though we might not be -- I think you
6 all said we voted on this last time this week. We're
7 still coming back for the grouping, are we not, and for a
8 final vote on the actual language of the proposition as it
9 goes to the voters; is that not correct?
10 COMMISSIONER MILLS: That's correct. And really if
11 you -- there are a couple of different policy issues.
12 This would be the last time with some exceptions you see
13 these things as individual proposals.
14 (Off-the-record comment.)
15 CHAIRMAN DOUGLASS: Commissioner Thompson?
16 COMMISSIONER MILLS: Next time we can come back we
17 will have to start grouping these things.
18 CHAIRMAN DOUGLASS: Commissioner Thompson?
19 COMMISSION THOMPSON: Mr. Chairman, a lot of good
20 questions have been raised. I had one or two myself on
21 how we're going to respond to the public when they come up
22 and want something to be killed dead, dead, dead. Or if
23 there is something that nobody has filed and they want us
24 to talk about. I wonder though, Mr. Chairman, if it
25 wouldn't be wise for us just to go ahead with what we know
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1 we have before us. We have some reconsiderations and we
2 have some issues, I think, like some of the sovereign
3 immunity issues and so forth that we haven't dealt with,
4 get on with our business. We can talk about this as we go
5 today and maybe come up with some kind of a unanimity.
6 CHAIRMAN DOUGLASS: Yeah, I think that would be a
7 good proposal to save time. We can debate this a long
8 time but I think it would be more appropriate to move
9 forward. We have a page or so here of items that have to
10 be reconsidered and a couple that have not been considered
11 that are on today. When we conclude that, we can come
12 back to this motion and that will give everybody time to
13 think about it.
14 If that's agreeable, the Chair will rule we will
15 temporarily pass this motion until such time as we
16 complete the current special order which includes the
17 matters on reconsideration and the two or three items that
18 are up for special order today.
19 All right. With that being the case, Commissioner
20 Barkdull, I'd call on you to direct us to the calendar,
21 please.
22 COMMISSIONER BARKDULL: Well, you've got the calendar
23 in front of you and the ruling of the Chair, then let's
24 revert to the order of business as established in the
25 calendar. The first matter that's up on reconsideration
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1 is Proposal No. 13 by the Committee on Declaration of
2 Rights. It's pending on a motion to reconsider by
3 Commissioner Riley.
4 CHAIRMAN DOUGLASS: All right. This was on the
5 committee substitute for Proposal 13 by the Committee on
6 Declaration of Rights and Commissioner Brochin. Read it,
7 please.
8 READING CLERK: Committee substitute for Proposal
9 No. 13, a proposal to revise Article 1, Section 22,
10 Florida Constitution; providing that a defendant charged
11 with a capital offense may not be sentenced to death
12 unless such sentence is recommended by 9 members of a jury
13 of 12 persons.
14 CHAIRMAN DOUGLASS: For those of you that weren't
15 here and haven't been paying too much close attention
16 today, this is the capital offense proposal. It was
17 originally the proposal by Commissioner Brochin which was
18 a 9-3 vote to impose the death penalty.
19 He changed it to a unanimous vote by amendment, or
20 sought to. It was then amended to provide for three
21 alternative sentences including the death penalty, life
22 imprisonment, solitary confinement, or life imprisonment
23 without parole in both instances. And I think that was
24 what was adopted, was it not, Commissioner Brochin?
25 And then it was on a motion to reconsider. It is now
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1 a motion to reconsider that vote made by Commissioner
2 Riley. We will debate the motion to reconsider only. Is
3 there anything to be -- anybody wants to say on the motion
4 whether or not we reconsider. Commissioner Scott?
5 COMMISSIONER SCOTT: Mr. Chairman, Commissioner
6 Mills, I have an inquiry of the Chair. This matter will
7 today be then voted on reconsideration or not voted or
8 whatever. Now are we going to take that up again and vote
9 on it again this week?
10 CHAIRMAN DOUGLASS: No. I rule we don't. It would
11 be superfluous to do it again this week. We're having the
12 same vote on this we're going to have on the others,
13 Commissioner Scott. It either does or doesn't. Now I'm
14 perfectly amenable if the committee -- the Rules Committee
15 wants to bring it up again during the week, that's fine
16 with me. But my own thought is if we have the debate on
17 it today, if it's defeated on reconsideration, then we
18 must then go back to it. If it's granted on
19 reconsideration we have to address it. So we're on
20 reconsideration at the moment only. The question may be
21 premature.
22 COMMISSIONER SCOTT: Mr. Chairman, it may be
23 premature because we've got these other items on
24 reconsideration. And my question is, are we going to
25 debate and vote on them on reconsideration today and then
24
1 redebate them later this week again and when it would
2 require 22 votes I assume to do something.
3 CHAIRMAN DOUGLASS: What I perceive is right now
4 we're on the issue of whether or not we're going to vote
5 to reconsider. If that fails, then the -- it will stand
6 as it passed, as an issue. It would then go on the
7 calendar the same as the other items that received
8 majority vote and probably be placed at the end of the
9 special order. That's up to you-all on the committee.
10 Rather than take it up the second time today, if it
11 votes to reconsider it, and then we go back and debate it,
12 I think we could consider whether or not we wanted to
13 consider that the final vote on it. It might not get the
14 majority vote on reconsideration either, Commissioner
15 Scott, we haven't reached that point yet.
16 I'm saying, you have a valid question but it may be
17 premature. We're on the motion to reconsider regardless
18 where we wind up. Commissioner Brochin, Commissioner
19 Riley's motion, but you want to address it, correct?
20 COMMISSIONER BROCHIN: I'd like to, yes.
21 CHAIRMAN DOUGLASS: Okay.
22 COMMISSIONER BROCHIN: I'm not sure I understand
23 procedurally where we're going.
24 CHAIRMAN DOUGLASS: Right now we're on the motion to
25 reconsider. If it fails, then we'll deal with that next.
25
1 COMMISSIONER BROCHIN: Let me argue then in favor of
2 the motion to reconsider with the idea that we should not
3 pass out the proposal that was passed out last time we
4 were here. And by way of reminder, and this could go back
5 to what Commissioner Mills was addressing as a close vote,
6 the proposal that passed that is supposedly going forward,
7 I believe passed by 16 to 13 and it was therefore
8 relatively close.
9 I will tell you there are two components to this, the
10 proposal that we passed by 16 to 13 which I'd ask you to
11 reconsider because I consider it to be a very poor idea,
12 both in terms of practicality but even more so a poor idea
13 for our Constitution. By way of reminder, what that
14 proposal did was to mandate the jury and the jury only to
15 make a decision on the sentencing in capital offenses.
16 And it would now give juries three options under that
17 scheme that would be a mandate.
18 It would not only be a jury mandate, what it does do,
19 it reverted it back to a 7-5 or simple majority vote of
20 that jury and that jury would have the option of, as I
21 understand it, the penalty of death, the penalty of life
22 imprisonment without parole, the penalty of life
23 imprisonment in solitary confinement, and I suppose the
24 fourth provision would be life imprisonment.
25 This is not, in my view, appropriate language for the
26
1 Constitution.
2 CHAIRMAN DOUGLASS: All right. Now we're on the
3 motion to reconsider, not arguing the proposal.
4 COMMISSIONER BROCHIN: Okay. Well, I thought that's
5 why we ought to reconsider --
6 CHAIRMAN DOUGLASS: That's why you want to reconsider
7 it. You feel that what's now there should not be what we
8 do.
9 COMMISSIONER BROCHIN: I believe that we ought to
10 defeat this proposal and this proposal should not go
11 forward as a constitutional amendment on the death
12 penalty, and that's why I ask that it be reconsidered and
13 you vote in favor of it. And beyond that, I suppose there
14 are more articulate reasons as to why.
15 CHAIRMAN DOUGLASS: If the motion to reconsider
16 passes, obviously you'll have an opportunity to debate
17 anything you want to debate. Anybody on the motion to
18 reconsider? Commissioner Smith, excuse me -- Commissioner
19 Evans?
20 COMMISSIONER EVANS: I have a question.
21 CHAIRMAN DOUGLASS: Yes, Commissioner Evans.
22 COMMISSIONER EVANS: If we vote to reconsider and
23 then -- well, I don't know at what point, but is there
24 ever a possibility that the original language would get a
25 chance to get substituted back in?
27
1 CHAIRMAN DOUGLASS: Well, you can offer an amendment
2 if it's voted to -- if we vote to reconsider, it is open
3 for amendment. You can offer any kind of amendment.
4 COMMISSIONER EVANS: And that would be when we are on
5 reconsideration, not on the vote for reconsideration?
6 CHAIRMAN DOUGLASS: That's right. It would be after
7 this vote. If it is successful that it be reconsidered,
8 you can offer any amendment you want.
9 COMMISSIONER EVANS: Okay. Thank you.
10 CHAIRMAN DOUGLASS: Commissioner Smith?
11 COMMISSIONER SMITH: Thank you, Mr. Chairman. I am
12 asking that we vote to reconsider it for the reason raised
13 by Senator Scott with his question because if we vote to
14 reconsider it, the vote we then take is this week's vote,
15 we have got to take this week's vote anyway. In other
16 words, it's 16-13, correct, and with it being 16-13, at
17 some point we have got to vote on it.
18 CHAIRMAN DOUGLASS: All right. Well, let's vote on
19 the reconsider -- I told him I'd wait and rule to see if
20 we reconsidered it and then I'm going to ask the Rules
21 Committee to meet and caucus and tell me how to rule on
22 that point. But at this point, we are on the motion to
23 reconsider. Commissioner Morsani?
24 COMMISSIONER MORSANI: If we vote not to reconsider
25 it, can we kill this devil?
28
1 CHAIRMAN DOUGLASS: No, you would have to kill it
2 when it comes back up for --
3 COMMISSIONER MORSANI: But it's not going to be
4 reconsidered.
5 CHAIRMAN DOUGLASS: No, no, it passed. So you'll
6 reconsider --
7 COMMISSIONER MORSANI: I don't want anything to do
8 with it. How do we do that?
9 CHAIRMAN DOUGLASS: You have to wait. You have to
10 wait. Commissioner Barkdull? You can pass the
11 reconsideration and then vote against it. Commissioner
12 Barkdull?
13 COMMISSIONER BARKDULL: Mr. Chairman, that's a point
14 I just wanted to make to Commissioner Morsani. I'm in the
15 same boat he is. I'm going to vote to reconsider but that
16 doesn't mean I'm going to vote for it on the merits
17 because I'm going to vote to defeat it.
18 CHAIRMAN DOUGLASS: Very well. Does everybody
19 understand? Once it is on reconsideration you get to vote
20 all over again. If you don't like it, you can vote no,
21 you can vote for amendments, you can vote to pass it, you
22 can vote whatever you want to.
23 COMMISSIONER MORSANI: Let me ask Commissioner
24 Thompson, is that okay?
25 CHAIRMAN DOUGLASS: Let's get his view, the minority
29
1 view.
2 COMMISSIONER THOMPSON: Glad you asked that because I
3 want everybody to understand what we're talking about.
4 This thing has passed. Do you understand that? I mean,
5 it has passed like so many things have passed and somebody
6 has filed a motion to reconsider. So if you want it to
7 stay passed, you vote against the motion to reconsider.
8 If you want to bring it up, change it, or if you want to
9 defeat it, you vote for the motion to reconsider.
10 CHAIRMAN DOUGLASS: Let's get on to the motion to
11 reconsider. All those in favor of the motion to
12 reconsider, say aye. Opposed.
13 (Verbal vote taken.)
14 CHAIRMAN DOUGLASS: Motion to reconsider carries.
15 We're now on the proposal as amended. And I recognize --
16 do you have an amendment on the table? Does somebody have
17 an amendment on the table? No amendments on the table.
18 All right. Commissioner Brochin?
19 COMMISSIONER BROCHIN: Actually, I'd like to seek at
20 this point a clarification. If I understand it correctly,
21 now that we have, are reconsidering it and we are going to
22 vote on this, if we defeat the proposal that we once
23 passed, then I am assuming it would revert back to the
24 amendment that I initially filed?
25 CHAIRMAN DOUGLASS: No, if you defeat this, it is a
30
1 dead subject only to a motion to reconsider to be heard
2 tomorrow. Or to be made by tomorrow and heard the next
3 day.
4 COMMISSIONER BROCHIN: But the motion that passed,
5 the amendment that passed --
6 CHAIRMAN DOUGLASS: It won't even do that unless it
7 is amended.
8 COMMISSIONER BROCHIN: But the amendment that passed
9 that we are reconsidering was a substituted amendment for
10 the amendment that I offered on the unanimous --
11 CHAIRMAN DOUGLASS: The Chair rules if you vote to
12 kill this, you vote no on the pending proposal, which is
13 the way it was amended and the way it was passed; if you
14 vote against that, it's dead. But if you vote for it,
15 just like it is now, and it gets a majority vote, it would
16 go forward. Commissioner Barkdull?
17 COMMISSIONER BARKDULL: Mr. Chair, if there is a vote
18 for it, now as amended, and it should pass, it would be
19 subject to a reconsideration. Or if it fails, it would be
20 subject to a reconsideration.
21 CHAIRMAN DOUGLASS: It is okay with me. I'll
22 reconsider it forever. All I want to do is just get a
23 vote on it. Commissioner Scott?
24 COMMISSIONER SCOTT: Mr. Chairman, I still think it
25 is important to clarify that this matter is now back on
31
1 its first vote and so whatever happens to it happens. But
2 if it goes forward, it is still going to -- if it is voted
3 positively, it would still have to be revoted later this
4 week if that's the procedure --
5 CHAIRMAN DOUGLASS: That's correct.
6 COMMISSIONER SCOTT: -- the commission follows. But
7 if it fails, it's dead.
8 CHAIRMAN DOUGLASS: That's correct too. All right,
9 debate on the proposal. Commissioner Wetherington?
10 COMMISSIONER WETHERINGTON: With all due respect, the
11 suggestion of an option which includes life imprisonment
12 with solitary confinement, I have never heard of anything
13 like that, it's as unrealistic as anything in the world I
14 can think about. Talking about taking somebody and
15 sticking them by themselves for life, I mean, it is almost
16 unthinkable.
17 What does this advance anything? You are keeping the
18 same ability to kill somebody, you are keeping the same
19 ability to put them in life, and you are putting a couple
20 of other things in. To me it seems like, with all
21 deference, it seems like a terrible proposal. I'd rather
22 have absolutely nothing than to have this.
23 CHAIRMAN DOUGLASS: Commissioner Wetherington, do you
24 realize that's a federal law and the person that was
25 convicted in Denver was sentenced to that sentence?
32
1 COMMISSIONER WETHERINGTON: I think it is ridiculous.
2 CHAIRMAN DOUGLASS: That's fine, but you said you
3 never heard about it.
4 COMMISSIONER WETHERINGTON: No, I didn't hear about
5 that, but I think it is ridiculous.
6 CHAIRMAN DOUGLASS: We get your point. All right.
7 Any further debate on the proposal? All right. Are you
8 ready to vote? Are you ready to vote? I am told somebody
9 has an amendment. Now, it is not on the table. If you
10 have an amendment, it has to be on the table.
11 Commissioner Brochin, do you have one on the table?
12 COMMISSIONER BROCHIN: Because of the ruling, which
13 I'm not sure I understand nor agree with, I wanted to get
14 a vote, and I still do, that if this proposal is defeated,
15 that we consider, which we never have, and never voted on,
16 the amendment that I offered for unanimous jury
17 consideration. So I still have to believe, if you think
18 this through logically, if you are defeating this
19 amendment, which was the substitute amendment for my
20 original amendment on reconsideration, then if you defeat
21 it, then my amendment for unanimous consideration has to
22 be considered at that time.
23 If that's not the case, which seems to make sense to
24 me, then I need to get an amendment to put back the
25 amendment that I originally filed to the committee
33
1 substitute.
2 CHAIRMAN DOUGLASS: Is it your understanding that if
3 somebody -- now that we are on reconsideration, we voted
4 to reconsider it, if somebody moved to reconsider the
5 amendment we could proceed on that?
6 COMMISSIONER SCOTT: Yes, exactly, Mr. Chairman, how
7 did you know?
8 CHAIRMAN DOUGLASS: I finally figured out that's what
9 he wants to do. So what he wants is a motion -- but it
10 has to be somebody that voted with the prevailing side on
11 the amendment. I think it passed. We voted on the
12 amendment. The amendment he wants to get out of the way
13 is the one that replaced his.
14 Commissioners, what he wants to do is remove the
15 amendment that passed to replace the one that he had which
16 was to provide for a unanimous jury verdict for death.
17 That's what he is trying to get to.
18 (Off-the-record comment.)
19 CHAIRMAN DOUGLASS: That's correct. So if he moves
20 to reconsider that, it won't work. It goes then back to
21 the 9-3 vote; is that correct? Why doesn't somebody just
22 offer an amendment to accomplish what you want to
23 accomplish? There is now an amendment on the table.
24 Please read the amendment.
25 READING CLERK: By Commissioner Brochin on Page 1,
34
1 Line 23 through 31, delete and insert all of said lines
2 and insert, Death by unanimous vote of the jury.
3 CHAIRMAN DOUGLASS: All right. There is an amendment
4 to strike everything except death by unanimous vote of the
5 jury will now be the requirement for death penalty; is
6 that right, Commissioner Brochin, is that your amendment?
7 COMMISSIONER BROCHIN: If I can just get a second to
8 look at it. (Pause.) It is closer. I hesitate. If you
9 will pass this, I will write the amendment so I can get it
10 in the proper procedural posture.
11 CHAIRMAN DOUGLASS: All right. We are going to take
12 a five-minute recess for Commissioner Brochin to write his
13 amendment. We are not going to do it except by the rules.
14 And we will take a five-minute recess. Now you get your
15 stuff together there and get us an amendment, please, sir.
16 (Brief recess.)
17 CHAIRMAN DOUGLASS: Come to order, please. Everybody
18 take their seat.
19 SECRETARY BLANTON: All commissioners indicate your
20 presence. Quorum call. Quorum call. All commissioners
21 indicate your presence.
22 CHAIRMAN DOUGLASS: All right. Do we have a quorum?
23 SECRETARY BLANTON: Quorum present, Mr. Chairman.
24 (Quorum taken and recorded electronically.)
25 CHAIRMAN DOUGLASS: Everybody be seated. All right.
35
1 Commissioner Brochin has the floor and he's offering an
2 amendment which is on the table. Would you read the
3 amendment, please? All right. Everybody pay attention
4 here, it's the Brochin amendment we have been waiting for
5 with bated breath. Read the amendment, please.
6 READING CLERK: By Commissioner Brochin on Page 1,
7 Lines 20 through 31, delete all of said lines and insert,
8 No person shall be sentenced to death unless unanimously
9 recommended by a 12-person jury. This subsection shall
10 not retroactively affect any death sentence imposed before
11 its effective date.
12 CHAIRMAN DOUGLASS: All right. Commissioner Brochin,
13 you are recognized on your amendment.
14 COMMISSIONER BROCHIN: This is the proposal that I
15 brought forward very early in the process, in fact, that's
16 why it got its original number so low at 13. Let me just
17 take one minute to explain the mechanics of it before I
18 tell you why we ought to and why we need to do this.
19 The way this works is actually not only fundamentally
20 fair but it is fundamentally simple. And it works this
21 way, the 12-persons who try and listen to the evidence as
22 to whether the defendant is guilty would then again go
23 into a sentencing hearing phase which is done today, they
24 would hear evidence regarding whether or not the death
25 penalty should be imposed for this particular defendant.
36
1 After that same 12-person jury that heard the
2 evidence as to whether or not he was guilty, and after
3 that same 12 person jury hears the evidence on whether or
4 not the death penalty shall be imposed, they would then
5 make a recommendation to the judge as to whether the death
6 sentence should be imposed.
7 This would be a constitutional protection or
8 threshold that would say unless all 12, just like they did
9 when they voted to convict them, voted to invoke the death
10 penalty, then the court would not have the option, when
11 sentencing, of sentencing him to death but could use all
12 other options available under the criminal laws for
13 sentencing.
14 If, on the other hand, the 12-person jury unanimously
15 recommends that sentence be imposed, then the judge takes
16 that recommendation and has the clear constitutional
17 authority to go ahead and impose the death sentence.
18 This is the way 28 states out of 38 states in our
19 country do it. They require as a minimum threshold
20 requirement that they unanimously say that we have heard
21 the evidence on this case and we, the same jury, believe
22 that we should also invoke the death penalty for this
23 case, because it is of such heinous and atrocity that
24 penalty is deserving in this state.
25 It does not eliminate the death penalty, it does not
37
1 increase the death penalty. It simply places in our
2 Constitution a protection to say that with all of the
3 other arbitrary and capricious factors, with all the other
4 human elements that go into this, the state of Florida
5 uniformly, whether you are in Pensacola, Jacksonville,
6 Miami or Orlando, we all know that 12 persons will have
7 unanimously said that the penalty is appropriate in these
8 circumstances.
9 Now a lot has been written about the death penalty.
10 And even when I got home to Miami there is a special
11 edition saying more than ever, the courts labor in the
12 shadow of the death penalty. It is frustrating, divisive
13 and so time consuming that it threatens the quality of
14 justice in the rest of the courts case loads; asking, is
15 "Old Sparky" worth it.
16 As we struggle, and we will struggle in the next 20
17 years to implement this penalty, there are going to be a
18 lot of factors that are going to be out of the citizenry's
19 control. This is a protection to know that 12 people
20 unanimously believe it is appropriate. It takes 12 people
21 to convict, it takes 12 people to take our property
22 unanimously in this state, it takes 12 people to take
23 15 -- or six people unanimously to take $15,000 out of our
24 pocket.
25 Certainly we ought to have the constitutional
38
1 protection in that before the Governor of this state, the
2 Chief Justice of this state, the Attorney General of this
3 state move forward under their due constitutional
4 authority, that they know that 12 people who heard that
5 evidence believe that this is appropriate.
6 It will take out some of the arbitrary results that
7 we have seen. And if that doesn't convince you, if that
8 doesn't convince you, this statistic should: In the last
9 20 years, 70 people in death rows in this country, 70,
10 have been released because of indicia of innocence.
11 Seventy. With DNA evidence developing the way it is, with
12 scientific evidence developing the way it is, human beings
13 make mistakes. That's why our entire criminal justice
14 system is built on the premise that you have to show not
15 that they are guilty, but that they are guilty beyond a
16 reasonable doubt.
17 And I suggest to you, most humbly, that when it comes
18 to the ultimate sentence of death, that we should not have
19 not only no reasonable doubt, we should have no doubt.
20 And therefore the time for this proposal has come.
21 Florida needs to step up to where the rest of the country
22 is in terms of trying to implement this penalty.
23 Now I know, and I know this from talking to many of
24 you, you are concerned about putting this on the ballot.
25 That it is not going to pass, that it is not a popular
39
1 cause. And, indeed, it is not a popular cause. But
2 constitutions by their very essence are not supposed to be
3 about just popular issues. They are supposed to be about
4 protections of our liberties and our democracy. And we do
5 turn guilty people free and we do make sure before we
6 execute people that they are guilty, even at the expense
7 of not executing people because that's what democracy
8 demands.
9 And our state is behind on this. Our state needs to
10 be where it is all 12 say yes. So I ask that you think
11 about this. I think that -- I don't want to say, keep it
12 alive because that's becoming already pass‚ here, but
13 let's hear what the people have to say about this. I
14 think we are underestimating greatly by saying this is a
15 bad issue, it is going to pull all the issues down, there
16 are no constituents out there because I don't think you
17 are going to present it as whether it is for the death
18 penalty or against the death penalty.
19 I think I'm going to ask them this question, and that
20 question is: Should we have 12 jurors telling us which
21 cases are appropriate for the death penalty?
22 So for all those reasons I ask that you think, think
23 hard and pass this amendment.
24 CHAIRMAN DOUGLASS: Commissioner Barkdull.
25 COMMISSIONER BARKDULL: Will the gentleman yield for
40
1 questions?
2 CHAIRMAN DOUGLASS: He yields.
3 COMMISSIONER BARKDULL: Commissioner Brochin, what
4 public hearing did we have any testimony that requested
5 this?
6 COMMISSIONER BROCHIN: We had no public hearing of
7 anybody that requested it. I will tell you I had no
8 letters of anybody writing me to ask me to put this on the
9 ballot. I don't think there is any public ground swell as
10 a popular issue. This is not a popular issue.
11 COMMISSIONER BARKDULL: Mr. Brochin, this is
12 something that can be done by statute; can it not?
13 COMMISSIONER BROCHIN: Yes.
14 COMMISSIONER BARKDULL: Thank you.
15 CHAIRMAN DOUGLASS: Any further debate on the
16 amendment? Everybody understand the amendment? All in
17 favor of the amendment say aye. All opposed.
18 (Verbal vote taken.)
19 CHAIRMAN DOUGLASS: Let's vote. Open the machine.
20 (Vote taken and recorded electronically.)
21 CHAIRMAN DOUGLASS: Lock the machine and record the
22 vote.
23 READING CLERK: Twelve yeas, 16 nays, Mr. Chairman.
24 CHAIRMAN DOUGLASS: The amendment fails.
25 We now are on the proposal which was a committee
41
1 substitute, proposal as amended. I guess -- can you read
2 -- I presume what we need to read is the amendment in
3 order to read what we are voting on. The proposal was
4 amended.
5 (Off-the-record comment.)
6 CHAIRMAN DOUGLASS: All right. What we are on now is
7 the amendment which, proposal rather, which passed which
8 was that the jury would set, in death cases, a penalty of
9 death by a seven to five vote, life imprisonment, solitary
10 confinement as an alternative by a seven to five vote, or
11 life imprisonment without parole. That's what's before
12 the body. Commissioner Kogan.
13 COMMISSIONER KOGAN: Mr. Chairman, can I ask a
14 question? Am I to understand that this will require on
15 the verdict form that goes to the jury during the
16 bifurcated section dealing with penalty, three different
17 categories; one death, the other life imprisonment and
18 solitary confinement and the other life imprisonment
19 without possibility of parole?
20 And the second question is: Is the jury's vote
21 mandatory upon the judge? Can anybody answer that
22 question? I don't know.
23 CHAIRMAN DOUGLASS: I think Commissioner Langley
24 offered an amendment which said the judge, it would
25 recommend to the judge, didn't you, Commissioner Langley,
42
1 when it was on the floor?
2 COMMISSIONER LANGLEY: No, sir, Mr. Chairman. This
3 was your idea and you wanted it binding on the judge,
4 whatever -- the jury actually became the sentencing body,
5 but the sentence was announced and actually adjudicated by
6 the judge.
7 COMMISSIONER KOGAN: The reason I raise that point --
8 CHAIRMAN DOUGLASS: There would be no override.
9 COMMISSIONER KOGAN: -- is under the terms and
10 conditions of the U. S. Supreme Court's decision in Furman
11 vs. Georgia, and subsequent decisions, you cannot have a
12 jury death penalty vote that's binding on the judge.
13 That's the reason I raise that particular point, just a
14 point of information.
15 CHAIRMAN DOUGLASS: All right. So you rise in
16 opposition to the proposal, sir?
17 COMMISSIONER KOGAN: Well I wouldn't like us to go
18 ahead and adopt a proposal that on its face violates the
19 U.S. Supreme Court's decision in Furman vs. Georgia.
20 That's the problem that I am having here unless somebody
21 can show me that this doesn't violate it.
22 Because very simply, as a result of Furman vs.
23 Georgia, Florida had to reinstitute the death penalty with
24 a new death penalty law in the Legislature setting up
25 aggravating and mitigating circumstances and certain
43
1 requirements to conform to that particular opinion before
2 a valid death sentence can be imposed. That's the reason
3 I raise this.
4 CHAIRMAN DOUGLASS: I understand, I think everybody
5 else does. Does anybody else want to speak in favor or
6 against the proposal? Commissioner Brochin.
7 COMMISSIONER BROCHIN: I'd like to speak against it.
8 I think this is a bad idea. Not only do I think it is
9 unconstitutional because it takes out, as Judge or
10 Commissioner Kogan mentioned, the discretion of the judge
11 to sentence, I think writing into your Constitution a
12 lock-down of votes as to how a jury should sentence people
13 is improper for a constitutional amendment. Could be
14 proper for a statutory process, but it is wholly
15 inappropriate Constitutionally.
16 I also think that we have not thought through this
17 third alternative, if you will, of solitary confinement --
18 life imprisonment, solitary confinement, for whatever that
19 means, I'm not really sure. But certainly before we go
20 forward and lock it down in the Constitution, which would
21 be very difficult to change at some subsequent time, we
22 ought to know what we are saying when we say life
23 imprisonment and solitary confinement.
24 It is not an amendment that I think will do us proud
25 to take to the public to tell them that this is an option
44
1 that we have conceived of and are asking to be put in the
2 Constitution.
3 So therefore in light of this commission's will not
4 to require unanimous verdicts, it seems to me that this
5 idea ought to be defeated and we will simply have the
6 status quo.
7 CHAIRMAN DOUGLASS: Anybody else? Anybody want to be
8 heard? If not, we will vote on the proposal. Does
9 everybody understand what we are voting on? Unlock the
10 machine.
11 (Vote taken and recorded electronically.)
12 CHAIRMAN DOUGLASS: Has everybody voted? Lock the
13 machine and announce the vote.
14 READING CLERK: Zero yeas, 29 nays, Mr. Chairman.
15 CHAIRMAN DOUGLASS: By your vote you have defeated
16 this. It is no longer with us for future reference. It
17 is finis, under any interpretations, Commissioner Smith.
18 All right. The next item on the special order,
19 Proposal No. 130. Would you read it, please?
20 READING CLERK: Proposal 130, a proposal to revise
21 Article XI, Section 3, of the Florida Constitution;
22 requiring an initiative petition to be signed by a
23 specified percentage of the electors from each
24 congressional district.
25 CHAIRMAN DOUGLASS: A motion by Commissioner Freidin
45
1 to reconsider.
2 (Off-the-record comment by Commissioner Freidin.)
3 CHAIRMAN DOUGLASS: Commissioner Freidin, your mic
4 isn't on.
5 COMMISSIONER FREIDIN: Then turn it on.
6 (Laughter.)
7 COMMISSIONER FREIDIN: Thank you, Madam Secretary.
8 Actually this is Commissioner Zack's motion to reconsider,
9 but I guess, Commissioner Zack, you want me to talk for
10 it, talk to it.
11 The reason that I believe that Commissioner Zack
12 moved to reconsider, which would be my thinking as well,
13 was this was -- this matter came before you on the report
14 of the Select Committee on Initiatives. And we suggested,
15 you will recall, a program that was perhaps overly
16 ambitious. And the idea behind the motion to reconsider
17 is to discuss with you and to hope that perhaps you would
18 vote to reconsider this matter so that it could be amended
19 and make the program a little bit less ambitious.
20 Let me be a little more specific. The proposal that
21 came from the special or the Select Committee on
22 Initiatives was, really had two aspects to it. One was to
23 increase the number of congressional districts to all,
24 where you had to collect signatures. And the second part
25 of it was the idea of having public hearings and a
46
1 timetable that would slow down the initiative or the
2 process to get on the ballot a little bit. So there were
3 really two discrete aspects.
4 The debate seemed to center, at least in my
5 recollection, the debate seemed to center more on the
6 concern about increasing the requirements that signatures
7 be gathered from all congressional districts than on the
8 question of the public hearings.
9 And the purpose of the motion to reconsider is simply
10 to bring this back up so that we could amend the proposal
11 in order to take out the congressional districts and leave
12 that as it is, and simply add in the public hearings and
13 the timetable that would go with the public hearings.
14 CHAIRMAN DOUGLASS: All right. We're on the motion
15 to reconsider. We read this; didn't we? Okay. Any
16 further discussion on the motion to reconsider?
17 Commissioner Henderson.
18 COMMISSIONER HENDERSON: Mr. Chairman, in opposition
19 to the motion to reconsider. The whole amendment went
20 through all those issues regarding the initiative process.
21 And I guess as Ms. Freidin, Commissioner Freidin was
22 on behalf of Commissioner Zack, I'll be on behalf of
23 Commissioner Anthony, who we all know is on his honeymoon
24 this week, I presume he is on his honeymoon this week. We
25 presume that, we don't know. You know, every way you try
47
1 to tinker with the initiative process caused some kind of
2 unintended consequences, which is why I think so many of
3 us felt that we didn't need to tinker with it at all.
4 So I guess we can spend a lot of time continuing to
5 rehash this issue, but I really don't think we're going to
6 get anywhere with it.
7 CHAIRMAN DOUGLASS: Commissioner Zack, in whose name
8 Commissioner Freidin spoke and in whose name Commissioner
9 Henderson asked the question, you're recognized.
10 COMMISSIONER ZACK: Speaking on behalf of
11 Ms. Freidin, who I moved to reconsider because she
12 couldn't, that was the whole basis for the motion to
13 reconsider. I was opposed to it before, I plan to vote
14 against it again. The fact of the matter is that it is
15 time that this matter be put to bed and we get on to some
16 important matters that we do have before us.
17 CHAIRMAN DOUGLASS: All right. Commissioner Rundle.
18 COMMISSIONER RUNDLE: Question for Commissioner
19 Freidin. Does this include each, a percent of each of the
20 congressional districts or is it the remaining language of
21 half?
22 COMMISSIONER FREIDIN: The proposal that we are
23 seeking to have reconsidered deals with the congressional
24 districts. The purpose of the motion to reconsider is to
25 take that completely out of the mix, put back into the
48
1 proposal, make an amendment to put back into the proposal
2 the issue of the public hearings, but leave the
3 congressional districts exactly as it is.
4 COMMISSIONER RUNDLE: So --
5 COMMISSIONER FREIDIN: I'm sorry.
6 COMMISSIONER RUNDLE: -- you remain with the
7 8 percent in one-half of all the congressional districts.
8 And really all you're adding are the public hearings.
9 COMMISSIONER FREIDIN: And the schedule that goes
10 along with the public hearings.
11 COMMISSIONER RUNDLE: And the schedule.
12 COMMISSIONER FREIDIN: Now, I would have to say that
13 I very carefully followed the rules and didn't debate the
14 merits, tried not to debate the merits of this proposal
15 and I was really only talking to you about why we ought to
16 reconsider.
17 But since there have been some issues with regard to
18 the merits of the proposal that have been raised about
19 tinkering and unintended consequences and that sort of
20 thing, as long as I have the floor, Mr. Chairman, I would
21 like to respond at least, if this is an appropriate time,
22 to that.
23 CHAIRMAN DOUGLASS: We're on reconsideration so the
24 only thing that's really here is whether or not we should
25 reconsider the vote.
49
1 COMMISSIONER FREIDIN: It seems to me that it is
2 germane to the question of whether to reconsider because
3 we -- the issue really is, is this something that we want
4 to do because we won't reconsider it if it's not something
5 we want to do.
6 The real issue here is informing the public and
7 trying to find ways that the public can be more informed.
8 You know, when we started this process and we started
9 going through public hearings in North Florida, and I'm
10 not going to mention any names, but there are actually
11 people who I remember walking to lunch with at one of
12 those first public hearings who said to me, Was this net
13 ban thing on the amendment?
14 Now these are people who are Constitution Revision
15 Commissioners, who are presumably well-informed citizens
16 who take a lot of time and trouble and they didn't
17 remember ever having voted on it. And that's the point of
18 all this. The point of all this is this is our
19 Constitution, this is something that shouldn't be amended
20 without people really understanding what they are doing.
21 And the whole idea behind the public hearing process and
22 slowing down the process just a little is to give the
23 public the opportunity or a greater opportunity to become
24 well-informed and to learn about the issues that they are
25 being asked to vote on to change the organic law of our
50
1 state.
2 CHAIRMAN DOUGLASS: All right. On the motion to
3 reconsider, Commissioner Riley.
4 COMMISSIONER RILEY: I have a question for
5 Commissioner Freidin. Commissioner Freidin, if it is
6 reconsidered, as I understand what you want to do, to
7 change back to the way it is, the district, the number of
8 districts, then the only substantive change in it at that
9 point would be the public hearings.
10 COMMISSIONER FREIDIN: Well it would be to provide
11 for public hearings. And what goes along with the public
12 hearings by virtue of necessity would be a timetable that
13 would require that certain things be done. And it would
14 end up requiring that all petitions be filed in order to
15 qualify for the ballot six months in advance of the
16 election rather than three months in advance. I don't
17 want to mislead you, but that's the effect of it.
18 COMMISSIONER RILEY: And because of that change then
19 it can't be done by the Legislature but it must be done by
20 the Constitution? I mean, can the public hearings, which
21 I think is a very important part, be done by legislative
22 decision?
23 COMMISSIONER FREIDIN: I don't know if it could be
24 done by the Legislature because this is something that is
25 a requirement, a prerequisite to getting on the ballot. I
51
1 don't know that that actually could be done by the
2 Legislature.
3 CHAIRMAN DOUGLASS: On the commission -- on the
4 motion to reconsider Proposal No. 130, any further
5 discussion? If not, all those in favor of
6 reconsideration, say aye. Opposed.
7 (Verbal vote taken.)
8 CHAIRMAN DOUGLASS: It fails. No reconsideration
9 will be held. We now go to Committee Substitute for
10 Proposals 138 and 89 by the Committee on Education and
11 Commissioners Nabors and Riley. Would you read it,
12 please?
13 READING CLERK: Committee Substitute for Proposal
14 Nos. 138 and 89, a proposal to revise Article X, Section
15 15, of the Florida Constitution; limiting the use of state
16 lottery net proceeds to financing certain educational
17 facilities or funding early childhood care and education
18 programs.
19 CHAIRMAN DOUGLASS: There is an amendment on the
20 desk.
21 (Off-the-record comment.)
22 CHAIRMAN DOUGLASS: All right. This is on the motion
23 to reconsider the Lottery proposal which passed on
24 February 9th and it was deferred until today. So we're
25 now on a motion to reconsider.
52
1 (Off-the-record comment by Commissioner Crenshaw.)
2 CHAIRMAN DOUGLASS: Excuse me, it was killed. It was
3 killed by a vote of 15 to 17. You're right, Commissioner
4 Crenshaw. And we're now on a motion to reconsider the
5 vote by which this proposal failed. And, Commissioner
6 Nabors, you're recognized.
7 COMMISSIONER NABORS: Members of the Commission, let
8 me -- this proposal, the original proposal that failed
9 passed once, failed once. And one of the -- and in our
10 view, those of you that worked on this, feel this is a
11 very important and popular concept.
12 The difficulty was, is in both the passage and the
13 failure, those of us who believe in this were trying to be
14 very severe in terms of the dedication of money. And we
15 had great debate about creating a hole in the budget,
16 potentially of 500 -- $450 million and how to phase that
17 over four years. We listened to the commission and we
18 realized that for that severe a position, you're not going
19 to have a majority vote. But it still doesn't obviate the
20 wisdom of having some instructions by the people to future
21 legislators on the use of Lottery money.
22 So what we hope to do if we can reconsider is to come
23 back with a proposal that's a short proposal, which
24 enumerates an enhancement in educational ideas. It
25 doesn't bind the Legislature, it allows legislative debate
53
1 to occur, does not create any hole in the budget, but we
2 think it would be a popular meeting of the citizens, and
3 would give some instructions from the citizens to the
4 Legislature as to how to use the Lottery money.
5 So I would urge you to let us reconsider so we can
6 look at the language that we want to place before you.
7 CHAIRMAN DOUGLASS: Commissioner Riley.
8 COMMISSIONER RILEY: Commissioners, I would ask that
9 we do reconsider this issue. I think we have heard from
10 the public and we heard what they said. They said the
11 Lottery fund was a very important, very specifically
12 important issue.
13 I think we tried to make it right. And obviously we
14 didn't get it quite right. Commissioner Nabors and I have
15 two different suggestions that if we get the opportunity
16 we can present to you today that get it just about as
17 simple as you can get. But if you read the Constitution
18 as it is right now, there is no, no guarantee, no
19 requirement in the Constitution that these funds be used
20 for education, much less enhancement.
21 I would ask that we vote to reconsider this and let's
22 do get it right. The public knows that this is important.
23 And if you're not sure, look at the newspaper articles
24 because when we left here, every time we brought this up,
25 that was the first thing that people wrote about. I would
54
1 ask that we do reconsider it, let's get it right, let's
2 put it before the public and go from there.
3 CHAIRMAN DOUGLASS: All right. Commissioner
4 Sundberg. Commissioner Rundle, you're next; Commissioner
5 Smith, you're next.
6 COMMISSIONER SUNDBERG: I urge you to vote in favor
7 of reconsidering this issue. As Commissioner Riley said,
8 there may be some disagreement over the precise way in
9 which we address it, but I suggest to you that the people
10 of the state of Florida will think it passing odd if we do
11 not do something about the Lottery.
12 There has been -- any issue has, I don't think, had
13 any more ground swell of public concern than the issue of
14 the use of Lottery funds. So I suggest to you we need to
15 keep this alive so we can get it right. And I also
16 suggest to you that I think it will be a very positive
17 issue on the ballot. I think it will attract voters to
18 favorably consider all of the propositions that we put
19 before them.
20 So I urge you to vote in favor of reconsideration.
21 CHAIRMAN DOUGLASS: Commissioner Rundle.
22 COMMISSIONER RUNDLE: Commissioner Riley, am I to
23 understand that if we vote in favor of reconsideration,
24 which I'm leaning towards, because I think a lot of this
25 is very good, that you might be changing the language
55
1 to -- more simply to say that these Lottery monies should
2 be used only for enhancement, educational enhancement
3 programs? Are you going in that direction?
4 COMMISSIONER RILEY: Without arguing the merits of
5 the proposal itself, I will tell you that Commissioner
6 Nabors has one that lists very succinctly about four
7 different areas, not deciding any -- no limitations and
8 starts out with the dollars must be used to enhance
9 education, and then lists a few options, not requirements.
10 The one that I have, if that doesn't meet the
11 approval of the group, is basically that the dollars would
12 be used for the enhancement of education, not deciding at
13 all what that is. And the second part of that
14 specifically says the bonding part because by law they
15 have already done that. So that would need --
16 COMMISSIONER RUNDLE: Then I would support your
17 motion. I think we should keep this alive and see if we
18 can't work it to a position where the voters will want it
19 and will approve it.
20 CHAIRMAN DOUGLASS: Commissioner Smith.
21 COMMISSIONER SMITH: Mr. Chairman, I rise for a
22 question. And I'm not trying to muddy the waters. I'm
23 not sure whether or not the question I'm asking now was
24 the question that you said that you will take later. But
25 let me ask it, and if that's the question you are going to
56
1 take later, just advise me because I'm a little unclear.
2 Three things can happen right now that I see: One,
3 we can vote not to reconsider and as Commissioner Thompson
4 said, it is dead, dead, dead. Secondly, we can vote to
5 reconsider it, vote favorably by a simple majority, not
6 22, or we can vote unfavorably, or we can vote and it
7 could come out with 22. I want to know what would be the
8 difference, if any, if it's reconsidered and it's a
9 majority voting in favor of it as opposed to 22 or if
10 there is no difference at this point.
11 CHAIRMAN DOUGLASS: My understanding is there really
12 is no difference. It would go forward for consideration,
13 the public hearing, and we would come back and vote on it.
14 Am I right on that, Commissioner Barkdull? I am right.
15 All right. You rise on the motion to reconsider.
16 Somebody else -- Commissioner Morsani, you're on the
17 motion to reconsider? You have the floor.
18 COMMISSIONER MORSANI: Thank you. I recommend that
19 we do not reconsider this motion. I think that we've been
20 around this enough times. I don't think it's -- first of
21 all, as you all know, the legislative body never said it
22 was going for education. The media and the teachers union
23 of this state told the people and the media picked up on
24 it and they told them and they never have retracted and
25 said, No, we told you it's going for education, but nobody
57
1 ever told us that.
2 So I don't think that this body in these chambers has
3 the responsibility. I think that we -- there is not any
4 way we're going to go in these areas that are delineated.
5 I strongly think that we should defeat it, let's go on,
6 let's quit hashing these things. This is the third or
7 fourth time now this has come up. It's been defeated
8 every time. Let's put this thing to bed once and for all.
9 CHAIRMAN DOUGLASS: All right. On the motion to
10 reconsider, any further discussion on the motion to
11 reconsider? All those in favor of the motion say aye.
12 Opposed.
13 (Verbal vote taken.)
14 CHAIRMAN DOUGLASS: Well, we're going to have to
15 vote. Open the machine.
16 (Vote taken and recorded electronically.)
17 CHAIRMAN DOUGLASS: Has everybody voted? Except the
18 Chairman. Well that solved that. It wouldn't matter
19 whether I voted or not, would it? Lock the machine and
20 announce the vote.
21 READING CLERK: Thirteen yeas, 15 nays, Mr. Chairman.
22 CHAIRMAN DOUGLASS: All right. By your motion, you
23 fail to reconsider Proposals 138 and 89.
24 We now move to Proposal No. 144 by Commissioner
25 Barnett who is not here. She asked that this be deferred
58
1 until at least 4:00. She won't be here until then. She
2 had to take her son to Shands, I think was the message I
3 got. She asked to be excused until 4:00. Without
4 objection, we'll pass that until later, indefinitely at
5 least until later this afternoon or tomorrow.
6 The next proposal is No. 168 by Commissioner Corr.
7 Would you read it, please?
8 READING CLERK: Proposal 168, a proposal to revise
9 Article IV, Section 6 of the Florida Constitution;
10 providing that an entity purportedly within an executive
11 department which is not subject to the direct supervision
12 of the agency head is a department; providing that the
13 amendment does not affect the status of such entities to
14 issue revenue bonds before a specified date; creating
15 Article IV, Section 14, Florida Constitution; creating a
16 State Board of Agriculture; providing for the board to
17 appoint the Commissioner of Agriculture; creating Article
18 XII, Section 23 of the Florida Constitution; providing
19 that the amendment does not affect the status of such
20 entities in existence on the effective date of the
21 adoption of the amendment.
22 CHAIRMAN DOUGLASS: All right. This was adopted as
23 amended by 18 to 5 vote on February 10th with a pending
24 motion to reconsider by Commissioner Barkdull and deferred
25 until today. Commissioner Barkdull, you have the floor on
59
1 the motion to reconsider.
2 COMMISSIONER BARKDULL: Yes, sir, Mr. Chairman.
3 There's an amendment that's offered. The amendment is in
4 your pink packet and is also being passed out.
5 CHAIRMAN DOUGLASS: Beg your pardon? Just a minute,
6 we'd like to get a little order. We're on a motion to
7 reconsider. No amendments at this point.
8 COMMISSIONER BARKDULL: Well, I wanted to state the
9 purpose of the reconsideration.
10 CHAIRMAN DOUGLASS: All right, sir, you have the
11 floor.
12 COMMISSIONER BARKDULL: This motion to reconsider was
13 with the concurrence of Commissioner Corr and also with
14 the concurrence of the chairman of the Executive
15 Committee, Commissioner Alfonso. The purpose of it is to
16 cure a glitch in the original proposal. So I urge a
17 motion to reconsider.
18 CHAIRMAN DOUGLASS: All right. All those ready to
19 vote on the motion to reconsider. All those in favor of
20 the motion to reconsider say aye. Opposed.
21 (Verbal vote taken.)
22 CHAIRMAN DOUGLASS: Motion carries. Now it's moved
23 to reconsider and there's an amendment on the table.
24 READING CLERK: On the desk, Mr. Chairman.
25 CHAIRMAN DOUGLASS: All right. Would you read the
60
1 amendment, please? Is this just one amendment?
2 COMMISSIONER BARKDULL: I have one amendment. I
3 understand there is a second amendment.
4 CHAIRMAN DOUGLASS: All right. Read Amendment No. 1
5 by Commissioner Barkdull that's moved. Read it, please.
6 COMMISSIONER BARKDULL: It's in the pink packet.
7 READING CLERK: By Commissioner Barkdull, on Page 2,
8 between Lines 29 and 30, insert Section 3, Section 15 of
9 Article IV, the Florida Constitution is created to read,
10 Custodian of state records and office of custodian of
11 state records and the duties of that office shall be
12 established by law.
13 CHAIRMAN DOUGLASS: All right. Now, I'm going to ask
14 again if everybody could please keep order. And if
15 everybody could stay in their seats for a little while, I
16 think it would speed up our program a little bit and quit
17 going around talking to everybody and we'll try to get
18 this over today. Now, Commissioner Barkdull, your
19 amendment.
20 COMMISSIONER BARKDULL: Yes, sir, Mr. Chairman and
21 members of the commission. In the proposal that has been
22 adopted, we reduced the cabinet from its present
23 components to two. One of those positions that was
24 eliminated was secretary of state.
25 In the proposal that was adopted there is a reference
61
1 to custodian of the public records and there is no
2 provision in the Constitution that creates such an office.
3 What this amendment does is to create that office. It
4 would be a statutory office with statutory terms as far as
5 election selection and what the duties are.
6 What it primarily involves is who is going to be the
7 keeper of the seal and the state records and where
8 something would be filed in the event of the infirmative
9 of the chief executive. Because that's referenced --
10 we've already referenced in the proposal that we passed
11 this custodian and all this does is create the position.
12 And I move the adoption of the amendment.
13 CHAIRMAN DOUGLASS: All right. Does everybody
14 understand the amendment? Any debate on the amendment?
15 All in favor of the amendment say aye. Opposed.
16 (Verbal vote taken.)
17 CHAIRMAN DOUGLASS: Amendment carries. All right.
18 Is there another amendment on the table? Read the
19 amendment. Who is it by?
20 READING CLERK: By Commissioner Zack on Page 2, Lines
21 19-22, strike all of said lines and insert: Section 2,
22 Section 12, Article IV, the Florida Constitution, as
23 amended in Section XIV, of said article is created to
24 read: Department of Elder Affairs. The Legislature may
25 create a Department of Elder Affairs and prescribe its
62
1 duties. The provisions governing the administration of
2 the department must comply with Section 6 of Article IV of
3 the State Constitution.
4 CHAIRMAN DOUGLASS: All right. Commissioner Zack?
5 COMMISSIONER ZACK: Again, this just allows the
6 Legislature to do it if it chooses to do it in its wisdom.
7 And based on the aging of our society and the demographics
8 of Florida, we felt it was very important to allow the
9 Legislature to form this department if in their wisdom
10 they think it's appropriate.
11 CHAIRMAN DOUGLASS: All right. Any discussion on the
12 amendment? All in favor of the amendment say aye.
13 Opposed.
14 (Verbal vote taken.)
15 CHAIRMAN DOUGLASS: Amendment carries. We're now on
16 the proposal as amended which we previously passed. The
17 two amendments have now been passed and we're on
18 consideration for voting again on reconsideration. Does
19 anybody want to debate this again? I think we had a full
20 debate on it before. Commissioner Butterworth?
21 COMMISSIONER BUTTERWORTH: I just have a question.
22 Don't we already have a Department of Elder Affairs? Or
23 Elder to Elderly, is that the difference?
24 CHAIRMAN DOUGLASS: The change is to change it from
25 Elderly to Elder. This should really be a glitch.
63
1 COMMISSIONER BUTTERWORTH: This is really a very
2 important amendment.
3 CHAIRMAN DOUGLASS: That's correct. I have been, I
4 don't know about Commissioner Zack, but the people that
5 run Elderly Affairs, it was transcribed wrong when it was
6 adopted and put in the Constitution. It should have been
7 Elder Affairs and there are a lot of people that want it
8 changed to be just Elder Affairs.
9 Now the only two that are in here at the moment that
10 might qualify in this regard are Commissioner Barkdull
11 and -- I don't qualify, I'm too young, but Commissioner
12 Marshall isn't here. So this is not one that creates a
13 great deal of concern. Are you ready to vote on the
14 proposal? Open the machine. Everybody voted? Lock the
15 machine.
16 (Vote taken and recorded electronically.)
17 READING CLERK: Twenty-eight yeas, zero nays,
18 Mr. Chairman.
19 CHAIRMAN DOUGLASS: All right. We move on to
20 committee substitute for Proposals 172 and 162 by the
21 Committee on Legislative and Commissioners Thompson and
22 Evans-Jones. It's on a motion to reconsider by
23 Commissioner Evans-Jones. You have the floor.
24 COMMISSIONER EVANS-JONES: Thank you, Mr. Chairman.
25 CHAIRMAN DOUGLASS: Oh, wait a minute. I guess I
64
1 better have it read, hadn't I.
2 READING CLERK: Committee substitute for Proposals
3 Nos. 172 and 162, a proposal to repeal Article III,
4 Section 16, Florida Constitution; relating to legislative
5 apportionment and create Article 2, Section X of the
6 Florida Constitution; providing for a commission to
7 establish legislative and congressional districts;
8 providing for the appointment of members to the
9 commission; requiring that the Chief Justice of the
10 Supreme Court fill certain vacancies on the commission;
11 requiring meetings and records of the commission to be
12 open to the public; providing certain exceptions;
13 requiring that the commission file its final report with
14 the Secretary of State within a specified period;
15 requiring that the Supreme Court determine the validity of
16 the plans; providing for the Supreme Court to establish
17 the districts under specified circumstances; providing for
18 the assignment of senatorial terms that are shortened as a
19 result of apportionment; deleting requirements that the
20 Legislature apportion the state into legislative
21 districts.
22 CHAIRMAN DOUGLASS: Commissioner Evans-Jones?
23 COMMISSIONER EVANS-JONES: Thank you. You-all voted
24 favorably for this before and we wanted to move to
25 reconsider it because some of you were concerned that the
65
1 size of the reapportionment commission was not large
2 enough and some of you felt that with the larger
3 commission it would be more diverse and, therefore, more
4 to your liking. I think it was Commissioner Alfonso who
5 suggested that we enlarge it. And I certainly have no
6 objections.
7 So what we're doing here, if we move to reconsider,
8 would be taking that amendment to enlarge it,
9 Mr. Chairman. So I urge you to vote for reconsideration.
10 CHAIRMAN DOUGLASS: Any discussion on the amendment?
11 (Off-the-record comment.)
12 CHAIRMAN DOUGLASS: Beg your pardon? Oh, excuse me.
13 I got ahead of you, Commissioner Evans-Jones. All in
14 favor of reconsideration, if there is no further
15 discussion, say aye. Opposed.
16 (Verbal vote taken.)
17 CHAIRMAN DOUGLASS: It carries. Now you may offer
18 your amendment.
19 COMMISSIONER EVANS-JONES: Thank you, Mr. Chairman.
20 CHAIRMAN DOUGLASS: I'll have her read it. It's on
21 the table?
22 COMMISSIONER EVANS-JONES: Yes.
23 CHAIRMAN DOUGLASS: Read the amendment, please.
24 READING CLERK: By Commissioner Evans-Jones, on Page
25 2, Line 10 through Page 3, Line 12, delete those lines and
66
1 insert lengthy amendment.
2 CHAIRMAN DOUGLASS: Commissioner Evans-Jones?
3 COMMISSIONER EVANS-JONES: Thank you, Mr. Chairman.
4 What we're doing, as I indicated a few minutes before, we
5 had previously had the Speaker of the House and the
6 minority leader to appoint two members and the President
7 of the Senate and the minority leader of the Senate to do
8 the same thing. In this amendment we're increasing the
9 number that they may appoint to four. So we're increasing
10 the size from 9 to 17 and that is the major part of this
11 amendment.
12 We also have said in here that, if you'll look at
13 your amendment here, this was passed. Each says, Each
14 district shall be composed of contiguous territory and may
15 not include territory of any other district of the same
16 house. Districts shall be established in accordance with
17 the Constitution of the state and of the United States,
18 shall be as nearly equal in population as practical and
19 may not be drawn in a matter that dilutes that voting
20 strength of any racial or language minority group.
21 And then we have said here, Except to meet the
22 foregoing requirements, the commission shall consider
23 creating districts that consist of compact territory and
24 division of county shall be avoided whenever possible.
25 That part of the amendment was adopted before. But we
67
1 moved the compact down because there was some concern that
2 it dilutes the minority voting strength, Mr. Chairman.
3 CHAIRMAN DOUGLASS: All right. Any discussion on the
4 amendment? Commissioner Scott?
5 COMMISSIONER SCOTT: Mr. Chairman, Commissioners, and
6 Commissioner Evans-Jones, I just want to make a point on
7 this amendment. This amendment does not in any way cure
8 the basic objections that have been raised and that
9 continue to be raised by a lot of people in this state,
10 minorities and otherwise. So I just want to make the
11 point. The amendment, if that's what the proponent wants,
12 but it doesn't really address them. I request to be heard
13 if this is adopted when it comes back for a final vote.
14 CHAIRMAN DOUGLASS: Well, we're on the amendment at
15 the moment. And you don't oppose the amendment; is that
16 what I understood you to say? You just want to reserve
17 the right to oppose it later?
18 COMMISSIONER SCOTT: This doesn't fix the basic
19 objection, so just by adding, you know, doubling the
20 number to 16 -- I just want to make that point so that
21 people don't really think they are voting that this cures
22 all ills.
23 CHAIRMAN DOUGLASS: Commissioner Zack, you had your
24 hand up or microphone up, do you want to be recognized on
25 the amendment?
68
1 COMMISSIONER ZACK: Yes, I would. Would you yield to
2 a question, Commissioner? As I understand, there's two
3 parts of the amendment. Part I is increasing the size so
4 you get more diversity and you get more input from more
5 people.
6 Part II is so that there is no question that minority
7 districts are drawn first and that compactness is not
8 considered in drawing the minority districts. And then
9 after those districts are drawn, then compactness is
10 considered in drawing the remaining districts; is that
11 what it's intended to do? Is that what it does?
12 COMMISSIONER FORD-COATES: That's what it does,
13 Commissioner Zack, and that's what it's intended to do to
14 solve anybody's problem there.
15 COMMISSIONER ZACK: And the belief was that
16 compactness was always to be subservient in creation of
17 minority districts. However, the intent of the amendment
18 was to move that language after the creation of the
19 minority districts so it's clear that minority districts
20 will be drawn before other districts and compactness will
21 not affect the number of minority districts or the shape
22 of minority districts.
23 COMMISSIONER EVANS-JONES: That's exactly true,
24 Commissioner Zack, thank you.
25 CHAIRMAN DOUGLASS: All right. Any further
69
1 discussion on the amendment? All right. All in favor of
2 the amendment say aye. Opposed.
3 (Verbal vote taken.)
4 CHAIRMAN DOUGLASS: The amendment carries. Now we're
5 on the proposal as amended. Commissioner Evans-Jones, is
6 there another amendment?
7 COMMISSIONER EVANS-JONES: Mr. Chairman, I had
8 substituted that amendment that I've been telling you-all
9 about but apparently it did not make it. They're using
10 the amendment. They read the amendment that was in the
11 pink book.
12 CHAIRMAN DOUGLASS: All right. So what we have acted
13 on is the substitute amendment that you offered; is that
14 correct?
15 COMMISSIONER EVANS-JONES: Yes. Actually the other
16 amendment had not even been offered so we had put that --
17 CHAIRMAN DOUGLASS: And what it was is the amendment
18 as it now stands that we passed includes the two items.
19 One is it expanded the commission as you explained. And,
20 two, it changed the compact provision as explained by
21 Commissioner Zack. Is that what we just passed?
22 COMMISSIONER EVANS-JONES: That's right,
23 Mr. Chairman.
24 CHAIRMAN DOUGLASS: So now we have the proposal as
25 amended which creates the commission, as you described,
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1 with the provisions which now read differently than the
2 original proposal; is that right?
3 COMMISSIONER FORD-COATES: Yes, Commissioner.
4 CHAIRMAN DOUGLASS: Now you're recognized to discuss
5 the proposal at this time as amended.
6 COMMISSIONER FORD-COATES: Thank you.
7 Commissioners --
8 CHAIRMAN DOUGLASS: Just a minute. They are doing
9 to -- just offer the -- what happened here is we discussed
10 two amendments that they had on the table that you had
11 combined into one which they didn't have; is that right?
12 COMMISSIONER EVANS-JONES: Actually, we were trying
13 to withdraw the two that were in the book. Neither one of
14 those in the book are what we wanted.
15 CHAIRMAN DOUGLASS: All right. Withdraw the two
16 amendments that were on the table and place on the table
17 the substitute amendment.
18 (Off-the-record comment.)
19 CHAIRMAN DOUGLASS: All right. Let's do this. The
20 first amendment was described by you which increases the
21 size of the commission. All in favor of that as an
22 amendment say aye. All opposed, no.
23 (Verbal vote taken.)
24 CHAIRMAN DOUGLASS: It passes. The next amendment
25 was Commissioner Zack's amendment, was it not?
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1 COMMISSIONER EVANS-JONES: It really was not -- it
2 was not in there but it's really one amendment which has
3 both of those issues in it.
4 CHAIRMAN DOUGLASS: We'll take a three-minute recess
5 until we get the right amendment.
6 (Brief recess.)
7 CHAIRMAN DOUGLASS: Come to order. The first two
8 amendments that were on the table have been withdrawn and
9 the present amendment has been explained but we will
10 explain it again. Please take your seat. We'll come to
11 order.
12 All right. Read the present amendment. I think
13 we've had it explained, but we'll read it again.
14 READING CLERK: By Commissioners Barton and
15 Evans-Jones.
16 CHAIRMAN DOUGLASS: All right. Pay attention,
17 please.
18 READING CLERK: By Commissioners Barton and
19 Evans-Jones. On Page 2, Line 10 through Page 3, Line 17,
20 delete those lines and insert lengthy amendment.
21 CHAIRMAN DOUGLASS: All right. Commissioner Zack or
22 Evans-Jones, you want to re-explain this? Commissioner
23 Zack, I don't think -- it would just take a minute. We've
24 already explained it but you may want to explain it again
25 so we'll be sure we know what we're voting on, the
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1 amendment only.
2 COMMISSIONER ZACK: Commissioner Evans-Jones is not
3 here.
4 CHAIRMAN DOUGLASS: She stepped out for a moment.
5 COMMISSIONER ZACK: As I understand it, there are two
6 parts to the amendment. The first was to deal with the
7 number of people on the commission which was expressed by
8 a number of commissioners during the debate as being too
9 small a body and, therefore, it was increased to allow
10 more people to participate in the process and in that
11 commission.
12 The second issue that was raised was whether or not
13 the compactness requirement could be used to lessen the
14 number of minority seats that were drawn. As a result of
15 that, the minority districts were drawn first under the
16 new provision and then the language that you see, which
17 has been dropped from before the creation of the minority
18 districts regarding compactness, comes afterwards and
19 compactness would then not be a criteria when it came to
20 drawing minority districts.
21 MR. CHAIRMAN: All right. Everybody understand --
22 COMMISSIONER ZACK: Is that correct?
23 CHAIRMAN DOUGLASS: Commissioner Evans-Jones?
24 COMMISSIONER EVANS-JONES: Yes, that's correct.
25 CHAIRMAN DOUGLASS: Does everybody understand the
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1 amendment? All right. Ready to vote on the amendment?
2 All right. Commissioner Henderson?
3 COMMISSIONER HENDERSON: Mr. Chairman, Commissioner
4 Morsani and I are here and we don't understand it and we
5 just had this language handed to us. I am confused and I
6 want to get it right.
7 COMMISSIONER EVANS-JONES: All right. Maybe I can
8 explain it further. Commissioner, what we have done is we
9 have increased the size of the commission to 17, you
10 understand that? All right. And we were -- there had
11 been concern expressed that we needed to put compactness
12 in the next paragraph which says, Except -- have you got
13 that in front of you?
14 On Line 26, and it says there, Except to meet the
15 foregoing requirements, the commission shall consider
16 creating districts that consist of compact territory and
17 division of counties should be avoided whenever possible.
18 Before we had said they should consider the compactness,
19 it was up right behind the voting strength of a racial or
20 language minority group and it said then it should
21 consider that and we felt this would not dilute that.
22 COMMISSIONER HENDERSON: Let me ask you this.
23 COMMISSIONER EVANS-JONES: All right.
24 COMMISSIONER HENDERSON: Does this language, in
25 effect, constitutionalize, to use the Barnett verb that
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1 we've been using here, does it constitutionalize the
2 current kind of districts that we have now for these long
3 skinny minority districts that obviously, that I wouldn't
4 think would be compact.
5 COMMISSIONER EVANS-JONES: Well, that's true but they
6 have to consider the voting strength of the racial or
7 minority group. And that may create a long group. If
8 they can do it otherwise, we prefer the compactness, but
9 that may not be able to be done.
10 COMMISSIONER HENDERSON: Okay. What does the term
11 "dilutes the voting strength of any racial or language
12 minority group" mean? Is that in context of their
13 percentage of the population or their current percentage
14 in the Legislature?
15 COMMISSIONER EVANS-JONES: I'm not sure we took
16 that -- do you know, Commissioner Zack, where we took that
17 language from?
18 COMMISSIONER ZACK: The language dilutes the voting
19 strength of any racial or language minority group.
20 COMMISSIONER HENDERSON: Does that refer to a
21 mathematical number of the population at large or does
22 that refer to a percentage that's currently sitting in the
23 Legislature?
24 COMMISSIONER ZACK: That's a terminology that comes
25 from the Voting Rights Act itself and that you cannot draw
75
1 districts that dilute minority voting strength. In other
2 words, you can't do what's called cracking or packing
3 where you would take a minority district and divide it in
4 half and put it in two majority districts or pack too many
5 minorities into one district. That's a technical term of
6 lawsuits that are filed are called vote dilution lawsuits.
7 COMMISSIONER EVANS-JONES: That was in it originally
8 too. We have not changed that at all, Commissioner
9 Henderson.
10 CHAIRMAN DOUGLASS: Does everybody understand the
11 amendment? Commissioner Planas, we're on the amendment.
12 Commissioner Planas?
13 COMMISSIONER PLANAS: On Page 2, Line 17, failure to
14 achieve such diversity shall not be grounds for
15 challenging the authority of the commission.
16 COMMISSIONER EVANS-JONES: Yes. That was in there
17 before and it's still in there.
18 COMMISSIONER PLANAS: How will you interpret that?
19 COMMISSIONER EVANS-JONES: Commissioner Zack?
20 COMMISSIONER ZACK: That relates to the composition
21 of the committees themselves, not to the creation of the
22 maps. The districts can always be challenged in any vote
23 dilution case. I also would point out that if you pass
24 this, these are the kind of issues that will be discussed
25 during our public hearing. And if, in fact, additional
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1 amendments need to be made regarding any concerns of the
2 minorities, those can be made at that time as well. But
3 as it stands here, the reason for the amendments was to
4 make sure that there would be no vote dilution in any of
5 these cases resulting from a compactness argument. That
6 is not to say that people can come into the state, or any
7 people in the district can challenge these districts at
8 any time for all kinds of reasons. And they have done it
9 continually, as the Senate and the House is aware of.
10 And in all likelihood, that is with us in our
11 political landscape. But what it says is this commission
12 itself will create those minority districts. And, again,
13 you have what is called Shaw and Miller (phonetic)
14 considerations which is, you know, 14th Amendment
15 considerations and violating the 14th Amendment, all of
16 which are part of the deliberations that this commission
17 will take part in.
18 COMMISSIONER PLANAS: Now another question. In here
19 it does not guarantee at all that members could be picked
20 up from one certain area of the state, correct?
21 COMMISSIONER EVANS-JONES: Correct.
22 CHAIRMAN DOUGLASS: Commissioner Barkdull?
23 COMMISSIONER BARKDULL: Will Commissioner Zack take
24 the floor, please, for a question? Commissioner Zack? In
25 response to a question you gave Commissioner Planas about
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1 the failure to achieve such diversity shall not be grounds
2 for challenging the authority of the commission. It's my
3 understanding that you gave him a response that that would
4 be to the districts that were created or recommended by
5 the commission.
6 It occurs to me from the reading of this, is that you
7 cannot challenge the makeup of the commission because of
8 the lack of ethnic, racial, or gender diversity.
9 COMMISSIONER HENDERSON: That's what I said. I'm
10 sorry, I misunderstood you, but --
11 COMMISSIONER ZACK: I may have not said it clearly
12 enough, but that's what I said. It only applies to the
13 commission itself, not to the districts that they draw.
14 CHAIRMAN DOUGLASS: All right. On the amendment,
15 Commissioner Hawkes.
16 COMMISSIONER HAWKES: Question.
17 CHAIRMAN DOUGLASS: Who to?
18 COMMISSIONER HAWKES: Well, either Commissioner
19 Evans-Jones or Commissioner Zack, whoever can better
20 answer it. I was wondering, the language in the amendment
21 is members of the House who are not members of the same
22 party or members of the Senate who are not members of the
23 same party. And I was wondering last year, for instance
24 in the House, three members the Democratic party were
25 removed from the Democratic party by a vote of other
78
1 members of the Democratic party. I think they have since
2 allowed them back in.
3 And also currently, I believe, some members of the
4 House are considering forming either their own faction of
5 a party or their own separate party. And I was wondering,
6 what happens if Florida, in its growth toward more
7 political diversity in parties, decides that, in fact, two
8 parties doesn't represent the people of this state, wonder
9 if we go to three parties or four parties or wonder if a
10 group of members just get together for reapportionment
11 purposes and form a separate party. Could, in fact, they
12 pick out the four members then to be represented on a
13 reapportionment committee?
14 COMMISSIONER EVANS-JONES: Commissioner Hawkes,
15 that's not the way that I understand it. The purpose was
16 that the president of the Senate would get to select four
17 members and then if you had like an independent candidate,
18 they would have to join with the other minority groups and
19 they would also get to pick four, but that would just be
20 from the group there.
21 COMMISSIONER HAWKES: But it doesn't -- it doesn't
22 require that. I mean, in fact, it's -- I think that the
23 problem is is that the president of the Senate and the
24 Speaker of the House are constitutional officers defined
25 in the Constitution. And this other group or this person
79
1 that you're trying to find is not constitutionally defined
2 and can, in fact, be defined --
3 COMMISSIONER EVANS-JONES: Well, we had talked about
4 that and the staff person who was advising us said that we
5 had never used the language that said "minority leader".
6 So he thought this was clearer and better constitutional
7 language. Maybe Commissioner Zack can answer it better
8 than I can.
9 COMMISSIONER ZACK: My answer would be the same as
10 yours.
11 COMMISSIONER HAWKES: So -- a thought, Mr. Chairman.
12 So if 12 members of the Florida House decide to form their
13 own political party and, in fact, even obtain staffing in
14 the House and are recognized by the House as a separate
15 party, they have -- either they have a full voice, in
16 which case a party that may be bigger than them has no
17 voice, or they would have no voice; is that correct? I
18 mean, if we had three parties in the House?
19 COMMISSIONER EVANS-JONES: If we had three parties in
20 the House, Commissioner Hawkes, those two minor parties
21 would have to join together.
22 COMMISSIONER HAWKES: But this doesn't say that.
23 This says that they --
24 COMMISSIONER EVANS-JONES: Well that's what we were
25 saying, I believe, and that's what --
80
1 COMMISSIONER HAWKES: Well, this says all they have
2 to be is a separate party. It doesn't say that they have
3 to be the next in number, in which case there --
4 CHAIRMAN DOUGLASS: No, you're reading the wrong
5 amendment, I think.
6 COMMISSIONER ZACK: No, that's not what it says.
7 Members of the Senate who are not members of the same
8 party as the president, let's assume the president is
9 Republican. Let's assume there are two other parties, the
10 Bull Moose party and the Democratic party. Then they get
11 together and designate from their deck group four members.
12 Okay. Four commissioners.
13 COMMISSIONER EVANS-JONES: Yes, they would designate
14 one person to appoint the four commissioners, and I think
15 that's what it says.
16 COMMISSIONER ZACK: Each one would have a say in it.
17 COMMISSIONER EVANS-JONES: Right.
18 CHAIRMAN DOUGLASS: Is that clear? All right. Any
19 further questions? And this is on -- let's see, we
20 adopted the amendment. We're on the proposal. We did
21 adopt the amendment. We're on the amendment, Commissioner
22 Scott, okay?
23 COMMISSIONER SCOTT: Marilyn, in 1982 --
24 CHAIRMAN DOUGLASS: Commissioner.
25 COMMISSIONER SCOTT: Commissioner. In 1982, the
81
1 president of the Senate was elected by a coalition of
2 Democrats and Republicans. Basically, what you call
3 conservative Democrats, if that's such a word, in many
4 instance, and 12 Republicans. So that means that in this
5 instance, if this were 1982, am I correct, not of the
6 party of the president would mean that those other, ever
7 how many Democrats, 16 or whatever, they wouldn't have any
8 voice because we elected a Democrat, Kurtis Peterson, in
9 that instances, he's on the wall here.
10 So he would pick four and then the Republicans would
11 pick four and the other 15 Democrats would have no
12 input -- or ever how many -- am I correct the way this is
13 written?
14 COMMISSIONER EVANS-JONES: Well, I think you probably
15 are correct. So perhaps they wouldn't want to do that and
16 get together with that sort of a coalition sense that they
17 wouldn't have any representation. But I say to you, I
18 really do think that the president of the Senate and what
19 we're trying to say is then another person who would be
20 elected by the other minority members would also be able
21 to choose four.
22 CHAIRMAN DOUGLASS: All right. We're on the
23 amendment. Commissioner Henderson?
24 COMMISSIONER HENDERSON: Amendment to the amendment
25 on the desk.
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1 CHAIRMAN DOUGLASS: There is an amendment to the
2 amendment on the desk by Commissioner Henderson which he
3 moves. Would you read the amendment?
4 READING CLERK: By Commissioner Henderson on Page 1,
5 Line 26, delete, Except to meet the foregoing
6 requirements.
7 CHAIRMAN DOUGLASS: Commissioner Henderson,
8 Commissioner Zack, you're familiar with this amendment to
9 your amendment?
10 COMMISSIONER ZACK: No, he's not familiar with it.
11 CHAIRMAN DOUGLASS: I didn't think he was listening
12 to you either.
13 COMMISSIONER ZACK: That's right. I guess I got the
14 answer to the question. And I didn't like the answer to
15 my question so I thought I'd frame it as an issue and that
16 is that the -- apparently the language that -- what the
17 amendment does is take us back to what we previously
18 approved as a body. There, in the amendment that is
19 before you, there is a change and that change, in effect,
20 constitutionalizes the process by which we are currently
21 doing business which says you would go deal with the
22 minority districts first and then spill over into
23 everything else. And I don't think that's the way you do
24 business.
25 I think that the term -- you have the overriding
83
1 language in there about the voting rights, that do not
2 dilute the voting strength of any racial or language
3 minority group and that you try to achieve compactness.
4 And to go further than that, I understand what you're
5 trying to do, I just would -- that's a whole set of
6 problems that I think may well take away from some of the
7 flexibility -- some flexibility that may achieve a better
8 voting strength.
9 So I don't like the process that we have now, these
10 districts that -- where you don't know whose district you
11 live in in effect. I'm in one of those counties where
12 there is a little sliver of a district that runs, you
13 know, connects house to house, and I think that's bad
14 public policy and if this legitimizes that, I don't want
15 to go there. So that's the proposal.
16 CHAIRMAN DOUGLASS: All right. There's an amendment
17 to the amendment by Commissioner Henderson which he just
18 explained. Does everybody understand the amendment? Any
19 more discussion on the amendment to the amendment? All
20 right. Commissioner Zack, I'm waiting a second.
21 COMMISSIONER EVANS-JONES: Mr. Chairman?
22 CHAIRMAN DOUGLASS: Commissioner Evans-Jones.
23 COMMISSIONER EVANS-JONES: The reason that we put it
24 there was just as Commissioner Henderson said, and I still
25 think they are going to have to do the other anyway. So
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1 we did have it. The commission shall consider creating
2 districts that consist of compact territory and we do want
3 that if possible. So I frankly don't have any problem
4 with that amendment.
5 CHAIRMAN DOUGLASS: All right. Everybody understand
6 the amendment to the amendment? All in favor say aye.
7 Opposed.
8 (Verbal vote taken.)
9 CHAIRMAN DOUGLASS: Amendment carries. Now we're on
10 the amendment as amended. Commissioner Zack --
11 Commissioner Evans-Jones.
12 COMMISSIONER EVANS-JONES: I'll close. I just urge
13 you to vote for the amendment.
14 CHAIRMAN DOUGLASS: All those in favor of the
15 amendment say aye. Opposed.
16 (Verbal vote taken.)
17 CHAIRMAN DOUGLASS: It carries. It's now amended.
18 We're now on the proposal as amended which was passed 18
19 to 13 on February 9th, motion to reconsideration by
20 Commissioner Evans-Jones deferred until today and now
21 we're on the proposal. Proponents? Do you want to be
22 heard again?
23 COMMISSIONER EVANS-JONES: I can close.
24 CHAIRMAN DOUGLASS: Got an opponent? You're an
25 opponent? Commissioner Scott in opposition.
85
1 COMMISSIONER SCOTT: Commissioners, let me talk to
2 you a minimum about what this is really all about. Let's
3 pick another issue, let's pick sentencing guidelines, for
4 example. Now the proposal is to create an independent
5 commission of 16 people and then they are going to elect
6 the 17th and they are going to decide how long criminals
7 should be sentenced and what kind of guidelines would be
8 used or not used in a case that Attorney General
9 Commissioner Butterworth and I and others have been
10 arguing about for years.
11 Let's create an independent commission to do that.
12 So I want you to imagine that that's the proposal that's
13 before us. Let's take another one. How about raising
14 taxes in the state in a booming economy. Let's create an
15 independent commission, not elected by you or your
16 neighbors or your community and let's let this commission
17 decide what the taxes are going to be in this state, how
18 much they will be raised.
19 Same if you go to education, for example, and some of
20 the issues there. And I know you-all have heard a lot of
21 discussion about that. Let's create an independent
22 commission to determine whether we're going to go back to
23 the basic skills, whether we're going to raise the grade
24 point average, whether we're going to have charter schools
25 in this state. Let's create an independent commission to
86
1 do that. What I would like to point out to you is that
2 establishing these districts is the very heart of all of
3 that. It's not just one of those, it's every single one.
4 I mean, it is the basic right of people to have their
5 elected representatives determine how their votes are
6 going to be counted. And so, that's the first point I
7 would make. I'm not going to go into a big, long argument
8 today because I think we're going to have, I assume,
9 another day where the vote might be different. I mean, a
10 different requirement of the vote.
11 But let's go, who's the most familiar? We've got a
12 commission now of 16 people in a state of 14-some million.
13 Who are you going to appoint to handle redistricting in
14 Miami? Who are you going to appoint in Broward County
15 with 1.8 million people? Two people, three people? What
16 about the Jewish condominium vote? What about the Latin
17 minorities? What about the blacks? What about the
18 Caucasian? Who is going -- and who are you going to get
19 that knows as much about that as someone who's gone out
20 there and gotten elected?
21 I might feel better if it was a county commissioner.
22 Although in some instances you may not want that. But I
23 mean, at least somebody that's out there. The people have
24 said to the Legislature, if you're to solve things that
25 affect their liberty, their pocketbooks, their very lives.
87
1 So I want you to think about that as you understand the
2 concern.
3 My principal concern in this is the issue of minority
4 representation. Now this proposal, this proposal would,
5 in effect, vitiate or destroy the current Senate plan in
6 this state and the House plan. Right now, and I want to
7 get away for just a moment from a -- say, from the
8 minority issue. Right now, the Senate plan, the Senate
9 plan that's been approved by everybody, including the U.S.
10 Supreme Court, divides 43 of the 67 counties into more
11 than one district and only eight Senate districts are
12 entirely within any single county.
13 So if you look at that, why is it like that? It's
14 like that because, we, former members, and they went out
15 and fought to get minority districts established in these
16 reapportionment plans. And you should have been here last
17 Monday, I wish all of you had been here. But when some of
18 the Congress people were here, Carrie Meek, Corrine Brown,
19 all of whom were at the federal and state issues seminar
20 along with many members of the Legislature, including, I
21 believe, all five or at least four of the black members of
22 the Florida Senate. And let me tell you about some of
23 their concerns with this.
24 You see, if you took a cookie cutter or you tried to
25 go by counties, what's going to happen is you're not going
88
1 to have as many minority seats in the Legislature, that's
2 for starters. So this basic fundamental right that
3 decides life, liberty, and property, why would we want --
4 it's another idea that sounded good when talked about in
5 the abstract, but why would we want to entrust this to a
6 commission that's appointed by legislative leaders and you
7 cannot help but to recognize what's happening in the
8 state. It's very divisive issues that are going on. And
9 to say that we're going to go out now and take -- and in
10 effect take away.
11 I want you to remember that my concern is the
12 minority seats. We took this, Senator Jennings --
13 Commissioner Jennings will remember, hundreds of hours, I
14 spent in Tampa in a three-judge panel. We went to the
15 U.S. Supreme Court to argue for protection and won it on a
16 5-4 vote, the first one upheld in modern times in the
17 country. When the federal court throughout Corrine
18 Brown's district in Jacksonville, the Florida Senate
19 immediately grabbed ahold of this, forced it to be
20 determined within like 14 days, as I recall, and fixed the
21 district and repassed a congressional redistricting plan
22 that cured the objection. And Corrine Brown would not be
23 at least seated in Congress if that were not true.
24 So if you want to hear -- I think this is the major
25 concern that we have with trying to do an independent
89
1 commission. Now, I know the arguments otherwise and see
2 Commissioner Martin Dykeman up there. I've always wanted
3 to do that, Martin. We used to do more of that in the
4 Senate.
5 But in the very same article where he says, you know,
6 this is really a great idea and the people that don't want
7 it are misinformed, the next paragraph says, Well, we
8 really ought to have multimember districts in this state.
9 Same article, right, Martin? Said, we ought to have
10 multimember districts which, and I want you to listen to
11 this, some of the commissioners, would be judiciously
12 used. Judiciously used.
13 Now what does that mean in Tampa, for example? What
14 does that mean to Senator Hargrett's seat, judiciously
15 used? What does that mean in Jacksonville to Betty
16 Holzendorf? So I would urge you to consider some of that.
17 I didn't plan to debate this today because I didn't know
18 it would be on reconsideration. But I just want to make
19 the point whether it's 8 commissioners or 16
20 commissioners.
21 Let me tell you another concern I had. Sixteen
22 people and you've got to select a chairman. What if they
23 don't select the chairman? Then the Supreme Court of the
24 state of Florida, whoever the Chief Justice is, is my
25 understanding, would pick the deciding vote on this
90
1 commission. Do you think the people in Liberty City in
2 Miami, the people of Miami Beach, do you think that's what
3 they want? We're here because we're supposed to get
4 familiar with these things and understand them. They may
5 never understand that, that the chief justice of the
6 Supreme Court would pick the deciding vote that's going to
7 decide their future. They might understand, depending on
8 where they are, that 25 percent of this commission is
9 going to be picked by the minority leader of the House or
10 the minority leader of the Senate and that may or may not
11 concern them.
12 So I just want to point out to you some of the
13 problems with this. Judiciously using multimember
14 districts doesn't work. And I think while we said we want
15 single-member, I think that we've got to have the people
16 who are familiar with the parts of this state and let the
17 elected representatives make the decisions. I just wanted
18 to point out that this change in the proposal really
19 doesn't change the concern that a lot of people and the
20 growing concern that people have in this state. Thank you
21 very much.
22 CHAIRMAN DOUGLASS: Commissioner Evans-Jones?
23 COMMISSIONER EVANS-JONES: Commissioner Scott, this
24 proposal never did sound good to you, let's be realistic.
25 It has sounded good to me since 1983 and that was when the
91
1 Democrats had been in charge of the redistricting. I can
2 tell you now that it was not done fairly then and I can
3 tell you that it will not be done fairly now when the
4 Republicans are in charge.
5 What we're trying to do here is establish fairness
6 and equity. And this is the only opportunity that the
7 citizens of Florida will ever have to be able to do that.
8 We don't know whether the Democrats are going to be in
9 charge in 10 or 15 years or whether the Republicans are.
10 But we do know, if we establish this independent
11 reapportionment commission, that it's going to be an equal
12 number and it's going to be fair. And indeed, if they
13 can't decide upon their chairman, I have a lot of
14 confidence in the Supreme Court Justice.
15 And I think to raise these red herrings about
16 minorities, I think that's just, you know, really not
17 true. What we have been concerned with and what we are
18 concerned with, and I already told you the story about
19 asking where I live, you cannot expect the Senators and
20 the members of the House not to be concerned with their
21 own district and whether they are going to be running for
22 Congress and all of that, I mean, that is a fact that has
23 been done. It will continue to be done. We have been
24 here all over the state.
25 Frankly, the people don't want the Legislature to
92
1 redistrict themselves because they don't trust them to do
2 it fairly. And I can tell you, we can put this plan in
3 front of the people and they are going to vote for it. I
4 have every confidence that they will because it's fair,
5 it's well thought out, and it's something that we
6 desperately need here in the state of Florida and indeed
7 in every state.
8 So I say to you that perhaps you have raised red
9 herrings that are really not true. The minorities are
10 going to be treated fairly, I can assure you of that. And
11 I feel that they have equal opportunity to go if they're
12 not and go to the courts and have it done as they do
13 today.
14 So I urge you, fellow commissioners, this is not
15 perfect but it's a whole lot better than what we are
16 presently operating under. So I urge you to vote yes and
17 let's get this before the people so that they can know
18 that we are trying to have fairness in the selection of
19 the congressional districts, the House districts, and the
20 Senate districts. I urge your support.
21 CHAIRMAN DOUGLASS: Commissioner Hawkes.
22 COMMISSIONER HAWKES: Thank you, Mr. Chairman. And
23 I'll try to be brief, Members. I think that one of the
24 reasons that we obviously went from 9 members to 17
25 members is because someone believed that if we had more
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1 members we would have more diversity. Now why would we
2 want more diversity? Well, I would assume we would want
3 more diversity because we can get a better product. And I
4 would submit that if 16 is good, 160 might even be better
5 and that's what the Legislature has.
6 I will tell you that if you do this, you are in fact
7 disenfranchising members of the state from participating
8 in reapportionment. Right now in the Florida House, this
9 isn't a hypothetical, there are members in the Florida
10 House who are in a feud or a dispute with their party
11 leadership, and that's not unusual. There are oftentimes
12 disputes between some members of a party and their
13 leadership. Are they going to get to fully participate
14 when that party leadership decides which one shall select
15 the four? Well, I would submit they are not going to be
16 able to participate unless they can make peace and how are
17 they going to have to make peace, they are going to have
18 to sacrifice some other principle that they have in order
19 to have some small voice in what the four are.
20 Right now African-Americans are better than
21 10 percent of the Florida Senate, are they going to get
22 better than 10 percent? Probably not because there is not
23 enough seats to go around. On almost every plan that's
24 passed out of the Legislature, there has been bipartisan
25 votes on those plans.
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1 And with bipartisan votes, you know, because the
2 Speaker of the House, what's his goal? Well, I would
3 think the same thing as the Republican, his goal is
4 probably to make sure there are Republicans that come to
5 the Legislature. And what's the minority leaders in the
6 House? Probably the Democrats come to the Legislature.
7 Is that everybody's goal that is in the Legislature?
8 It's not. It wasn't when I was there and we went through
9 reapportionment. I wanted to make sure that Citrus County
10 kept a House member and Citrus County had a small voice in
11 reapportionment. Is that terrible? Does that offend the
12 sensibilities of the people of the state of Florida? I
13 don't think so because I kept our community whole and in
14 some of the plans they wanted to split Citrus County in
15 half and they didn't.
16 But my interest was -- my primary interest to me,
17 keeping my little tiny county whole, didn't even appear on
18 the radar scope of the Republican leadership, certainly
19 didn't appear on the radar scope of the Democratic
20 leadership. But because I was able to participate, that
21 goal was met and my community was content and they were
22 happy and that's a good thing.
23 You cut this commission down to 16 members and you
24 are definitely disenfranchising groups and segments and
25 parts of Florida. A diverse group does a better job and I
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1 would ask that you defeat this proposal. Thank you.
2 COMMISSIONER EVANS-JONES: May I answer his question?
3 CHAIRMAN DOUGLASS: Yes, go ahead.
4 COMMISSIONER EVANS-JONES: Commissioner Hawkes,
5 indeed you will have public hearings. We have never had
6 public hearings before. We are going to know who is
7 really making the decisions and this is going to be an
8 opportunity for the citizens of Florida to be able to say,
9 You are going to be drawing the lines and I know who you
10 are. And I think it is going to be much more equitable
11 and much fairer.
12 COMMISSIONER SCOTT: Mr. Chairman?
13 CHAIRMAN DOUGLASS: You are answering a question?
14 COMMISSIONER SCOTT: I wanted to correct one thing
15 since she said there were no public hearings, which is not
16 correct. There are public hearings for a year. And, in
17 fact, if I could make a point, the Legislature for several
18 years prepares for this and has the staff and collects the
19 data, and people know who is doing it. And they know who
20 to blame if they don't like it and they can vote them out
21 of office. But it is not correct that we didn't have --
22 in 1980 maybe, I don't remember public hearings then, but
23 I'm telling you the last time we had a ton of public
24 hearings everywhere in this state.
25 And we had interactive TV, computers, people could
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1 program into it. I mean, it was a totally open and, you
2 know, thoroughly debated process. So I just want to
3 mention this has got nothing to do with public hearings.
4 And while I'm up here, and I don't want to -- this is the
5 last time, Commissioner Evans-Jones, I don't want you to
6 tell me that it is a red herring, all the stuff that we
7 have done to try to get minority seats in this district,
8 that is not a red herring. That is not a red herring,
9 these are real concerns.
10 You should talk to Lincoln Diaz-Balart, the
11 congressman. You should talk to Carrie Meek or Corrine
12 Brown or Alcee Hastings. These are real concerns, or Matt
13 Meadows in the Senate.
14 So I just want to make that point. There is a
15 serious concern about protecting minority districts. And
16 as far as splitting, I don't think I made myself clear
17 about splitting counties. George Kirkpatrick's area where
18 Commissioner Mills is from, he has got parts of a lot of
19 counties but that's the way they wanted it. They wanted
20 eight counties to have parts so that they would all have
21 input and he goes around and has hearings and meetings and
22 wherever in all that district.
23 So this proposal is going to say, Well, don't split
24 counties, and that's forgetting about the minority issue.
25 Enough said. I just hope that you will seriously think
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1 about this today and between the time that we have a final
2 vote on it and whether this is something that we think is
3 good and whether the idea of it, and it is not true that I
4 have always been against it. I thought at first,
5 certainly from a partisan point of view, it was not a --
6 might not be a bad idea to talk about.
7 But after hearing from everybody and remembering the
8 fights that we've had to protect minority rights, I just
9 don't think it is a good idea and I hope you-all will keep
10 thinking about it, those of you who think you may still be
11 for it.
12 CHAIRMAN DOUGLASS: All right. Commissioner Mills
13 and then Commissioner Zack will be next and Commissioner
14 Connor, Commissioner Planas. And I'm going to ask
15 Commissioner Thompson to take the podium while I go rest
16 for a moment after that stirring debate.
17 (Commissioner Thompson assumes the Chair.)
18 COMMISSIONER MILLS: Mr. Chairman, I thought we might
19 have been on closing and therefore I was going to ask
20 Commissioner Evans-Jones a question but apparently since
21 that's not a problem --
22 COMMISSIONER THOMPSON: I think we changed gears and
23 we are debating again and maybe we ought to let her close
24 again.
25 COMMISSIONER MILLS: I would suggest that. I want to
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1 just talk a little bit about the racial equity issue
2 because of any concern that may have been expressed about
3 this commission.
4 Let's talk about our history of how we got here.
5 Voting Rights Act of 1965, I think, Commissioner Smith,
6 there is a show on tonight, Four Little Girls, about the
7 bombing of the church in Alabama, about the reality of
8 trying to obtain voting rights in the south and how that
9 came about. Well, the Voting Rights Act of 1965 is really
10 why we have achieved racial equity and that is fortunately
11 or unfortunately a federal act.
12 Section 2 of the Voting Rights Act, Section 5 of the
13 Voting Rights Act, which has been imposed, neither Florida
14 nor the rest of the south rushed into racial equity.
15 Neither Florida nor the rest of the south rushed into one
16 person, one vote. I made a statement on the floor last
17 time I thought it was 50 to 1, the worth of the vote in
18 Dade County and the worth of the vote in the Panhandle. I
19 was wrong, it was 100 to 1. And that was, unfortunately
20 or fortunately, the Legislature.
21 The Legislature has -- does wonderful things and I
22 think Commissioner Scott mentioned a number of the things
23 the Legislature should do. One of the problems with the
24 Legislature doing reapportionment is it gets awfully
25 distracted from doing those other things. They become a
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1 number of conversations that get diverted and I can
2 remember in '82, I think '82 and '83, because I think
3 there were about five special sessions on reapportionment.
4 It can't help but being diverted.
5 The issue of racial equity, the fact that in '82 and
6 in '92, there has been increased access is a great thing
7 for this state. It will continue to be a great thing for
8 this state because of the protections of the Voting Rights
9 Act and the fact that maybe we have all learned something,
10 that maybe racial equity has become more a part of the
11 ethic of this state. And I don't think the Legislature
12 would do a worse job at that, I think they would do a fine
13 job at racial equity. And I don't think the appointees of
14 the Legislature will be racist, I think they will do a
15 fine job. Not only because of the way this state has
16 evolved, but because of the still, small voice, the law,
17 which says you cannot discriminate.
18 And that is why a commission makes sense because it
19 does allow independence, it does restore public faith, it
20 doesn't change the law with regard to racial equity and I
21 think that we can have confidence in that group as well
22 and we can have confidence in the Constitution and the
23 federal government to continue to support and guarantee
24 voting rights.
25 And furthermore and lastly, it will make the public
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1 feel better. It will make the public feel better about
2 how the most fundamental aspect of their lives with
3 respect to the Legislature is carried out. When
4 Commissioner Crenshaw originally proposed it, it was a
5 good idea. When Commissioner Evans-Jones originally
6 proposed it, it was a good idea. Today it is still a good
7 idea, not for partisan reasons, but because it is the
8 right thing to do for this state.
9 COMMISSIONER THOMPSON: Commissioner Zack, for what
10 purpose?
11 COMMISSIONER ZACK: To, one, introduce an amendment,
12 and, two, to move to temporarily pass it once the
13 amendment is introduced.
14 COMMISSIONER THOMPSON: Well, let's read the
15 amendment.
16 READING CLERK: By Commissioner Zack on Page 2, Line
17 10 through Page 3, Line 17, delete those lines and insert
18 lengthy amendment.
19 COMMISSIONER THOMPSON: Why don't you explain the
20 amendment?
21 COMMISSIONER ZACK: The reason for the amendment is
22 because what Commissioner Henderson did, and I believe
23 unintentionally, was to make this, if it is passed, to be
24 a problem for minorities and Commissioner Scott would be
25 100 percent correct on that.
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1 By inserting the compactness requirement and deleting
2 before it, Except to meet the foregoing requirements, all
3 of a sudden you have compactness up against creation of
4 minority seats. Minority seats are generally not the most
5 compact seats that you will ever see drawn.
6 So as a result of that, when -- and I think
7 Commissioner Henderson did not realize what he was
8 doing -- and this amendment will delete all of the
9 compactness requirements. And what that does is, is it
10 allows this commission to do exactly what it should do and
11 that is to follow the United States Constitution, to make
12 sure all districts are contiguous and of even population.
13 That is the law of this country.
14 Now, what compactness requirements are has changed
15 almost year by year during the last ten years. I have had
16 the privilege, and I say it as a distinct privilege, of
17 representing a democratically controlled, or at least a
18 20/20 Senate, and a Republican Senate and it has been a
19 tremendous privilege to be involved in the lawsuits that
20 Commissioner Scott has talked about, to appear before the
21 United States Supreme Court and to argue the matters and
22 to try the case on behalf of the Florida Senate.
23 What we have here are two issues that are being --
24 that need to be addressed separately. The first issue is
25 minority representation. And as a Cuban American, as a
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1 person committed to minority representation, I can tell
2 you that anything that is done to reduce minority
3 participation, I am totally, absolutely, and forever
4 opposed to.
5 However, there is a 14th Amendment equal protection
6 issue that people who believe -- everyone in this country
7 has the same rights and you can't draw districts that hurt
8 individuals who have like rights and that's what Shaw and
9 Miller talked about, drawing these bizarre districts. And
10 that's why we had to go back into court and we had to
11 correct. And we were able to correct Corrine Brown's seat
12 and Senator Hargrett's seat and we were able to do that
13 based on the law as it changed. That law is continuing to
14 change.
15 Now, as you look at those changes, which again are
16 every time -- there have been very few cases. Just so you
17 understand this. If any of you are confused, it is easy
18 to understand why you are confused because the United
19 States Supreme Court has only spoken about these issues on
20 very few occasions and the various appellate courts around
21 the county have ruled in different ways.
22 And even the first case which is the Seminole case
23 involving reapportionment, which is called "Jingles" was a
24 plurality opinion, you couldn't even get a majority of the
25 Supreme Court of the United States to agree as to what the
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1 reapportionment law was. And depending on who is arguing
2 it, you can make different arguments about what was said
3 in that Seminole case. That's more than you care to know
4 about the legal matters pertaining to reapportionment.
5 But it is a changing area of the law. So the
6 consideration of minority districts is one that whether it
7 is the commission, or the Senate, or the House is going to
8 be considered.
9 Now let me explain to you the way this is done today.
10 Reubin Askew told me when I first took on this
11 representation that the most delicate nerve in the body of
12 any politician is their district lines. And in the old
13 days, they walked around, long before my time, I guess
14 with colored pencils, is what Reubin told me, you can tell
15 their shirts all had these different colors on their white
16 shirts and they threw their lines as they went along.
17 Well we are in the millennium, that's not how it's done
18 anymore. It is done on computer.
19 And it was done on computer ten years ago on these
20 massive million dollar computers. This time it will be
21 done on everyone's PC. Every person in this state will be
22 able to buy a program for their computer and will be able
23 to draw a district. Every single person in this chamber
24 who wants input into the process will be able to draw one
25 of these maps, this is what it looks like, okay? And they
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1 change instantaneously by the press of a key on your
2 computer, everyone has the same information.
3 You get tiger maps, what you call "tiger maps," which
4 has block by block voter information. For example, who
5 the voter is, what they have for cereal in the morning,
6 whether they are Republican, Democrat, how many times they
7 voted in the last ten elections. You can put in whatever
8 elections you want. Everyone has the same information.
9 So whether you have the Florida Senate or this
10 reapportionment commission drawing these districts, the
11 districts that will be presented to them will be the same.
12 I don't remember, we had hundreds last time, hundreds and
13 hundreds. I presume this time there will be thousands of
14 districts to look at. I don't think the Legislature wants
15 to look at thousands of districts to tell you the truth.
16 But the fact of the matter is that it is not the
17 question of protecting minorities because minorities must
18 be protected. Because if they are not, I'll tell you,
19 they are going to be in the courthouse in a split second
20 and HT will be representing them or somebody else will be
21 helping them in this chamber.
22 And the fact of the matter is -- or Jacinta. Nobody
23 is going to allow minorities not to be represented and not
24 to have the representation that they are entitled to under
25 the Constitution of the United States and under the case
105
1 law, period.
2 So the real issue, the real issue is who is going to
3 draw the lines? And I respect the fact that there are
4 people who believe that the Legislature should draw the
5 lines. I believe also that, as upset as anyone might be
6 about the president -- the chairman of this group being
7 designated by the Florida Supreme Court, people are still
8 outraged, outraged is the only word you can use about a
9 fellow who came in from New Orleans with a scissors and
10 Scotch tape and took three different maps and cut them
11 apart and Scotch taped them back together and changed the
12 entire political face of this state with no input from
13 anybody in the Legislature or a Florida citizen except
14 what appeared in court. That is categorically wrong.
15 So -- and by the way, I believe the Legislature --
16 because before you had a 20/20 split -- I truly believe
17 that that contributed if not was the sole cause to the
18 issue that caused the deadlock. We don't have that
19 anymore. And what you do have is the question of who is
20 best capable of drawing those lines, whether it be a
21 disinterested commission who is looking at all the same
22 plans that are going to be presented to the Legislature or
23 the Legislature. And there can be an honest difference of
24 opinion as to who should draw those lines.
25 However, if you are involved in the process, and the
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1 inherent conflict that exists, that must exist, in drawing
2 your own district and drawing districts for people who you
3 sit next to, just like we sit next to each other day in
4 and day out, you have to fall on the side of an
5 independent commission who is there to do the right thing
6 day in and day out and has no other concern, no other
7 concern because they are gone after they draw this
8 district. But to draw good districts that will be
9 challenged by anybody in this state if they feel those
10 districts in any way jeopardize minority participation.
11 Now the reason for the amendment is that it deletes
12 all the issues involving compactness so that there can be
13 no question that minorities will not suffer because of any
14 compactness arguments. Whatever compactness issues there
15 are, they are in the Constitution, they are in Shaw, they
16 are in Miller, they are in the cases that they have
17 developed, and they are in cases that we know nothing
18 about, never thought about, never heard of, not even on
19 the radar screen right now. But will continue to evolve
20 in the case law. And this commission will have the
21 opportunity to read those cases and do what is legally,
22 constitutionally, and morally correct.
23 I would ask that this amendment be TPed so that we
24 can have an opportunity to look at this issue, talk to
25 minorities that have contacted us, to -- Ms. Barnett --
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1 Commissioner Barnett asked to be present at this, she will
2 be back tomorrow morning. And make sure that we are doing
3 the right thing. And all I'm suggesting, it be TPed until
4 tomorrow.
5 COMMISSIONER THOMPSON: Commissioner Evans-Jones, a
6 suggestion has been made that your proposal be temporarily
7 passed. Do you have a preference?
8 COMMISSIONER EVANS-JONES: I think I would prefer to
9 just vote on the amendment and then move toward
10 Commissioner Zack's amendment.
11 COMMISSIONER THOMPSON: Okay. Commissioner Zack, the
12 proposer is opposed to temporarily passing it and it is
13 usually an accommodation to the person proposing it. Have
14 we been voting on motions to temporarily pass? Normal
15 parliamentary procedure is there is no such thing as a
16 motion to temporarily pass.
17 COMMISSIONER EVANS-JONES: I would like to have an
18 opportunity to talk to Commissioner Zack, so let's TP it.
19 COMMISSIONER THOMPSON: Let's TP it for a while.
20 Commissioner Scott, for what purpose?
21 COMMISSIONER SCOTT: Just in case I don't happen to
22 be in the room or something, what he is talking about
23 doesn't change one thing. The question is, who gets to
24 sit at the table. Who has to interact with the whole
25 group that's making the decision, and what do they -- are
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1 they representative of the area you are trying to protect?
2 So I don't want anybody to be misled that just because you
3 make some language change here that therefore everybody is
4 guaranteed.
5 You could have complied with the U.S. Supreme Court
6 decisions on minority districts and probably only had one
7 instead of five black Senators in the Florida Senate up
8 until the Hargrett case that we were able to fight
9 through. So I just want to -- on his amendment, I don't
10 want anybody to think that that fixes anything.
11 COMMISSIONER THOMPSON: Commissioner Henderson, for
12 what purpose?
13 COMMISSIONER HENDERSON: Thank you, Mr. Chairman.
14 The purpose is to hopefully get out of the doghouse
15 because the purpose of this amendment is to correct an
16 unintended consequence of an amendment which we previously
17 adopted. And I think this does that and I think this will
18 help us deal with that issue. So my personal preference
19 would be to go ahead and approve it and move on with it so
20 I can get out of the doghouse.
21 COMMISSIONER THOMPSON: Well, your amendment was
22 adopted wasn't it, earlier? Okay. Well, let's show it
23 temporarily passed and go on to the next item,
24 Commissioner Barkdull.
25 COMMISSIONER BARKDULL: We revert now to the special
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1 order as proposed. And the first item up is Proposal
2 No. 91 by Commissioner Hawkes.
3 COMMISSIONER THOMPSON: Commissioner Hawkes, you
4 continue to temporarily pass that? Okay. Read the next
5 proposal.
6 COMMISSIONER BARKDULL: Wait, Mr. Chairman, let me
7 ask Commissioner Hawkes a question. Are we ever going to
8 get to this?
9 COMMISSIONER THOMPSON: Commissioner Hawkes, will you
10 yield? He yields.
11 COMMISSIONER BARKDULL: Are we ever going to take
12 this up?
13 COMMISSIONER HAWKES: I'm not sure, it depends on
14 what the courts rule.
15 COMMISSIONER BARKDULL: If we are going to wait for
16 the courts, that could be a long time coming.
17 COMMISSIONER HAWKES: And if we are done with our
18 work, then we are done with your work. But I think the
19 court is going to resolve it and I'd like to come to you
20 with a ruling from the court.
21 COMMISSIONER BARKDULL: Okay, sir.
22 COMMISSIONER THOMPSON: Proposal 46 by Commissioner
23 Anthony, now he's not here today. And this is sovereign
24 immunity, isn't it? So are we ready to go on sovereign
25 immunity, Commissioner Barkdull?
110
1 COMMISSIONER BARKDULL: I understand the committee
2 met. I do not know whether they came to a conclusion, but
3 I do know that Commissioner Anthony is not scheduled to be
4 here this week as I understand it. Commissioner Connor
5 has got a report.
6 COMMISSIONER CONNOR: Mr. Chairman, I'll be happy to
7 report on the work of the committee. The committee did
8 meet today to consider Proposal 59 and various proposed
9 amendments thereto. And the outgrowth of our discussion
10 was that no new consensus emerged about these issues. And
11 so the posture that we are in as we come back to the issue
12 of sovereign immunity is that the committee recommended
13 unfavorably as to the proposal of Commissioner Anthony
14 which was proposal No. 46, the committee recommended
15 unfavorably as to proposal No. 77, which was the proposal
16 originally sponsored by Commissioner Freidin. Which
17 altogether abolished sovereign immunity.
18 And Commissioner Anthony's would extend, would
19 constitutionalize sovereign immunity for municipalities
20 and political subdivisions which is already taken care of
21 by statute.
22 The committee recommended favorably on Commissioner
23 Zack's proposal, which was Proposal No. 59. But I think
24 it is fair to say that as an outgrowth of the discussion
25 this morning. Commissioner Zack and perhaps Commissioners
111
1 Lowndes and Morsani have additional proposed amendments
2 that they would like the body to consider as it relates to
3 Proposal No. 59.
4 Proposal No. 59 is a proposal that would raise the
5 caps to $200,000 and index it according to the CPI. And I
6 assume that there are amendments on the desk,
7 Mr. Chairman, that would address 59. There are, to my
8 knowledge, no amendments as they relate to 77 or 46.
9 COMMISSIONER THOMPSON: Commissioner Connor, I'm not
10 clear now. What is the future of your committee? Have
11 you considered and that's your report and you recommend we
12 take up these?
13 COMMISSIONER CONNOR: Our recommendation was that you
14 favorably consider 59. And unfavorably consider 77 and
15 46.
16 COMMISSIONER SCOTT: But Zack did have --
17 Commissioner Zack did have some amendments that he wanted
18 to address to his underlying Proposal 59.
19 COMMISSIONER CONNOR: Mr. Chairman, what became clear
20 from our discussion was that beyond the original
21 recommendations of the committee we weren't able to come
22 to any new consensus about prospective amendments.
23 COMMISSIONER THOMPSON: Okay. I think then the best
24 way to proceed is to -- first of all, I think the report
25 of the chairman is that they have done all they can do and
112
1 they are recommending we take up 59. So I'm going to stay
2 in the order that we are in, we have Proposal 46. If
3 Commissioner Anthony was here, I would recommend that he
4 withdraw that. But since he is not here, I would
5 recommend to you-all that we just temporarily pass that.
6 The next proposal will be 59 and we will take it up
7 and I'm given to understand that the amendments are on the
8 table and we can debate those amendments and proceed
9 accordingly. So take up and read Commissioner Zack's
10 Proposal No. 59.
11 READING CLERK: Proposal 59, a proposal to revise
12 Article X, Section 13, Florida Constitution; providing
13 limitations upon the amount of damages payable by the
14 state when a court finds the state liable; providing for a
15 bad faith surcharge; placing a limit on attorney's fees.
16 COMMISSIONER THOMPSON: Commissioner Zack, you are
17 recognized on your Proposal 59.
18 COMMISSIONER ZACK: The only amendments deal with
19 issues that were raised both by persons in this body and
20 by governmental entities that appeared before us and they
21 wanted to make it perfectly clear that punitive damages
22 would not be allowed, number one. And, number two, that
23 there would be no waiver of sovereign immunity for
24 planning functions because government has to govern.
25 So those are the two additional amendments. Now the
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1 proposal itself provides that the cap will be raised from
2 100- to $200,000 per person and that costs will not be
3 included in that amount, that a bad faith provision will
4 be part of the law, and a bad faith provision -- and I
5 don't know to what extent we have time or the desire to
6 talk about bad faith -- but the simple discussion of it is
7 that an opportunity will be given to the governmental body
8 to pay the claim in a timely fashion.
9 And if they are given all information necessary then,
10 and they should pay it, and they don't pay it, in a
11 subsequent bad faith trial, a jury will determine whether
12 or not they acted in good faith in failing to pay the
13 money when it was due. If they did not act in good faith,
14 then there would be no limitation on sovereign immunity.
15 There also is a CPI increase so this matter does not
16 become a problem as it has in the past. What we have
17 determined through various hearings and hours of debate is
18 that a citizen in Florida in 1981 when this was first
19 adopted who had $100,000 worth of the benefits if they
20 were injured today would need at least, at least $200,000,
21 to be able to secure the same medical care that that
22 citizen in the state of Florida could do in 1981. And
23 that the 1998 citizen of Florida has at least the same
24 rights as the citizens of Florida had in 1981. And this
25 just makes sure that occurs.
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1 I talked to Commissioner Sundberg earlier today. I
2 want to make sure that a third amendment doesn't have to
3 be placed in this amendment which it says, Provisions may
4 be made by general law for bringing suit against the
5 state. I'm concerned about the "may" being discretionary
6 and I think that word needs to be "shall" be made by
7 general law. If I am correct on that, I would propose
8 that as an additional amendment to this Amendment No. 1.
9 Commissioner Sundberg, if you would have an opportunity
10 during the debate to look at that issue for us.
11 COMMISSIONER THOMPSON: Okay. If you want to make
12 any of those changes, get them up here on the table. Now,
13 my understanding is the first three amendments that were
14 left pending, by the way, with the bill, you will notice
15 that reference in your calendar, are also printed in your
16 Constitutional Revision Commission packet with the pink
17 cover on it. And the first two, the lead name is
18 Commissioner Lowndes, and the last is Commissioner
19 Langley. And my understanding is you-all want to withdraw
20 those; is that correct?
21 COMMISSIONER LOWNDES: That's correct.
22 CHAIRMAN DOUGLASS: Okay. Show Commissioner Lowndes'
23 proposed amendment is withdrawn. Commissioner Langley is
24 not here so I assume Commissioners Lowndes and Morsani are
25 signed on with him. Do you want to withdraw that one
115
1 also? Show those three that are in the packet, so that
2 everybody is clear, withdrawn.
3 Now, Commissioner Zack, do you have an amendment on
4 the desk?
5 COMMISSIONER ZACK: Commissioner Sundberg, have you
6 had an opportunity to review that? I'm going to put it on
7 the desk right now.
8 COMMISSIONER THOMPSON: Okay. I think you have some
9 on the desk already. What you are talking about, you have
10 been explaining your proposal and you probably have been
11 explaining it as you would have it amended and it hasn't
12 been amended yet.
13 COMMISSIONER ZACK: What I explained is the proposal
14 exactly as it has been amended, and it's designated
15 Amendment No. 1 to No. 59. You should all have that on
16 your desk. The only change that I have discussed that I'm
17 not prepared to make at this moment, and will after this
18 has been debated, is whether you have to change the word
19 to, provisions "may" be made --
20 COMMISSIONER THOMPSON: Do we have Amendment 1 on the
21 desk?
22 READING CLERK: On the desk, Mr. Chairman.
23 COMMISSIONER THOMPSON: By Commissioner Zack?
24 READING CLERK: By Commissioner Zack.
25 COMMISSIONER THOMPSON: Okay. We are not technically
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1 on that even though you've explained it. Read the
2 amendment.
3 READING CLERK: By Commissioners Lowndes, Zack,
4 Morsani, and Hawkes. On Page 1, Lines 15 through 28,
5 delete those lines and insert lengthy amendment.
6 COMMISSIONER THOMPSON: Okay. Commissioner Zack,
7 have you just explained that amendment now, is that our
8 understanding?
9 COMMISSIONER ZACK: That is my understanding that I
10 explained it, yes.
11 COMMISSIONER THOMPSON: Okay. Why don't you give us
12 a nutshell explanation again of what the difference is
13 between this amendment and what your base proposal is, I
14 think that would be helpful.
15 COMMISSIONER ZACK: You want me to do a nutshell
16 again of that amendment?
17 COMMISSIONER THOMPSON: How it differs from the
18 initial proposal.
19 COMMISSIONER ZACK: It is exactly the same as the
20 initial proposal except it now specifically provides that
21 there is no sovereign -- waiver of sovereign immunity as
22 to planning functions of government and that there is no
23 waiver for punitive damages, that's the only thing it does
24 that changes the original proposal.
25 COMMISSIONER THOMPSON: Okay. Is there debate on
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1 this amendment No. 1 by Commissioner Zack? Has everybody
2 found it on your desk? It should be on your desk and we
3 want to be sure everybody has had an opportunity to review
4 it.
5 COMMISSIONER ZACK: Oh, excuse me. There are two
6 other changes, I'm sorry. We seemed to be debating this
7 for so long that I kind of incorporated it. It actually
8 reduces. The original amount was 250,000 per person and
9 500,000 per incident. But based on remarks that were
10 made, I believe by Commissioner Connor, we reduced the
11 amount from 250 to 200, but we also removed the per
12 incident requirement so that if you had a busload of
13 children, God forbid, who got in an accident, each would
14 be entitled to $200,000 as opposed to a $500,000 for the
15 whole bus. So those are the changes that are also in
16 there.
17 COMMISSIONER THOMPSON: Are claims bills addressed?
18 COMMISSIONER ZACK: Claims bills, I understand, will
19 be addressed by an amendment that Commissioner Lowndes has
20 to this amendment. But we wanted to separate them because
21 they really stand on their own. One is geared strictly to
22 dealing with the problems we presently have with claims
23 bills where this pertains to the sovereign immunity cap.
24 And even though there is some crossover, they are not one
25 and the same.
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1 COMMISSIONER THOMPSON: Okay. Commissioner Nabors?
2 Will the gentleman yield, he yields.
3 COMMISSIONER NABORS: I'm trying to follow along
4 here. But doesn't it also change -- your original
5 proposal, as I read it, put a limitation on attorney's
6 fees, did it not? So the attorney's fees shall not exceed
7 25 percent of the amount awarded against the state?
8 COMMISSIONER ZACK: I think that's the law, period,
9 on the waiver of sovereign immunity cases. I think that
10 is statutorily the law.
11 COMMISSIONER NABORS: That may be statutory but it's
12 not in the Constitution.
13 COMMISSIONER ZACK: My intent is, again, that the
14 same limitation on attorney's fees would continue to apply
15 that presently exists.
16 COMMISSIONER NABORS: But that's not in your --
17 COMMISSIONER ZACK: I would consider that a friendly
18 amendment if you, in fact, want to include that though I
19 think that it's presently the case and it wouldn't be
20 altered by anything that we are doing here.
21 COMMISSIONER THOMPSON: Commissioner Connor, for what
22 purpose?
23 COMMISSIONER CONNOR: To address Mr. Zack's
24 perception that that's a friendly amendment. It is my
25 perception that you are not interested in
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1 constitutionalizing attorney's fees on these matters. And
2 so --
3 COMMISSIONER ZACK: That's why we left it out because
4 there are concerns among various members of the commission
5 that we did not want to put in the Constitution things
6 that really shouldn't be there.
7 Now what should or should not be in that Constitution
8 depends on, I guess, where you sit on these issues. But
9 it was one less thing that we wanted to be memorializing
10 in the Constitution.
11 COMMISSIONER THOMPSON: Commissioner Ford-Coates, for
12 a question? Does the gentleman yield? He yields.
13 COMMISSIONER FORD-COATES: The change in the proposal
14 to eliminate the cap per incident, is there an estimate of
15 the impact on government? Because in reality, when we are
16 talking about all these dollars, we are talking about what
17 the taxpayers are going to have to pay in these incidents.
18 So do we have any kind of an estimate on what that's going
19 to cost government in relation to either -- well, let me
20 ask that question first. Specifically taking the cap
21 off --
22 COMMISSIONER ZACK: We've had three hearings on this
23 matter and that was the first question that we asked that
24 we wanted to be provided with. No one ever answered that
25 question directly. There were a lot of estimates but if
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1 you assume that actuarially it is the same amount of money
2 the 1981 is buying, you know, there shouldn't be that much
3 of an increase but I can't tell you what the increase is;
4 however, it is an insurable risk that can be insured over.
5 COMMISSIONER FORD-COATES: So would you agree that
6 the bottom line on this is that there are going to be more
7 costs to local government which will require local
8 government to raise taxes?
9 COMMISSIONER ZACK: Absolutely not. Ms. Barnett may
10 want to do that, but I do not. The fact of the matter is
11 that wherever government is going to be impacted, there
12 will, on a year-to-year basis, be an allocation of the
13 amount of money that is there. And the fact is that if
14 there are additional premiums, then there may be other
15 programs that are being phased out. There may be other
16 situations that do not have to be funded in that
17 particular year.
18 I don't know the effect and it will be a different
19 effect on the different entities. Will it cost more
20 money? Absolutely. But that's part of the overall budget
21 of government and this is one of the obligations that
22 government should have.
23 COMMISSIONER FORD-COATES: Okay. So it will cost
24 more money requiring government -- it will require
25 government to have to pay more money to pay these
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1 additional costs therefore having to raise taxes probably?
2 COMMISSIONER ZACK: It may turn out to be just the
3 opposite. It may be that if government recognizes their
4 obligation to pay this that there will be additional
5 safeguards put in place so that there will be less
6 injuries.
7 But the fact of the matter is that -- by the way,
8 Commissioner Morsani reminded me that somebody said that
9 they estimated, and I don't know what the estimate was
10 based on, an increase in their premiums that could be
11 between 5 percent and 20 percent, but they didn't explain
12 how that actuarially was determined.
13 COMMISSIONER FORD-COATES: Okay.
14 COMMISSIONER THOMPSON: Okay. We have a couple of
15 amendments I'd like to go ahead and take up. The first
16 one is by Commissioners Lowndes and Morsani, Amendment 1
17 to Amendment 1. Commissioner Lowndes, are you prepared?
18 If you are, read the amendment, please.
19 READING CLERK: By Commissioners Lowndes and Morsani
20 on Page 2, Line 2, after the period insert lengthy
21 amendment.
22 COMMISSIONER THOMPSON: Commissioner Lowndes, you are
23 recognized to explain the amendment to the amendment.
24 COMMISSIONER LOWNDES: Mr. Chairman, this amendment
25 to the amendment is really an addition to the amendment,
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1 it doesn't change the amendment proposed by Commissioner
2 Zack. It really doesn't have much relationship to the
3 amendment proposed by Commissioner Zack. It adds to that
4 amendment the structure to allow arbitration proceedings
5 to be brought in claims which exceed the cap. The idea is
6 this is offered as a solution to the claims bill problem.
7 Rather than having to bring a claims bill, an injured
8 person could go into the circuit court and claim that
9 their injuries, the damages from their injuries, exceeded
10 $200,000. And at that point, the circuit court would
11 appoint a panel of three arbitrators and the arbitrators
12 then would hear the case and reach a decision. The rules
13 that govern the proceedings would be determined by the
14 Supreme Court.
15 This expands the liability of the government to -- it
16 deals with those cases where there are severe damages and
17 severe injuries. It is believed by some people, including
18 myself, to be a better solution to the problem than the
19 solution that exists today which is to come to the
20 Legislature for a claims bill.
21 I would be happy to answer any questions. Before my
22 good friend Commissioner Ford-Coates gets up and asks me
23 if I have any idea how much more this is going to cost, I
24 have to tell her I don't and it perhaps will cost more.
25 But I'd be happy to answer any questions.
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1 COMMISSIONER THOMPSON: Other questions?
2 Commissioner Brochin, for what purpose?
3 COMMISSIONER BROCHIN: For a question.
4 COMMISSIONER THOMPSON: For a question. He yields.
5 COMMISSIONER BROCHIN: Am I reading this right that
6 if you have a claim that exceeds the amount, say, today of
7 $100,000, that the person has to forgo his right or her
8 right to a jury trial?
9 COMMISSIONER LOWNDES: They don't have to forgo their
10 right to a jury trial unless they want to get more money
11 than the cap for larger damages.
12 COMMISSIONER BROCHIN: In other words, if they are
13 claiming, hypothetically, $300,000 in damages, their only
14 recourse is through arbitration and they don't have a
15 right to a jury?
16 COMMISSIONER LOWNDES: Not if they want the $300,000.
17 They have the right to a jury trial if they want $100,000.
18 COMMISSIONER THOMPSON: Commissioner Scott?
19 COMMISSIONER SCOTT: On the amendment, not a
20 question.
21 COMMISSIONER THOMPSON: Oh, you just want to speak on
22 the amendment. Are there further questions? Okay. You
23 are recognized on the amendment.
24 COMMISSIONER SCOTT: With due regard to Commissioner
25 Lowndes, this is the amendment that we had the other day
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1 basically, and correct me if I'm wrong, that says that you
2 no longer are going to have a right to a jury trial in a
3 seriously injured case. And, I mean, I just don't think
4 it is a good idea to create this binding arbitration. We
5 have been very careful about that in a number of areas in
6 the law. There have been proposals to have binding
7 arbitration in lieu of people having their day in court
8 before.
9 COMMISSIONER THOMPSON: Further debate on the
10 amendment? Commissioner Brochin.
11 COMMISSIONER BROCHIN: My thought is as a collateral
12 one and it more goes to the issue of whether we are going
13 to have sovereign immunity. If you're going to have
14 sovereign immunity, I think then you have got to think
15 long and hard before you switch that determination over to
16 the judicial branch. Sovereign immunity is based on the
17 fact that, as I understand it, governmental entities have
18 to have a cap in terms of what amount of money they can
19 afford so they don't have return to their electorate and
20 get more, therefore, we don't tax the king.
21 So I think you are putting the cart before the horse
22 by saying we are going to change the whole process over to
23 the judicial branch before we at least decide what we are
24 going to do with sovereign immunity. And, therefore, I
25 think we need to do it the other way around in terms of
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1 some sort of order. And I know procedurally that's become
2 difficult. But, to me, if it is the current system, and
3 the claims bill process is broken, we need to fix the
4 claims bill process through the Legislature but not fix it
5 through -- as long as sovereign immunity is already
6 intact.
7 COMMISSIONER THOMPSON: Okay. Why don't we figure
8 out some new amendments that have come up. Let's go to
9 the second amendment to Commissioner Zack's amendment.
10 Let's see. Excuse me, we will continue on this amendment.
11 Any further debate on the amendment by Commissioner
12 Lowndes and others to the amendment by Commissioner Zack?
13 Commissioner Lowndes, you are recognized to close.
14 COMMISSIONER LOWNDES: I would just point out that
15 you are not depriving people of a jury trial. People
16 don't really have their right to a jury trial for amounts
17 in excess of the cap at this point. Their right for a
18 jury trial for amounts in excess of the cap only will lead
19 them to the Legislature for a claims bill. They can't,
20 regardless of what the jury awards, they can't collect
21 more than the cap. So they really don't have a right to a
22 jury trial for money or damages in excess of the cap.
23 This is an effort to make a new procedure to replace
24 a procedure which is not working. This is, and seems to
25 me, that the philosophical issue here is do you believe
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1 that people who are seriously injured by the negligence of
2 government should be able to recover damages commensurate
3 with the injuries. And if those injuries and damages are
4 in excess of the cap they can't recover them now, they can
5 go to the Legislature who may or may not deal with their
6 problem. This gives them an opportunity to deal with the
7 problem.
8 As I say, it is somewhat of a philosophical matter.
9 One of the things that the people who are against raising
10 the caps and doing away with sovereign immunity say, We
11 don't want to be subject to runaway juries. I'm kind of
12 shocked, but I've gotten a number of letters from people
13 in government, county attorneys and whatnot, saying, We
14 don't want to be burdened by runaway juries.
15 Well one thing this proposal does, it doesn't burden
16 government with runaway juries. It burdens them with,
17 presumably, a panel of arbitrators appointed by the court
18 who perhaps would have a more realistic and less emotional
19 approach to the award of damages. I recommend the
20 proposal to you.
21 COMMISSIONER THOMPSON: So the question recurs on the
22 adoption of the amendment as proposed by Commissioners
23 Lowndes and Morsani. All those in favor of that amendment
24 please say aye. And those who oppose it say no.
25 (Verbal vote taken.)
127
1 COMMISSIONER THOMPSON: The amendment is not adopted.
2 Okay. Let's go to the board, I sincerely didn't hear.
3 Okay. The Secretary will unlock and the members will
4 proceed to vote on the Lowndes/Morsani amendment.
5 (Vote taken and recorded electronically.)
6 COMMISSIONER THOMPSON: Have all members voted? All
7 members voting. The clerk will lock the machine and
8 announce the vote.
9 READING CLERK: Thirteen yeas, 13 nays, Mr. Chairman.
10 COMMISSIONER THOMPSON: You just wasted 29.95 of the
11 taxpayers in doubting me. Read the next amendment.
12 READING CLERK: By Commissioner Zack on Page 1, Lines
13 15 and 16. Delete those lines and insert, Suits against a
14 state. Suits may be brought against the state, its.
15 COMMISSIONER THOMPSON: Commissioner Zack, is that a
16 technical amendment?
17 COMMISSIONER ZACK: It is a technical.
18 COMMISSIONER THOMPSON: Everybody has it on their
19 desk but it is a technical amendment that just amends the
20 provision of the Constitution that is there now to make
21 clear that suits may be brought; is that correct?
22 COMMISSIONER ZACK: That is correct. There is some
23 additional amendatory language that is being typed up
24 right now. We are less than five minutes away, I think,
25 from doing it. We could either -- go on to the next
128
1 matter and TP it for five minutes, we'll come back to it.
2 Or take it up first thing tomorrow morning or whatever the
3 Chair's pleasure.
4 COMMISSIONER THOMPSON: Does it amend that amendment
5 to the amendment or does it --
6 COMMISSIONER ZACK: Yes.
7 COMMISSIONER THOMPSON: But it doesn't amend this
8 amendment to the amendment? We can adopt this amendment
9 as a technical amendment --
10 COMMISSIONER ZACK: That's correct. It's a separate
11 provision.
12 COMMISSIONER THOMPSON: Okay. We are on the
13 amendment to the amendment. Any questions or concerns?
14 Commissioner Barkdull, for what purpose?
15 COMMISSIONER BARKDULL: To ask Commissioner Zack a
16 question, please.
17 COMMISSIONER THOMPSON: Does Commissioner Zack yield?
18 He yields.
19 COMMISSIONER BARKDULL: Is the purpose of this
20 amendment to make it mandatory on the Legislature to waive
21 sovereign immunity?
22 COMMISSIONER ZACK: That is correct.
23 COMMISSIONER BARKDULL: That's a substantial change
24 over what's in the Constitution now.
25 COMMISSIONER ZACK: Well, what we felt is that unless
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1 we put this mandatory language, then we ought to just go
2 home and forget about the whole thing because there was no
3 reason to proceed forward when it doesn't even increase
4 the cap. So we said it is not going to be a choice if we
5 go forward. It is going to be in the Constitution and
6 they will be obligated to do that.
7 COMMISSIONER BARKDULL: I just want to be sure that
8 everybody understands if you adopt this, and the proposal,
9 if it is adopted, is going to mandate the Legislature do
10 it.
11 COMMISSIONER ZACK: That's correct. Thank you.
12 COMMISSIONER THOMPSON: Excuse me for characterizing
13 it as technical. It is technical if your main amendment
14 is adopted; is that what you're saying?
15 COMMISSIONER ZACK: That is correct.
16 COMMISSIONER THOMPSON: Okay. Commissioner Lowndes,
17 for what purpose?
18 COMMISSIONER LOWNDES: I'd like to oppose the
19 amendment --
20 COMMISSIONER THOMPSON: You are recognized.
21 COMMISSIONER LOWNDES: -- on the grounds that it is
22 not a technical amendment at all. The Constitution
23 presently says that suits -- that the Legislature has the
24 right to determine what suits could be brought against the
25 state and Legislature has by statute determined that. If
130
1 you eliminate the Legislature's right to decide what suits
2 could be brought against the state, you are left simply
3 with the proposition the state can be sued as anybody else
4 can be sued without the Legislature deciding which is
5 proper and which is not proper.
6 So I think it's a very significant change from
7 existing law and I don't think it is a technical amendment
8 at all. And I don't think it is necessary to
9 Mr. Zack's -- Commissioner Zack's main amendment.
10 Commissioner Zack's main amendment raises the caps under
11 existing law. And provides that those caps will continue
12 to be raised as time passes.
13 It raises the cap, as I say, under existing law. If
14 you adopt this so-called technical amendment, it is going
15 to change existing law. And it is really going to do
16 away, presumably, even with the caps because the caps come
17 up under the laws passed for the Legislature and determine
18 what suits can be brought against the state. So I would
19 oppose the amendment.
20 COMMISSIONER THOMPSON: Commissioner Nabors, for what
21 purpose?
22 COMMISSIONER NABORS: Not to repeat, but I would
23 oppose it too. I think it is a significant change we can
24 debate whether or not ultimately on this proposal whether
25 or not the Constitution could deal with caps, but this is
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1 a fundamental change that goes, you know, beyond what we
2 have dealt with before. And I think I agree with
3 Commissioner Lowndes.
4 COMMISSIONER THOMPSON: Commissioner Zack to close.
5 COMMISSIONER ZACK: This is an important issue. And
6 I don't want anyone -- I know it is late in the day,
7 everyone should listen up. We want to make sure people
8 are doing what they really believe is right on a very
9 important issue and to have a moment to think about what's
10 happening.
11 And I'm going to try and address it in as
12 dispassionate a way as possible. You have sovereign
13 immunity today. My proposal, the initial proposal, does
14 exactly what I said before and I'm not going to go through
15 it again. But one of the changes we are making says
16 "shall" waive sovereign immunity, not "may". Because
17 without the word "shall", the Legislature can do whatever
18 they want. That's in raising the cap. There's a separate
19 issue, again, related but separate as to how to deal with
20 verdicts over the cap.
21 Traditionally it had been dealt with by a claims
22 bill. In our last session, we heard from the president,
23 from other speakers, about the problems with the claims
24 bill process. We talked about justice being for all
25 people not just people who could afford the best
132
1 lobbyists. The fact of the matter is that the Lowndes
2 amendment will do away with the claims bill process and
3 you will have the ability to collect against the sovereign
4 without a cap.
5 All right. Now there are going to be a lot of people
6 who are opposed to that, I can assure you, that you are
7 going to hear. We have heard from many, you are going to
8 hear from more, to go through this process without
9 mandating it on the Legislature, without requiring the
10 Legislature to actually use this method in dealing with
11 verdicts over the cap.
12 COMMISSIONER THOMPSON: Commissioner Barkdull for
13 what purpose?
14 COMMISSIONER BARKDULL: A point of order.
15 COMMISSIONER THOMPSON: State the point.
16 COMMISSIONER BARKDULL: The Lowndes amendment did not
17 pass.
18 COMMISSIONER ZACK: I understand that, okay. But the
19 Lowndes amendment was intended to deal with everything
20 over the cap, correct?
21 COMMISSIONER BARKDULL: I assume so, but why are we
22 concerned with that when it didn't pass?
23 COMMISSIONER ZACK: I thought that we were still
24 debating some of the reasons that the Lowndes --
25 COMMISSIONER BARKDULL: As I understand, this
133
1 amendment that's on the floor just changes "may" to
2 "shall".
3 COMMISSIONER ZACK: If you are only talking about
4 that aspect, then I stand corrected. And the reason to do
5 that, however, is for the exact same reasons we intended
6 to do it at the Lowndes amendment and that's why I was
7 discussing it. But this is this simple, and the same
8 rationale applies either way. There are going to be lots
9 of discussion about raising the cap at all. If we are
10 going to raise it and if we are going to listen to the
11 concerns as we should of citizens of the state and change
12 it if we decide to change it by a super majority vote,
13 then let's do it. But let's not waste our time because we
14 are kidding ourselves to think the Legislature is going to
15 do this if we don't put "shall" there.
16 COMMISSIONER BARKDULL: Would the gentleman yield for
17 a question?
18 COMMISSIONER ZACK: Yes, sir.
19 COMMISSIONER BARKDULL: Is this a filibuster to get
20 another amendment prepared?
21 (Laughter.)
22 COMMISSIONER ZACK: I've got five more minutes.
23 COMMISSIONER THOMPSON: Why don't you have mercy and
24 go ahead and close on the amendment?
25 COMMISSIONER ZACK: You need to vote for this. If
134
1 you don't vote for this and you don't vote for this
2 amendment, you really shouldn't vote for the whole matter
3 and we should just can it because we shouldn't waste
4 whatever equity we have with the people in voting to
5 change the cap and then kicking it back to the Legislature
6 who hasn't seen fit to raise the $100,000 cap one dime
7 after a year where there have been no claims bills passed.
8 COMMISSIONER THOMPSON: It is here, the amendment is
9 here. You don't have to keep talking.
10 COMMISSIONER ZACK: Just in time.
11 COMMISSIONER THOMPSON: Commissioner Barkdull?
12 COMMISSIONER BARKDULL: Well, can the gentleman yield
13 for one question?
14 COMMISSIONER THOMPSON: Will you yield for a final
15 question?
16 COMMISSIONER ZACK: I don't think I have to because I
17 got the amendment up. But, yes, I'll be happy to.
18 COMMISSIONER BARKDULL: Would you believe me, sir,
19 that if this is defeated I will show you how to raise the
20 cap without putting this in the Constitution?
21 COMMISSIONER ZACK: I believe, Judge, you could do
22 that, no matter what. But we may have a different view as
23 to when it would occur.
24 COMMISSIONER THOMPSON: We are on the adoption of the
25 amendment to his own amendment by Commissioner Zack. All
135
1 those in favor of that amendment to the amendment say aye,
2 and those who oppose say no.
3 (Verbal vote taken.)
4 COMMISSIONER THOMPSON: The amendment is not adopted.
5 Now we're back on the amendment. Is there another
6 amendment on the desk? Another amendment to the amendment
7 by Commissioner Zack on the desk. Read the amendment.
8 READING CLERK: By Commissioner Zack on Page 1, Lines
9 15 through 28, delete those lines and insert, Suits
10 against the state. Provision shall be made by general law
11 for bringing suit against the state, its political
12 subdivisions, agencies, districts, and municipalities, as
13 to all liabilities now existing or hereafter originating;
14 lengthy amendment.
15 COMMISSIONER THOMPSON: Commissioner Zack to explain
16 the amendment.
17 COMMISSIONER ZACK: I believe that we struck the
18 words -- let me see the original one.
19 COMMISSIONER THOMPSON: Would this best be offered as
20 a substitute?
21 COMMISSIONER ZACK: There is no reason not to offer
22 it as a substitute.
23 COMMISSIONER THOMPSON: It is the complete text of
24 what you want to do?
25 COMMISSIONER ZACK: It is exactly what I intend to
136
1 do.
2 COMMISSIONER THOMPSON: Okay. Show this offered as a
3 substitute amendment then, please. Okay. We are on the
4 substitute. Now, do you want to tell us what the
5 difference is between this and the one you are
6 substituting it for?
7 COMMISSIONER ZACK: There were a number of different
8 cleanup provisions. One was where we talked about bad
9 faith as it pertains to general law. There is no reason
10 to put general law. Bad faith is really a creation of
11 case law and we are able to do that. The -- there was a
12 word "recoverable". Again, it is just a technical word.
13 And I think that's about it. And Commissioner Sundberg
14 can --
15 COMMISSIONER THOMPSON: The amendment is being handed
16 out to you now but I think everybody needs to get
17 comfortable and have an opportunity to look at it,
18 Commissioner Zack, which Commissioner Sundberg is doing,
19 if you want to explain it to us.
20 COMMISSIONER SUNDBERG: I'm prepared to help with the
21 explanation if Commissioner Zack would like me to.
22 COMMISSIONER THOMPSON: He is happy for you to.
23 Please proceed.
24 COMMISSIONER SUNDBERG: Thank you, Mr. Chairman.
25 Without inserting the word "shall" there -- or has that
137
1 already been -- I'm sorry, I'm not sure what posture we
2 are in. Has "shall" already -- has that amendment
3 already --
4 (Off-the-record comment.)
5 COMMISSIONER SUNDBERG: The "shall" is dead?
6 COMMISSIONER THOMPSON: The way I understand it now,
7 the original text of his proposal is now being used as a
8 vehicle for this which is the new proposal. So nothing in
9 between there has been adopted as I understand it.
10 COMMISSIONER SUNDBERG: Thank you. The word "shall"
11 on Line 15 is placed in there, as Commissioner Barkdull
12 observed, so as to require, constitutionally, the
13 Legislature to waive the immunity in the respects that are
14 set forth in here.
15 As Mr. Zack said, unless it is made mandatory, you
16 haven't hit a lick and if anything, you may have limited
17 the Legislature's ability which currently exists to, in
18 this session just coming up, to waive sovereign immunity
19 completely. Because this would tend to -- if it remained
20 "may", they will be limited in the amount of waiver they
21 could impose. The other change that is of some
22 significance is at Line 19 where the phrase, "to the
23 extent private parties would be liable to the claimant,"
24 is really hopefully a more artful way of expressing what
25 was eliminated, a line that was eliminated, that said that
138
1 the state would only be liable for or would not be liable
2 for planning functions.
3 This is a better way of saying it. It's the way the
4 statute now that waives sovereign immunity expresses that.
5 That's the essence of these amendments other than what you
6 already talked about.
7 COMISSIONER THOMPSON: Okay. Further questions in
8 respect to this amendment? Commissioner Barkdull, for
9 what purpose?
10 COMMISSIONER BARKDULL: I just wanted to be noted to
11 be opposed to it. Further debate or questions in respect
12 to this substitute amendment which would be the new
13 language of the proposal as I understand it? Hearing
14 none, Commissioner Zack to close.
15 COMMISSIONER ZACK: You heard it all really. There
16 is no reason again that a citizen of the state of Florida
17 shouldn't today enjoy the same rights that a 1981 citizen
18 had. This is a modest increase. We've heard everywhere
19 we went in the state of Florida about how the system was
20 being abused.
21 Unless you pass this, you have no accountability.
22 That is the one word we heard over and over and over again
23 wherever we went. We want accountability in government.
24 And unless you pass this provision, you will have a
25 situation which happens today. The $100,000 cap isn't a
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1 $100,000 cap. First of all, it's not paid for a couple of
2 years even when it should be paid.
3 So you have the present value of money. The carrying
4 cost, so what is that? 90,000? 80,000? You then have
5 costs which are excluded from the cap. Another 10,000?
6 So now where are you, 80-, 70,000? And then what happens?
7 Then you get a call on the eve of trial and they say
8 to you, Hey, you know, you're not going to try this for
9 $10,000, knock off another $10,000. So now you're at a
10 cap that's really $70,000, how it works in the real world
11 with real people.
12 And you call up a risk manager and what do they say?
13 I've got 200 cases. I don't care if I have 400 cases.
14 There's no reason why I have to settle this case with you
15 even though I have an absolute obligation to settle with
16 you. Even if it's a quadriplegic, it doesn't make any
17 difference. I don't have to settle. There is nothing you
18 can do. I'm just going to hang up the phone on you. It
19 makes no difference in my life.
20 Well, what this bill does -- and by the way,
21 Commissioner Anthony, and I don't speak for Commissioner
22 Anthony and I know that he would probably be opposed to
23 any change because that's what his position is and that's
24 what government's position is in general. However he
25 admitted if there is going to be a change, this is the
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1 most reasonable change that you could possibly craft.
2 As a matter of fact, I really believe that government
3 should get behind this because this is a -- an ability for
4 a small fix, if you will, that will solve a lot of the
5 anger that we felt in the public hearings by people who
6 are being abused by the system. It is a very modest
7 proposal. As I said at the commission, the mistake I made
8 was offering it too early. I should have offered it at
9 the end of all the debate as a compromise position.
10 But this balances the concerns of government and the
11 concerns of the wrongful -- the wrong party and it gives
12 you an opportunity to hold the government accountable for
13 their actions and for a modest increase that allows people
14 who are injured to be help.
15 And to answer Commissioner Ford-Coates' question
16 about increase and certain taxes and so forth, you pay one
17 way or another. Whether this person who walks into
18 Jacksonville Memorial Hospital without any money, the
19 citizens are going to pick that up one way or another.
20 But the fact of the matter is that government should pay a
21 very modest amount, that $200,000 is, and should be
22 accountable for not paying when they don't pay.
23 COMISSIONER THOMPSON: Commissioner Barkdull, for
24 what purpose?
25 COMMISSIONER BARKDULL: To ask the gentleman a
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1 question since I didn't get to oppose it.
2 COMISSIONER THOMPSON: Does the gentleman yield? He
3 yields.
4 COMMISSIONER BARKDULL: Commissioner Scott -- excuse
5 me, Commissioner Zack, this provision which you say will
6 be a substitute amendment now has the word "shall" in it
7 so that's mandatory on the Legislature?
8 COMMISSIONER ZACK: Yes, it is.
9 COMMISSIONER BARKDULL: Commissioner Zack, would you
10 believe me if I told you that after you get beyond the
11 word "shall" all this language that you've got in here
12 could be put in the statute?
13 COMMISSIONER ZACK: I believe a lot of things could
14 be put in statute, absolutely. And a lot of things we do
15 can be put in the statute. And the question is whether
16 the Legislature has the desire or the will and the will,
17 the political will, to put into statute or whether or not
18 this group that meets once every 20 years, who hears these
19 concerns and recognizes there's a problem can solve this
20 problem by adopting this amendment.
21 COMMISSIONER BARKDULL: And with the word "shall" in
22 here, they're going to have to do it.
23 COMMISSIONER ZACK: I hope they have to.
24 COMISSIONER THOMPSON: Commissioner Wetherington, for
25 what purpose?
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1 COMMISSIONER WETHERINGTON: I'd like to ask
2 Commissioner Zack a question.
3 COMMISSIONER SCOTT: The gentleman yields.
4 COMMISSIONER WETHERINGTON: I'd like to say that I'm
5 very sympathetic trying to do something with sovereign
6 immunity. But apart from the merits of this, here's the
7 question. You've taken the language that says, "to the
8 extent private parties would be liable to the claimant,"
9 which is language that's taken from the statute. And then
10 you take the cap language.
11 That phrase from the statute, "to the extent a
12 private individual is liable," as a matter of statutory
13 construction, has given rise to hundreds and hundreds and
14 hundreds of cases in the state of Florida defining that
15 which is not what an individual would be liable for and
16 that which an individual is liable for.
17 There is a whole body, a very, very, very complicated
18 jurisprudence on that that's been developed as a question
19 of statutory construction. If we adopt this phrase that
20 you've got and put it in the Constitution, then the
21 question can be raised as to whether we are freezing and
22 constitutionalizing the present status of the
23 jurisprudence in the state of Florida that's all arisen
24 from statutory construction. And is, therefore, every
25 decision after the amendment is passed going to be a
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1 constitutional decision, a constitutional interpretation
2 of those particular words, which up to now have all been
3 statutory.
4 So this is one problem that occurs to me in terms of
5 the way in which it's being done as opposed to -- because
6 up until now the Legislature has some discretion as to
7 what they can grant sovereign immunity for and what they
8 don't want to grant sovereign immunity for. But you see
9 my point?
10 The point is you're taking this statutory phrase
11 which has now been construed in hundreds of cases to mean
12 certain things. You've taken that standard and you're
13 putting it in the Constitution. You've got all this
14 jurisprudence out there. And is now every case going to
15 be now a constitutional interpretation? There's some
16 problems, in other words, it seems to me, with the
17 constitutionalizing of that particular standard and the
18 status of the law on sovereign immunity as it exists today
19 apart from the question of -- what would you say in
20 response to that?
21 COMMISSIONER ZACK: I understand that question. I
22 was hoping you were going to ask me that question. And
23 the reason I was hoping you would ask that question is
24 because that language is Justice Sundberg's language and
25 he's going to have the opportunity to explain to you why
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1 that language was used as opposed to the language which
2 originally was there involving planning functions. And I
3 know there is an excellent response to that. So I thank
4 you for the question. Justice Sundberg?
5 COMISSIONER THOMPSON: Commissioner Sundberg, do you
6 wish to respond?
7 COMMISSIONER SUNDBERG: Yes, sir.
8 Commissioner Wetherington, you are absolutely right
9 that this is an attempt to utilize a body of law that has
10 gained some, you know, some currency with respect to what
11 you're talking about. Very complicated, didn't start out
12 complicated, it was made complicated by cases that
13 followed a commercial carrier of course.
14 But in any event, that's true and that's going to
15 continue on. It is simply a means of addressing a
16 concept. And will it become a constitutional concept?
17 Yes, it will to the extent of waiver of sovereign
18 immunity. And this will become a constitutional waiver of
19 sovereign immunity. And it is simply an attempt to use a
20 phrase that has some common currency.
21 I don't think it is frozen at any particular point in
22 time. And I think when courts are called upon to construe
23 whether or not, and they've adopted a number of tests, you
24 know, is it discretionary? Is it planning? Is it
25 operational? It is a concept that at least has, you know,
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1 has had some understanding breathed into it by this body
2 of law. Will it become a constitutional interpretation?
3 Yes, it will.
4 COMISSIONER THOMPSON: Okay. Commissioner
5 Wetherington for a question to Commissioner Sundberg? He
6 yields.
7 COMMISSIONER WETHERINGTON: So, Commissioner
8 Sundberg, what you're saying then is -- and believe me,
9 I'm sympathetic with the increasing amount of money people
10 get in some of these cases. But what we're saying then is
11 this. We're not only increasing the cap, we're also
12 freezing the Legislature's ability to determine in which
13 cases a waiver of sovereign immunity under the
14 Constitution will be granted and which cases the waiver of
15 sovereign immunity will not be granted because we're
16 taking away now from them, in the future, that capability
17 because we're now adopting this phrase and we're
18 constitutionalizing this phrase.
19 And that means the Legislature can't ever change
20 whatever that phrase means. So we're taking away from
21 them, really, what the Constitution presently gives them
22 which is the right to determine when we are going to waive
23 sovereign immunity and that's a pretty big thing we're
24 taking away, isn't it?
25 COMMISSIONER SUNDBERG: Let me respond by saying you
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1 may be right, that's not the intent and this may need some
2 more work in progress. What is intended is the
3 Legislature would be required to waive it to this extent
4 and under these circumstances. But I think what is
5 intended is the Legislature would retain the right to
6 waive sovereign immunity completely.
7 COMMISSIONER WETHERINGTON: But do you understand the
8 problem I have? The Legislature -- if this is adopted,
9 the Legislature can never waive sovereign immunity in any
10 way that would be construed as inconsistent with this
11 standard that's presently in force. Right now they can do
12 that. They can change the standard tomorrow and they can
13 say, We've decided that we're going to create some
14 exceptions to sovereign immunity and they can list those
15 exceptions just like the federal Tort Claims Act that has
16 26 exceptions. If this is passed, they can no longer do
17 that. They are frozen by this language in the
18 Constitution.
19 COMMISSIONER SUNDBERG: That is absolutely correct
20 if, in fact, as I say, this is mandatory. It is my
21 perception and we keep doing this language over and over
22 again so some of it is getting lost. As I perceive what
23 is intended is to say there is going to be a
24 constitutional irreducible minimum that the Legislature is
25 going to be required to do. It shall do it in this
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1 fashion.
2 As I perceive the intent is, it would still, and the
3 language probably needs some revision to accomplish that,
4 but the Legislature would still have the discretion to
5 waive sovereign immunity in its entirety.
6 COMMISSIONER WETHERINGTON: But not less than what's
7 in the statute.
8 COMMISSIONER SUNDBERG: No, no, no.
9 COMMISSIONER WETHERINGTON: They cannot say if this
10 passes, right, that we are not going to waive sovereign
11 immunity in any situation under the law where it's
12 presently waived.
13 COMMISSIONER SUNDBERG: Correct. But that does not
14 mean -- for example, if this were added as a Section 2 to
15 what is already existing in the Constitution which says
16 that the Legislature, roughly, made by general law, waives
17 sovereign immunity. That's roughly what the language
18 says, okay? So they may do that. They may waive it in
19 its entirety under any circumstances they choose. In
20 addition, they shall waive it in the fashion that this
21 dictates.
22 COMMISSIONER WETHERINGTON: So if a problem comes up
23 tomorrow and the Legislature takes a look at something
24 that right now is considered to be not in the
25 discretionary function exception and they decide for
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1 reasons that, Look, wait a minute. There's a real problem
2 here. We have to have sovereign immunity here, they could
3 not do that.
4 COMMISSIONER SUNDBERG: If, in fact, the language
5 permits them the discretion to do that. I keep saying the
6 same thing over and over again which means I'm not
7 communicating what I'm trying to say. If you took the
8 existing language that's in the Constitution now, is there
9 any question that the Legislature may, in any fashion it
10 chooses, deal with the issue of waiving sovereign
11 immunity?
12 COMMISSIONER WETHERINGTON: There is no question
13 right now. But if you change it you're going to take from
14 them that capability.
15 COMMISSIONER SUNDBERG: That's step one, that's
16 Section 1. What I'm suggesting -- and I think I'm
17 agreeing with you -- the language now is a work in
18 progress and needs some more work because you would add
19 this as two. And this would be a constitutional
20 requirement that the Legislature at least do this. It
21 would not preclude them from doing something different or
22 even greater so long as it was at least greater or
23 different than that.
24 COMMISSIONER THOMPSON: Speaking of waiving, for what
25 purpose does Commissioner Douglass keep waving his
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1 microphone?
2 CHAIRMAN DOUGLASS: I have a question. I just
3 remarked to Commissioners Henderson and Morsani, Now I
4 know sitting here how you can get so confused that you
5 don't really know what you're voting on. And I sort of
6 found myself in that position and I may want to move to
7 reconsider my vote on the Lowndes amendment if I could ask
8 a series of questions.
9 Number one, I guess Commissioner Sundberg appears to
10 be the expert in residence here, if he would yield to a
11 question.
12 COMMISSIONER THOMPSON: Gentleman yield?
13 COMMISSIONER SUNDBERG: I'll yield to Commissioner
14 Zack whose proposal didn't answer your question. I don't
15 know how I got elected to that.
16 CHAIRMAN DOUGLASS: I just elected you because
17 Commissioner Zack wasn't there. But in any event, my
18 question is, number one, there is no sovereign immunity
19 provision as such in the present Constitution, is there?
20 In fact, the language now says the Legislature may provide
21 for suits against the state.
22 COMMISSIONER SUNDBERG: Exactly.
23 CHAIRMAN DOUGLASS: And that has nothing -- it
24 doesn't say anything about sovereign immunity, just grants
25 the Legislature the power to do it. The Doctrine of
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1 Sovereign Immunity is not grounded in statute either, is
2 it?
3 COMMISSIONER SUNDBERG: No, it's in common law.
4 CHAIRMAN DOUGLASS: In fact, it's in our law because
5 our Constitution says that we adopt the common law of
6 England in 1776; is that not correct?
7 COMMISSIONER SUNDBERG: Actually, it says as of
8 July 4, 1776, but you're correct.
9 CHAIRMAN DOUGLASS: That's right, the specific date.
10 And at that date the common law there was this sovereign
11 law -- sovereign immunity which applied to torts and there
12 weren't many torts in those days anyway as I understand.
13 COMMISSIONER SUNDBERG: Absolutely.
14 CHAIRMAN DOUGLASS: So from that developed the
15 proposition that the state could not be liable for its
16 torts except as permission given by the state; is that --
17 that's how we got where we are.
18 COMMISSIONER SUNDBERG: That's how we got where we
19 are.
20 CHAIRMAN DOUGLASS: And then originally for many,
21 many years up approximately to 1981 municipalities did not
22 have any form of sovereign immunity because they didn't
23 have common law; is that correct?
24 COMMISSIONER SUNDBERG: That's not precisely correct.
25 They were perceived to have sovereign immunity with -- or
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1 be immune from suit for their pure govern --
2 CHAIRMAN DOUGLASS: That was not predicated entirely
3 on the common law, however.
4 COMMISSIONER SUNDBERG: Absolutely, because they were
5 a creature of statute.
6 CHAIRMAN DOUGLASS: Right. The municipal
7 corporations, they called then, were in a different
8 category from the state and the county and these things.
9 And so, also, prior to 1981, you could sue the driver of a
10 state road department truck and you could recover, could
11 you not, for his negligence even though he was driving the
12 state road department truck?
13 COMMISSIONER SUNDBERG: Yes, you could.
14 CHAIRMAN DOUGLASS: So we came along and the
15 Legislature changed the law and the Supreme Court changed
16 the law, not without your dissent in this regard and they
17 extended this immunity from suit to the cities even for
18 proprietary functions like running the bus company,
19 running the hospital and these things.
20 COMMISSIONER SUNDBERG: The water system.
21 CHAIRMAN DOUGLASS: The water system, whatever. And
22 they also precluded any suits against the employee that
23 committed a negligence if he did it in the course of his
24 employment.
25 COMMISSIONER SUNDBERG: Yes, they did.
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1 CHAIRMAN DOUGLASS: So they changed the law
2 completely at that point. And didn't we have a two-year
3 period in the '60s or early '70s where there was no
4 sovereign immunity for tort?
5 COMMISSIONER SUNDBERG: That is correct.
6 CHAIRMAN DOUGLASS: And so we keep developing until
7 we have this protective shield now over the state, the
8 cities, all government that everybody seems to not like
9 where they can injure you, they can commit torts -- the
10 employees in the course of their employment -- and injure
11 a citizen and his recourse is limited to the grace and
12 mercy of the $100,000 limit at the present time or 200,000
13 for a full accident at the present time. And then hire a
14 lobbyist, pay some more money and try to get a claims bill
15 which you can't get. That's what's now left for the
16 average citizen; is that not correct?
17 COMMISSIONER SUNDBERG: Yes. Why is it I feel like
18 Charlie McCarthy here? Go ahead.
19 (Laughter.)
20 CHAIRMAN DOUGLASS: Well, you're not quite the same.
21 You're much better. Explain to me then, if what
22 Commissioner Lowndes was attempting to do with his
23 amendment, and this is why I want to consider moving for
24 reconsideration. As I understand it, what Commissioner
25 Lowndes was trying to do was to say, Okay, if you come in
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1 here and you have this cap, whatever it is, whether it be
2 200,000, 500,000, whatever the cap is, and it applies to
3 all these agencies that have more automobiles than anybody
4 in the state, then what he's saying is after you have your
5 lawsuit, in effect, and you got a million dollar verdict
6 and you can only get 250, you go to this panel; am I
7 right, to consider how much you get of that over and above
8 the verdict; is that what you proposed, is that -- would
9 that be the substance of what that amendment would do? In
10 other words, it would come into play after the limit.
11 COMMISSIONER SUNDBERG: That's not my understanding,
12 Mr. Chairman. My understanding is if you had a claim that
13 would exceed the limits of the waiver of sovereign
14 immunity that you would ab initio go into this process.
15 CHAIRMAN DOUGLASS: All right. So it would afford
16 you, if you thought your claim was more than that, you had
17 the option then of going into this court of claims or very
18 similar to the Tort Claims Act to the federal government,
19 I assume is what he's trying to accomplish; is that the
20 case? So that if we adopt Commissioner Zack's amendment
21 or the original proposal, the option that's afforded by
22 Commissioner Lowndes' thing would still be there.
23 COMMISSIONER SUNDBERG: Yes. And let me, as I
24 understand, and none of these originated with me. I tried
25 to embody in this document a concept that continues under
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1 federal law, under state law, and presumably would
2 continue under the Lowndes proposal. And that is, you go
3 back to the -- initially to the issue of for what type of
4 acts can the sovereign be responsible.
5 Okay. And the case law now, as Judge Wetherington
6 quite clearly pointed out, and it's developed over the
7 Overton opinion, starting with commercial carrier. But a
8 basic premise of that was, and that's where the language
9 to the same extent or to the extent that private parties
10 would be, the premise was there are certain acts by
11 government to which the government, the public purse, is
12 not obliged to respond. You know, we talk about where you
13 locate -- the executive decision of where you locate the
14 traffic light as opposed to it being malfunctioned.
15 In other words, I assume that there would still be
16 some acts where government has acted or failed to act and
17 someone is injured and there still would be no recovery.
18 And that's the thought that was trying to be embodied
19 within to the same extent as private parties.
20 CHAIRMAN DOUGLASS: So that if I wanted to reach the
21 result as a sort of compromise between my concept of right
22 and some governmental person's concept of right, then I
23 would wanted to support Commissioner Lowndes proposal,
24 would I not -- or amendment. Because it would still
25 afford, regardless of all the other chicanery, lobbying,
155
1 or anything that went out, it would still afford a
2 constitutional right to an injured party that readdresses
3 his injury in some forum and that's what he's trying to do
4 as I understand it; am I right about that?
5 COMMISSIONER SUNDBERG: Yes, I think it is in a
6 different forum. The forum --
7 CHAIRMAN DOUGLASS: Okay. But it is a forum.
8 COMMISSIONER SUNDBERG: Correct.
9 CHAIRMAN DOUGLASS: Then I move to reconsider his
10 amendment. I voted with the prevailing side.
11 COMMISSIONER SCOTT: Okay. Commissioner Douglass has
12 moved to reconsider the vote by which Commissioners
13 Lowndes and Morsani's amendment failed to pass.
14 CHAIRMAN DOUGLASS: I have made my speech.
15 COMISSIONER THOMPSON: Is there debate on that
16 motion? That would be Amendment No. 1 to Amendment No. 1.
17 If anybody needs to have a copy of it or if you lost a
18 copy of it, let us know and we'll give you a copy. Okay.
19 Is there a debate on the motion to reconsider? Hearing
20 none, since it's your amendment, Commissioner Lowndes,
21 you're recognized.
22 COMMISSIONER LOWNDES: I would suggest we defer that
23 until we get through with the amendment of the main motion
24 here because it really is an addition to that. And I
25 think, as Commissioner Brochin mentioned earlier, we kind
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1 of have the cart before the horse in that regard. So I
2 would suggest we don't take up the motion to reconsider at
3 this time, that we take it up after we get through with
4 the amendments.
5 COMISSIONER THOMPSON: Commissioner Ford-Coates, for
6 what purpose?
7 COMMISSIONER FORD-COATES: To ask a question.
8 COMMISSIONER SCOTT: You're recognized.
9 COMMISSIONER FORD-COATES: On the process here, I'm a
10 little confused as to where we are. Can't understand why.
11 The substitute amendment, before we can get to this point
12 on reconsideration, the substitute amendment that
13 Commissioner Zack has here, once we dispose of that, do we
14 then have to vote on Proposal 59, that's my first
15 question. This is not my last shot at this, that was one
16 of the questions.
17 If it wins, it is the proposal but I can still stand
18 up and speak on the issue, correct? I need to know that.
19 Then the second question, I just need to clarify where we
20 are. The Zack amendment that starts out, Provision shall
21 be paid by general law, is the same wording in that phrase
22 that we defeated earlier; am I correct in that?
23 COMISSIONER THOMPSON: Okay. Let me see if I can
24 clarify it with the help of the Secretary here and then
25 anybody that wants to speak to it can. We took up a
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1 couple of amendments, one of which was Commissioner
2 Lowndes' amendment. It failed. Then we took up an
3 amendment by Commissioner Zack. We were back on his
4 original amendment and then he offered this amendment that
5 we're actually on as a substitute for that amendment.
6 Now the amendment as drawn by Commissioner Lowndes,
7 was to the amendment that he is substituting this one for.
8 So I don't know how to reconsider an amendment in the
9 middle of this substitute.
10 (Off-the-record comment.)
11 COMMISSIONER SCOTT: The only way we can do that, I'm
12 advised, is if this substitute fails, we'll be back on
13 that amendment. We can reconsider the amendment that was
14 drawn to that amendment at that time. So we're on the
15 substitute.
16 (Off-the-record comment.)
17 COMISSIONER THOMPSON: What you can do is, you can
18 come up and just tweak this -- yes, you can come up and
19 offer this as an amendment.
20 COMMISSIONER ZACK: Mr. Chairman, I've been advised
21 that I can withdraw this at this time. Frankly, I have
22 just had a conversation with Commissioner Wetherington
23 which I think resolves the issues we discussed here. I
24 would like to have an opportunity over the evening to meet
25 with Commissioner Wetherington, Commissioner Sundberg. I
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1 know that we'll have language in the morning so I'd like
2 to withdraw this particular amendment at this time as long
3 as I am sure that I'll be able to resubmit it tomorrow
4 morning; is that correct, Mr. Chairman?
5 COMISSIONER THOMPSON: I'm sorry, the Secretary and I
6 were trying to figure out the procedure and you wanted to
7 TP the whole matter?
8 COMMISSIONER ZACK: What I wish to do, if it's
9 necessary to actually do more than TP and withdraw it so
10 you can consider the Lowndes amendment at this time and I
11 will reintroduce it tomorrow morning after you have had
12 the chance to vote on the Lowndes amendment.
13 COMMISSIONER SCOTT: You want to withdraw the
14 substitute?
15 COMMISSIONER ZACK: At this time to be resubmitted
16 tomorrow.
17 COMMISSIONER SCOTT: Okay. So we're back on your
18 Amendment No. 1 to --
19 COMMISSIONER ZACK: Which would give the motion for
20 reconsideration an opportunity to be heard.
21 COMMISSIONER SCOTT: Okay. Commissioner Barkdull,
22 for what purpose?
23 COMMISSIONER BARKDULL: To make a motion on
24 adjournment.
25 COMISSIONER THOMPSON: Motion of highest dignity.
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1 COMMISSIONER BARKDULL: I move that we extend the
2 time of adjournment until we conclude the debate on the
3 Lowndes amendment and we have announcements and so forth.
4 CHAIRMAN DOUGLASS: Okay. Commissioner Barkdull has
5 moved that we extend the time of adjournment to the
6 conclusion of debate and vote -- and disposition or just
7 debate?
8 COMMISSIONER BARKDULL: Well, Commissioner Zack had
9 indicated he wanted it overnight but he wanted a ruling on
10 the --
11 COMMISSIONER SCOTT: I'll tell you what my
12 recommendation is. I think we ought to leave it all up in
13 the air overnight if we're going to leave part of it up in
14 the air overnight and come back to it. Commissioner
15 Barkdull, would you accept that as a motion to adjourn
16 after announcements --
17 COMMISSIONER BARKDULL: Yes, I'll take that. Then I
18 would suggest we go to announcement and we will adjourn.
19 COMISSIONER THOMPSON: Okay. Show this proposal and
20 pending amendments and pending motions for reconsideration
21 deferred until tomorrow, temporarily passed until
22 tomorrow. And now we'll take up the issue of what to do
23 about the rest of the week.
24 (Chairman Douglass resumes the Chair.)
25 CHAIRMAN DOUGLASS: All right. Commissioner
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1 Barkdull, we haven't made much progress today so we better
2 get it straight on what we're going to do.
3 COMMISSIONER BARKDULL: Well, I don't think anybody
4 is listening.
5 CHAIRMAN DOUGLASS: No, nobody is listening. And I
6 tell you, I found out sitting on the floor that a lot of
7 people aren't listening including me when I was on the
8 floor.
9 COMMISSIONER BARKDULL: Mr. Chairman, I move that the
10 time for consideration of all the matters on
11 reconsideration that were not disposed of today be
12 deferred until tomorrow.
13 CHAIRMAN DOUGLASS: All in favor say aye. Any
14 opposed?
15 (Verbal vote taken.)
16 CHAIRMAN DOUGLASS: Motion carries.
17 COMMISSIONER BARKDULL: Do I have any announcements
18 on withdrawals? I think Commissioner Henderson wanted to
19 withdraw something.
20 CHAIRMAN DOUGLASS: Commissioner Henderson had a
21 withdrawal. Earlier you said you wanted to withdraw one
22 of your proposals?
23 COMMISSIONER BARKDULL: Somebody had a withdrawal.
24 Wetherington?
25 CHAIRMAN DOUGLASS: Oh, yes, it was Commissioner
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1 Wetherington. Well, you're in the same line of fire,
2 Commissioner Henderson.
3 COMMISSIONER WETHERINGTON: In order to move things
4 along, I had to propose the amendment --
5 CHAIRMAN DOUGLASS: Pay attention, please.
6 COMMISSIONER WETHERINGTON: -- that with respect to
7 the retirement age of judges that we just have a flat 72
8 instead of the way we've got it now which is if you
9 don't -- if you complete half of your term you get one
10 way, if you don't complete -- it's a change that was
11 recommended by the Article V Commission. It's a good
12 idea. It passed 14 to 13. It's not a major matter in
13 light of what we're talking about. It's a close vote so
14 I'm just going to withdraw it.
15 CHAIRMAN DOUGLASS: All right. Without objection,
16 it's withdrawn. All right. Commissioner Barkdull?
17 COMMISSIONER BARKDULL: Mr. Chairman, Members of the
18 Commission, I want to alert you to the fact that there is
19 mail addressed to all members of the commission over in
20 the commission office in the historic capitol and the
21 staff wishes you'd stop by and pick up your paper.
22 I want to announce that the Rules and Calendar
23 Committee will meet upon adjournment or recess tomorrow
24 night. The room will be announced in the morning. That's
25 all the announcements that I have. I don't know whether
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1 there are any other announcements by Select Committee
2 chairman or Commissioner Mills as chairman of Style and
3 Drafting.
4 CHAIRMAN DOUGLASS: Commissioner Mills?
5 COMMISSIONER MILLS: Mr. Chairman, I wanted to make
6 sure to invite any members who wanted to come to the Style
7 and Drafting meeting which is being held in the commission
8 conference room, Commissioner Jennings looks anxious to
9 come. That we'll be trying to sort out both the procedure
10 and be talking about how we'll be taking up things in
11 order tomorrow. There was a discussion -- Mr. Chairman,
12 if you want, I could do this in the morning.
13 CHAIRMAN DOUGLASS: I don't want to get like we did
14 this morning where we spent 45, 50 minutes talking in
15 circles and didn't come up with anything. And you're
16 going to meet; is that correct?
17 COMMISSIONER MILLS: Yes, and I can tell you the one
18 remaining issue if people would like to think about it.
19 CHAIRMAN DOUGLASS: All right. Everybody listen now.
20 Some of the ones who did the most talking aren't here
21 either.
22 COMMISSIONER MILLS: Well, it must be because they
23 agree, I'm sure. The one remaining issue is during the
24 course of this week, everybody I have talked to so far
25 says, Yes, it makes sense if a proposal cannot get even a
163
1 majority vote, it should probably drop from further
2 consideration. If a proposal gets a majority vote it will
3 continue to be considered. The one point of contention
4 is, is if a proposal gets 22 votes, does it give it any
5 special status when we come back after the public
6 hearings?
7 There are some that say no, some that say yes, and I
8 think that those that said -- well, that's the issue.
9 CHAIRMAN DOUGLASS: When your proposal, the 22 vote
10 status, you could still amend those by majority vote at
11 the next meeting after the public hearings and then it to
12 be a 22 vote like it did for everything else.
13 COMMISSIONER MILLS: The only difference in the
14 discussion that I've had with folks, and our proposal is,
15 that if you did not like a proposal that got 22 votes this
16 week, you would have to move to reconsider it. So that
17 gives it some extra status. Other folks said, Just treat
18 it as if -- like everything else. It has more than a
19 majority, you go out to public hearings. When you come
20 back it needs to get 22 votes.
21 CHAIRMAN DOUGLASS: All right. Now are you going to
22 make a recommendation on that in the morning after your
23 committee meetings?
24 COMMISSIONER MILLS: Yes, we may have a consensus. I
25 mean, we have a couple of people who like the other
164
1 process. A couple of people who like this process. I, at
2 this point, don't see a whole lot of difference.
3 CHAIRMAN DOUGLASS: All right. Then we're going to
4 announce -- when is your meeting?
5 COMMISSIONER MILLS: Now.
6 CHAIRMAN DOUGLASS: All right. Anybody that has got
7 a dog in this fight or wants to get one in it, please go
8 to this meeting and fight it out in the committee so we
9 don't have to do it on the floor again. Is that
10 understood, that we can save a lot of time. Is there
11 anything else, Commissioner Mills? Commissioner Barkdull?
12 COMMISSIONER BARKDULL: I move we recess until the
13 hour of 9:00 a.m. tomorrow morning.
14 CHAIRMAN DOUGLASS: All right. We stand in recess
15 until 9:00 a.m. tomorrow morning.
16 (Session adjourned at 5:00 p.m., to be continued on
17 February 24th, 1998.)
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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.
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_________________________________
12 JULIE L. DOHERTY, RPR
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14 _________________________________
KRISTEN L. BENTLEY
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_________________________________
17 MONA L. WHIDDON
COURT REPORTERS
18 DIVISION OF ADMINISTRATIVE HEARINGS
1230 APALACHEE PARKWAY
19 TALLAHASSEE, FLORIDA 32399-3060
(850) 488-9675
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