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1 STATE OF FLORIDA
CONSTITUTION REVISION COMMISSION
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COMMISSION MEETING
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DATE: February 24, 1998
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TIME: Commenced at 9:00 a.m.
11 Concluded at 5:00 p.m.
12 PLACE: The Senate Chamber
The Capitol
13 Tallahassee, Florida
14 REPORTED BY: KRISTEN L. BENTLEY
MONA L. WHIDDON
15 JULIE L. DOHERTY, RPR
Court Reporters
16 Division of Administrative Hearings
The DeSoto Building
17 1230 Apalachee Parkway
Tallahassee, Florida
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1 APPEARANCES
2 W. DEXTER DOUGLASS, CHAIRMAN
3 CARLOS ALFONSO
CLARENCE E. ANTHONY (EXCUSED)
4 ANTONIO L. ARGIZ (ABSENT)
JUDGE THOMAS H. BARKDULL, JR.
5 MARTHA WALTERS BARNETT
PAT BARTON
6 ROBERT M. BROCHIN
THE HONORABLE ROBERT A. BUTTERWORTH
7 KEN CONNOR
CHRIS CORR
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 (ABSENT)
DICK LANGLEY
13 JOHN F. LOWNDES
STANLEY MARSHALL (EXCUSED UNTIL 1:30)
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
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1 PROCEEDINGS
2 (Roll taken and recorded electronically.)
3 SECRETARY BLANTON: All unauthorized visitors,
4 please leave the chamber. All commissioners indicate
5 your presence, all commissioners indicate your
6 presence. Quorum call. Quorum call. All
7 commissioners indicate your presence.
8 (Quorum taken and recorded electronically.)
9 SECRETARY BLANTON: Quorum present, Mr. Chairman.
10 CHAIRMAN DOUGLASS: If everyone will take their
11 seats, we'll come to order. Will the commissioners
12 and guests please rise for the opening prayer given
13 this morning, and let me, as we approach this prayer,
14 ask each of you to join all of us in prayer for those
15 who have lost their homes and their families, and
16 their injuries in the great disaster that occurred in
17 Central Florida. It's something that we all feel
18 collectively very, very bereaved about. Reverend.
19 REVEREND MCWRIGHT: Let us pray.
20 CHAIRMAN DOUGLASS: Excuse me, this is Reverend
21 Frank McWright from St. John's Episcopal Church.
22 REVEREND MCWRIGHT: Let us pray. Lord, we do
23 come to you this morning with heavy hearts for lives
24 that are lost. We pray for their souls, we pray for
25 their families, and for all of those who are close to
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1 them. Lord, I pray particularly for this group
2 gathered this morning, that we can set aside our
3 agendas, our self-centeredness and be focused on those
4 in need as we go about our work. Help us have mercy,
5 help us to be vehicles of your grace and your love
6 throughout the day and in the coming year. In
7 Christ's name we pray. Amen.
8 Good luck.
9 CHAIRMAN DOUGLASS: Please remain standing for
10 the pledge of allegiance led this morning by students
11 from Hosford Elementary and Junior High School in
12 Liberty County. They are Jennifer Smith, Laura
13 Miller, Karrie Flowers, Tommy Robbins, Brent Justice
14 and Chris O'Neal. Michelle Gawin is their sponsor.
15 (Pledge of Allegiance.)
16 CHAIRMAN DOUGLASS: These young people will be
17 our pages for today and will be with us, and we are
18 delighted to have you over here from Hosford.
19 I am reminded in a note here to remind everybody
20 that this is Fat Tuesday, for those who are
21 interested, Mardi Gras is ending tonight. This is
22 your last shot, Commissioner Morsani. All right,
23 Commissioner Barkdull, you are recognized. The
24 Chairman of Rules.
25 COMMISSIONER BARKDULL: Mr. Chairman, Members of
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1 the Commission, your daily order of business on the
2 calendar is here. The program is to continue with the
3 matters on reconsideration we were on yesterday and
4 the items that were temporarily passed. Hopefully we
5 can clean off all of these matters until we reach the
6 committee report on Style and Drafting.
7 At that time we'll probably take a short recess
8 to consider the recommendations of the report before
9 we go into the items in the report. The main thing
10 will be that the committee, as I understand it, will
11 recommend one of two different alternatives, which may
12 require a change in the rules. And if they do, we are
13 going to have a short Rules Committee in the recessed
14 period of time after we complete the special order of
15 the items that are on reconsideration and those that
16 haven't been heard yet. So, I suggest that we go to
17 the special order as outlined in the calendar on the
18 desk.
19 CHAIRMAN DOUGLASS: Commissioner Barkdull, due to
20 the non-attendance of a lot of members that are not
21 here, would it be possible to have that meeting now?
22 COMMISSIONER BARKDULL: Yes, sir, but I'm short
23 two members of the --
24 CHAIRMAN DOUGLASS: Well, one of them just walked
25 in the door.
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1 COMMISSIONER BARKDULL: And you thought you were
2 going to sneak in. I would like to have a full
3 complement of the Rules Committee to take these items
4 up, sir. We could do that, but Commissioner Scott has
5 had no notice of the fact that we were going to do
6 this.
7 CHAIRMAN DOUGLASS: Commissioner Langley.
8 COMMISSIONER LANGLEY: Our executive director
9 confirmed that Commissioner Scott is here, he's just
10 not come in yet, so we could send for him.
11 CHAIRMAN DOUGLASS: I think it would be -- we
12 only have 22 people here. And I don't feel very
13 comfortable going forward here unless we can get
14 people in here.
15 COMMISSIONER BARKDULL: Well, I'll be happy to go
16 over the special Rules Committee meeting, but I think
17 we have got to alert Senator -- Commissioner Scott.
18 CHAIRMAN DOUGLASS: Well, that's being done.
19 COMMISSIONER BARKDULL: Okay.
20 CHAIRMAN DOUGLASS: I think if --
21 COMMISSIONER BARKDULL: Well, then I would
22 suggest, if you want to follow that procedure, that we
23 hear from Commissioner Mills, the chairman of Style
24 and Drafting and the staff can be prepared to pass out
25 the two alternatives.
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1 CHAIRMAN DOUGLASS: Okay. Then I'll recognize
2 Commissioner Mills to explain the proposal of Style
3 and Drafting for the rest of the procedure of our
4 work. Commissioner Mills, you are recognized.
5 COMMISSIONER MILLS: Mr. Chairman, yesterday
6 several of the commissioners expressed concern about a
7 process of consideration that would have us
8 reconsidering all votes this week next week. If the
9 staff is going to pass out these two options, let me
10 try to explain those two options because I think, at
11 this point, what we need to do is make a decision and
12 stick with it. We need to decide how we are going to
13 consider this and have a firm, firm view as to how we
14 are going to do this the rest of the week.
15 Now, as the option as presented yesterday was all
16 58 proposals would be considered individually in these
17 topical groupings, those that got a majority vote or
18 those that got 22 would move forward. Those that did
19 not receive a majority would not move forward and
20 would therefore be ultimately deceased.
21 For your information, of the 58 proposals, 38 got
22 more than 22 votes, 20 got fewer than 22 votes. The
23 process then would go to the date of March 17th.
24 Under option one, all proposals that had passed this
25 week would be available for a reconsideration, that is
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1 both the majority and those that got more than 22.
2 Of course the body would have the option of not
3 reconsidering those that got more than 22. Those that
4 got fewer than 22, if not reconsidered, would be dead
5 because they would never have gotten 22 votes. In
6 other words, if something got a bare majority and
7 over the period of public hearings the commission
8 wasn't persuaded that it even should be reconsidered,
9 then it would be dead.
10 Option two, which Commissioner Connor and I
11 think -- Commissioner Connor and I think Hawkes and
12 others discussed yesterday, would say that during this
13 week, again, those that didn't receive a majority
14 would die. Those that received a majority or 22 votes
15 would proceed forward, and there would be no rule
16 concerning reconsideration, which means when you
17 return on the 17th you would vote on all of those
18 remaining proposals again.
19 And in terms of actual effect, I personally don't
20 see too much difference. In terms of time I see some
21 difference. I think there are really two issues.
22 Commissioner Connor and others are concerned that
23 something that got 22 votes and was only available for
24 reconsideration would have some priority; would,
25 therefore, be considered to have some advantage.
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1 The other issue is the fact that if we come back,
2 whatever the number is under option two, you have to
3 vote on all of them. Under option one on
4 reconsideration, you only have to vote on those that
5 you choose to reconsider. So, I'll be glad to answer
6 questions and proceed in either way the body wishes.
7 CHAIRMAN DOUGLASS: All right. Commissioner
8 Langley. The Rules Committee is going to have a
9 meeting after these discussions to consider these
10 proposals and come back with a recommendation, and you
11 are on the Rules Committee?
12 COMMISSIONER LANGLEY: Yes.
13 CHAIRMAN DOUGLASS: Commissioner Langley, you are
14 recognized.
15 COMMISSIONER LANGLEY: Well, just for the body to
16 understand, it's not quite that simple. A proposal
17 that has gone through here with 22 votes now should
18 have no particular sanctity. If we go to public
19 hearing and we come back and you have to prevail on a
20 motion to reconsider that, then basically say, like
21 today, there are only 27 of us here at the time, then
22 14 people could pass that proposal because they could
23 defeat a motion to reconsider, and in effect, a
24 proposal could go out of here with 22 votes with many
25 that might have been, Well, let's let it go on and
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1 we'll look at it later, courtesy votes. But when it
2 comes back, 14 adamant supporters of that proposal
3 could pass the bill, proposal.
4 And that's not why we are here. I think anything
5 that we put on the ballot ought to be here for a final
6 vote and have 22 positive votes. I thought that was
7 the intent of all of us when we got here.
8 So, if in fact -- anyway, the Rules Committee is
9 meeting and that's why I personally prefer proposition
10 number two.
11 CHAIRMAN DOUGLASS: All right. Commissioner
12 Lowndes.
13 COMMISSIONER LOWNDES: Yes, sir. My concern is,
14 is the time that we have got to do what we have got to
15 do. We have got 58 proposals now. And I don't think
16 that anybody here seriously wants to put 58 proposals
17 on the ballot. We really have four days left this
18 week and two days in March to do all of this.
19 In my view, it's time for us to start deciding
20 what we want to put on the ballot and what we don't
21 want to put on the ballot.
22 It's time for us to pass beyond wanting to, as
23 Commissioner Langley said, giving courtesy votes and
24 to take a look at everything that we have and decide
25 which one of those proposals we really feel should go
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1 forward. I really think it's more fair to the public,
2 if rather than kicking everything down the road to
3 March 17th, we really go to the public with things we
4 really think we want to put on the ballot, as opposed
5 to things that we are going to decide on March 17th
6 whether we are going to put on the ballot.
7 If 58 proposals show up on March 17th, then we
8 are going to have to deal with 58 proposals; we are
9 going to have to vote on them about every six or seven
10 minutes in our seven-hour meeting. And I don't think
11 there's any way that we are going to get finished.
12 And my concern is, having been up here for these eight
13 months, we really need to try to figure out how to get
14 out of here and how to finish our business. And I
15 think we are much more apt to, under Proposal No. 1,
16 the initial proposal of the Style and Drafting, to
17 finish our business.
18 Under that proposal, we would have to, this week
19 when we vote on these things, be careful what we are
20 voting about, making sure when we vote for it that we
21 want it to go on the ballot, not just that we can
22 decide later. And if not enough people show up here
23 on March the 17th, as Commissioner Langley suggests, I
24 think that's kind of a tragedy because I think that is
25 a critical day and I think everybody should show up.
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1 But if they don't, I don't think we can let a few
2 people not showing be the reason we can't finish our
3 business. So, I would urge you to vote for Proposal
4 No. 1.
5 CHAIRMAN DOUGLASS: All right. Without further
6 discussion, we'll take a five-minute recess for the
7 Rules Committee to meet briefly to make their
8 recommendation. We'll stand in recess. You can meet
9 back in the bubble, back where Commissioner
10 Butterworth is on the phone. But he'll probably move
11 to another location, if necessary, or stay at the
12 meeting, if you would like.
13 All right. We'll stand in recess for five
14 minutes. We will come back at 9:25. Commissioner
15 Thompson.
16 (Off-the-record comment by Commissioner
17 Thompson.)
18 COMMISSIONER THOMPSON: -- have public access a
19 little more than being in the bubble, couldn't we just
20 go to a room right around here somewhere, maybe drop
21 down a floor or something, Madam?
22 CHAIRMAN DOUGLASS: Do whatever you like. I just
23 said that because it was convenient.
24 COMMISSIONER THOMPSON: The president's
25 conference room and let the world out there know
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1 that's where we are going to be. She's got to clean
2 up her room first, but all right, we'll be there
3 shortly.
4 CHAIRMAN DOUGLASS: Okay. I guess we have
5 already killed two minutes, so we'll come back at 9:27
6 now.
7 (Brief recess.)
8 CHAIRMAN DOUGLASS: Now, our 10-minute or
9 5-minute break, whatever it is, has now turned into 38
10 minutes. I was wondering if somebody could go back
11 and tell the committee that we are ready. All in
12 favor say aye.
13 (Verbal vote taken.)
14 CHAIRMAN DOUGLASS: It carries unanimously. If
15 anybody wants to attend the meeting of the commission,
16 you can go to the committee meeting. Apparently, the
17 room is so full you can't get in, so.
18 (Brief recess.)
19 CHAIRMAN DOUGLASS: Give us a quorum call,
20 please.
21 READING CLERK: Quorum call. Quorum call. All
22 members to the chambers.
23 CHAIRMAN DOUGLASS: Come to order, please. All
24 right, would everybody take their seats, please?
25 Commissioner Scott. Would you be seated, please. I
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1 have an announcement that's of some importance. Thank
2 you.
3 Commissioners, Commissioner Corr is back with us
4 today and we are certainly glad you are back. We all
5 were aware, Commissioner Corr, of the unfortunate
6 death of your father, Thomas Paul Corr, and we all
7 want you to know that we have thought about you and
8 you were in our prayers and you still are, because
9 having lost a father when I was about your age, it's
10 something that you never, ever get over. And we
11 wanted to take this opportunity for all of us to let
12 you know that we sincerely are with you in this time
13 of grief, and your family.
14 All right. We'll now proceed with the Rules
15 Committee. Commissioner Barkdull.
16 COMMISSIONER BARKDULL: The Rules Committee will
17 have a recommendation for procedure, which generally
18 follows the Proposal No. 1, except rather than having
19 the matter on reconsideration on the 17th when we come
20 back, upon a show of five hands, the matter will be
21 revoted and there will be no motion to reconsider.
22 That proposal -- report of the Rules Committee is
23 being put in written form at the present time and will
24 be on your desk as soon as it is completed and I would
25 defer any action on the -- to approve that until such
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1 time it's in written form in front of the commission.
2 Now, I would suggest that we revert to the
3 special order.
4 CHAIRMAN DOUGLASS: All right. We have first on
5 the special order matters on reconsideration, Proposal
6 No. 144 by Commissioner Barnett. Would you read it,
7 please?
8 READING CLERK: Proposal 144, a proposal to
9 revise Article I, Section 17, Florida Constitution;
10 relating to punishment for crime.
11 CHAIRMAN DOUGLASS: Commissioner Barnett, would
12 you like to briefly explain that again?
13 COMMISSIONER BARNETT: Mr. Chairman, this is a
14 proposal that -- let me just read it to you so I can
15 refresh your memory on it, that adds to the
16 Constitution in Article I, Section 17, dealing with
17 punishment, the following language: No punishment may
18 be imposed or inflicted in an arbitrary, capricious or
19 discriminatory manner.
20 The purpose of this language was to embed in the
21 Constitution the current standards that are being
22 applied, supposedly being applied in our court system
23 in the punishment phase of criminal activities. And
24 it's my understanding, it is my intent, not
25 necessarily to change the law, but to raise this
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1 aspirational standard to the level of a constitutional
2 standard.
3 I'm unsure who moved to reconsider it. I would
4 certainly be glad to go through all of the debate that
5 we had before, but hopefully it's not necessary.
6 CHAIRMAN DOUGLASS: We had a motion to
7 reconsider, you are right.
8 COMMISSIONER BARNETT: I understand, also, that
9 the Chairman has an amendment to the proposal which
10 adds language in the proposal to say, No punishment
11 may be, and he wants to adds the words "intentionally"
12 or "purposely" imposed or afflicted in an arbitrary,
13 discriminatory manner. And those are acceptable with
14 the sponsor.
15 CHAIRMAN DOUGLASS: All right. I thought they
16 would be, because I think this alleviates some of the
17 perceived problems with your proposal, and that was
18 the reason that I was willing to offer this amendment
19 to do that.
20 Commissioner Barkdull, we are on the motion to
21 reconsider. And if you vote to reconsider, then the
22 amendment, with the permission of the sponsor, would
23 be offered. Ready to vote on the motion to
24 reconsider? All of those in favor of the motion, say
25 aye; opposed?
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1 (Verbal vote taken.)
2 CHAIRMAN DOUGLASS: Motion carries. If you will
3 offer the amendment. Commissioner Barnett, will you
4 offer that so I don't have to leave the chair?
5 COMMISSIONER BARNETT: On request of the Chair,
6 the amendment on line one.
7 CHAIRMAN DOUGLASS: It's being distributed.
8 COMMISSIONER BARNETT: On Line 15, the
9 language -- and I will read it, it's very short so
10 I'll read the language as amended. No punishment may
11 be imposed, excuse me, no punishment, how is it, may
12 be intentionally or purposely imposed or afflicted in
13 an arbitrary, capricious or discriminatory manner.
14 CHAIRMAN DOUGLASS: All right. Technically, I
15 need to ask that the amendment be read.
16 READING CLERK: By Commissioner Barnett, on
17 Page 1, Line 15, after "no punishment may be," insert
18 "intentionally or purposely imposed or afflicted in an
19 arbitrary, capricious or discriminatory manner."
20 CHAIRMAN DOUGLASS: All right. Any discussion on
21 the amendment? If not, all in favor of the amendment,
22 say aye; opposed?
23 (Verbal vote taken.)
24 CHAIRMAN DOUGLASS: It is amended. We are now on
25 the proposal as amended with the added language.
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1 Would you care to make any further comments,
2 Commissioner Barnett?
3 (Inaudible response.)
4 CHAIRMAN DOUGLASS: All right. You will have the
5 right to close. On debate today, I would like your
6 attention, we are going to try to ask everybody to
7 speak once on these proposals instead of four and five
8 times like we did yesterday, and we are also going to
9 try to ask everybody to stay in their seats as much as
10 they can to avoid interfering with the debate.
11 And if we could do that, I think we might speed
12 up our process quite a bit. Commissioner Langley, you
13 wanted to be recognized on this proposal.
14 COMMISSIONER LANGLEY: To oppose the proposal,
15 Mr. Chairman. I don't know that the language helps it
16 or hurts it, or the amendatory language. Basically,
17 you know, we are tampering again with the process. I
18 don't know what this language means. Does it mean
19 discrimination as far as age, race, sex, national
20 origin, sexual preference, poverty level; what does it
21 mean? You know, I don't believe the sponsor can tell
22 us what it means, and I don't believe, I just talked
23 to my good friend Judge Wetherington here who says he
24 thinks this is already the law.
25 But when you put something like this in the
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1 Constitution, it turns the spotlight on this, and the
2 first liberal judge that comes along is going to say,
3 Well, you know, it appears from statistics that --
4 yes, that's you, Judge Sundberg -- it appears from
5 statistics there's more poor people executed in the
6 state of Florida than there are rich people.
7 Therefore, the current statute discriminates against
8 the poor; we can't have any more capital sentences.
9 It is just -- maybe it is broke, but the old
10 saying, If it ain't broke, don't fix it. But maybe it
11 is broke, but I don't think this fixes it. And I
12 think it's just tampering with something that's going
13 to create a thousand more appeals as time goes on.
14 CHAIRMAN DOUGLASS: Commissioner Barkdull.
15 COMMISSIONER BARKDULL: Mr. Chairman, Members of
16 the Commission, I rise to oppose it. As Commissioner
17 Barnett pointed out, this is already the law. It is
18 an aspirational statement in the Constitution, and I
19 think to put it in at this time, and with the debate
20 that will go forward if it's in there, if you want to
21 aspire to the fiat programs, it is a good proposal in
22 that regard; otherwise I don't like it.
23 CHAIRMAN DOUGLASS: All right. Any further
24 debate? Commissioner Butterworth.
25 COMMISSIONER BUTTERWORTH: Mr. Chairman, this
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1 obviously is a good idea and it is something which is
2 very difficult to vote against, but I will have to
3 vote against it for the simple reason, as has been
4 stated, this is the law as it stands now in the
5 McCluskey case, United States Supreme Court, and the
6 Forrester case in our Supreme Court. I'm really very,
7 very concerned that this is going to cause constant
8 litigation on sentencing issues and we'll never have
9 closure. I think I can see it causing so many
10 tremendous problems or potential problems within the
11 criminal justice system that I would urge everybody to
12 vote against it. Even though it's difficult to vote
13 against it, but I really believe that we have to vote
14 against it. Thank you.
15 CHAIRMAN DOUGLASS: Any further debate?
16 Commissioner Barnett to close.
17 COMMISSIONER BARNETT: Mr. Chairman, yes, this is
18 the law today, this is supposedly the case law and the
19 statutory law today, but I think those of you who were
20 here when we debated this issue and when I went into a
21 lot of details about it recall that even though this
22 is the law today, it's not working. There are many
23 instances in which punishments are being imposed in an
24 arbitrary, capricious or discriminatory manner, in
25 which race, particularly, is an issue.
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1 Everything from the death penalty in the capital
2 cases, down the line, all of the available statistics
3 show that indeed the law is not working. And the
4 purpose of this, by putting it in the Constitution, is
5 hopefully so that the judges, and so that the
6 prosecutors of this state will say, Yes, that is the
7 law, maybe we need to give a little bit more attention
8 to the issues related to arbitrary, capricious or
9 discriminatory punishments, maybe we ought to take it
10 a little bit more seriously and do a little bit more.
11 Now, the language that Commissioner Douglass
12 offered, the purpose for the intentional language
13 really was designed, I believe, to take care of the
14 concerns about McCluskey and Forrester and not
15 necessarily overturn those cases.
16 I think what he was trying to do was address some
17 of the problems people have in this. But I find it
18 incongruous for people to say, This is the law, but if
19 you put it in the Constitution, it's going to create a
20 lot more litigation and concern and debate. That
21 concern to me almost proves the fact that people in
22 law enforcement and otherwise know that the law indeed
23 is not working.
24 I think for the people in the state of Florida to
25 have in their Constitution a very simple statement
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1 that in this state, when we impose punishments, up to
2 and including the ultimate punishment, that our
3 people, our citizens want to make sure that it's
4 imposed in a manner that's not arbitrary, not
5 capricious, and most certainly, most certainly does
6 not discriminate.
7 So, I ask you to support this. I frankly think
8 this could be one of the more popular proposals and
9 one that we will be, perhaps, proudest of if we could
10 put it in our Constitution.
11 CHAIRMAN DOUGLASS: All right. Unlock the
12 machine and let's vote.
13 (Vote taken and recorded electronically.)
14 CHAIRMAN DOUGLASS: Lock the machine and announce
15 the vote.
16 READING CLERK: Nine yeas, 21 nays, Mr. Chairman.
17 CHAIRMAN DOUGLASS: By your vote you have
18 defeated Proposal No. 144. We now move to Committee
19 Substitute for Proposals 172 and 162 which we debated
20 yesterday and carried over until today by the
21 Committee on Legislative, and Commissioner Thompson
22 and Evans-Jones. Do we need additional debate? I'll
23 call on Commissioner Evans-Jones first as a proponent.
24 COMMISSIONER EVANS-JONES: There is an amendment
25 on the desk, Mr. Chairman.
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1 CHAIRMAN DOUGLASS: There is an amendment on the
2 desk. All right, there is a pending amendment on the
3 desk. Read the amendment, please.
4 COMMISSIONER EVANS-JONES: Do you want to
5 withdraw that amendment or do the substitute
6 amendment, Commissioner Zack?
7 CHAIRMAN DOUGLASS: Commissioner Zack is
8 recognized.
9 COMMISSIONER ZACK: Withdraw the amendment to
10 allow a substitute amendment to be put on the table.
11 CHAIRMAN DOUGLASS: All right. Are you going to
12 offer a substitute amendment? Oh, you are. Is it
13 offered yet; is it on the table?
14 COMMISSIONER ZACK: It's on behalf of Mr. Mills,
15 Evans-Jones and Zack; is that correct?
16 COMMISSIONER EVANS-JONES: That's correct.
17 CHAIRMAN DOUGLASS: Which really, Commissioner
18 Mills, Commissioner Zack, and Commissioner Evans-Jones
19 offer the substitute amendment which is on the table.
20 Would you read the amendment, please, substitute
21 amendment?
22 READING CLERK: By Commissioners Mills and Zack,
23 on Page 2, Line 10 through Page 3, Line 17, delete
24 those lines and insert lengthy amendment.
25 CHAIRMAN DOUGLASS: All right. Commissioner
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1 Mills, you are recognized.
2 COMMISSIONER MILLS: Mr. Chairman, after the
3 concerns expressed yesterday on the issues of racial
4 equity, Commissioners Evans-Jones, Zack and I had a
5 conversation about where we were before the series of
6 amendments, that is the Henderson amendment, which I
7 guess really generated the beginning of this
8 conversation.
9 What this does is put us back where we were, and
10 where we were before that amendment makes it clear
11 that the issues of racial balance and discrimination
12 have priority before the issue of compactness. And
13 that clearly, really actually reflects the law. That
14 is a federal law on the voting rights act, et cetera.
15 But what this does from the point of view of racial
16 equity in apportionment and a particular directive to
17 this commission is to make it clear that it is the
18 constitutional law of Florida that that commission
19 cannot dilute voting strengths of any racial minority
20 as a priority. And that is a first priority before
21 the issue of compactness, which I think responds to
22 the concern.
23 CHAIRMAN DOUGLASS: Any further discussion on the
24 amendment? Commissioner Henderson.
25 COMMISSIONER HENDERSON: If Commissioner Mills
25
1 will yield for a question. Why is this even necessary
2 to put this in there if it in fact is the federal law?
3 COMMISSIONER MILLS: Well, I would suggest, the
4 reason to put it in the Constitution, even though the
5 federal law is good on it, is the federal law can
6 change. The federal law in the future may or may not
7 reflect that priority, and this reflects, I think, a
8 simple constitutional priority to not dilute. And it
9 still has the issue of compactness, but it raises the
10 issue of dilution to a priority.
11 CHAIRMAN DOUGLASS: Any further -- Commissioner
12 Zack.
13 COMMISSIONER ZACK: Well, there's no such thing
14 as absolute compactness. And when you have various
15 considerations that are being presented to the
16 commission, he needs to understand that the creation
17 of an over-seized (phonetic) has priority over
18 compactness. So, we will have to consider compactness
19 in light of the constitutional requirements of equal
20 protection.
21 CHAIRMAN DOUGLASS: All right. Commissioner
22 Smith.
23 COMMISSIONER SMITH: Thank you, Mr. Chairman. I
24 want to address this question to either of the
25 sponsors. Is this amendment a by-product of the
26
1 discussion from Commissioner Scott concerning his
2 concern for minority districts?
3 COMMISSIONER MILLS: Commissioner Smith, I think
4 we all have that concern. I know Commissioner Scott
5 expressed it. Just to read this language, there's
6 several criteria, as shall be drawn as nearly a
7 population as possible, which is the constitutional
8 requirement. And then the language says, "and may not
9 be drawn in a manner that dilutes the voting strength
10 of any racial or language minority group." That's
11 what it says. In other words, it is a mandate that
12 this commission do that.
13 And the next sentence, which is the -- where we
14 got into the conversation yesterday, "except to meet
15 the foregoing requirements, the commission shall
16 consider creating districts that are compact," which
17 means the foregoing requirements, including you can't
18 dilute is a priority that must be considered before
19 you can consider compactness.
20 CHAIRMAN DOUGLASS: All right. On the amendment.
21 Any further debate? On the amendment. All right, all
22 in favor of the amendment, say aye; opposed?
23 (Verbal vote taken.)
24 CHAIRMAN DOUGLASS: The amendment is adopted. We
25 are now on the proposal as amended. Commissioner
27
1 Evans-Jones, Commissioner Thompson, you are recognized
2 on your proposal. Commissioner Evans-Jones, you go
3 first.
4 COMMISSIONER EVANS-JONES: All right. Thank you,
5 Mr. Chairman. I want all of you to think very
6 seriously before you vote here today. What we are
7 going to do is to put this on the ballot so that
8 people will have an opportunity to vote on how we
9 redistrict in our elections. The legislators are
10 going to be allowed to appoint the minority leader and
11 President of the Senate and Speaker of the House and
12 so forth. We'll have 17 members. And I think
13 increasing the number to 17 does give us an
14 opportunity to have more diversity there, and that the
15 general public will be better represented. I also
16 think that the fact that they are going to be going to
17 public hearings is going to be very helpful.
18 Everybody in the state of Florida is going to know who
19 is doing the reapportioning.
20 When we reapportion now, the Legislature does it.
21 In my opinion, it's very self-serving, as far as I
22 would be concerned about my seat. And I think it's
23 unrealistic to expect the legislators to think any
24 other way. And I think that they also should be
25 concerned with other affairs that are extremely
28
1 important. And I would like to relieve them of having
2 to be burdened with this reapportionment. It is very
3 time consuming. It is very important. And I think
4 that all of the citizens of Florida will be better
5 served by having an independent reapportionment
6 commission.
7 As you remember, we went to the public hearings,
8 and I think at every single public hearing that we
9 attended, people said they did not want the
10 legislators to reapportion themselves. I know, in
11 1993, President Crenshaw at the time proposed a
12 reapportionment commission, and that commission would
13 have been appointed by the judiciary. I think Senator
14 Scott and Senator Jennings both supported that at the
15 time. And I think that this is a better way to do it
16 by letting the legislators appoint the people instead
17 of the Supreme Court. I think that's much fairer. I
18 think it gives the legislators some power, but not
19 complete authority as far as the seats are concerned.
20 So, I would urge you to vote yes on this very,
21 very important proposal. And I can assure you that
22 it'll be accepted and voted on by the people in the
23 state of Florida. So, I urge you to vote yes.
24 CHAIRMAN DOUGLASS: Commissioner Thompson.
25 COMMISSIONER THOMPSON: I think she's closed very
29
1 well. I just move the proposal.
2 CHAIRMAN DOUGLASS: Any further debate?
3 Commissioner Langley, you are in opposition?
4 COMMISSIONER LANGLEY: Yes, sir. You know, it
5 would be nice if everything worked as we often planned
6 it did. To call this commission independent is
7 certainly an oxymoron when it's appointed by the
8 politicians. To call it unbiased or nonpolitical is
9 certainly not true because, you know, you have -- you
10 name the two parties in the respective houses as being
11 those who support the commission.
12 I think there's two words that you need to think
13 about. The first one is accountability, and the
14 second one is representation. Ms. Evans-Jones, I want
15 you to tell me, after I'm through, whether you think
16 Okahumpka ought to be grouped with Leesburg as a
17 community of interest or with Clermont; do you know?
18 You don't. And neither will the people on that
19 commission.
20 But the local representatives do know where that
21 community interest is, they do know where the trade
22 routes are, they do know where the shared
23 environmental resources are. And, you know, the
24 representation currently, I think a House member
25 represents about 90,000 people, and a Senate member
30
1 about 300,000 people. This commission of 16 will each
2 theoretically represent 1.8 million people. And where
3 are they going to come from, you know, name the four
4 big democratic politicos in the state, that's where
5 they will come from, and the four big republicans,
6 that's where they will come from. And you will have a
7 total lack of representation.
8 And more important to me is the accountability.
9 These people are appointed politically and they are
10 accountable to no one, no one at all. But when your
11 representative gets up there and divides up your
12 counties and divides up your communities, he has to
13 answer for it. These people answer to nobody.
14 What's wrong with the democratic process? What's
15 wrong with representative government? And who knows
16 more about how to divide this state into communities
17 of interest and best representative of all of the
18 people including minorities than the people who have
19 been elected to represent those people they are
20 dividing? What's wrong with it?
21 Sure it has its problems, they are wheeling and
22 dealing. And if you don't think they will be wheeling
23 and dealing in this commission, then you don't
24 understand life, because these people are going to
25 answer to whomever appointed them. That's the only
31
1 people they are going to answer to. So, I think it is
2 a bad idea. It's working and let's keep it working.
3 CHAIRMAN DOUGLASS: Commissioner Connor.
4 COMMISSIONER CONNOR: Mr. Chairman, I rise in
5 opposition to the proposal and I reject the notion
6 advocated by some that this is purely a partisan
7 issue, and that if you don't support this proposal you
8 are voting your Republican interest, and if you do
9 support it, you are voting your Democratic interest.
10 It's rare that I have ever found myself aligned on the
11 same position with Carrie Meek, and Alcee Hastings and
12 Corrine Brown, but I think that speaks the fact that
13 this is not a partisan issue, that there is more to
14 this than partisanship.
15 I reject the notion that if you come down on one
16 side or the other, you have more concern for racial
17 minorities than if you are in the other position. I
18 think Alcee Hastings and Carrie Meek and Corrine Brown
19 understand something about racial sensitivity and the
20 importance of ensuring that all of our citizens are
21 appropriately empowered under our system of
22 government.
23 One observation that I'll make, I'm troubled by
24 this proposal and I have discussed this with the
25 sponsor, is this, is that for the period of time that
32
1 we continue to have the two party system. And I will
2 suggest to you that that will predominate for some
3 extended period of time into the future. The effect
4 of this proposal is to render party parity when the
5 people have not done so.
6 For example, if you have a Legislature that
7 breaks down 65 percent to 35 percent based on the
8 election by the people, what this commission does, as
9 framed, is to restore party parity to a 50/50 basis,
10 even though the people, regardless of which party is
11 in power, even though the people obviously were not
12 comfortable in seating 50/50 relationships to the
13 Legislature.
14 So, for example, if you had the Republican party
15 representing 65 percent of the Legislature, under this
16 proposal the Republican party only gets 50 percent.
17 The same is true if you flip that for the Democrats.
18 And I would suggest to you that this may be perceived
19 by some to represent an attempt to maintain party
20 parity when the political winds of the state are
21 shifting. And I dare say that same argument may be
22 made about the limitations that some wish to put on
23 contributions to political parties.
24 But I dare say, ladies and gentlemen, that it's
25 more equitable to have a body that's represented in
33
1 proportion to the way in which the people of Florida
2 voted for their representatives than to create some
3 artificial party parity simply by virtue of the fact
4 that this is a two-party state. I don't think that's
5 appropriate and I think that is a flaw in this
6 proposal. Approved, though, this proposal is by
7 virtue of enlarging the body, which would yield
8 greater diversity. I reiterate that there's no more
9 diverse branch of government in this state than the
10 legislative branch; racial diversity, religious
11 diversity, geographic diversity, gender diversity. It
12 is about as much of an amalgamation as you will get in
13 state government.
14 I believe that those elected representatives are
15 the ones who have the responsibility and who ought to
16 be accountable for the way in which we redistrict our
17 state. For those who have sought to abuse this
18 process and use it to their own advantage, history
19 speaks the fact that the public was not so ignorant or
20 stupid that they couldn't see through the way in which
21 they sought to promote their own self interest, and
22 typically they were penalized at the polls for doing
23 it.
24 I urge you to maintain this critical function in
25 the hands of the most diverse, most accountable branch
34
1 of government, the legislative branch. Thank you.
2 CHAIRMAN DOUGLASS: Commissioner Crenshaw.
3 COMMISSIONER CRENSHAW: Mr. Chairman, Members,
4 just very briefly, since people get invoking my name
5 in terms of trying to change the system, I just want
6 to make it clear that in 1992 when the Senate was
7 going through reapportionment, there were 21 Democrats
8 and 19 Republicans. And one of the Democrats felt
9 disenfranchised by his party, and so every time there
10 was a vote on reapportionment, he voted with the
11 Republicans. And so every time there was a vote on
12 the reapportionment plan in the Senate, the vote came
13 out 20/20. The House passed the reapportionment plan
14 just fine, no problems. But in this body, it was
15 almost like purgatory; every time you would vote, a
16 plan would fail, 20/20.
17 So, I guess I became convinced that if there was
18 some way to remove the politics from the
19 reapportionment process would be a good idea, and I
20 proposed to do that, as far as I could get it away
21 from politics, which was actually having the Supreme
22 Court Justices, through a series of interviews, et
23 cetera, appoint a commission, which in my view would
24 be a lot farther from politics than having the Senate
25 President or the House Speaker appoint people.
35
1 As Commissioner Connor pointed out, I think what
2 this does, after going through what I went through in
3 1992, this just perpetuates the purgatory of 1992 and
4 writes it in the Constitution forever, and I think
5 that's wrong.
6 If there was some way to get it away from
7 politics, which I thought my proposal 10 years ago or
8 whenever I madd it did, I would certainly support it.
9 But this certainly isn't as good, it's worse. It just
10 narrows the members of the commission and takes the
11 politics and reduces it down, and again, just
12 perpetuates what we saw in 1992. So I don't think
13 this is a very good solution. And I wanted you-all to
14 know that since I'm the one that would like somehow to
15 remove it from politics. But this certainly doesn't
16 do it. I am going to vote against it.
17 CHAIRMAN DOUGLASS: Commissioner Barton.
18 COMMISSIONER BARTON: I rise to speak in favor of
19 the proposal. Let's face it, we've been doing it one
20 way for a long time. It has not been exactly fair.
21 It's called gerrymandering. I don't know that this
22 will work, but we don't have it forever as
23 Commissioner Crenshaw has said, we have it for 20
24 years, max, unless it does work; and I think we ought
25 to try it.
36
1 Just for example, one of the finest state
2 senators I have ever had representing my community is
3 Senator Scott who lives in the Fort Lauderdale area,
4 Broward County, and I happen to live in Collier County
5 on the other coast. That's an example of the
6 gerrymandering that did occur for many years. And I
7 think it is better, but I don't think it's perfect.
8 And I also would point out that this has broad support
9 across this state by people who have watched the
10 process unfold so unfairly. I think we need to take
11 the high road in this particular issue and I urge your
12 support.
13 CHAIRMAN DOUGLASS: Commissioner Scott.
14 COMMISSIONER SCOTT: Briefly, I know you're
15 tiring of hearing me on that. And let me just say,
16 it's great representing Collier County. They gave me
17 80 percent of the vote in the first primary against
18 the 12-year incumbent House member running for the
19 Senate. But in the spirit of what was best for the
20 state, which is what you often find, I know people
21 want to take a negative attitude about political
22 officeholders, I gave that up, you know, to go for
23 single-member districts so that we could have one
24 minority member in the Florida Senate. There were
25 none for the first six years I served here.
37
1 And subsequently, we have pursued that. Let me
2 just speak for just two seconds on behalf of the
3 members of the Senate and the House who are minority
4 members. You don't know. You cannot imagine, it's
5 like you have heard that song, Walk A Mile In My
6 Shoes. You cannot imagine the insecurities and the
7 problems that they have faced in view of the Supreme
8 Court of the United States' decisions in recent years,
9 up until the last year or so.
10 And in doing reapportionment there is no way that
11 someone else -- no one knows who they are until just a
12 year before they are appointed. I want to put our
13 names on this commission out and find out who knows
14 who we are or how many people actually even know we
15 are meeting, in view, in spite of all of the press
16 we've gotten. But they do know who their
17 representatives are.
18 And I mean, you take someone like Betty
19 Holzendorf, I mean, she knows, she knows, where the
20 community of interest is. You take Jim Hargrett in
21 Tampa. There is a community of interest all the way
22 through Hillsborough and parts of Pinellas, goes
23 around Tampa Bay, economic, socioeconomic, and other
24 communities of interest. And I just want to tell you
25 that it has been great having served, you know, with
38
1 no minority members, to have five of them in the
2 Florida Senate to interact with them.
3 You know, the argument used to be that people
4 that wanted multimember districts would say, Well, no,
5 it would be much better if they -- a few of them are
6 here and a few of them there and a few of them here,
7 then they will have more people accountable to them,
8 but the reverse is totally the truth. And they don't
9 get to sit at the table.
10 Think about sitting at the table and being able
11 to say, Look these are people that I know and if you
12 don't believe me, ask them, or they told me last week
13 when I was down there or they told me last year that
14 they really liked, and here is whatever. So I would
15 just urge you to keep thinking, those of you that feel
16 like you want to be for this keep, to keep thinking
17 about the reality of it is not good all across the
18 state. And like Ander says, I don't remember if I
19 voted for that, but if I did, I was temporarily out of
20 my mind and now I have it back. So I would urge you
21 to not go forward with this.
22 And in addition to which, it's been pointed out
23 by some of the other commissioners, it is potentially
24 very divisive because of the fact that it's leadership
25 of either party that's doing the appointing. So why
39
1 not -- I think the time has come and gone. I think
2 when Marilyn Evans-Jones proposed this 15 years ago
3 --
4 CHAIRMAN DOUGLASS: Commissioner Scott, please
5 refer to these people as Commissioner.
6 COMMISSIONER SCOTT: I would appreciate it,
7 Mr. Chairman, if you would quit interrupting me when I
8 am speaking on a matter that you do not agree with.
9 CHAIRMAN DOUGLASS: I haven't said anything on
10 this matter.
11 COMMISSIONER SCOTT: Okay, thank you. I lost my
12 train of thought for a second. But I would point out
13 to you that the people that are elected from whatever
14 part of the state ought to be the ones to make this
15 decision that the time for this has come and gone and
16 all the people that want it, you know, we get up here
17 in the Legislature and it is the lobbyists and the
18 press and a few interest groups, the people out there
19 are not going to want this when they find out about
20 it, and believe me, they will find out about it. I am
21 sure that you all saw the letter from the three
22 Congress persons who wrote to all of you who are
23 expressing their concerns about it. I just think it's
24 not a good idea and I would urge you to vote against
25 it.
40
1 CHAIRMAN DOUGLASS: Commissioner Ford-Coates.
2 COMMISSIONER FORD-COATES: Commissioners, I rise
3 in support of this proposal. I agree that communities
4 of interest are an important piece of selecting a
5 district. But I disagree strongly that the only
6 people that can make those decisions are the elected
7 representatives. I believe an independent commission
8 will do very similarly to what the Constitution
9 Revision Commission did. They will go out, they will
10 hold public hearings, they will hear from the elected
11 representatives. Their proposals will be out there
12 and available as we heard testimony. They will be
13 available on the Internet probably. It will be easy
14 for people to see what they are doing.
15 And I think people will come and talk and express
16 their opinions. And I believe that these citizens who
17 are appointed by political officials, as we are, will
18 come in and do their job the best possible way they
19 can having studied the issues and listened to the
20 people.
21 This is a good proposal. It takes it out of the
22 hands of the Legislature which already has plenty to
23 do, and puts it in the hands of an independent
24 commission. It is a good proposal and I urge your
25 support.
41
1 CHAIRMAN DOUGLASS: Any further debate?
2 Commissioner Evans-Jones to close.
3 COMMISSIONER EVANS-JONES: Thank you,
4 Mr. Chairman, Members of the Commission. I want to
5 tell you that it may sound good that each legislator
6 has so much information and that they are going to
7 really be involved in the reapportionment process.
8 The fact of the matter is that they are not. Out of
9 the 120 members, maybe there are 2 or 3 that are going
10 to make all these decisions. They really can't have
11 any sort of input into the process, and they don't,
12 and they haven't. So I think you need to consider
13 that.
14 Yes, I am trying to be fair. I'm trying to be
15 fair to the Democrats, I'm trying to be fair to the
16 Republicans. But the people I'm really trying to be
17 fair to is all those people out there who are
18 concerned with reapportionment.
19 If the Democrats are in control, this is going to
20 be a very fair process for Republicans as well. And I
21 think you really need to consider that, so yes, it is
22 parity. And I can assure you that these commissioners
23 will find out what the communities of interest are
24 when they go out on the trail and have the public
25 hearings, they are going to know and they are going to
42
1 find out. And you can say -- well you heard from
2 three incumbents I think you mentioned. Those are
3 also people who are running for election. I imagine
4 they want to keep their seats just like each Senator
5 and each member of the House does. But we are going
6 to have single-member districts, it's going to be
7 fair, and the people who are the best candidates are
8 going to be the ones who are going to be elected. And
9 I think that's what all of us want.
10 This is really a matter of equity. It's a matter
11 of fairness. We don't know who is going to be in
12 charge as far as we have more Democrats registered
13 right now than Republicans, but the Republicans are
14 now in control of the House and the Senate.
15 I think you just want to try to do the fair
16 thing, the thing that needs to be done. The
17 legislators are never going to give this up their own.
18 And I think it's our responsibility to give the public
19 an opportunity to vote for this and to have an
20 independent, and yes, I think it will be an
21 independent reapportionment commission. Thank you.
22 Please vote yes.
23 CHAIRMAN DOUGLASS: All right. Ready to vote.
24 Open the machine. Let's vote.
25 (Vote taken and recorded electronically.)
43
1 CHAIRMAN DOUGLASS: Lock the machine and announce
2 the vote.
3 READING CLERK: Nineteen yeas, 12 nays,
4 Mr. Chairman.
5 CHAIRMAN DOUGLASS: By your vote you've adopted
6 Proposal Committee Substitute for 172 and 162. We'll
7 now move to Proposal No. 91 by Commissioner Hawkes
8 which has been on a motion for reconsideration which
9 was adopted and it's been deferred since
10 February 14 -- 26th. Read it, please.
11 READING CLERK: Proposal 90 --
12 CHAIRMAN DOUGLASS: By Commissioner Hawkes.
13 COMMISSIONER HAWKES: We've been TP'ing this
14 proposal.
15 CHAIRMAN DOUGLASS: I think we're through TP'ing.
16 Commissioner Barkdull.
17 COMMISSIONER BARKDULL: Clean this calendar off.
18 CHAIRMAN DOUGLASS: All right. Read the
19 proposal.
20 READING CLERK: Without objection, it's
21 withdrawn.
22 CHAIRMAN DOUGLASS: All right. The next group of
23 proposals are sovereign immunity which we were on
24 yesterday, and I believe we left with that being the
25 situation. Commissioner Zack, you had the floor I
44
1 think when we quit, didn't you?
2 COMMISSIONER ZACK: I withdrew my proposal,
3 there's nothing pending. There is a motion for
4 reconsideration by the chairman on the Lowndes
5 proposal, is what I recall the status of sovereign
6 immunity was at the time of adjournment.
7 At this time -- by the way, last night we made
8 use of the evening to meet with Commissioner Sundberg
9 and Commissioner Wetherington to discuss some of the
10 legal issues that were discussed extensively yesterday
11 to make sure we were not doing anything that was not
12 intended to be done. As a result of that, we do have
13 presently a committee -- no, not a committee
14 substitute, it's a substitute for 59. And it is on
15 the desk, I believe.
16 CHAIRMAN DOUGLASS: All right. At the present
17 time there is a motion to reconsider the Lowndes
18 proposal on the floor.
19 COMMISSIONER ZACK: That's what I understood, is
20 where we are at at this moment.
21 CHAIRMAN DOUGLASS: So we could go back to that.
22 We didn't vote on it, it was placed on the calendar
23 then we adjourned.
24 COMMISSIONER ZACK: That's correct.
25 CHAIRMAN DOUGLASS: All right. I think I made
45
1 the motion to reconsider. Commissioner Barkdull.
2 COMMISSIONER BARKDULL: Point of inquiry,
3 Commissioner Zack. If we were to pass the motion to
4 reconsider and be back on the Lowndes amendment, is
5 the amendment that you said would be on our desks an
6 amendment to the Lowndes proposal or an amendment to
7 the original proposal?
8 COMMISSIONER ZACK: It would be an amendment to
9 the new proposal if the new proposal is adopted. What
10 is being done now, just so that everyone understands
11 and we try to demystify a little bit what was going
12 on, and no doubt it was confusing because of the
13 member of amendments we were hearing late in the day.
14 What we did is we have a Provision A --
15 COMMISSIONER BARKDULL: Excuse me a minute.
16 Commissioner Zack, I am not interested in the details,
17 I am trying to find out where we would be
18 procedurally.
19 COMMISSIONER ZACK: It would be an amendment to
20 the substitute, and it would be C.
21 COMMISSIONER BARKDULL: It would not be an
22 amendment to the Lowndes amendment?
23 COMMISSIONER ZACK: No, that's correct. The
24 Lowndes amendment if adopted would be an amendment to
25 the Substitute 59.
46
1 COMMISSIONER BARKDULL: But what you were
2 discussing initially is an amendment that was on the
3 desk is not right at this point if --
4 CHAIRMAN DOUGLASS: It's not been introduced.
5 COMMISSIONER BARKDULL: And we're on a motion to
6 reconsider.
7 CHAIRMAN DOUGLASS: That's correct. And correct
8 me if I'm wrong, Commissioner Zack, if this is
9 adopted, then the Lowndes amendment would pass, it
10 would go to vote, then you're offering an amendment
11 which would be to the substitute as amended by the
12 Lowndes proposal.
13 COMMISSIONER ZACK: That's correct, but the way
14 that it actually occurred yesterday is that the
15 Lowndes amendment was an amendment to 59. So this
16 would, in effect, be passing the amendment to 59
17 before 59 was dealt with, that's where the confusion
18 is.
19 CHAIRMAN DOUGLASS: So, if we do reconsider and
20 pass the Lowndes amendment then we can start with your
21 amendments; is that correct?
22 COMMISSIONER ZACK: And you can make an amendment
23 to 59.
24 CHAIRMAN DOUGLASS: All right. Commissioner
25 Lowndes, is that --
47
1 COMMISSIONER ZACK: Or that matter could be
2 freestanding because they are divisible.
3 CHAIRMAN DOUGLASS: Commissioner Lowndes, it was
4 your amendment. Do you understand? I'm not sure I
5 do.
6 COMMISSIONER LOWNDES: Yes, as I understand to
7 simplify what Commissioner Zack is saying, is the
8 so-called Lowndes amendment would work both with the
9 amendment which has been proposed, 59, the substitute
10 to 59, and also would work with the substitute to
11 that, which Mr. Zack is going to propose after we vote
12 on the motion to reconsider.
13 CHAIRMAN DOUGLASS: Okay. On the motion to
14 reconsider, Commissioner Freidin.
15 COMMISSIONER FREIDIN: My understanding of these
16 two proposals or these two amendments, and I'd like
17 the proponents to correct me if I'm wrong, is that the
18 Lowndes proposal would work with the Zack amendment or
19 it would work on its own. It makes sense to me, and I
20 will urge the Commission to first take up Commissioner
21 Zack's amendment and then deal with the Lowndes
22 proposal because it really is something that follows,
23 you kind of have to know what you're doing with the
24 Zack one before you decide the Lowndes one.
25 CHAIRMAN DOUGLASS: Commissioner Connor, you
48
1 wanted the floor?
2 COMMISSIONER CONNOR: Mr. Chairman, I didn't want
3 to speak -- I didn't want to speak to that issue,
4 because frankly I just have to rely on these folks to
5 let us know in what sequence it ought to come. There
6 was an indication by some to me yesterday that the
7 Lowndes proposal perhaps it suffered from a lack of
8 clarity and I was asked in the interest of promoting
9 the reconsideration to try to clarify what that
10 proposal did. I don't know if that would be out of
11 order or not, Mr. Chairman.
12 CHAIRMAN DOUGLASS: Well, without objection, tell
13 us what your clarification is in 75 words or less.
14 COMMISSIONER CONNOR: Yes, sir. This proposal
15 would eliminate the claims bill process. In cases
16 where a claim exceeded $200,000, the claim would be
17 submitted in lieu of a trial to an arbitration panel
18 whose vote would be binding in terms of the outcome.
19 That means then that, with respect to claims where the
20 cap -- statutory cap which has been imposed was
21 exceeded, that the arbitration panel's decision would
22 be binding on the claimant and on the sovereign entity
23 whose conduct was at issue, hence you eliminate
24 altogether the claims bill process. You effectively
25 eliminate any cap on sovereign immunity.
49
1 I think that's important to understand because
2 that represents a marked departure from current
3 policy, and you assure that injured people are
4 compensated in proportion to the extent of the
5 injuries that they have sustained.
6 The concern about the waiver of a jury trial was
7 deemed to be a matter of little consequence, inasmuch
8 as one does not have the right to a jury trial when
9 they seek to recover more than the cap currently,
10 their remedy is through the legislative arena in the
11 claims bill process, and there's an explicit provision
12 here that planning functions would remain immune from
13 suit and that the rules of the arbitration panel would
14 be written by the Supreme Court. That's my
15 explanation, Mr. Chairman.
16 CHAIRMAN DOUGLASS: Commissioner Morsani.
17 COMMISSIONER MORSANI: Mr. Chairman and
18 Commissioners, there is one thing that Commissioner
19 Connor did not say, but this is the exact language --
20 I shouldn't say the exact language, but it mirrors the
21 current federal system. Am I correct, Mr. Connor?
22 COMMISSIONER CONNOR: Well, actually, it
23 represents a permutation of the federal system. It's
24 my understanding under the federal system that a
25 federal judge is the ultimate determiner -- arbiter of
50
1 the facts in the case and makes the award. In this
2 case it would be a panel.
3 CHAIRMAN DOUGLASS: Commissioner Morsani, your
4 mic isn't on. I am going to try to get it on for
5 you.
6 COMMISSIONER MORSANI: I know. There. But the
7 jury trial is not available in the federal system, and
8 that's what I was trying to say.
9 COMMISSIONER CONNOR: That's precisely correct.
10 And in cases where it is maintained that the claim
11 would exceed the cap, the parties would not have a
12 right to a jury trial. The thought by the sponsor, as
13 I understood it, is that helps to protect a sovereign
14 entity against a potential runaway jury and injects
15 some balance in there, while at the same time
16 providing some opportunity for an injured person to
17 recover the full measure of their damages.
18 CHAIRMAN DOUGLASS: Commissioner Nabors.
19 COMMISSIONER NABORS: As I understand the posture
20 is to whether we reconsider the Lowndes amendment.
21 CHAIRMAN DOUGLASS: That's correct.
22 COMMISSIONER NABORS: Because I had a lot of
23 problems with the Lowndes amendment which I am not
24 going to debate now pending reconsideration.
25 CHAIRMAN DOUGLASS: That's correct, it is a
51
1 matter on reconsideration. Are we ready to vote,
2 Commissioner Zack, on reconsideration?
3 COMMISSIONER ZACK: Mr. Chairman, Commissioner
4 Freidin suggested that the Lowndes matter be addressed
5 after 59. And I know procedurally that may not be
6 correct, but I think it's important, if the Chair will
7 allow it, for an overview of sovereign immunity and
8 what is being proposed both by 59 and the Lowndes
9 amendment as it applies to 59, because it needs to be
10 taken in context.
11 And what I heard yesterday is that the issue of
12 sovereign immunity, particularly to those laypersons
13 on this commission, is not clear as of this time. And
14 before the vote, I think it's important that we
15 understand what we're voting on, and to do that, there
16 has to be an overview of what we're dealing with as it
17 pertains to sovereign immunity. But again I
18 understand that procedurally that is not the posture
19 that we're in.
20 CHAIRMAN DOUGLASS: Well, in answer to that, if
21 you vote to reconsider and it is affirmative that we
22 do reconsider, then you could move to delay the
23 reconsideration until after your --
24 COMMISSIONER ZACK: That's perfectly acceptable.
25 CHAIRMAN DOUGLASS: And that would, I think,
52
1 probably meet the approval of Commissioner Lowndes.
2 Would it not, Commissioner Lowndes?
3 COMMISSIONER LOWNDES: Yes, sir.
4 CHAIRMAN DOUGLASS: All right. So the issue is
5 not as described, we can still reach that if the vote
6 to reconsider is a positive vote. All right. So now
7 we'll vote on the motion to reconsider the Lowndes
8 amendment. I think everybody fully understands it at
9 this point. So open the machine and let's vote.
10 (Vote taken and recorded electronically.)
11 CHAIRMAN DOUGLASS: Lock the machine and announce
12 the vote.
13 READING CLERK: Seventeen yeas, 9 nays,
14 Mr. Chairman.
15 CHAIRMAN DOUGLASS: All right. Now, as I
16 understand, Commissioner Zack, with the concurrence of
17 Commissioner Lowndes, moves to pass this pending the
18 consideration of his amendment which he's placing on
19 the desk. Now, is that an amendment to the amendment?
20 COMMISSIONER ZACK: That's correct.
21 CHAIRMAN DOUGLASS: So, it's an amendment to the
22 amendment that was on the floor that had passed. No,
23 it had not passed, it was on the floor. All right.
24 Commissioner Zack has an amendment on the table which
25 we'll read. I think this is your definitive
53
1 amendment; is that correct?
2 COMMISSIONER ZACK: This is the definitive
3 substitute amendment after consultation with
4 Commissioner Sundberg and Commissioner Wetherington
5 about the concerns that were discussed yesterday late
6 in the day.
7 CHAIRMAN DOUGLASS: All right.
8 COMMISSIONER ZACK: And there are two different
9 amendments that you have before you. You have to have
10 two different sheets of paper to understand what's
11 happening. Until -- that's the problem. There has to
12 be two sheets of paper that each person, each
13 commissioner is looking at. There is the first sheet,
14 which is the amendment, which has provision Section
15 13A, (a) and (b).
16 (Off-the-record comment.)
17 CHAIRMAN DOUGLASS: As far as I'm concerned, we
18 can vote on the Lowndes amendment if everybody is in
19 the chamber. I have no problem with that. You need
20 to get your stuff together so we know what we're
21 voting on.
22 COMMISSIONER ZACK: It's been together, Mr.
23 Chairman, it's been presented before. As a matter of
24 fact, it was typed up. I reviewed it before the
25 Lowndes amendment. The Lowndes amendment was then
54
1 typed up to be attached to it but considered
2 separately from it. And that's why each person should
3 have before it -- I can't help it has not been passed
4 out, it should have been passed out. You should have
5 before you two sheets. Does everybody have two
6 sheets? A and B. All right. Commissioner Barkdull
7 doesn't have two sheets. Commissioner Mathis doesn't
8 have two sheets. What we need is these passed out.
9 CHAIRMAN DOUGLASS: They are now passing
10 something out.
11 COMMISSIONER ZACK: Apparently the machine is
12 broken is what I have been told.
13 CHAIRMAN DOUGLASS: Commissioner Scott, the
14 machine is broken.
15 COMMISSIONER SCOTT: How about my microphone?
16 CHAIRMAN DOUGLASS: It's working full time.
17 COMMISSIONER SCOTT: Thank you. Can I be
18 recognized?
19 CHAIRMAN DOUGLASS: You already have been.
20 COMMISSIONER SCOTT: Okay. When you called the
21 vote you said on reconsideration of the Lowndes
22 amendment, and that's what we say when it will have
23 passed. But what apparently you were doing is
24 reconsidering the vote by which it failed, and I was
25 confused, so I voted yes thinking, you know, whatever.
55
1 So, I think we should either revote, or I would
2 now move to reconsider the vote by which whatever
3 happened last time. You know, it failed once and we
4 reconsidered, and I now move to reconsider that
5 reconsideration because there is a lot of confusion
6 here on what we're voting on.
7 CHAIRMAN DOUGLASS: Do you want to just change
8 your vote, Commissioner Scott? Would you like
9 unanimous permission to change your vote?
10 COMMISSIONER SCOTT: No, I would just like the
11 vote to be explained properly that what we were voting
12 on was a motion to reconsider the vote by which the
13 Lowndes amendment failed, and that was not what was
14 said.
15 CHAIRMAN DOUGLASS: It was said. It might not
16 have been said right at the end, but it was said
17 several times in the discussion when you were not
18 there. And maybe I called it at the end wrong, and
19 you're absolutely right, I should have been
20 technically correct at the end so you would have known
21 what you're voting on. But I think everybody in the
22 chamber knew what they were voting on. And if you
23 would like permission, unanimous permission, to change
24 your vote, I think you can get it.
25 Commissioner Riley.
56
1 COMMISSIONER RILEY: Mr. Chairman, I'd like to
2 throw away some papers that are on my desk, but before
3 I throw them away, I would like to make sure I'm
4 throwing away the right stuff. So, my question is,
5 what I need to have on my desk are the two things that
6 have just been passed out and the Lowndes proposal,
7 Lowndes and Morsani, which talks about the
8 three-person arbitration. Everything else I can throw
9 away?
10 CHAIRMAN DOUGLASS: As it relates to this
11 proposal, I think that's correct according to
12 Commissioner Zack.
13 COMMISSIONER RILEY: As it relates to Proposal
14 59.
15 CHAIRMAN DOUGLASS: And all the combined
16 proposals.
17 COMMISSIONER RILEY: Well, it's the combined
18 stuff that's worrying me.
19 CHAIRMAN DOUGLASS: Well, don't worry about that
20 yet.
21 COMMISSIONER RILEY: Every time I think I
22 understand it, somebody hands me another piece of it.
23 CHAIRMAN DOUGLASS: What you should have before
24 you on this consideration are the two proposals, or
25 amendments rather, offered by Commissioner Zack and
57
1 you should have the Lowndes amendment also on your
2 table.
3 COMMISSIONER RILEY: Thank you.
4 CHAIRMAN DOUGLASS: Now, does everybody have that
5 information on their desks? If so, we'll proceed with
6 Commissioner Zack on his amendments. Commissioner
7 Zack.
8 COMMISSIONER ZACK: Will Rogers once said that a
9 pretzel is a bread stick described by a lawyer. I'm
10 going to try to turn this pretzel back into a bread
11 stick. And it is very, very simple. But I'm going to
12 start at the beginning, which is with the king because
13 there used to be a king. And all the law in the
14 United -- there still is a king, but a different king.
15 But the king could do no wrong in England, and
16 our law comes from common law England, as we discussed
17 yesterday, and there was a principle that the king
18 could do no wrong. That means you couldn't sue the
19 king no matter what the king did, no matter how
20 egregious the crime. Some of you saw Brave Heart, you
21 could not sue the king for what the king did, no
22 matter what. That is called sovereign immunity.
23 When we adopted the common law of England in this
24 country we accepted sovereign immunity. The sovereign
25 became the state and the state had the same rights as
58
1 the king and the state could do no wrong. And the
2 state could not be sued no matter what the state did.
3 Some people felt that was just a little unfair.
4 As a result of that, there was a limited waiver
5 of sovereign immunity by the state. And that limited
6 waiver, which occurred in 1981 or '83 -- it was '81,
7 was for $100,000.
8 Now, in 1986 there was the Tort Review Commission
9 that Commissioner Wetherington sat on. I don't know
10 if Commissioner Kogan sat on it or not, but in 1986,
11 10 years ago, it was recommended that that cap be
12 raised from 100 to $200,000. Not a big raise, but it
13 was just reviewed by that commission and felt it was
14 fair to raise it to $200,000. Ten years has gone by,
15 nothing has happened.
16 We went around the state of Florida and at every
17 public hearing we have heard about the abuses that
18 occurred in this area. Particularly where the state
19 has taken on the role of private industry and does not
20 have the same obligations to insure over its wrongful
21 acts.
22 This proposal still protects the state. It is a
23 very limited fix, if you will, of the very limited
24 waiver that exists today of sovereign immunity in the
25 state of Florida. And this is No. 59 (a) and (b).
59
1 (a) contains the word "may," the Legislature may.
2 Again there was waived sovereign immunity. There was
3 concerns yesterday about legislating to the
4 Legislature that they shall waive sovereign immunity.
5 So, in fact, this still preserves the right of
6 the Legislature to maintain sovereign immunity;
7 however, (b) says that if there is going to be a
8 waiver of sovereign immunity, which we anticipate in
9 view of the history of that waiver would continue to
10 exist, then it should be as set forth in (b).
11 And (b) says that the $100,000 cap is raised to
12 $200,000, that that amount is increased by the CPI
13 annually so we don't get into the disparity that we
14 presently have, and that this doesn't have to be fixed
15 on an annual basis.
16 It also provides that costs are in addition to
17 the $200,000. But attorneys' fees are not considered
18 costs. The attorneys' fees are part of the $200,000
19 recovery. It also has a bad faith provision which you
20 have heard me identify as a, quote, accountability
21 provision, because what that faith does is it makes
22 the person determining whether or not to pay a claim
23 accountable for acting in a reasonable way, not as a
24 guarantor that the decision is correct, because it can
25 be wrong. There is no bad faith if there are two
60
1 competing claims -- views of the situation.
2 In other words one witness said it was a red
3 light, the other one says it was a green light when
4 the accident occurred, and there is no clear
5 determination, and the jury decides in favor of the
6 plaintiff. There is no bad faith because that was
7 reasonable, there were two people that witnessed the
8 accident, and the adjuster does not have to pay any
9 money in that situation.
10 However, if you have a bus driver who is
11 intoxicated and runs on the other side of the road and
12 kills an individual or makes them a quadriplegic and
13 that information is represented to the claims adjuster
14 and proven to the claims adjuster by the accident
15 report of the police officer, then the claims adjuster
16 has a very simple thing to do, it will have a
17 reasonable period of time to make an investigation,
18 and then pay the $200,000, and there can never be any
19 bad faith because they acted properly as any
20 reasonable person will do.
21 If they do not, however, if they do not, and they
22 say, We're not going to pay anyway, we're just going
23 to keep the money in our pocket, we're not going to be
24 accountable and you can't do anything to us, that's
25 the situation today. We can say, No, you can be
61
1 guilty of bad faith, but there is a limitation.
2 And we put on a limitation last night to the
3 extent not to exceed $1 million. The reason we did
4 that is so that there would be not an unlimited
5 liability, and the concerns that we've heard from
6 various government entities about unlimited liability.
7 So, if you adopt (a) and (b), and if the
8 Legislature continues to have a waiver of sovereign
9 immunity, (a) and (b) is what you see, and that will
10 be the sovereign immunity law of the state of Florida.
11 Now, what happens today if you have a verdict in
12 excess of $100,000, which is what the cap is today?
13 You can come to the Legislature and you can seek a
14 claims bill, and to the extent that there is a claims
15 bill, as it exists today, there is an unlimited waiver
16 of sovereign immunity if the claims bill is passed.
17 In other words, you have a $12 million verdict in
18 a quadriplegic case, and if the state, after you come
19 up here and present your information and a claims bill
20 is in fact passed by the Legislature, there is no
21 limitation. What's the problem with that system? It
22 is what has been described to us by President
23 Jennings, by people here in this chamber over and over
24 again, that that is justice for the rich, that is
25 justice for people who can hire the best lobbyist, who
62
1 can make the appropriate campaign contributions and
2 can get a claims bill through.
3 Now last year President Jennings looking at the
4 situation felt it had been abused so extensively in
5 the past that there would be no claims bill of any
6 kind, and there have been no claims bills passed last
7 year.
8 What Commissioner Lowndes' amendment to my
9 amendment does is it replaces that claims bill
10 process; in other words, anything over the waiver of
11 sovereign immunity with an arbitration panel, a
12 three-person arbitration that will determine whether
13 or not any monies should be paid over the sovereign
14 immunity cap, period, that's what it does. There is
15 no limitation, however, to that amount, just as there
16 is no limitation today on a claims bill.
17 So, you can adopt 59 and all that does, again, is
18 allows the Legislature first to make the decision of
19 whether to waive; and two, if it does waive, it will
20 be the waiver to the extent identified in (b) that is
21 before you. You can adopt that by itself, however, if
22 you do not believe that the claims bill process as it
23 exists today is fair and that the Lowndes amendment,
24 which is (c) would be fairer to the people of Florida
25 than what exists today, then you will move, and it's
63
1 been moved and you will vote in favor of the Lowndes
2 amendment.
3 However, if you vote against the Lowndes
4 amendment, Amendment 59 still needs to be voted on.
5 And if you defeat the Lowndes amendment and you pass
6 59, what you have is the new terms of (b) and you
7 maintain the claims bill process that exists today in
8 Florida.
9 If you defeat the Lowndes amendment and you
10 defeat Amendment 59, what you are left with is the
11 $100,000 sovereign immunity cap. That's what I
12 understand is before the body.
13 CHAIRMAN DOUGLASS: Commissioner Barkdull.
14 COMMISSIONER BARKDULL: Commissioner Zack, yield
15 for a question?
16 COMMISSIONER ZACK: Yes, sir.
17 CHAIRMAN DOUGLASS: He yields.
18 COMMISSIONER BARKDULL: Commissioner Zack, the
19 $100,000 limit is not in the Constitution today, is
20 it?
21 COMMISSIONER ZACK: That's what we discussed
22 yesterday.
23 COMMISSIONER BARKDULL: No, it's not in the
24 Constitution today. It's a statutory --
25 COMMISSIONER ZACK: I accepted that as an
64
1 accurate statement yesterday.
2 COMMISSIONER BARKDULL: Now, as I read your (b)
3 when you talk about a million dollar limit, you read,
4 In the event of a finding of bad faith and the failure
5 to settle such a suit. Now a bus driver's got 32
6 passengers and he doesn't run and get hit by a driver,
7 he gets drunk and runs off of a mountain and there is
8 bad faith, is it 1 million for the 32 or $32 million?
9 COMMISSIONER ZACK: Each person shall have the
10 same rights as every other person.
11 COMMISSIONER BARKDULL: That's the way I read it.
12 And I appreciate your candor and the answer because
13 that's the way I read it.
14 COMMISSIONER ZACK: As a matter of fact that's
15 why the occurrence limit that was previously in one of
16 them was deleted because it wasn't felt that by
17 happenstance every citizen in Florida should be
18 treated inferior to any other citizen.
19 COMMISSIONER BARKDULL: Thank you.
20 CHAIRMAN DOUGLASS: All right. I have been
21 advised by the clerk that we need to read the
22 amendment since we haven't. Would you please read it?
23 This is the Zack amendment.
24 READING CLERK: Substitute Amendment by
25 Commissioner Zack on Page 1, Lines 15 through 28,
65
1 delete those lines and insert lengthy amendment.
2 CHAIRMAN DOUGLASS: All right. Now, Commissioner
3 Morsani.
4 COMMISSIONER MORSANI: Just as a clarification.
5 This amendment actually becomes a proposal. So
6 everybody really understands, all those other papers
7 that are on your desk, throw them away. This actually
8 becomes the proposal.
9 CHAIRMAN DOUGLASS: We haven't voted on yours
10 yet, so don't throw them all away. All right,
11 Commissioner Brochin was up first. Commissioner
12 Brochin has a question.
13 COMMISSIONER BROCHIN: Commissioner Zack, is the
14 intent of this amendment by picking $200,000 to adjust
15 the amount from the original $100,000 amount; is that
16 the intent? Do you know how the original $100,000
17 amount was picked in the first place?
18 COMMISSIONER ZACK: I have no idea.
19 COMMISSIONER BROCHIN: Well, is there any tie
20 that that is somehow justly compensating victims in
21 any sense since we are now picking another amount off
22 of the original?
23 COMMISSIONER ZACK: We know one thing, that we
24 heard if you factor in the inflation, that a person,
25 inflation, not even in considering the higher
66
1 inflation rate of medical care, that the very least
2 amount would be 200 -- it's probably 250 to $300,000.
3 It depends on what discount rate you want to use. As
4 you know, you can use any discount rate and change the
5 number. But what we felt, and again, I am trying not
6 to repeat what was said yesterday, but it was felt
7 that a citizen of Florida in 1998, if they are injured
8 by the state should be able to receive the same health
9 care benefits and other benefits that they would have
10 had if they were a citizen in this state in 1981.
11 COMMISSIONER BROCHIN: And that's what I'm trying
12 to understand. As arbitrary as the $200,000 number
13 was, perhaps the $100,000 was arbitrary in terms of
14 compensation of the victims. Because if I understood
15 it right, when you are putting sovereign immunity in,
16 the caps don't relate to compensation, they relate to
17 the ability of the sovereign to pay or be protected.
18 And you selected 200,000 and now you select a
19 million dollars, I'm just trying to understand why we
20 are putting these numbers in the Constitution and what
21 basis there is for these numbers other than they are
22 building upon statutory numbers that have already been
23 created some 15 years ago.
24 COMMISSIONER ZACK: Never arbitrary in the sense
25 that that is what is required to be paid on any claim.
67
1 If a claim as determined by a jury is a $10,000 claim
2 or is not compensable at all, then nothing is paid.
3 This was a cap. So it can never be -- you know, it's
4 not an automatic payment, I want to make clear about
5 that as well. So, it's not arbitrary, it really is a
6 backstop to protect the state from unlimited amounts
7 of claims.
8 COMMISSIONER BROCHIN: Precisely. And if it's a
9 backstop to protect the state from unlimited claims,
10 I'm curious as to how we came up with $200,000 or
11 $1 million as an appropriate backstop.
12 COMMISSIONER ZACK: That's easy, that is your
13 question.
14 COMMISSIONER BROCHIN: That is the question.
15 COMMISSIONER ZACK: What we tried to do, again,
16 is to provide a citizen in Florida today with the same
17 rights they had in '81, and the $200,000 played off of
18 the $100,000 figure using inflationary numbers since
19 that time. As far as the million dollar concern was
20 because originally it was unlimited. And as you know,
21 bad faith is a contractual -- comes from contractual
22 law. What it does is it avoids this scenario. And
23 again, for those in attendance yesterday, I apologize,
24 but it has to be as it relates to a specific scenario.
25 If you have, again, that quadriplegic I'd
68
1 identified earlier, in today's environment, and I can
2 tell you and I can present you cases where this does
3 occur, this is not just being made up, you can have a
4 quadriplegic and you can call the state adjuster, and
5 the state adjuster will say a couple of things.
6 Number one, I want you to take depositions of all
7 the people around the incident, quote, unquote, what
8 that means, you translate it into English is, We want
9 you to spend money off the cap.
10 So, it's going to cost you 10,000, $15,000 in
11 costs to take those depositions and do that discovery.
12 Then, we're not going to pay you for a year, two
13 years, maybe five years. You say, How can you do that
14 to me, what is my remedy? It says, You don't have any
15 remedy. If I have 200 cases, if I have 400 cases, I
16 don't care because no matter what happens, no matter
17 how irresponsibly I act, no matter how offensive I am
18 to you and callous to your needs to have medical care
19 at that moment, you can't do anything about it.
20 Now, you have a claim for a quadriplegic that's
21 worth $10 million over your lifetime, it is a young
22 teenage quadriplegic, and that's a low number based on
23 what they'll tell you. It will be paid, it's going to
24 be paid by somebody, it can be paid by a public
25 hospital, it can be paid by the taxpayers somewhere
69
1 along the way.
2 But that $10 million claim, if it's paid under
3 this proposal, it will be a $200,000 payment. Today
4 it would be a $100,000 payment less the cost of
5 discovery, 15,000, less the time value of money not
6 paid, say another $10,000 deduction, so you are down
7 to $75,000, it's not a $100,000 cap, it's 75,000.
8 But what happens on the eve of trial? The
9 adjuster calls you up and says, Mr. Zack, I know
10 you're a very busy lawyer and it's going to cost you
11 $25,000 to try this case, so if you give me another
12 $10,000 break, I'll pay you $65,000 and you're still
13 way ahead of the game. And there is nothing more you
14 can do about it. And people have had enough.
15 And we have -- let me finish. We have heard that
16 around the state, the people have had enough. So what
17 does bad faith do? Bad faith says that if that
18 adjuster doesn't pay that $200,000 under the new
19 proposal --
20 CHAIRMAN DOUGLASS: I hate to interrupt you, but
21 it's been suggested that we limit time to debate on
22 this because we debated it yesterday afternoon.
23 COMMISSIONER ZACK: I would be happy to do that,
24 but I need to finish up and I will finish up very
25 quickly, then a subsequent jury will decide whether
70
1 that adjuster acted in bad faith, and if it is an
2 insurance company and it's $10 million, they have to
3 pay the entire $10 million because they acted in bad
4 faith.
5 But because this is the state and the concerns of
6 Commissioner Wetherington and Commissioner Sundberg
7 and other concerns we have heard, we're going to limit
8 it to a million dollars, so there will be an $800,000,
9 in effect, maximum bad faith judgment. And I assure
10 you that with that, the adjuster or the claims persons
11 in this instance will not act in a way that is
12 arbitrary and capricious, and that's the protection
13 that the citizens of this state have. And if a
14 subsequent jury finds that they acted properly, there
15 is no bad faith.
16 COMMISSIONER BROCHIN: If I could just follow up
17 with one other question on a different matter,
18 Commissioner Zack. Do I understand it correctly that
19 if this amendment is defeated, and then we consider
20 Commissioner Lowndes' amendment that the effect of
21 Commissioner Lowndes' amendment would be to waive all
22 caps on sovereign immunity? I thought that's what I
23 heard Commissioner Connor say in his clarification,
24 but I want to know, and we all ought to know, is that
25 the issue in part that we'll be voting on when we
71
1 consider Commissioner Lowndes' amendment, that is all
2 caps on sovereign immunity?
3 COMMISSIONER ZACK: Again, I want to
4 differentiate between Commissioner Lowndes' proposal
5 and 59. There is a limitation in 59. As far as
6 Commissioner Lowndes' proposal, it is the same
7 limitation or lack of limitation that exists today in
8 the claims bill process. In the claims bill process
9 there is no limitation on a waiver of sovereign
10 immunity, none. And on the Lowndes bill, there is no
11 limitation of sovereign immunity.
12 COMMISSIONER BROCHIN: So, in effect, we would be
13 removing the caps from sovereign immunity if we adopt
14 it?
15 COMMISSIONER ZACK: Yes and no. You are not
16 doing anything other than what exists today. Today,
17 if there is a claims bill, there is no cap, if there
18 is a claims bill.
19 COMMISSIONER BROCHIN: Not to be argumentative,
20 but there is a distinct difference because with the
21 claims bill process it is still the legislative body
22 who is making the decision on the cap and whether the
23 amount of the cap should be extended. That's the same
24 Legislature that created the cap in the first place,
25 that's a significant distinction when you're taking it
72
1 and putting it into three arbitrators and telling
2 them, There are no caps and you can make a decision
3 notwithstanding the statutory caps of $100,000.
4 COMMISSIONER ZACK: Excuse me, that's a
5 completely different question than what you asked me.
6 The answer to your question now is yes, it is now
7 taken away from the Legislature and given to three
8 arbiters under the Lowndes amendment. However, it
9 doesn't change the fact that under the claims bill
10 there is no cap, and under the Lowndes' there is no
11 cap. You understand the distinction?
12 COMMISSIONER BROCHIN: Yes, I do.
13 COMMISSIONER ZACK: Okay.
14 COMMISSIONER BROCHIN: And I'd like, at the
15 appropriate time, to speak against this amendment.
16 CHAIRMAN DOUGLASS: All right now. I believe the
17 first one up was Commissioner Lowndes.
18 COMMISSIONER LOWNDES: I rise for a point of
19 clarification. I'm not sure what -- whether we're
20 discussing Mr. Zack's -- or Commissioner Zack's
21 substitute amendment or are we discussing my
22 amendment?
23 CHAIRMAN DOUGLASS: We are supposed to be
24 discussing his substitute amendment and yours is still
25 pending.
73
1 COMMISSIONER LOWNDES: I understand from my good
2 friend Commissioner Barkdull that a procedural motion
3 might be to divide the question. So because I believe
4 that, whether or not Commissioner Zack's substitute
5 amendment passes, that the amendment which we're
6 reconsidering, which was my amendment, could stand on
7 its own.
8 CHAIRMAN DOUGLASS: So you're making a motion to
9 divide the question which would separate your
10 amendment from the proposal -- the amendment that's
11 now on the floor; is that your purpose? Now, you have
12 an amendment on the table which you've offered; would
13 that be what you would offer to divide?
14 COMMISSIONER LOWNDES: Yes.
15 CHAIRMAN DOUGLASS: So what is before us then
16 would be a motion --
17 COMMISSIONER CONNOR: Point of order,
18 Mr. Chairman.
19 CHAIRMAN DOUGLASS: I would like some help on
20 this. Who's first ordered?
21 COMMISSIONER CONNOR: Point of order,
22 Mr. Chairman. I think the motion to divide the
23 question is inappropriate inasmuch as we're on the
24 Zack proposal, and by virtue of our previous vote, as
25 I understand it, that will be followed by a discussion
74
1 on the Lowndes amendment.
2 CHAIRMAN DOUGLASS: Let me say that on the table
3 it was just placed, and I think this may be what
4 precipitated it, because it hasn't been read yet, is
5 an amendment to Commissioner Zack's substitute
6 amendment by Commissioner Lowndes, which is what he's
7 trying to divide --
8 COMMISSIONER CONNOR: He may want to just --
9 CHAIRMAN DOUGLASS: That procedurally is a
10 correct motion.
11 COMMISSIONER CONNOR: He may prefer not to
12 proffer that amendment at this time so we can stay
13 focused on the Zack proposal.
14 CHAIRMAN DOUGLASS: Okay. So what you're saying
15 is if his substitute amendment is defeated or
16 whatever, he would have the opportunity then to bring
17 this forward on its own merits, is that what you're
18 saying? That would be true now, would it not?
19 COMMISSIONER LOWNDES: I will withdraw my motion
20 and anything I can do to keep this commission
21 focussed, I'd like to do.
22 CHAIRMAN DOUGLASS: Thank you very much.
23 Commissioner Zack.
24 COMMISSIONER ZACK: Respectfully, I don't ask for
25 a ruling that you would have nothing to amend if the
75
1 proposal was defeated. It would appear to me that
2 procedurally, procedurally you will have to take up
3 the amendment. And I have no problem taking the
4 amendment up first now that the context in which it's
5 taken up is understood. You would have to take up the
6 amendment first, it has to be voted on, and then you
7 have to take up 59, I believe that's the correct
8 posture.
9 CHAIRMAN DOUGLASS: All right. I'm going to rule
10 anything that will get this going, and the ruling is
11 going to be that you haven't filed your second
12 amendment yet, Commissioner Lowndes; is that right,
13 you've got it on the table but you have not moved it?
14 COMMISSIONER LOWNDES: That's right, sir.
15 CHAIRMAN DOUGLASS: All right. Now we're back
16 and we're going to deal with Zack's amendment. Now,
17 Mr. Connor, is that okay?
18 COMMISSIONER CONNOR: That's fine with me, I'd
19 just like to ask some questions of Commissioner Zack.
20 CHAIRMAN DOUGLASS: All right. If you could do
21 the best you can to get him to give short answers.
22 COMMISSIONER CONNOR: Okay. Commissioner Zack,
23 as I understand your proposal, it remains within the
24 discretion of the Legislature to provide provisions
25 for bringing suit against the state; that correct?
76
1 COMMISSIONER ZACK: That's correct.
2 COMMISSIONER CONNOR: If the Legislature views
3 the cap provisions, including the million dollar
4 exposure for bad faith to be draconian, would the
5 Legislature in its discretion be able to prevent
6 suits, to avoid a waiver of sovereign immunity?
7 COMMISSIONER ZACK: Absolutely.
8 COMMISSIONER CONNOR: Okay. Now, is it your
9 understanding or is it your intent to incorporate the
10 existing law about bad faith, that body of law that's
11 been developed by a court decision, into this
12 proposal?
13 COMMISSIONER ZACK: Yes, it is.
14 COMMISSIONER CONNOR: Now, historically, as I
15 have understood that law, bad faith was a judicial
16 concept that rose by virtue of a contractual
17 relationship that typically had existed between an
18 insurance company and an insured. And the insurance
19 company by virtue of that relationship was deemed to
20 have a fiduciary obligation to act in good faith
21 towards its insured to mitigate or eliminate, when it
22 could, its exposure for a judgment in excess of the
23 policy limits; is that correct?
24 COMMISSIONER ZACK: That's correct.
25 COMMISSIONER CONNOR: As I understand the law,
77
1 then, liability for bad faith on the part of an
2 insurance company arises when it negligently fails to
3 settle a claim within policy limits when given an
4 opportunity to do so, or when it maliciously fails to
5 do so; is that correct?
6 COMMISSIONER ZACK: That is correct.
7 COMMISSIONER CONNOR: You would acknowledge,
8 would you not, that this fiduciary relationship would
9 not be quite the same in this instance, in that you
10 would have two adverse parties?
11 COMMISSIONER ZACK: I wouldn't really acknowledge
12 that, no, I think you have a situation here where the
13 state is acting as the responsible individual just
14 like the insurance company is for the acts of its
15 insured, in this case, its agent.
16 COMMISSIONER CONNOR: In any event, what I'm
17 trying to get at, is bottom line, regardless of
18 whether the state stands in the place instead of an
19 insurance company, is it your intent to have that
20 standard of negligent failure to settle when it
21 reasonably ought to have settled or a malicious
22 failure to settle, would you expect that be -- is it
23 your desire to have that be the standard by which the
24 conduct of the state is judged in reference to the
25 settlement of these claims?
78
1 COMMISSIONER ZACK: Yes.
2 COMMISSIONER CONNOR: All right. Now, with
3 respect to the million dollar exposure, do I correctly
4 understand your proposal to be, if the state acts in
5 good faith that its exposure is limited to $200,000?
6 COMMISSIONER ZACK: That is correct.
7 COMMISSIONER CONNOR: It's only when the state
8 acts in bad faith that it may have excess exposure up
9 to but not exceeding the million dollars?
10 COMMISSIONER ZACK: Likewise correct.
11 COMMISSIONER CONNOR: Okay. Now, would you be
12 amenable -- would you view it as a friendly amendment
13 to insert before the last sentence, This waiver shall
14 not apply to planning functions?
15 COMMISSIONER ZACK: I have no problem with it,
16 but I've been advised and I asked that question last
17 night. Commissioner Wetherington tells me it's not
18 necessary to do so because that is the law if this
19 passes.
20 COMMISSIONER CONNOR: Even with the existing
21 waiver, we have immunity --
22 COMMISSIONER ZACK: Absolutely.
23 COMMISSIONER CONNOR: And that would be deemed
24 redundant?
25 COMMISSIONER ZACK: That's correct.
79
1 COMMISSIONER CONNOR: Those are all of the
2 questions I have, thank you.
3 CHAIRMAN DOUGLASS: Commissioner Barnett. You're
4 next, Commissioner Ford-Coates.
5 COMMISSIONER BARNETT: For some questions,
6 Mr. Chairman.
7 CHAIRMAN DOUGLASS: Commissioner Barnett.
8 COMMISSIONER BARNETT: Commissioner Connor has
9 asked several of the ones that I was interested in,
10 but let me follow up on the question about the bad
11 faith example. Based on what I've heard him say, is
12 it true that this would now, for the first time, give
13 a new cause of action against the state for bad faith
14 in settling these particular types of tort claims and
15 that this -- that right now that exists only between
16 the insurance company and the insured, and this would
17 now exist between the individual and the state and it
18 would be an additional cause of action?
19 COMMISSIONER ZACK: Yes, and that is in response
20 to the fact of the frustration that there is no
21 accountability because there is no cause of action as
22 of this time.
23 COMMISSIONER BARNETT: With regard to this total,
24 the total proposal, considering even Commissioner
25 Lowndes' concept in this one, how would the attorneys'
80
1 fees actually work here? In each stage of this, and
2 there are at least three stages, one is up to the
3 $200,000 and then potentially up to the million, and
4 then either the claims bill and/or the arbitration
5 panel; how would that work?
6 COMMISSIONER ZACK: It is my understanding that
7 there be a maximum period of 25,000 -- 25 percent,
8 which would be in all government-related type of
9 actions. So, regardless of the fact that it's in
10 excess of $200,000, you're still limited to 25
11 percent, which as you know, is about 15 percent less
12 than what is generally charged today.
13 COMMISSIONER BARNETT: That would be like 25
14 percent of --
15 COMMISSIONER ZACK: Of the million. It would be
16 $250,000.
17 COMMISSIONER BARNETT: In addition to the
18 million?
19 COMMISSIONER ZACK: No, I want to be very clear,
20 that's not an additional cost. The only thing that is
21 in addition to the million dollars is if you have
22 deposition fees, conference fees, things of that
23 nature.
24 COMMISSIONER BARNETT: What about if you settled
25 up with the policy limits, it would be 25 percent of
81
1 the $200,000?
2 COMMISSIONER ZACK: That's correct, plus costs.
3 COMMISSIONER BARNETT: And then either in the
4 claims bill and/or the arbitration award, how would
5 the attorneys' fees be handled there?
6 COMMISSIONER ZACK: The same situation.
7 COMMISSIONER BARNETT: Where does the 25 percent
8 come from?
9 COMMISSIONER ZACK: From the award.
10 COMMISSIONER BARNETT: Where does the 25 percent
11 come from though? I mean, where is that, that's not
12 constitutional?
13 COMMISSIONER ZACK: The statute right now
14 provides for it.
15 COMMISSIONER BARNETT: So you are just going to
16 incorporate the statute. And appeals from the
17 arbitration panel, how would those be handled? It
18 says, As determined by the Supreme Court. Is it
19 possible that the court would say there would be no
20 appeals? But it's in the Lowndes'.
21 COMMISSIONER ZACK: Right.
22 COMMISSIONER BARNETT: What's your understanding
23 of that?
24 COMMISSIONER ZACK: I understand the appellate
25 procedure to be exactly the same as it is today,
82
1 however under no circumstances would it be entitled to
2 more than a million dollars.
3 COMMISSIONER BARNETT: But in the appeal under
4 the arbitration process, if we go to the Lowndes
5 amendment, it says the Supreme Court will determine
6 any appellate process.
7 COMMISSIONER ZACK: Right. But see, you need to
8 whisper to your Commissioner mate sitting next to you.
9 COMMISSIONER BARNETT: Well, I did, and that's
10 why I'm asking the question. He concedes that it's
11 possible there may be no appeal, depending on what the
12 Supreme Court actually ruled for the arbitration
13 award.
14 COMMISSIONER ZACK: If you look --
15 COMMISSIONER BARNETT: In fact, the arbitration
16 award would be final and that it is possible there
17 would be no appeal?
18 COMMISSIONER ZACK: That's a possibility. There
19 are also other possibilities that you do at your own
20 risk. For example, the appellate courts could easily
21 do it on the basis that you see other situations
22 where, if you do it and it is not affirmed that the
23 cost of that will be an addition or a subtraction from
24 the amount that you are awarded. The courts could
25 easily do that.
83
1 CHAIRMAN DOUGLASS: Commissioner Barkdull.
2 COMMISSIONER BARKDULL: I notice in your
3 proposal, particularly in Paragraph B, you have a
4 waiver that's a general waiver for suits against the
5 state of any kind, whereas the Lowndes amendment
6 relates only to tort.
7 COMMISSIONER ZACK: Frankly, I didn't see any
8 reason to assert these for any reason, as far as
9 contractual obligations. We do -- well, I knew there
10 was a good reason, but I had to have it reminded to
11 me. There is no sovereign immunity on contractual
12 obligations, that's why it's there, that's what I have
13 been advised, that's why it's done the way it's done.
14 By the way, Lowndes' was not intended to be a
15 procedure for contractual claims against the state and
16 to supersede any claims bill for contractual
17 obligations.
18 COMMISSIONER BARKDULL: The point I want to make
19 though is in the Lowndes proposal, if it's adopted,
20 will relate to a procedure for the resolution of tort
21 claims. And the general law will apply to contract
22 claims.
23 COMMISSIONER ZACK: That's correct.
24 COMMISSIONER BARKDULL: But there is a
25 distinction being made for tort claims.
84
1 COMMISSIONER ZACK: And for the reason I stated,
2 there is no sovereign immunity.
3 CHAIRMAN DOUGLASS: All right. Commissioner
4 Ford-Coates, you have been up a long time.
5 COMMISSIONER FORD-COATES: Thank you.
6 Commissioner Zack, your proposal refers to plus costs.
7 As a non-attorney, can you explain that to me and give
8 me a dollar figure because that raises the amount,
9 obviously?
10 COMMISSIONER ZACK: Well, costs has been
11 identified in cases by the courts as to what it
12 specifically means. It doesn't mean lunches; it
13 doesn't mean, you know, roses for your secretary.
14 What it means is deposition costs, expert witness
15 fees. These are hard costs that are not Xerox charges
16 at a specific amount, not a dollar a page or whatever
17 your actual costs are for Xeroxing, things of that
18 nature. Long distance phone calls that are
19 substantiated. This is not money that is in addition
20 to attorneys' fees, this is monies paid to third
21 parties for doing services that are necessary in the
22 discovery process.
23 COMMISSIONER FORD-COATES: I heard you say
24 earlier I believe, for instance, I believe $10,000 in
25 fees.
85
1 COMMISSIONER ZACK: You mean costs.
2 COMMISSIONER FORD-COATES: Costs, I'm sorry. Is
3 there an average?
4 COMMISSIONER ZACK: No, it depends on how many
5 witnesses there are. There could be a very small
6 amount of costs. Let's say there is a drive, two
7 drivers, a police officer and a witness and a couple
8 of doctors, relatively small amount of costs; however,
9 if you have a catastrophic accident with many
10 witnesses, you have questions as far as accident
11 reconstruction of witnesses, things of that nature,
12 completely different situation, so there is no
13 average.
14 COMMISSIONER FORD-COATES: Is it not true that
15 governments frequently settle today these cases above
16 the cap? Is it not -- that's not an unusual
17 situation?
18 COMMISSIONER ZACK: That's -- no, that's a very
19 unusual situation. I have explained one that I was
20 personally involved in that it was done, but --
21 COMMISSIONER FORD-COATES: Do you have figures on
22 the number of cases that exist around the state, those
23 that are resolved, the numbers of the problems that
24 you have been talking about?
25 COMMISSIONER ZACK: It's almost impossible to do
86
1 that, because what happens is, in practicality, if you
2 have a case that's worth $150,000, $200,000, nobody is
3 going to go through the claims bill process as it
4 exists today. So, those cases are never brought.
5 Those are decisions that are made in the offices at
6 the time of the case; there's no way to gather all of
7 that information.
8 CHAIRMAN DOUGLASS: Okay. Wait a minute.
9 Commissioners, we are getting a little too spread out
10 here all over the chambers. If everyone would do the
11 best you can to get in your seat, it would be helpful.
12 All right, proceed.
13 COMMISSIONER FORD-COATES: I just want to make
14 sure I understand, then, we really don't -- and I
15 asked you yesterday, do you have an anticipation of
16 the costs of this to local state government, et
17 cetera, and you didn't know, but we don't even have a
18 good feel, an accurate estimate of even the number of
19 cases that we are talking about, correct, so the
20 impact could be great or could be minimal?
21 COMMISSIONER ZACK: We were told, as I mentioned
22 to you yesterday by somebody who never explained the
23 basis of their statement, that they thought there
24 would be an increase in insurance. It's obviously an
25 insurable risk of somewhere between 5 percent and as
87
1 much as 20 percent, but they had no idea of the costs
2 themselves.
3 COMMISSIONER FORD-COATES: Or in the actual cost
4 of insurance. If they are self-insured, it won't go
5 to insureds?
6 COMMISSIONER ZACK: That's correct.
7 COMMISSIONER FORD-COATES: And just a final
8 question is, am I correct that all of these decisions
9 could be made by the Legislature?
10 COMMISSIONER ZACK: I've answered that several
11 times affirmative.
12 COMMISSIONER FORD-COATES: Okay, I just wanted to
13 make sure.
14 CHAIRMAN DOUGLASS: Commissioner Barkdull.
15 COMMISSIONER BARKDULL: Mr. Chairman, the troops
16 are getting restless; could we call all of this to a
17 close and take some votes? We are on the substitute
18 to the Lowndes amendment.
19 CHAIRMAN DOUGLASS: No, we are not on that.
20 COMMISSIONER BARKDULL: Well, the Zack proposed
21 amendment to the Lowndes amendment.
22 COMMISSIONER ZACK: Well, just the opposite. It
23 is the Lowndes amendment to the Zack.
24 CHAIRMAN DOUGLASS: What is before us, everybody
25 has forgotten in the interim period. We have not
88
1 voted on the Lowndes amendment again, and he has
2 another amendment which he hasn't offered. We are now
3 on the Zack proposal, and we have been talking about
4 that now for 30 minutes, the Zack proposal. And every
5 once in a while we talk about the Lowndes proposal,
6 but we are actually on the Zack proposal.
7 COMMISSIONER BARKDULL: Can we go get to a vote?
8 CHAIRMAN DOUGLASS: Well, you know, if somebody
9 moves to limit debate, I guess we could. And then we
10 have to take up the Lowndes proposal and his motion to
11 divide it.
12 COMMISSIONER BARKDULL: Let's vote on the Zack
13 proposal.
14 CHAIRMAN DOUGLASS: The Zack right now has a
15 subacute amendment, correct?
16 COMMISSIONER ZACK: I don't understand, if the
17 Chair can explain how you can vote on the Lowndes
18 proposal, if the Zack proposal was defeated there
19 would be no vehicle to amend. So, as I understand
20 parliamentary procedure, the Lowndes proposal, which
21 has been discussed simultaneously, should be voted on
22 first without any further conversation. If that's
23 passed --
24 CHAIRMAN DOUGLASS: Just a minute. I can explain
25 that to you, okay. You have a substitute amendment to
89
1 the proposal. If your substitute amendment is
2 defeated, the Lowndes amendment would go to the
3 proposal and he could even make it a substitute for
4 the proposal if he chose. So, procedurally, we are
5 not on the proposal at all, we are on your substitute
6 amendment to the proposal.
7 If it should fail, then we are right where we
8 started with the proposal. His amendment to that
9 proposal, if he chose to do so, he could make it a
10 substitute to the proposal and he could proceed from
11 there. But what we need to do is get to the
12 conclusion of the substitute amendment, because you
13 might pass it, but if you keep talking I'm not so sure
14 you will.
15 COMMISSIONER ZACK: I waive my closing comments.
16 CHAIRMAN DOUGLASS: All right. Commissioner
17 Thompson.
18 COMMISSIONER THOMPSON: Well, I just wanted to
19 say a word against the proposed amendment, if I could.
20 I mean, everybody has been asking questions.
21 CHAIRMAN DOUGLASS: I think I have to recognize
22 you for that.
23 COMMISSIONER THOMPSON: Is it too late?
24 CHAIRMAN DOUGLASS: No, sir.
25 COMMISSIONER THOMPSON: I mean, I'm ready to
90
1 leave any time that anybody else wants to, because I'm
2 one of those people that think if we have well
3 considered a lot of issues we have done our job. And
4 I always thought that when I was in the Legislature.
5 I never did think people were elected to come to
6 Tallahassee to pass laws and that you had to have a
7 new set of laws every year. And I'm not so sure that
8 every 20 years the Constitution of the State of
9 Florida needs a big change.
10 I think one of the things that you probably all
11 have realized now in respect to sovereign immunity is
12 that what we are doing here is just legislating. If
13 you will look at the present Constitution what it says
14 is "suits against the state." Provision may be made
15 by general law for bringing suits against the state as
16 to all liabilities now existing or hereafter
17 originating. And all we are doing is taking what the
18 Legislature has done so far and saying we don't like
19 it much, so we want to propose these changes.
20 And certainly in other areas we are talking about
21 changes that the Legislature can make. I'm not saying
22 we are wrong in all of those areas; I'm saying that we
23 are wrong here. And I am saying the dialogue that we
24 have been having here all of this time, it proves
25 that, it proves my point.
91
1 I don't want to be painted on the side of the
2 people that are so callous that think that people
3 should not be compensated for their injuries, and
4 certainly not those who cause them, no matter who that
5 is. But if you drive down U.S. 90 to my home right
6 now, which is about 25 miles away, you will probably
7 run across 80 percent of the drivers who, if you got
8 hurt, you wouldn't get the $10,000 worth of insurance
9 coverage.
10 So, what we are saying is that, just because of a
11 local government -- let me tell you something, I was
12 just going to ask a few questions because the whole
13 debate was about the great, big, old bad State of
14 Florida, but there are a lot of little cities out
15 there and a lot of little counties out there that, and
16 a lot of school boards that are trying to provide for
17 essential services that are going to be impacted by
18 this. And I don't know the nature and the extent of
19 the impact. I'm not real comfortable opposing what
20 you are trying to do but I'm sure not comfortable in
21 supporting it. I'm very comfortable, though, in
22 leaving that language in the Constitution that's there
23 now and allowing the Legislature to well consider
24 these kinds of things, in committees, in getting some
25 information.
92
1 And let me tell you something, they look out
2 there in the audience and they demand that insurance
3 carriers come back and give them some facts and
4 figures about what this is going to cost the Gadsden
5 County School Board, and they demand that the
6 Department of Insurance bring them those kinds of
7 figures. And they get them, and they are pretty
8 accurate. And if they are not, they come back 12
9 months later and they revisit and they make some
10 changes. The thing that we are about to do here is
11 going to last for about 20 years, and so I would urge
12 your caution.
13 The only thing that I want to be sure, and I was
14 going to ask this in a question, but that's not
15 proper. Let me just tell you this, it doesn't matter
16 what Commissioner Lowndes' and Commissioner Morsani's
17 amendment does, it doesn't matter what Commissioner
18 Zack's amendment does, you are going to have claims
19 bills. Claims bills are not all based on somebody
20 going to court, getting a judgment in excess of the
21 limited waiver of sovereign immunity and then coming
22 to the Legislature and hiring a high-priced lobbyist
23 on a contingency fee basis and getting the money from
24 the folks.
25 That's not the only thing that is the subject of
93
1 the claims bill by far. The Rosewood matter was a
2 subject matter -- a claims bill is an appropriations
3 bill, that's all it is, and you are not addressing
4 that in this and neither are these amendments, and you
5 can't do that.
6 The Legislature has got to have the authority and
7 the responsibility to appropriate your money, and they
8 can appropriate money that goes down the line from
9 holding it back from school boards or from revenue
10 sharing or whatever they need to do from the local
11 government. So, you are not going to do away with
12 claims bills and you don't want to do away with claims
13 bills.
14 One of the first jobs that I had in the Florida
15 House of Representatives, and there were a lot of good
16 people that had this job. I think former House member
17 Jim Redman is a good friend of ours, Commissioner
18 Langley, he chaired the little claims committee, and
19 the way you do that is, they would call me up and, Say
20 we have got five claims bills, here is your special
21 master. The special master goes and looks at
22 everything, and then says, Wait a minute, we have got
23 the little town of Gretna here and somebody has got a
24 half of a million dollar judgment against them.
25 Now, let's look at the situation of this person.
94
1 This person needs a wheelchair and the treatment that
2 goes with that, this person needs a specially-equipped
3 van and the house needs to be changed so that, for the
4 handicap, and so you make sure that those people get
5 that much money that year. And then you can structure
6 that thing so it doesn't bankrupt the little city, but
7 at the same time the person's needs are taken care of.
8 You can do equity, you can have people that get
9 hurt on the job working for government. And the
10 worker's compensation for some reason just is, by far,
11 not sufficient to take care of their problems. And
12 you can weed out some equity there. And the
13 Legislature does that and has done that.
14 The statute of limitations runs on people before
15 they know what their rights may or may not be, or the
16 law changes two years after they were hurt and they
17 could have gotten something, but they can't because
18 they didn't meet that. They bring it to the
19 Legislature and the Legislature decides that.
20 Fortunately, we are not going to do anything
21 about that under either one of these amendments. But
22 I want to submit to you, after all of the wrangling,
23 and I'm still not fully convinced on how I'm going to
24 vote on Commissioner Lowndes' amendment. I'm
25 convinced that I shouldn't vote for this amendment
95
1 because it's purely legislative.
2 If you want to try to change the structure of
3 what we are doing, which is what we are here for and
4 what this is all about, we might ought to consider the
5 Lowndes amendment. I am not sure of all of the
6 details of the technical problems of having one
7 without the other.
8 But I want you to think about the things that
9 I've said, because I think you can be impacting some
10 children's rights to go to school, and some folks that
11 need water and sewer that were on a system where they
12 had to walk down to a creek and dip water out of it if
13 you don't be careful here. The Legislature has the
14 time, the expertise and the background to make those
15 decisions better than we do.
16 CHAIRMAN DOUGLASS: All right now, he's closed
17 once. All of y'all want to speak on this amendment,
18 this substitute amendment, or do you want to speak on
19 the issue like Commissioner Thompson just did?
20 Commissioner Wetherington.
21 COMMISSIONER WETHERINGTON: I'll say very
22 briefly, on the concept. If you want me to wait, I'll
23 wait.
24 CHAIRMAN DOUGLASS: Go ahead, this is the
25 substitute amendment I understand.
96
1 COMMISSIONER WETHERINGTON: I understand that.
2 This is a -- the proposal here of Commissioner Zack is
3 comparatively modest. In 1986, the litigation
4 commission that was appointed by the Florida Bar
5 recommended an increase between 1 to $200,000. The
6 effect of this basically is to give you what you would
7 have gotten roughly in 1981. I agree totally it's
8 something that should be done by the Legislature. The
9 Legislature, for some reason, hasn't addressed this
10 issue or responded to this issue over this period of
11 time, and it doesn't look like they are going to.
12 They should respond to it, this should be done by
13 commission, but nobody is apparently doing anything.
14 So the question is, is there some necessity for
15 some relief out there? And the answer is, clearly
16 there is. This is a modest proposal, it doesn't
17 change anything about the State's ability to decide
18 what's covered by sovereign immunity and what is not
19 covered. It simply tries to bring a little bit of
20 parity. If the people paid insurance premium rates in
21 1981 at $100,000, the functional equivalent of that
22 hasn't changed at $200,000.
23 This is a fairly modest proposal, you could take
24 the view you are going to leave it alone, the
25 Legislature is not going to do anything about it, and
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1 we can continue with what's now become a substantial
2 inequity in the state of Florida, or we can try to do
3 something, which is modest, and I will speak about
4 Commissioner Lowndes' proposal later. I think it's
5 wonderful, I love Commissioner Lowndes, the only
6 problem is I think it's going to cost too much money.
7 CHAIRMAN DOUGLASS: All right. Commissioner
8 Smith.
9 COMMISSIONER SMITH: Very briefly, Mr. Chair. I
10 rise to support the substitute. And one of the first
11 reasons why I'm supporting the substitute is because
12 of something that Commissioner Thompson said to me in
13 Miami. He pulled me aside and gave me the same, not
14 lecture, but philosophy that he shared with you today,
15 and that is, it's not necessary to change the
16 Constitution just for the sake of changing the
17 Constitution. And I had some ideas coming on to the
18 commission about proposed changes and I tried, it
19 sounded very reasonable to me, and so I tried as hard
20 as I could to try to adopt his philosophy, and that
21 is, nothing necessarily needs to be changed unless you
22 convince me that it does, which was the opposite of
23 how I started.
24 So, what I did was, starting in mind when he
25 pulled me aside, that's where we found out that both
98
1 of us shared the name Harold. I said, I'm going to
2 try that philosophy. And one of the things that the
3 people said to me was, the people is whose
4 Constitution this belongs to, the people who own
5 Gretna, the people who own Dade County, the people who
6 own the state of Florida have said, Look, this is an
7 outrageous injustice, please do something to help us
8 with regard to this in our Constitution. And so, as
9 Commissioner Wetherington has said, this is a very
10 conservative remedy for what the people have cried out
11 to us to do.
12 Two quick things. One, if I had any concern
13 whatsoever that this would bankrupt Gretna or any
14 other facility, as much as I like it, I would vote no.
15 But why do I have comfort that it will not? Because
16 other states, with regard to tort litigation can waive
17 sovereign immunity altogether. We haven't heard of
18 two places being possibly bankrupted in the last two
19 years, one is New York City and that didn't happen,
20 and Orange County, and that didn't happen. Neither
21 had to do with tort litigation, because you can buy
22 insurance. And since this does have caps equivalent
23 to other states like Florida, of the size of Florida,
24 I feel very confident that we, the people, can give
25 the people a little bit of relief and at least put
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1 them up to the level where they were in 1981.
2 And secondly, I can assure you that we will have
3 much more savings in the sense of settlement because
4 there now is an incentive to give that paraplegic or
5 whatever the $200,000 right off of the bat than to
6 risk paying another $800,000 for a claim that will
7 probably be in excess of a million dollars.
8 So, because of the wisdom imparted to me from my
9 dear friend Commissioner Thompson, I'll vote yes.
10 CHAIRMAN DOUGLASS: Commissioner Sundberg.
11 COMMISSIONER SUNDBERG: One short question,
12 Commissioner Zack. If in fact the Legislature, in its
13 infinite wisdom were of a mind that this $200,000 cap
14 and million dollar for bad faith were going to
15 bankrupt the public treasury, would they not be able
16 to simply say, We take back the waiver of sovereign
17 immunity in their next session?
18 COMMISSIONER ZACK: Yes.
19 CHAIRMAN DOUGLASS: All right. Commissioner Zack
20 to close.
21 COMMISSIONER ZACK: Most everything has been said
22 and I'll be very, very brief. But Commissioner
23 Thompson's remarks about the $10,000 coverage that a
24 person who is in an accident going to his home would
25 get reminded me that there is such a difference here
100
1 than in that particular situation. That situation, I
2 know that there are people with $10,000 coverage, or
3 no coverage at all, and I can get uninsured motorists
4 coverage, I can go out and buy it myself, and protect
5 myself; you can't do it against the State. There's no
6 way to protect yourself against the State.
7 And, you know, what the sovereign does wrong 200
8 years ago, it does wrong today. There's got to be
9 some balance, some sense of fairness to those injured
10 people who have to rely on the sovereign to get even a
11 modest recovery. If I thought there was any way in
12 the world in which the Legislature was going to act, I
13 never would have made this proposal. It's only after
14 ten years of inaction, after the tort commission
15 extensively reviewed this, all of the facts, the
16 figures, bells and whistles, and not a peep out of the
17 Legislature.
18 And you know, I find it very interesting,
19 Commissioner Brochin, Commissioner Nabors, you talked
20 about the tax exemptions, including the legislative
21 prerogative, but when it is a situation where you
22 think the Legislature is not going to act or has not
23 acted, then you bring it before us, and we are in the
24 correct place to deal with these inequities. As a
25 matter of fact, I personally believe that's why it's
101
1 in the Constitution that every 20 years, we meet,
2 listen to the people of the state of Florida, and try
3 and resolve problems that can't be resolved by the
4 Legislature.
5 CHAIRMAN DOUGLASS: All right. We will proceed
6 to vote on the Zack amendment, which is a substitute
7 amendment to the proposal. Open the machine and let's
8 vote.
9 (Vote taken and recorded electronically.)
10 CHAIRMAN DOUGLASS: The amendment -- close the
11 machine, please, and record the vote.
12 READING CLERK: Thirteen yeas, 19 nays,
13 Mr. Chairman.
14 CHAIRMAN DOUGLASS: The substitute amendment
15 fails. We are on the proposal. And now we have, I,
16 guess -- where are we now, we are on the Lowndes
17 amendment which was on reconsideration? I mean, the
18 one that's on reconsideration, we haven't voted on it.
19 All right.
20 Commissioner Lowndes, she tells me that you have
21 to redraft that because it was to another amendment.
22 Do you wish to make the one that you have on the desk
23 a substitute amendment for the proposal?
24 COMMISSIONER LOWNDES: I have redrafted a
25 substitute amendment to the proposal, which is --
102
1 CHAIRMAN DOUGLASS: All right. Which is now
2 coming forward; is that correct?
3 COMMISSIONER LOWNDES: Right, yes.
4 CHAIRMAN DOUGLASS: So, that will put us in a
5 position that when we vote on this, we won't have to
6 worry about reconsidering your prior amendment; is
7 that right?
8 COMMISSIONER LOWNDES: Yes, sir.
9 CHAIRMAN DOUGLASS: So, you are offering a
10 substitute amendment to the proposal?
11 COMMISSIONER LOWNDES: Right.
12 CHAIRMAN DOUGLASS: And this would then become
13 the proposal?
14 COMMISSIONER LOWNDES: Right.
15 CHAIRMAN DOUGLASS: Everybody clear on that?
16 COMMISSIONER LOWNDES: And I would be glad to
17 explain it while it's being passed out.
18 CHAIRMAN DOUGLASS: All right. They are making
19 copies of this, which you will soon have. And while
20 we are waiting on the copies, let's take just a moment
21 to get the report of the committee that met for the
22 period of time that they did during this morning's
23 session, the Rules Committee.
24 Commissioner Barkdull, does the committee now
25 have a recommendation as to how we proceed?
103
1 COMMISSIONER BARKDULL: Yes, sir, we do. I'm not
2 sure that everybody has got it on their desks. It's
3 in written form and I want to be sure that everybody
4 has got it on their desks before we take it up. I
5 would like to suggest that we defer the time of recess
6 for lunch until we complete the debate on this
7 sovereign immunity issue.
8 CHAIRMAN DOUGLASS: That will be done without
9 objection, but let's proceed on the report and
10 recommendation of the Rules Committee.
11 COMMISSIONER BARKDULL: That's now being handed
12 out and we'll take it up at the conclusion of the
13 sovereign immunity debate. If that's all right with
14 the Chair.
15 CHAIRMAN DOUGLASS: That's fine. We can do it
16 now, I don't think we are quite ready on this.
17 COMMISSIONER BARKDULL: I'll move you, sir, that
18 the written report of the Rules Committee that is
19 before you, be adopted as the procedure which we'll
20 follow for the remainder of this session and the
21 remainder of the sessions scheduled for the commission
22 on the 17th of March and the 23rd of March.
23 It provides that, as we can all read it, the only
24 substantial change from what the Style and Drafting
25 Committee recommended is instead of having
104
1 reconsideration when we come back on the 17th, there
2 would only be a revote in the event there are five
3 hands raised by members of the commission to take a
4 revote.
5 In other words, if a matter passes this week --
6 well, first, if a matter does not get a majority vote
7 this week, it'll be dead. Second, if it gets a
8 majority vote but less than 22, it'll still be alive
9 for five hands after we come back to see if it can
10 then garner 22 votes. If it get 22 votes, we come
11 back on the 17th and there are no five hands raised,
12 it'll have had its 22 votes and does not need a
13 revote. But if it got 22 votes and then when we come
14 back and somebody wants a revote, if there are five
15 hands up, there would be a revote on it.
16 Well, the big, really the only substantial
17 changes, other than having to put it on
18 reconsideration and running into the problem that
19 Commissioner Langley outlined, this puts it in a
20 situation where if five people want the issues
21 revoted, they would be revoted. And I move that this
22 be the procedure that we use for the next, the
23 remainder of this week and the sessions on the 17th
24 and the 23rd.
25 CHAIRMAN DOUGLASS: There's been a motion by the
105
1 Rules Committee which is before you that this is a
2 procedure we follow for the balance of this voting on
3 the motion? Was this a unanimous vote of the
4 committees?
5 COMMISSIONER BARKDULL: Yes, sir.
6 CHAIRMAN DOUGLASS: Of both Style and Drafting?
7 COMMISSIONER BARKDULL: Well, it was for the
8 Rules Committee. And the Style and Drafting Chair was
9 there, but I don't think we had all of the members of
10 Style and Drafting present.
11 CHAIRMAN DOUGLASS: All right. I have got a
12 whole bunch of people up. I guess the first one that
13 got up was Commissioner Brochin.
14 COMMISSIONER BROCHIN: I just had a question.
15 What are we anticipating happening if we come back on
16 March the 17th for one day and don't complete the
17 work?
18 CHAIRMAN DOUGLASS: That's why we have got a day
19 scheduled for the 23rd.
20 COMMISSIONER BROCHIN: Well, we would come back
21 and complete the work on the 23rd, and then what would
22 we do vis-a-vis the work that you have scheduled on
23 the 23rd?
24 COMMISSIONER BARKDULL: If we don't finish it?
25 COMMISSIONER BROCHIN: Yeah.
106
1 COMMISSIONER BARKDULL: We may not reach it, or
2 we may schedule another session, but that's going to
3 be up to a lot of things, whether we have facilities
4 which are not available here. And we will reach that
5 bridge when we get to it. But we are scheduling some
6 pretty long days, and hopefully we'll be able to
7 conclude the final vote on all of it on the 17th and
8 the 23rd.
9 COMMISSIONER BROCHIN: Is it reasonably
10 anticipated that we will complete our work on the day
11 of the 17th and then subsequently the day of the 23rd?
12 COMMISSIONER BARKDULL: Yes, sir. I think we are
13 hopeful that we pare down some of these things the
14 remainder of this week if we ever get to the report of
15 the Style and Drafting Committee.
16 CHAIRMAN DOUGLASS: All right. I think,
17 Commissioner Smith, you were next.
18 COMMISSIONER SMITH: Thank you. I have two quick
19 questions of Commissioner Barkdull. First of all,
20 with regard to the recommendation that was made and
21 adopted for five members to raise their hands to
22 request a revote, was it at least -- was it all
23 discussed or considered, that when we initially
24 started for a proposal that came from the public to be
25 presented took ten votes? Five votes seems like a
107
1 very, very small number of people. And for all
2 purposes, we are going to vote on everything.
3 COMMISSIONER BARKDULL: It was not discussed, to
4 answer your question. The five votes, I think,
5 originated because I believe, in one of the
6 legislative bodies, either the House or the Senate,
7 five votes gets a roll call, five hands gets a roll
8 call vote.
9 COMMISSIONER SMITH: Okay. The second issue,
10 which is not major, but I think it may cause some
11 confusion. Under 2, it defines what happens with a
12 simple majority, but less than 22 votes, and then it
13 describes what happens with 22 or greater and it is
14 the same thing. And I think that would cause
15 confusion. I think if we were to say a simple
16 majority, this is what happens. Do you understand?
17 It's confusing.
18 CHAIRMAN DOUGLASS: Commissioner Barkdull. I
19 think you have got it right, that's what it provides,
20 five hands gets a vote on either one.
21 COMMISSIONER SMITH: Okay. But what I'm saying
22 is, we have, under No. 2, simple majority but less
23 than 22 votes, then 22 or greater vote. The exact
24 same thing is written next to each.
25 COMMISSIONER BARKDULL: That's correct.
108
1 COMMISSIONER SMITH: So please explain to me why
2 we divide them up like this if they don't have any
3 different impact.
4 COMMISSIONER BARKDULL: Just to make it clear.
5 We could have said all of the proposals that have
6 received more than majority votes will then be subject
7 to a revote upon five hands. But we wanted to make it
8 clear that a proposal that's gotten 22 votes this week
9 and doesn't get five hands --
10 CHAIRMAN DOUGLASS: We started off with a
11 proposal that everything would come up on
12 reconsideration, and this was their effort to
13 compromise that. Unless this is ahead of Commissioner
14 Thompson or Henderson, Commissioner Hawkes, you are
15 going to have to follow them because Henderson was up
16 first. Commissioner Henderson.
17 COMMISSIONER HENDERSON: Thank you, Mr. Chairman.
18 Commissioner Barkdull, one question for procedure for
19 when we come back. Let's say at public hearing we
20 learn, you know, someone brings forward an issue, a
21 technical issue regarding an amendment that we need to
22 fix. So, on the 17th, I'm assuming that amendments
23 can still be offered. Under this procedure, does it
24 take five people to sign on an amendment or does it
25 take, or just propose an amendment and you have to get
109
1 five hands?
2 COMMISSIONER BARKDULL: I think you have to get
3 five hands and then a simple majority to pass the
4 amendment.
5 COMMISSIONER HENDERSON: Thank you. That answers
6 the question.
7 CHAIRMAN DOUGLASS: All right, Commissioner
8 Thompson.
9 COMMISSIONER THOMPSON: I just want to clarify,
10 by question, Paragraph No. 4, the last sentence, to
11 me, what I understand from that is that we will, on
12 March 23rd, get back groups of proposals from the
13 Style and Drafting Committee, and any amendment to any
14 of those groups of proposals will require 22 votes.
15 And then final adoption of any of those groups will
16 require 22 votes; is that correct?
17 CHAIRMAN DOUGLASS: All right. Now, Commissioner
18 Hawkes.
19 COMMISSIONER HAWKES: Just a question,
20 Mr. Chairman. I read the same thing that Commissioner
21 Smith read, and I took it to be, if in fact we don't
22 get five votes for something that passes by a simple
23 majority, but not 22, there's not five hands, and I
24 guess that proposal never comes back and it doesn't
25 become part of -- so, we can defeat something by
110
1 silence is what this allows versus by affirmative
2 action.
3 COMMISSIONER BARKDULL: That's correct.
4 CHAIRMAN DOUGLASS: That's correct. Commissioner
5 Ford-Coates.
6 COMMISSIONER FORD-COATES: Let me clarify one
7 question on if we don't finish our work on the 17th, I
8 think that the case is, as I read it, if we don't
9 finish, considering whatever proposals get five or ten
10 votes, whatever it may be, on the 17th, then Style and
11 Drafting doesn't have all of the proposals to bring
12 back on the 23rd, which in itself is a challenge from
13 the 17th to the 23rd for those final votes on the
14 23rd.
15 So, I mean, I think we need to realize that
16 whatever action we take, if we are going to meet this
17 schedule of reconsideration on the 17th, final votes
18 on the 23rd, then we better be sure that we can finish
19 on the 17th.
20 COMMISSIONER BARKDULL: We are hopeful in doing
21 that. All I can say to you, Commissioner, is if we
22 run into an impasse, we'll face that rule change at
23 that time.
24 COMMISSIONER FORD-COATES: Okay. Then I would
25 suggest that we use 10 votes, which Commissioner Smith
111
1 raised, which seems like a reasonable number and would
2 not, perhaps, add as many to the hopper. If you can't
3 get 10 votes to reconsider something, then the chance
4 of it passing or changing its vote, I think, is pretty
5 slim.
6 COMMISSIONER BARKDULL: Mr. Chairman.
7 CHAIRMAN DOUGLASS: Commissioner Barkdull.
8 COMMISSIONER BARKDULL: I believe that
9 Commissioner Coates, I'm going to assume that that is
10 a motion to amend the motion that I made to make the
11 vote to revote to be in the number 10 instead of 5.
12 Is that correct, Commissioner Coates?
13 CHAIRMAN DOUGLASS: You made a motion to make the
14 change, change the number to revote on everything from
15 5 to 10; is that my understanding of the motion?
16 Okay, that is the motion, and you have been heard on
17 it. Commissioner Langley, you want to be heard on it?
18 COMMISSIONER LANGLEY: Yes, in opposition.
19 Again, some of these proposals passed by such a narrow
20 margin. And I, among others, cast a few courtesy
21 votes, and I'm sure many of you did, we'll look at it
22 after Style and Drafting gets through with it, what
23 have you. Those narrow margins, five people can
24 certainly affect them. I mean, do you want anything
25 out of here with that close of a margin, if we can't
112
1 agree on it, what in the world are the people of the
2 state going to understand about it or vote on it.
3 So, five hands, actually, is constitutional, if
4 you want to read it, anytime in either house of the
5 Legislature that you are not satisfied with the
6 Chair's call of a vote, if five Representatives or
7 Senators raise their hands, the Chair must put it on
8 the board. And that's where that number came from
9 this morning.
10 It was a compromise between one person being able
11 to do it as opposed to having to carry a motion for
12 reconsideration which could result in a bare majority
13 of this group putting something on the ballot. And I
14 think it was all our congenial consent from day one in
15 here that it takes 22 votes.
16 CHAIRMAN DOUGLASS: I think our rules require
17 five votes, same thing. Commissioner Barkdull.
18 COMMISSIONER BARKDULL: I'm opposed to the
19 motion. We thought five was sufficient, it's a
20 unanimous recommendation of the Rules Committee with
21 no objection from the Chair of Style and Drafting. I
22 urge you to defeat the amendment and adopt the
23 proposal as offered.
24 CHAIRMAN DOUGLASS: Quickly close on the
25 amendment. We all understand it.
113
1 COMMISSIONER FORD-COATES: Mr. Chairman, for the
2 good of the body, I'll withdraw the amendment.
3 CHAIRMAN DOUGLASS: Okay. Now, let's move to the
4 motion, which is to adopt the report of the Rules
5 Committee. All of those in favor, say aye; opposed?
6 (Verbal vote taken.)
7 CHAIRMAN DOUGLASS: It carries, we have adopted
8 this. I will announce that if we have need for
9 another day, we'll have an alternate location and have
10 it. If we have to, we will. But that's going to be
11 very, very difficult. If we will move these debates
12 along we won't need to do that. Yes, sir,
13 Commissioner Langley.
14 COMMISSIONER LANGLEY: I offer our civic
15 auditorium in Clermont.
16 CHAIRMAN DOUGLASS: We have to meet here.
17 COMMISSIONER LANGLEY: Sir?
18 CHAIRMAN DOUGLASS: We have to meet here. Thank
19 you. It would be very nice, we could go to that
20 winery down there and probably get happy before we got
21 there. Commissioner Barkdull.
22 COMMISSIONER BARKDULL: Mr. Chairman, I have been
23 in discussing with Commissioner Lowndes, and I would
24 like now to ask us to recess until 12:20 -- or 1:20.
25 CHAIRMAN DOUGLASS: All right. Without
114
1 objection, we'll recess for lunch and other matters
2 until 1:20, okay. We are in recess.
3 (Lunch recess.)
4 READING CLERK: Quorum call, quorum call. All
5 commissioners, please indicate your presence.
6 (Pause.)
7 CHAIRMAN DOUGLASS: I wonder if we could get
8 somebody to go in the back and round somebody up. We
9 need to get started. It's 1:22 and we recessed until
10 1:15. I hear a lot of complaints about we are not
11 moving very fast but we can't even get moving at all.
12 Welcome back, Commissioner Marshall, we hope
13 everything is fine, and we are glad to have you back.
14 (Quorum taken and recorded electronically.)
15 CHAIRMAN DOUGLASS: We do have a quorum present
16 and we are in a position to get started. Okay, let's
17 come to order please. When we left for recess we had
18 completed the adoption of the proposal by the Rules
19 Committee and we are now moving forward and we are on
20 the Proposal No. 59, I think it is. And the present
21 situation left it with Commissioner Lowndes who was
22 going to offer something on this. Commissioner
23 Lowndes, you have the floor.
24 COMMISSIONER LOWNDES: Yes, Mr. Chairman. I
25 think you have on your desk a substitute amendment for
115
1 Proposal No. 59. And this substitute amendment simply
2 adds to the existing constitutional provision which
3 allows the state to waive sovereign immunity in some
4 limited instances. Added to that is, in the area of
5 tort claims, there would be an arbitration procedure
6 which, as we pointed out this morning, would go beyond
7 the waiver of sovereign immunity by the Legislature.
8 CHAIRMAN DOUGLASS: All right. Let me have it
9 read and then you can discuss it. Would you read the
10 substitute, I guess it is substituting it for the
11 proposal; is that what it does?
12 COMMISSIONER LOWNDES: Yes, sir.
13 CHAIRMAN DOUGLASS: Okay.
14 READING CLERK: By Commissioner Lowndes for
15 amendment by Lowndes, Zack, Morsani and Hawkes on
16 Page 1, Lines 15 through 28, delete those lines and
17 insert Section 13, suits against the state; provision
18 may be made by general law for bringing suit against
19 the state as to all liabilities now existing or
20 hereafter originating when any tort claim is filed
21 against the state or political subdivision, agency,
22 district, or municipality which exceeds a limited
23 waiver of sovereign immunity established by general
24 law. It shall be submitted by the court in which it
25 is filed in lieu of trial to a three-person
116
1 arbitration panel that shall, by a majority vote,
2 render a decision on the claim.
3 CHAIRMAN DOUGLASS: Read the rest. Go ahead and
4 read the last sentence.
5 READING CLERK: The rules that govern the
6 proceedings of the arbitration panel and any appeal
7 taken therefrom shall be determined by the state
8 Supreme Court. Sovereign immunity shall be waived to
9 the extent of any final arbitration decision made
10 pursuant to this section.
11 CHAIRMAN DOUGLASS: Commissioner Lowndes, you are
12 recognized on your proposal.
13 COMMISSIONER LOWNDES: It is a very simple
14 proposal. It simply provides a forum for people who
15 are damaged by the negligence of the state to recover
16 damages in excess of the caps that the state has
17 imposed. In this instance it would be, in the real
18 world as it works out, it would be in excess of a
19 $100,000 cap.
20 And, in effect, it is, for those suits that the
21 state allows to be brought against the state, it does
22 away with the caps in the instance of an arbitration.
23 I don't know how else to explain it. I don't think we
24 need to talk about it a lot longer because I think we
25 have all talked about it a whole lot, so I will just
117
1 close and be happy to answer any questions.
2 CHAIRMAN DOUGLASS: How about any further
3 discussion on this? Commissioner Langley, you are
4 recognized.
5 COMMISSIONER LANGLEY: Just briefly. The good
6 thing about this is, one, with the exception of some
7 very few things like Rosewood, this would eliminate
8 claims bills. Two, there was some question about the
9 appellate process. This does give the Supreme Court
10 the right to make those rules of appeal. And if those
11 rules were to be arbitrary as allowing no appeal, the
12 Legislature can, by two-thirds' vote, make procedural
13 rules which the court has to follow. So it does have
14 safeguards in it. And let me tell you as a person who
15 has been up here fighting claims bills for 20 years,
16 they are very unfair, they are very unfair, they are
17 very arbitrary; it is who you know and which firm you
18 get to lobby it, and it is just not a fair way to do
19 it.
20 And this will also do away with so-called runaway
21 juries where the arbitrators would be more qualified
22 to give realistic damages.
23 CHAIRMAN DOUGLASS: All right. Commissioner
24 Smith.
25 COMMISSIONER SMITH: I rise to say that I agree
118
1 with Langley, Commissioner Langley.
2 CHAIRMAN DOUGLASS: Would everybody please take
3 note of that, that's all right.
4 (Laughter.)
5 CHAIRMAN DOUGLASS: All right. Any further
6 discussion? Oh, Commissioner Nabors.
7 COMMISSIONER NABORS: Mr. Lowndes, let me ask
8 you, to make sure I understand this, we have had
9 testimony that essentially there's no limit in terms
10 of the amount of claims that can be awarded in this
11 arbitration process; is that correct?
12 COMMISSIONER LOWNDES: That's right.
13 COMMISSIONER NABORS: And the other thing that
14 bothers me in the way I read this is that the Supreme
15 Court has the authority to do rules of procedure in
16 terms of how the arbitration would work, but I don't
17 see any general law reservation to the Legislature in
18 order to limit like economic damages or to do anything
19 in terms of dealing with attorneys' fees and costs, it
20 is whatever the arbitration panel decides to do; is
21 that correct? In other words, I'm concerned about --
22 COMMISSIONER LOWNDES: No, I don't think that's
23 correct.
24 CHAIRMAN DOUGLASS: Commissioner Lowndes, turn
25 the mike on for him please.
119
1 COMMISSIONER LOWNDES: My interpretation of that
2 is we are dealing here with the suits that the
3 state -- the Legislature says can be brought against
4 the state. Now, if you read that statute that allows
5 certain suits to be brought against the state, it has
6 within it certain limitations. Limitations such as no
7 punitive damages and limitations as to the amount of
8 attorneys' fees and whatnot. And my sense is that
9 this wouldn't abrogate that, that would still be the
10 law. It would be a condition of bringing the suit in
11 the first instance.
12 CHAIRMAN DOUGLASS: All right. Any further
13 debate or questions on Mr. Lowndes' proposal?
14 Commissioner Ford-Coates.
15 COMMISSIONER FORD-COATES: Commissioner Lowndes,
16 let me understand, since again I'm not an attorney, by
17 this unlimited, by no cap, is there the potential that
18 there would be more suits filed against government,
19 whether local or state, perhaps in the nature of
20 frivolous suits by attorneys whose ethics are not up
21 to the standards of those on this commission and
22 therefore local governments would have to spend quite
23 a bit of money defending themselves in front of these
24 arbitration panels?
25 COMMISSIONER LOWNDES: The question was, is there
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1 a potential or possibility of that, I would have to
2 say yes.
3 COMMISSIONER FORD-COATES: So we really don't --
4 again, we are in a situation where we don't know what
5 the total costs may be to local government which could
6 be a problem, and could this not be done by
7 legislative action?
8 COMMISSIONER LOWNDES: Yes, it could be done by
9 legislative action.
10 COMMISSIONER FORD-COATES: Thank you.
11 CHAIRMAN DOUGLASS: All right. Anything further?
12 All right. Does everybody understand what we are
13 voting on?
14 (Off-the-record discussion.)
15 CHAIRMAN DOUGLASS: There is an amendment on the
16 desk which has been dropped here on us by who?
17 Commissioner Brochin. I don't have it. Does anybody
18 else have it? Oh, okay, is this it? All right. Read
19 the amendment, please.
20 READING CLERK: By Commissioner Brochin, the
21 following amendment to Substitute Amendment 5 on
22 Page 1, on Line 27 before the period, insert,
23 "Provided that any such decision does not exceed
24 $500,000."
25 CHAIRMAN DOUGLASS: Commissioner Brochin, you are
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1 recognized on your amendment.
2 COMMISSIONER BROCHIN: As I understand
3 Commissioner Lowndes' proposal, it will effectively
4 waive sovereign immunity in an unlimited amount and it
5 would switch the process away from the claims process,
6 if you will, to the arbitration panel.
7 This is an amount that would cap those decisions,
8 and the amount I selected was arbitrary. I made it
9 up, I don't know why 500,000 is an appropriate amount,
10 but I thought it was worthy of consideration to see if
11 we want to limit it in any extent or we want to simply
12 remove the cap on sovereign immunity totally, which is
13 what I think Commissioner Lowndes' amendment would do.
14 CHAIRMAN DOUGLASS: Question, Commissioner Smith.
15 COMMISSIONER SMITH: Commissioner Brochin,
16 obviously any kind of limit makes some people on the
17 fence feel a little more comfortable, especially those
18 who are concerned about bankrupting Gretna. However,
19 in terms of the procedure, am I correct in
20 understanding, or would you explain whether or not
21 this will require someone who gets, let's just say
22 someone has a claim for an amount in excess of this,
23 they are bound with just 500,000, or could they then
24 still go to the Legislature?
25 COMMISSIONER BROCHIN: I think they could still
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1 and would go to the Legislature. And I think as
2 Commissioner Thompson eloquently explained, claims
3 bill is nothing more than an appropriation, and if
4 they have a decision from the arbitration panel for
5 $4 million, they could get their $500,000 because
6 immunity would be waived, and for the difference, they
7 would seek an appropriation from the Legislature.
8 By having some process, if you will, to take
9 claims say in excess of $100,000 and now, this
10 proposal 500,000 or 1 million, in theory there would
11 be insurance for the municipalities, in theory there
12 would be less of a claims process because more people
13 would be awarded their just compensation and therefore
14 less need to seek appropriations. But my
15 understanding is you can only seek appropriations
16 through the claims process.
17 CHAIRMAN DOUGLASS: All right. Any further
18 discussion on the amendment? All right. We'll
19 proceed to vote on the amendment. All in favor of the
20 amendment say aye. All opposed?
21 (Verbal vote taken.)
22 CHAIRMAN DOUGLASS: Unlock the machine.
23 (Vote taken and recorded electronically.)
24 CHAIRMAN DOUGLASS: Announce the vote.
25 READING CLERK: Twenty yeas, 11 nays,
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1 Mr. Chairman.
2 CHAIRMAN DOUGLASS: All right. By your vote you
3 have adopted the amendment. We are now on the
4 substitute amendment by Commissioner Lowndes as
5 amended by Commissioner Brochin to proceed further.
6 Is there debate on the substitute amendment, further
7 debate? If not, Commissioner Lowndes, you may close.
8 COMMISSIONER LOWNDES: I think we have taken
9 enough time on sovereign immunity. I would urge you
10 to vote for the amendment. Thank you.
11 CHAIRMAN DOUGLASS: All right. We will proceed
12 to vote. Unlock the machine and vote. It is on the
13 substitute amendment as amended. It is the Lowndes
14 amendment with the Brochin addition. This is on the
15 Lowndes amendment with the addition of the Brochin
16 amendment.
17 (Vote taken and recorded electronically.)
18 CHAIRMAN DOUGLASS: Lock the machine and announce
19 the vote.
20 READING CLERK: Seventeen yeas, 14 nays,
21 Mr. Chairman.
22 CHAIRMAN DOUGLASS: All right. By your vote you
23 have adopted the amendment which replaced the previous
24 proposal. We now must vote on the proposal which is
25 the Lowndes amendment we just passed with the Brochin
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1 amendment on it, the same vote we just took we have to
2 take again. Open the machine and record the vote.
3 (Vote taken and recorded electronically.)
4 CHAIRMAN DOUGLASS: We are voting on the same
5 thing. What we did is -- clear the machine. Clear
6 the machine. Now, what we have to do, we adopted the
7 substitute for the proposal but I'm informed by the
8 Secretary that we now have to just vote the same vote
9 again in order to officially adopt the proposal; am I
10 right?
11 (Off-the-record discussion.)
12 CHAIRMAN DOUGLASS: That's correct, the proposal
13 as amended. All right. We are going to vote --
14 COMMISSIONER SCOTT: We have to debate it.
15 CHAIRMAN DOUGLASS: Well, I asked for debate. I
16 am half deaf in one ear so I now hear you, you have
17 got the floor if you want it.
18 COMMISSIONER SCOTT: Are you talking to me?
19 CHAIRMAN DOUGLASS: Who else would I be talking
20 to?
21 COMMISSIONER SCOTT: I just wanted to remind
22 everybody of the passionate debate that Commissioner
23 Anthony who is having much more fun than all of us
24 this week on this subject matter. What we have now
25 is, I suppose, a $500,000 limit, no trial by jury but
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1 some sort of binding arbitration and sovereign
2 immunity is being waived. And I just, I think at this
3 point, I would urge everybody, on Commissioner
4 Anthony's behalf, to vote against it.
5 CHAIRMAN DOUGLASS: Well, I'm sure he is proud of
6 that. Commissioner Wetherington.
7 COMMISSIONER WETHERINGTON: We needed some reform
8 on sovereign immunity in this state. This is a very
9 sensible proposal and I think you should support it.
10 CHAIRMAN DOUGLASS: Commissioner Barkdull.
11 COMMISSIONER BARKDULL: Could I ask Commissioner
12 Scott a question, please?
13 COMMISSIONER SCOTT: Is it friendly?
14 COMMISSIONER BARKDULL: Friendly. Commissioner
15 Scott, do you believe that the Legislature could enact
16 this same thing by statute, this same procedure?
17 COMMISSIONER SCOTT: Yes, absolutely, after
18 hearing from everyone and giving everybody a chance to
19 figure out what the ramifications, how much it would
20 cost, they could do it, yeah.
21 COMMISSIONER BARKDULL: Thank you.
22 CHAIRMAN DOUGLASS: Any more debate?
23 Commissioner Butterworth.
24 COMMISSIONER BUTTERWORTH: I just have a
25 question. What happens if, I don't know who can
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1 answer this, maybe Mr. Brochin can, but from the
2 standpoint that, let's say you have a claim for a
3 million dollars, is it best just to go to a regular
4 jury trial now and still go to the Legislature for a
5 claims bill; or is it best just to -- or do you have
6 your choice of forums, I guess it would be?
7 COMMISSIONER BROCHIN: You know, I think the
8 answer to that question would be a strategic decision
9 made by the plaintiffs and their attorneys and whether
10 they want to bring their case to a trial. But if they
11 want to get the mandatory aspect of this proposal,
12 which says if you file a tort claim it shall be
13 submitted to the court in lieu of a trial, you would
14 be required to do that.
15 COMMISSIONER BUTTERWORTH: It says in tort claims
16 filed against the state or a political subdivision,
17 you must go to the three-person arbitration;
18 therefore, you would not have the right to a jury
19 trial if in fact you decide to sue the state of
20 Florida or a subdivision.
21 COMMISSIONER BROCHIN: Yes, but the answer is you
22 don't have the right to a jury trial now for that
23 amount.
24 COMMISSIONER BUTTERWORTH: But you have a claims
25 bill, but you might get a judgment first, then a
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1 claims bill.
2 COMMISSIONER BROCHIN: Yes, it is the same
3 judgment, but you don't have a right in a jury trial
4 for an amount in excess of $100,000 now. That's
5 right, I misspoke, you have the right to a jury trial,
6 but it is not enforceable beyond the cap.
7 COMMISSIONER BUTTERWORTH: Mr. Chairman, I am
8 opposed to this. I really feel very strongly about
9 the right to a jury trial and I would vote against
10 this.
11 CHAIRMAN DOUGLASS: All right. Any further
12 discussion? Commissioner Lowndes, you may close.
13 COMMISSIONER LOWNDES: Well, I would just close
14 by saying I don't think that this precludes a jury
15 trial. What this says is that you go to the
16 arbitration proceeding, which presumably is an
17 election on the part of a plaintiff in those instances
18 where you are claiming an amount higher than the cap.
19 I used to be a trial lawyer years and years ago,
20 but my recollection is when you go into the circuit
21 court you don't have to file in your complaint how
22 much damages you are looking for, you can go into the
23 circuit court now, and this doesn't take it away, you
24 get a jury trial. You only go into the arbitration
25 proceeding if you tell the circuit court you are
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1 asking for more than the cap, so this doesn't take
2 away the jury trial at all. And presumably you would
3 still have the right if you elected to go the jury
4 route, to come to the Legislature for a claims bill.
5 My sense is that, while on the one hand this
6 doesn't do away with claims bills, on the other hand,
7 it makes it much less likely because people would have
8 an alternative to claims bills which are much more
9 reasonable and reachable for the average person.
10 So I urge you to vote for the amendment.
11 CHAIRMAN DOUGLASS: All right. We have had close
12 on this and now we are prepared to vote on the
13 proposal by Commissioner Lowndes as amended by the
14 Brochin amendment. Unlock the machine and let's vote.
15 (Vote taken and recorded electronically.)
16 CHAIRMAN DOUGLASS: Has everybody voted? Unlock
17 the machine and announce the vote.
18 READING CLERK: Fifteen yeas, 16 nays,
19 Mr. Chairman.
20 CHAIRMAN DOUGLASS: By your vote you have
21 defeated the proposal.
22 All right. We now proceed to Proposal No. 77 by
23 Commissioner Freidin. Commissioner Freidin, Proposal
24 No. 77 by Commissioner Freidin and the Committee on
25 Declaration of Rights is on the calendar. Would you
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1 read it, please?
2 READING CLERK: Committee Substitute for Proposal
3 77, a proposal to revise Article X, Section 13,
4 Florida Constitution, abolishing sovereign immunity in
5 contract and in tort.
6 CHAIRMAN DOUGLASS: Commissioner Freidin, you are
7 recognized on the proposal.
8 COMMISSIONER FREIDIN: I'm going to withdraw that
9 proposal without objection.
10 CHAIRMAN DOUGLASS: Without objection, the
11 proposal is withdrawn. Now we have a committee report
12 from Style and Drafting as the next order of business.
13 Commissioner Mills, you are recognized.
14 COMMISSIONER MILLS: Mr. Chairman, based on the
15 Rules' report as passed this morning, we are prepared
16 to take up, under the topics that have been
17 enumerated, the proposals on the agenda for this week.
18 The first topic is elections. There are seven
19 proposals in that area. And the procedure that we
20 would propose to follow in considering each of these
21 for a majority vote or for any positive vote to carry
22 them on, and again any negative vote would cease
23 further consideration of the Commission.
24 What I would propose to do, Mr. Chairman, is I
25 would move to limit debate on each of these to 10
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1 minutes, and at the beginning of each of these
2 considerations, when introduced by the sponsor, if the
3 Chair asks if there are people who wish to debate on
4 either side, sort of line it up. We had, in Style and
5 Drafting, assigned members of Style and Drafting to
6 deal specifically with an explanation of the overview
7 of the issue and to describe the technical Style and
8 Drafting amendments to those proposals. For the
9 elections process, Commissioner Ford-Coates would do
10 that for Style and Drafting.
11 But before doing that, if I could, Mr. Chairman,
12 if it would be timely, I would move to limit debate on
13 each of the items in the election package to 10
14 minutes.
15 CHAIRMAN DOUGLASS: All right, you have heard the
16 motion. Commissioner Smith.
17 COMMISSIONER SMITH: Question.
18 CHAIRMAN DOUGLASS: Yes, Commissioner Smith.
19 COMMISSIONER SMITH: Question, Mr. Chair. First
20 question is, 10 minutes total, or 10 minutes for the
21 proponents and 10 minutes for the opponents?
22 COMMISSIONER MILLS: Ten minutes total.
23 COMMISSIONER SMITH: Okay. With regard to the 10
24 minutes total, does the proponent of the proposal have
25 any say-so, or the opponent, the proponent have any
131
1 say-so on who will speak? For instance, if I have a
2 proposal, there may be certain people that I want to
3 speak who will cover particular areas of the proposal
4 which gives my proposal a better chance of passage, as
5 opposed to having people getting up saying the same
6 thing or not knowing what they are taking about. All
7 right. Will the proponent of the proposal have any
8 input on who will do the talking?
9 COMMISSIONER MILLS: Mr. Chairman, the proponent
10 of the proposal will have input by talking to people,
11 but it is up to the Chair to recognize whomever he
12 wishes to recognize.
13 COMMISSIONER SMITH: Okay. And lastly, will the
14 procedure require that all proponents go first and all
15 opponents go last, or back and forth, because that
16 makes a difference in the debate.
17 CHAIRMAN DOUGLASS: All right. What I would
18 suggest, with the approval of the group, is that we,
19 at the outset, ask who is a proponent and who wants to
20 be an opponent, identify them. And then I would let
21 the proponents go first, the opponents go second, and
22 the proponent to close.
23 COMMISSIONER SMITH: Okay. Last question,
24 Mr. Chair. Commissioner Mills, does the 10 minutes
25 also include the close by the proponent of the
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1 proposal? And if that's the case, does the proponent
2 of the proposal get at least a specific period of time
3 to close their own proposal because other people can
4 use up the whole 10 minutes?
5 CHAIRMAN DOUGLASS: Commissioner Barnett, you had
6 a question.
7 COMMISSIONER MILLS: We could do 5 and 5 and give
8 a 2-minute close. And I would also indicate that what
9 we need here is sort of mutual discipline of the
10 group. If we get to 10 minutes -- I mean, there are a
11 couple of proposals down the line, with which
12 Commissioner Smith is very familiar, that probably
13 can't be handled in 10 minutes, but you can then move
14 to extend, and if it is the will of the body, we will
15 do that. There are many of these proposals, I would
16 suggest to you, a majority of them can be handled in
17 10 minutes.
18 CHAIRMAN DOUGLASS: Commissioner Barnett, you had
19 something.
20 COMMISSIONER BARNETT: Just a comment,
21 Mr. Chairman. I think that the debate might flow
22 better if you take a proponent and opponent, kind of
23 alternate them because sometimes saving it all for the
24 end doesn't allow somebody to respond that might have
25 a good answer.
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1 Secondly, I think it would be a good idea to save
2 time for the proponent, outside of the 10 minutes, to
3 actually close. Because I think that individual
4 really should have an opportunity that's consistent
5 with what we were trying to accomplish at Style and
6 Drafting. The whole purpose of this is to try to set
7 some time parameters to move us through the day.
8 CHAIRMAN DOUGLASS: All right. And I think that
9 will be done and I'll do it that way, but I'll ask at
10 the outset. We have debated all of these before, but
11 I'll ask at the outset for the proponents that want to
12 speak to be identified and the opponents to be
13 identified, and then I will try to alternate, as you
14 suggest. And it might not be a bad idea for somebody,
15 if there are too many, to suggest who is going to have
16 the time. So that's what we will do if you pass this
17 motion.
18 COMMISSIONER MILLS: And, Mr. Chairman, you know,
19 using your discretion that you would give
20 approximately 5 minutes per side, if this was
21 reasonably debatable, and then allowing the proponent
22 to close.
23 CHAIRMAN DOUGLASS: Okay. All right. Are we
24 ready to vote on the motion?
25 COMMISSIONER MILLS: Mr. Chairman, if it is the
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1 consensus of the group, about 2 minutes to close so
2 that gets us through, if we work the entire process it
3 would be 12 minutes.
4 CHAIRMAN DOUGLASS: Restate the motion.
5 COMMISSIONER MILLS: That we limit debate on each
6 proposition to 10 minutes, 5 minutes per side, in the
7 discretion of the Chair to alternate back and forth so
8 as to create a fair debate, and 2 minutes to close for
9 the proponent.
10 CHAIRMAN DOUGLASS: All right. Everybody ready
11 to vote on the motion? All in favor of the motion,
12 say aye. Opposed?
13 (Verbal vote taken.)
14 CHAIRMAN DOUGLASS: The motion carries.
15 COMMISSIONER MILLS: Mr. Chairman, then, in an
16 ecumenical sense, I will take it upon myself to stand
17 up at 10 minutes just so you will know when we are
18 there, if the Secretary will help me. And before we
19 go into the individual proposals, Commissioner
20 Ford-Coates can give you a brief overview of
21 everything in elections so you will know what you are
22 voting on and tell you about the three, basically,
23 noncontroversial amendments, if you will recognize
24 Commissioner Ford-Coates.
25 CHAIRMAN DOUGLASS: Commissioner Ford-Coates.
135
1 COMMISSIONER FORD-COATES: Commissioner Mills,
2 you want the amendments done now and not as we take --
3 right, you want it the opposite way. Let me just say
4 that Style and Drafting has on these seven proposals,
5 three amendments that are merely technical in nature
6 which affect three of the proposals. I will move
7 those amendments as we get to each proposal. And I
8 would ask, I assume it will be the will of the body
9 that those amendments and in that portion of the
10 process, that that not be counted against the 10
11 minutes of debate.
12 So, the elections proposals, as Commissioner
13 Mills said, are seven in number. They cover the areas
14 of public financing for statewide campaigns, ballot
15 access in allowing easier ballot access for minor and
16 independent candidates, minor party and independent
17 candidates, a change in the primary election process
18 when the primary is the last election, a change in the
19 way the Governor, the gubernatorial candidates select,
20 the time frame in which they must select their
21 Lieutenant Governor, putting it after the primary.
22 Change for putting single-member districts, that
23 requirement within the Constitution, nonpartisan
24 election of school boards.
25 We also have the Apportionment Commission in the
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1 elections provisions, but since we voted on that this
2 morning, we felt that it would be more appropriate to
3 bring that up again for debate a little later in the
4 week, so we are not going to re-debate that issue
5 within this elections package today. And the final
6 one is the limitation on political contributions from
7 political parties and to political parties.
8 With that, I'd like to move to the first proposal
9 in your package, Committee Substitute for Proposal 16.
10 This requires a system of spending limits for
11 campaigns for statewide office and a system for public
12 financing of those campaigns and further requires that
13 the Legislature provide sufficient funding for the
14 provision.
15 Style and Drafting has two technical amendments
16 which are in your packet. The first amendment --
17 shall we read the amendment, Mr. Chairman?
18 CHAIRMAN DOUGLASS: Well, we'll have the clerk to
19 read the amendment.
20 COMMISSIONER FORD-COATES: That's what I mean, to
21 get it on the desk.
22 CHAIRMAN DOUGLASS: Is it on the desk?
23 COMMISSIONER FORD-COATES: It is in the pink
24 packet, it's right in your pink packet.
25 CHAIRMAN DOUGLASS: Read the proposal first.
137
1 READING CLERK: Committee Substitute for Proposal
2 No. 16., a proposal to create Article IV, Section 7,
3 Florida Constitution, and Article 12, Section 23,
4 Florida Constitution; providing for public financing
5 of campaigns for elective statewide office and for
6 spending limits.
7 CHAIRMAN DOUGLASS: All right. Now there is an
8 amendment on the table offered by Style and Drafting.
9 COMMISSIONER FORD-COATES: Well, actually it
10 would be offered by Commissioner Ford-Coates because
11 if it were offered by Style and Drafting it would
12 require 22 votes.
13 CHAIRMAN DOUGLASS: Okay. It is offered by
14 Commissioner Ford-Coates, which is the recommended
15 additional language, as I take it; is that correct?
16 Read the amendment, please.
17 READING CLERK: Committee Substitute for Proposal
18 16 by Commissioner Ford-Coates, the following
19 amendment on Page 1, Line 17, 18, strike "effectively
20 compete without the disproportionate influence of
21 special interests" and insert "compete effectively."
22 COMMISSIONER FORD-COATES: Okay. This amendment
23 takes out some unnecessary and perhaps gratuitous
24 language, that is without the disproportional
25 influence of special interests. The feeling of the
138
1 committee was we shouldn't place special interests
2 within the Constitution and that it fixes a
3 grammatical error from changing "effectively compete"
4 to "compete effectively."
5 CHAIRMAN DOUGLASS: All right. All in favor of
6 the amendment say aye. Opposed?
7 (Verbal vote taken.)
8 CHAIRMAN DOUGLASS: Amendment carries. We are
9 now on the proposal as amended. Is there another
10 amendment?
11 COMMISSIONER FORD-COATES: Yes, Mr. Chairman,
12 there is.
13 CHAIRMAN DOUGLASS: All right. There is another
14 amendment on the desk by Commissioner Ford-Coates
15 under the same conditions as the last one; is that
16 correct?
17 COMMISSIONER FORD-COATES: That's correct.
18 CHAIRMAN DOUGLASS: Commissioner -- read the
19 amendment, please.
20 READING CLERK: Committee Substitute for Proposal
21 16 by Commissioner Ford-Coates, the following
22 amendment on Page 1, Line 23, after the period insert
23 "general law implementing this paragraph shall be at
24 least as protective of effective competition by a
25 candidate who has agreed to spending limits as a
139
1 general law in effect on January 1, 1998."
2 CHAIRMAN DOUGLASS: Commissioner Ford-Coates.
3 COMMISSIONER FORD-COATES: Commissioners, this
4 amendment moves the language from a schedule section
5 into the body of the proposal, clarifies that language
6 and simplifies it and implements the intention that
7 general law in effect today complies with the
8 requirement and that future legislation cannot dilute
9 but only strengthen what we have today. This is
10 merely a clarification of the intent.
11 CHAIRMAN DOUGLASS: So, it is replacing the
12 schedule?
13 COMMISSIONER FORD-COATES: The schedule.
14 CHAIRMAN DOUGLASS: And there won't be a
15 schedule?
16 COMMISSIONER FORD-COATES: Correct.
17 CHAIRMAN DOUGLASS: All right. Everybody
18 understand the amendment? All in favor of the
19 amendment, say aye. Opposed?
20 (Verbal vote taken.)
21 CHAIRMAN DOUGLASS: The amendment carries. Is
22 there another amendment?
23 COMMISSIONER FORD-COATES: Not that I know of.
24 At this point I would turn it over to the sponsor, but
25 the sponsor is in the Chair currently.
140
1 CHAIRMAN DOUGLASS: Well, Commissioner Connor was
2 a cosponsor and he is going to handle it on the floor
3 and he is recognized as a proponent. Other
4 proponents, any other proponents? Any opponents?
5 All right, we have one, two opponents and one
6 proponent. Three opponents. Commissioner Connor, do
7 you want me to quit and come down and help you or can
8 you handle it?
9 COMMISSIONER CONNOR: I always welcome the aid of
10 the Chair, always.
11 COMMISSIONER THOMPSON: I will take the Chair.
12 CHAIRMAN DOUGLASS: I don't think we can afford
13 it.
14 (Laughter.)
15 (Commissioner Thompson assumes the Chair.)
16 COMMISSIONER CONNOR: Mr. Douglass, would you
17 like to lead off then?
18 COMMISSIONER THOMPSON: Commissioner Connor, you
19 are recognized.
20 COMMISSIONER CONNOR: Thank you, Mr. Chairman.
21 Members of the Commission, without a doubt, I believe
22 that this proposal is one of the most significant
23 proposals that this Commission can put into the hands
24 of the people. If we really believe that all
25 political power is inherent in the people, which is
141
1 the very first proposition expressed in our
2 Constitution, this is the means by which we assure the
3 political power remains in the hands of the people.
4 What we have seen over the course of time without
5 a doubt is that increasingly, government has begun to
6 be dominated by special interests. Those special
7 interests invest in political campaigns as a cost of
8 doing business, expecting to get a return on their
9 investment if they ride the right horse to office.
10 And all too often we know that that return on
11 investment comes out of the public purse, whether it
12 is by way of direct appropriation, whether it is by
13 way of tax break, or whether it is by way of
14 contracting with the state.
15 I would submit to you that we need to move away
16 from a process that is dominated by special interests
17 and that we return political power to the hands of the
18 people. Increasingly we have seen an erosion of that
19 power from the people into the hands of special
20 interests.
21 In response to that, we have seen the people
22 respond by the imposition of term limits, we have seen
23 a rise in the citizen initiative process, and we have
24 seen all kinds of symptoms within and among the public
25 that reflects their frustration and consternation at
142
1 the fact that they believe they are increasingly being
2 disenfranchised. I believe that there is no more
3 important proposal to assure the political power
4 reposes in the hands of the people than to pass this
5 proposal. This proposal is modest, it is limited in
6 scope, and it applies only to statewide offices. And
7 I believe, and my fervent hope is that, to the extent
8 that the public enthusiastically embraces this
9 proposal, and I believe it will, we'll begin to see
10 this concept being broadened so that once again we
11 will wind up eventually having the people's
12 Legislature as well rather than one that's dominated
13 by special interests. Thank you.
14 COMMISSIONER THOMPSON: Opponents? Commissioner
15 Douglass as a proponent. Now, I was going to
16 recognize you to close, although you have got some of
17 the first five minutes if you would like. Why don't
18 you go ahead and use the rest of this and then you can
19 close later.
20 CHAIRMAN DOUGLASS: I think we were going to
21 alternate.
22 COMMISSIONER THOMPSON: Okay. Well, I called for
23 an opponent, so let's see who it is.
24 COMMISSIONER BARKDULL: I rise to oppose this,
25 not because I am opposed to public funding of
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1 campaigns but I am opposed to putting it in the
2 Constitution. The Legislature is working on this now
3 and I don't think we need to elevate what's now a
4 statute or what's beginning to be a statute into the
5 Constitution.
6 I think that there are a lot of good arguments
7 that can be made; Commissioner Connor has made a lot
8 of them. I just have a great deal of concern of
9 locking this into the Constitution, and I also have a
10 great deal of concern, and I will have this and will
11 rise on other occasions because this is an issue that
12 will have a substantial group of people that will not
13 support it.
14 One of the problems that we are going to have in
15 getting whatever we think is absolutely necessary for
16 us to offer to the people is to consider that if we
17 get a number of these things that are going to draw a
18 great deal of negative attention, the people that vote
19 negatively generally will vote negative on everything.
20 The people that vote affirmatively don't
21 necessarily do that, they will vote affirmatively on
22 the issue they want and they will skip over the
23 others. So, I think if we begin to build a structure
24 that has a number of built-in negative voters out
25 there, we jeopardize our entire package. This does
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1 not have to be in the Constitution, and that's the way
2 I am examining a number of these proposals. It can be
3 addressed by the Legislature, it is being addressed by
4 the Legislature, and I think we should leave it there.
5 COMMISSIONER THOMPSON: Proponent, Commissioner
6 Douglass.
7 CHAIRMAN DOUGLASS: Just in response. Many
8 things that are in the Constitution don't have to be
9 there, about half of it could have been done by the
10 Legislature. That's not a valid argument in amending
11 the Constitution or revising it, it's one that's made
12 by those that generally want to shy away from what the
13 people want and are afraid of these very special
14 interests that this particular item seeks, to minimize
15 their control over the electorate in the elections.
16 This has been one of the more popular proposals,
17 as far as our public hearing was concerned, all of
18 them and what we have heard. We have had no
19 opposition expressed to this other than such as was
20 just given by Commissioner Barkdull and the six people
21 who voted against it on its original passage, 20 to 6,
22 with one of the gentlemen for it not being here, or
23 two at the time, expressed their desire to vote for
24 it.
25 It seems to me, if we are going to offer any
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1 reform in an elections package, which this is, that
2 this is one of the very, very essential things that we
3 continue to carry forward in this process. I discount
4 the argument of my good friend and long time
5 compatriot Commissioner Barkdull on this, and I am
6 sure he's going to make it on many others, but I don't
7 challenge him to strike everything from the
8 Constitution that could be done by the Legislature
9 because we wouldn't have much left.
10 So, I urge you very strongly to continue the
11 overwhelming support for this limitation on campaign
12 spending and the kick-in that's provided here for
13 public funding when somebody doesn't.
14 COMMISSIONER THOMPSON: Okay. Opponent?
15 Commissioner Morsani, you are recognized.
16 COMMISSIONER MORSANI: Thank you, Mr. Chairman.
17 With all due respect, who are the special interests?
18 Are they big sugar? Is it the Citrus Commission? Is
19 it Disney World? Is it automobile dealers? Or is it
20 common cause, environmentalists, the teachers'
21 associations, or trial lawyers? That kind of takes
22 care of all of us in this room, I believe, and it
23 takes care -- so, special interest is a way of life.
24 Those are catchwords that people like to talk
25 about, but in reality, that's America. And we have
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1 divided ourselves, we have driven these wedges in our
2 society, and we continue to drive wedges in our
3 society on issues that are not issues in our nation,
4 they go to the very fiber of our country. I happen to
5 think the First Amendment gives us the right to give
6 to political parties and political candidates, and
7 eroding that privilege and right -- there's been a
8 great deal of talk the last few days about jury
9 trials, how important that is and nobody wants to give
10 that up, and yet you would infringe on my right to
11 give to a candidate of my choice, and limit those
12 contributions, and say that it's only, it's only
13 special interests.
14 Now, as I've also said in this chamber, I have
15 backed a number of people in both parties for
16 elections. I haven't always agreed on how much money
17 they collected or where they got their money from.
18 Locally, in our city of Tampa, Florida, when Mr. Sam
19 Gibbons was running for the last time he was in
20 Congress, he raised a million dollars for the
21 campaign, all of which, $750,000 came from PACs
22 outside the city of Tampa and outside the State of
23 Florida. And another $100,000 -- he only raised
24 $150,000 from his local constituents.
25 Well, that was up to the constituents of his
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1 locale to say, you are out, Mr. Gibbons, if you can't
2 raise money here where we elect you, then you
3 shouldn't have it. But that's the political process.
4 We have that ballot right. I urge you to vote against
5 this amendment, this proposal. It's not right and I
6 don't think we should have limitations by this body.
7 If our Legislature so desires to make a law, that's
8 one thing. I don't think we have that right in this
9 body.
10 COMMISSIONER THOMPSON: Further debate? Further
11 debate? Now there is two minutes to close on the part
12 of the proponents. Commissioner Douglass, do you wish
13 to close?
14 CHAIRMAN DOUGLASS: I would like to point out
15 that Commissioner Morsani is arguing against the
16 proposal that comes up later on the calendar. This is
17 not a proposal that limits his right to give as much
18 as he wants to, what this does is afford a candidate
19 the opportunity to elect to be bound by campaign
20 spending limits, and if he does, that will be what's
21 done. If one elects not to limit his campaign
22 spending, in this case, the statewide office for
23 Governor I think was five and a half million last
24 time, and then if one elects not to and goes above it
25 for what he raises, then you get public funds kicking
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1 in to keep the playing field level. We fully
2 discussed this when we passed it.
3 The proposal Commissioner Morsani refers to is
4 the one by Commissioner Thompson, which is on the
5 special order, which limited the amount of money that
6 could be given to candidates in political parties.
7 So, insofar as this proposal is concerned, and I
8 really enjoyed knowing that somebody had money enough
9 to get that concerned with this proposal. And in
10 hearing Commissioner Morsani's very emotional and well
11 put arguments against another proposal, but I suggest
12 to you that we should pass this one for what it is,
13 which is making the playing field level.
14 We wouldn't have Commissioner Milligan or Brogan
15 probably, we certainly might not have Governor Chiles,
16 which could please some of you, but it might please
17 some of you not to have had the others, but the
18 playing field was level and it was done in a manner in
19 which the people of Florida had the right then to vote
20 for those candidates without being overwhelmed. I
21 join Commissioner Connor and the many, and the other
22 18 of you who voted for this on the first time, asking
23 for everybody to vote for this this time as being one
24 election package that will be well received and should
25 be in the Constitution.
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1 COMMISSIONER THOMPSON: So, the question recurs
2 for the adoption of Committee Substitute for Proposal
3 No. 16. The Secretary will unlock the machine and the
4 members will proceed to vote. All members voting.
5 All members voting.
6 (Vote taken and recorded electronically.)
7 CHAIRMAN DOUGLASS: The Secretary will lock the
8 machine and announce the vote.
9 READING CLERK: Eight ayes, 12 nays,
10 Mr. Chairman.
11 COMMISSIONER THOMPSON: Eighteen.
12 READING CLERK: Eighteen yeas, 12 nays,
13 Mr. Chairman.
14 CHAIRMAN DOUGLASS: So, that proposal is adopted.
15 Commissioner Mills.
16 COMMISSIONER MILLS: All right. Mr. Chairman,
17 the next proposal would be Proposal 79. And
18 Commissioner Ford-Coates will be offering a technical
19 amendment on that one as proposed by the Style and
20 Drafting Committee.
21 COMMISSIONER THOMPSON: All right. Take up 79,
22 and read the first amendment by Commissioner
23 Ford-Coates.
24 READING CLERK: Committee Substitute for Proposal
25 No. 79, a proposal to revise Article 6, Section 1,
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1 Florida Constitution, providing that requirements for
2 placing a name of a candidate with no party
3 affiliation or minor party candidate on an election
4 ballot must not be greater than the requirements for
5 major party candidates.
6 (Chairman Douglass resumes Chair.)
7 CHAIRMAN DOUGLASS: Commissioner Ford-Coates.
8 COMMISSIONER FORD-COATES: Let me just check with
9 staff here. Is that the correct amendment, Ms.
10 Kearney? Is that the correct amendment on the desk?
11 MS. KEARNEY: Yes.
12 COMMISSIONER FORD-COATES: And they are passing
13 that out currently so that the Commissioners will have
14 it on their desk.
15 CHAIRMAN DOUGLASS: Now, we are reading the
16 amendment that is being passed out. Read the
17 amendment, please.
18 READING CLERK: By Committee on Style and
19 drafting, the following amendment on page 1, Lines 20
20 to 25, strike the underlined language and before the
21 period, insert, however the number of petitions
22 required of the candidate.
23 CHAIRMAN DOUGLASS: All right. Commissioner
24 Ford-Coates.
25 COMMISSIONER FORD-COATES: I don't think that
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1 they have got it yet. The amendment in your book is
2 not the amendment that I'm proposing, and that's what
3 she's about to read, is the correct amendment.
4 READING CLERK: By Committee on Style and
5 Drafting, the following amendment. On Page 1, Lines
6 20 to 25, strike the underlined and before the period
7 insert, however the requirements of a candidate with
8 no party affiliation or a candidate of a minor party
9 for placement of the candidate's name on the ballot
10 must be no greater than the requirements for a
11 candidate from the party having the largest number of
12 registered voters.
13 COMMISSIONER FORD-COATES: Thank you.
14 Commissioners, you have, that was just placed on your
15 desks recently, a chart which is different from the
16 chart in your pink packet and more clearly delineates
17 the current situation and the situation as proposed by
18 this amendment. Basically the current situation is
19 that independent candidates do not have an option,
20 independent and minority party candidates. Members of
21 the majority parties may either pay a filing fee or
22 get signatures.
23 Under the current situation, independent and
24 minor party candidates must get signatures and pay a
25 filing fee, and get more signatures than those of the
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1 major party candidates. The current proposal will
2 make a change in that so that those independent and
3 minor party candidates will have the same options and
4 opportunities as the major parties to either pay a
5 filing fee or get the signatures under the way the law
6 is written today.
7 We didn't adopt the amendment, though, did we?
8 So, the first thing we need to do, and the amendment
9 just clarifies that point more clearly. Clarifies
10 more clearly, that is a little redundant.
11 CHAIRMAN DOUGLASS: All right, does everybody
12 understand the amendment proposed by Commissioner
13 Ford-Coates on behalf of the committee? All in favor,
14 say aye. Opposed?
15 (Verbal vote taken.)
16 CHAIRMAN DOUGLASS: Amendment is adopted.
17 Commissioner Ford-Coates.
18 COMMISSIONER FORD-COATES: Mr. Chairman, I would
19 like to yield the floor to the sponsor, Commissioner
20 Riley.
21 CHAIRMAN DOUGLASS: All right. Before we do
22 that, we need to know if there are other proponents
23 who want to speak. Commissioner Smith. Any
24 opponents? Commissioner Barkdull. We just have a
25 standing order for you; is that correct? Okay, you
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1 may proceed, Commissioner Riley.
2 COMMISSIONER RILEY: Mr. Chairman, I was very
3 sorry to see a hand being raised for someone who might
4 be against this. I really hope that this might be the
5 first through the shoot as we go to get those 22 votes
6 with no opposition, and to me it seems a slam dunk,
7 but obviously everybody doesn't see it like that. Let
8 me make it very clear what this does.
9 And I think Commissioner Ford-Coates explained it
10 well. But currently for independent candidates you
11 must pay a filing fee and must get signatures. What
12 this amendment does, it says for independent
13 candidates you may do one or the other. And the
14 number of signatures, if you choose to get on the
15 ballot in that manner, is the same, and I think that's
16 clear in the paperwork that you have in front of you,
17 is the same as the largest number required by majority
18 party. If that's not clear, talk to Commissioner
19 Ford-Coates.
20 Yesterday I was coming down the elevator in the
21 hotel and a woman said, Hello, and she said, Are you
22 here on business? And I said, Well, we are here to do
23 the Constitution Revision Commission. And she said,
24 Well, what are you doing? And I said, Well, we are
25 looking at the Florida Constitution. And she looked
154
1 at me with horror and she said, Why? And I thought
2 that was a really good question. And my answer to it
3 is this, this is why we are doing this, because
4 there's currently a law, there's something that is
5 patently unfair in the process of elections. There's
6 nobody in the State of Florida as we speak who didn't
7 say that this was unfair. The groups that support
8 this are all across the board. It is the League of
9 Women Voters, it is common cause, it is the
10 Libertarian party, not a surprise. I haven't heard
11 people stand up, as we did our 13 public hearings and
12 say how you get on the ballot is right, the inequality
13 of it is right. What everyone said was, this is not
14 right, This is our opportunity to fix this problem.
15 Is it constitutional? I answered to that, Yes.
16 Is it necessary? Most certainly it's necessary. And
17 I would certainly like to see us do one unanimous
18 vote, Commissioner Barkdull, and all of us vote yes on
19 this. I think it's extremely important. Everybody in
20 the State of Florida thinks it's important.
21 CHAIRMAN DOUGLASS: Commissioner Barkdull.
22 COMMISSIONER BARKDULL: Everybody but me as they
23 say back here. Once again I rise to not put something
24 in the Constitution that statutorily -- I can't help
25 those items that are already in there, but I don't
155
1 want to continue to prolong that process. If
2 everybody in the state is for this and everybody has
3 elicited that they are for it, and the overwhelming
4 support that's been indicated, they ought to be able
5 to get the Legislature to change it or take the
6 initiative route.
7 CHAIRMAN DOUGLASS: Commissioner Smith, as a
8 proponent.
9 COMMISSIONER SMITH: Thank you very much,
10 Mr. Chairman. This is an issue of fundamental
11 fairness. I'm somewhat embarrassed to say that as
12 politically active as I have been in my neck of the
13 woods, I never knew nor could I have imagined
14 something this unfair as an integral part of Florida
15 law.
16 The reason -- this was one of the proudest votes
17 that I participated in because, if not all, just about
18 all of us are Democrats or Republicans, and therefore,
19 this is a vote, really, against our party's best
20 interest, for all of us. But we are not here for a
21 party, we are here for public policy that is fair.
22 I can't think of too many other things more
23 important to put in our Constitution than fundamental
24 fairness for all people who are involved in this
25 process. And while I agree with Commissioner Riley,
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1 it would be good for us to have unanimity, unanimity
2 is not necessary in a democracy.
3 I would be very, very proud if we could have 22
4 who say, People, you decide. Please vote yea.
5 CHAIRMAN DOUGLASS: All right. Opponent? The
6 proponents' time, is it up? It's up. Okay, so the
7 time limit on debate for proponents is up. You may
8 close.
9 COMMISSIONER RILEY: I would give my time to
10 someone else. I think it's been closed. Let's vote.
11 CHAIRMAN DOUGLASS: All right. Unlock the
12 machine and let's vote.
13 (Vote taken and recorded electronically.)
14 CHAIRMAN DOUGLASS: Lock the machine and announce
15 the vote.
16 READING CLERK: Thirty-eight yeas, 1 nay,
17 Mr. Chairman. Twenty-eight yeas, Mr. Chairman.
18 CHAIRMAN DOUGLASS: All right. It was 28 to
19 Barkdull.
20 (Off-the-record discussion.)
21 CHAIRMAN DOUGLASS: All right. He couldn't stand
22 it. They have an objection, and it takes a unanimous
23 vote, so -- all right, let's move on. Commissioner
24 Ford-Coates. Commissioner Mills, you are up.
25 COMMISSIONER MILLS: I would take up Proposal
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1 128, which happens to be by Commissioner Ford-Coates
2 as well as for her explanation.
3 CHAIRMAN DOUGLASS: All right. How should we
4 proceed here, do you want to speak for the committee,
5 or let Commissioner Ford-Coates?
6 COMMISSIONER MILLS: She can do it.
7 CHAIRMAN DOUGLASS: You are recognized,
8 Commissioner Ford-Coates for -- wait a minute, let's
9 read it. Proposal No. 128, would you read it please?
10 READING CLERK: Proposal No. 128, a proposal to
11 revise Article VI, Section 5, Florida Constitution,
12 providing for primary elections.
13 CHAIRMAN DOUGLASS: All right.
14 COMMISSIONER FORD-COATES: Mr. Chairman, since
15 this is my proposal, do you want to go right in to
16 recognizing proponents and opponents?
17 CHAIRMAN DOUGLASS: Yes.
18 COMMISSIONER FORD-COATES: Let me read what the
19 staff says this does so you will know I am not in
20 debate. This proposal provides that if all candidates
21 for an office represent the same political party and
22 the winner shall have no opposition in the general
23 election, all qualified electors may vote in that
24 primary.
25 CHAIRMAN DOUGLASS: All right. Proponents other
158
1 than Ford-Coates, Commissioner Lowndes and
2 Commissioner Connor. All right. Opponents,
3 Commissioner Scott and Commissioner Barton. All
4 right, then we will proceed. You may open.
5 COMMISSIONER FORD-COATES: Commissioners, this,
6 to remind you, is not about an open primary. It does
7 not allow members of other parties to select the
8 nominee from one party. It does not eliminate the
9 second primary. Some opposition has arisen on this
10 proposal, and it's come, as I have heard it, primarily
11 from the political parties themselves. As I see it,
12 the political parties want to totally control the
13 process in this situation beyond the nomination.
14 And I compliment the parties for wanting to
15 control the process of selecting their nominees. I
16 think that is a very good thing. This does not change
17 that process. Each party has the opportunity to file
18 a candidate. In the case where no other party has
19 filed, where there's no independent and no minor party
20 candidate, the primary is for all intents and
21 purposes, the general election. That's where the
22 public officials are selected.
23 That person who is elected at that primary
24 becomes the public official. It is my contention and
25 the contention of those to whom I have spoken, that
159
1 when it's the actual election of the person who will
2 serve you from four to six years, two to four to six
3 years, everyone should have the chance to vote for
4 that person on that day.
5 CHAIRMAN DOUGLASS: All right. Opponent,
6 Commissioner Scott, you were the opponent.
7 COMMISSIONER SCOTT: There were two, I think.
8 CHAIRMAN DOUGLASS: And Commissioner Barton.
9 COMMISSIONER SCOTT: This is a version of an open
10 primary. And I think that we have political parties,
11 we happen to have two major ones, the political party
12 ought to be able to select their nominee. And what
13 this would allow, depending on the circumstances and
14 where you are, would allow 30 percent of the
15 membership of another party to come and pick, perhaps,
16 someone that is the most conservative and might not
17 represent that party's philosophy.
18 I really think that we need to proceed with
19 caution in interfering with political parties. I
20 think that what we have done -- we have gone from a
21 time that this might have benefited Republicans, and
22 in some areas still might and it might benefit
23 Democrats, it really doesn't matter, but I think the
24 members of the party, let them reregister in that
25 party if they want to vote in it, but that they should
160
1 be able to select their nominees, so I would urge you
2 to vote against this.
3 And I think when you couple this with a couple of
4 the other things that are directed at political
5 parties, I really don't think that it's a very good
6 package, so I would urge you to vote against this one.
7 CHAIRMAN DOUGLASS: Okay. We have two
8 proponents. Who wants to go first? Do you want
9 Commissioner Lowndes to go first? Okay, Commissioner
10 Lowndes.
11 COMMISSIONER LOWNDES: It would probably be more
12 effective if I went first since Commissioner Connor is
13 so much more eloquent. You know, I grew up in North
14 Carolina, and when I turned 21 Eisenhower was running
15 for President for the first time, and I was a great
16 admirer of his since I grew up during the Second World
17 War and I wanted to vote for Eisenhower so I went and
18 registered as a Republican.
19 And I found out in North Carolina in those days,
20 registered as a Republican completely foreclosed you
21 from voting in any election except the national
22 election because there were no Republican candidates,
23 the election was always determined in the Democratic
24 primary. So I was excluded from being able to vote
25 for the candidates who were elected year after year,
161
1 and I think that was a bad situation.
2 I think this proposal cures that situation. And
3 if the primary election is the election, if the
4 primary election is going to determine who the
5 officeholder is, not just who the candidate is, but
6 who the officeholder is, I think it's fair to let all
7 of the people vote for the officeholder. So, I'm very
8 much in favor of it, thank you.
9 CHAIRMAN DOUGLASS: All right. Opponent,
10 Commissioner Barton.
11 COMMISSIONER BARTON: I'm glad I don't have to
12 follow Commissioner Connor either. I, of course, am
13 an opponent of this proposal. The reason is is that I
14 am a very strong proponent of the political science
15 background. When you study political science, you
16 learn that the purpose of a primary is to select the
17 party's candidates. That is the main purpose of the
18 primary, perhaps the whole purpose of the primary.
19 And it taints that process to allow members of
20 another party to vote in a primary contest. I would
21 agree with everything that Commissioner Scott said and
22 I urge you not to vote for this proposal.
23 CHAIRMAN DOUGLASS: Commissioner Connor, they all
24 fear you. You may rise.
25 COMMISSIONER CONNOR: Well, thank you,
162
1 Mr. Chairman. I hope that I can make the case. For
2 most of my life as a Republican, as politically active
3 as I've tried to be, I've been largely disenfranchised
4 everywhere I have ever lived. In Jackson County, the
5 predominate political party was Democratic. In Polk
6 County, the predominant party was Democratic. In Leon
7 County, the overwhelming party here is Democratic.
8 As a consequence of that, I've rarely had the
9 opportunity to cast many votes, I've rarely had the
10 opportunity to participate in the selection of who was
11 ultimately elected to fill a position. And the
12 argument that has always been made to me, and I
13 confess that in a moment of weakness in Polk County I
14 acceded to that argument, and I wound up doing exactly
15 what Commissioner Scott said which violated my
16 conscience, but if you want to vote, then you need to
17 be in the other party.
18 And I would submit, and after a while, frankly
19 ladies and gentlemen, after a brief period of time,
20 after being affiliated with a party of Ted Kennedy and
21 Jimmy Carter, I couldn't stand it any longer and I
22 said I would rather have a clear conscience and be
23 disenfranchised.
24 But the reality of it is, ladies and gentlemen, I
25 would submit to you, that this proposal will encourage
163
1 people to affiliate with a party of their choice in
2 the place in which they reside based on their
3 conscience and based on the way in which their own
4 philosophy winds up mirroring or conforming to the
5 political party of their choice.
6 And so rather than forcing people into a Hopson's
7 choice where they have to make a bad decision to
8 violate their conscience in order to exercise their
9 franchise, I would submit to you that we helped
10 promote the protection of conscious, and indeed I
11 think we would have seen Florida become Republican
12 much sooner if the Democrats hadn't held the hammer in
13 the primaries.
14 And I think this is a principle that we ought to
15 go forward with, I think it's good, I think it will
16 promote people to affiliate with the parties that they
17 believe in. Thank you, and I hope you will support
18 the proposal.
19 CHAIRMAN DOUGLASS: All right. Let's see, you
20 have the right to close, Commissioner Ford-Coates.
21 COMMISSIONER FORD-COATES: Gee, I want to say it
22 is a pleasure following Commissioner Connor. Even
23 when I can't be as eloquent, at least if he's on the
24 same side, I can't think of anyone better to follow.
25 Commissioners, I've often heard it said, and I
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1 will bet you have said it too, that, you know, if you
2 don't vote, you have no right to complain. And let me
3 tell you what it feels like when you know you want to
4 go complain to your official about an issue and you
5 want to discuss it with them and you know very well
6 you never had a chance to vote for that person because
7 that party, which is not your party, was the only one
8 to fill candidates in that race. It's not a very good
9 feeling.
10 We have truly disenfranchised the voters of this
11 state. And to quote from our other eloquent
12 Commissioner, Commissioner Smith, we are not here for
13 political parties, we are here to take action for the
14 public. This is an issue of fundamental fairness.
15 It's time that we give the right to vote for their
16 public officials back to the public. I urge you to
17 support this good proposal.
18 CHAIRMAN DOUGLASS: I would have to say, on
19 behalf of Commissioner Connor, your eloquence was
20 equal to the task. All right. Unlock the machine and
21 let's vote.
22 (Vote taken and recorded electronically.)
23 CHAIRMAN DOUGLASS: Lock the machine and announce
24 the vote.
25 READING CLERK: Fifteen yeas, 14 nays,
165
1 Mr. Chairman.
2 CHAIRMAN DOUGLASS: It was just equal to the
3 task.
4 (Laughter.)
5 CHAIRMAN DOUGLASS: All right. Commissioner
6 Mills.
7 COMMISSIONER MILLS: We'll then take up Proposal
8 149 by Commissioner Scott and recognize, if you would,
9 Commissioner Ford-Coates.
10 COMMISSIONER FORD-COATES: Commissioners, this is
11 the proposal that deals in gubernatorial elections to
12 allow a candidate to not name a Lieutenant Governor
13 candidate until the general election. We have a
14 technical amendment to the proposal which I would like
15 to offer. I guess the proposal hasn't been read yet
16 either, so we need to read the proposal and then the
17 amendment?
18 CHAIRMAN DOUGLASS: Correct. Read the proposal,
19 please.
20 READING CLERK: Proposal No. 149, a proposal to
21 revise Article IV, Section 5, Florida Constitution;
22 providing for the candidate for the office of Governor
23 to run without a Lieutenant Governor candidate.
24 CHAIRMAN DOUGLASS: All right. There's an
25 amendment on the table. Would you read the amendment,
166
1 please?
2 READING CLERK: There's no amendment,
3 Mr. Chairman.
4 CHAIRMAN DOUGLASS: It's in the packet?
5 COMMISSIONER FORD-COATES: It's in the packet.
6 CHAIRMAN DOUGLASS: It's not in my packet.
7 COMMISSIONER FORD-COATES: Okay. Would you like
8 me to tell you what it says because I do have a copy
9 of it? I apologize.
10 CHAIRMAN DOUGLASS: I guess you could tell us
11 while we are waiting to get it -- we have it now, so
12 she can read it.
13 READING CLERK: By the Committee on Style and
14 Drafting, the following amendment on Page 1, Lines 23
15 to 24, and in party primaries, if held, and insert.
16 COMMISSIONER FORD-COATES: Okay. In other words
17 on Lines 23 and 24, we would insert, And in party
18 primaries if held -- no, that doesn't make sense.
19 CHAIRMAN DOUGLASS: What was wrong with the way
20 it was?
21 COMMISSIONER FORD-COATES: It should not change
22 anything, it should strike the words, "and in party
23 primaries." If not stricken the words would create an
24 ambiguity or defeat the purpose of the proposal.
25 CHAIRMAN DOUGLASS: Oh, I see. You are saying
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1 that you don't need that?
2 COMMISSIONER FORD-COATES: Correct.
3 CHAIRMAN DOUGLASS: Because if you have the
4 provision in the primary election, all candidates for
5 the office of Governor should run without a Lieutenant
6 Governor and you don't need the reference in general
7 elections.
8 COMMISSIONER FORD-COATES: Right, the sentence
9 after the proposal says, In the general election and
10 in party primaries.
11 CHAIRMAN DOUGLASS: You just need to strike, And
12 in party primaries?
13 COMMISSIONER FORD-COATES: Correct.
14 CHAIRMAN DOUGLASS: Which is what you are trying
15 to do.
16 COMMISSIONER FORD-COATES: Correct.
17 CHAIRMAN DOUGLASS: Which then makes it
18 consistent.
19 COMMISSIONER FORD-COATES: Correct.
20 CHAIRMAN DOUGLASS: Okay, I've got you. So that
21 makes it a clean proposal. Okay. So the amendment
22 then was to strike the words, And in party primaries,
23 as being out of place. Yes, Commissioner Barkdull.
24 COMMISSIONER BARKDULL: Why would you leave "if
25 held" in?
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1 COMMISSIONER FORD-COATES: We would strike "if
2 held" also.
3 CHAIRMAN DOUGLASS: I think "if held" should be
4 stricken also, all right. All right. Now, let's see
5 where we are. We have an amendment which eliminates
6 the language, And in party primaries if held, which
7 then says that there will be no candidate for
8 Lieutenant Governor in the primary elections, but in
9 the general election the, All candidates for the
10 offices of Governor and Lieutenant Governor should
11 form joint candidacy in a manner prescribed by law.
12 That's Commissioner Scott's intent, I think, but
13 we just left that other language in there. Yes,
14 question, Commissioner Smith, this is on the
15 amendment, right?
16 COMMISSIONER SMITH: Mr. Chairman, the one
17 question that I meant to ask that I didn't ask is, if
18 the people have legitimate questions, not the, What
19 you would believe, but a legitimate question, is there
20 room either before the 10 minutes start, during the 10
21 minutes or after the 10 minutes, somewhere before the
22 10 minutes that you could ask a question because I
23 have a question.
24 CHAIRMAN DOUGLASS: Ask your question. On this
25 amendment?
169
1 COMMISSIONER SMITH: No, when we get to the
2 proposal.
3 CHAIRMAN DOUGLASS: All right. When we get
4 through, you can ask the question.
5 COMMISSIONER SMITH: Yes, sir.
6 CHAIRMAN DOUGLASS: We'll deal with that as we
7 go. So far we haven't had a problem with it. Does
8 everybody understand the amendment which merely
9 doesn't change the proposal at all, it merely makes it
10 consistent with what the proposal is, as I understand
11 it. That is the Style and Drafting's understanding?
12 COMMISSIONER FORD-COATES: That's correct.
13 CHAIRMAN DOUGLASS: On the amendment. All right,
14 Commissioner Henderson.
15 COMMISSIONER HENDERSON: Just looking at this,
16 you know, I don't know what's a good idea or not,
17 what's a bad idea.
18 CHAIRMAN DOUGLASS: You mean, the amendment?
19 That's what we are on.
20 COMMISSIONER HENDERSON: Let me suggest
21 something. You know, I'm not sure that I'm sold that,
22 if you do this, you have got to do it this way. If
23 you just adopted the amendment, which is to strike
24 that part about party primaries, then it's really kind
25 of optional to that gubernatorial candidate, he could
170
1 run with a Lieutenant Governor or he could put it off,
2 or she, excuse me, he or she.
3 CHAIRMAN DOUGLASS: Form joint candidacy, if you
4 will read the rest of it. And it has nothing to do
5 with this amendment. We are on the amendment.
6 COMMISSIONER FORD-COATES: I don't think it says
7 that you can't name a Lieutenant Governor earlier, it
8 just says you don't have to.
9 COMMISSIONER HENDERSON: No, it says you shall.
10 CHAIRMAN DOUGLASS: You would run without him,
11 but you could name him. That's what she is trying to
12 say, I think. Anyway, we are not to that point, we
13 are on the amendment. So, let's not get sidetracked.
14 I'm not going to recognize anybody except on the
15 amendment, which is on the table and it strikes the
16 language, And if party primary held. Al of those in
17 favor of the amendment, say aye. It carries. It is
18 amended. Now --
19 (Inaudible conversation.)
20 CHAIRMAN DOUGLASS: I did, didn't I? I didn't.
21 I did pretty good on that one. You have to forgive an
22 old man, Commissioner Barnett. Everybody in favor of
23 Style and Drafting's amendment say aye. Opposed?
24 (Verbal vote taken.)
25 CHAIRMAN DOUGLASS: The ayes have it. Now, we
171
1 will move to the proposal. Proponents first.
2 COMMISSIONER FORD-COATES: I would like to
3 recognize Commissioner Connor.
4 CHAIRMAN DOUGLASS: Before you do that --
5 COMMISSIONER FORD-COATES: Mr. Chairman, may I
6 clarify that it was our intent that questions be asked
7 before the 10 minutes began.
8 CHAIRMAN DOUGLASS: All right. Well Commissioner
9 Smith has a question.
10 COMMISSIONER SMITH: Of Commissioner Scott.
11 COMMISSIONER FORD-COATES: Actually it's
12 Commissioner Connor's proposal.
13 COMMISSIONER SMITH: Okay.
14 CHAIRMAN DOUGLASS: Okay. Commissioner Connor
15 will answer your question.
16 COMMISSIONER SMITH: And my question is, was it
17 your intent -- well, first of all, I think the general
18 idea is a good idea, but was it your intent to
19 preclude a gubernatorial candidate from selecting a
20 Lieutenant Governor if he or she wanted to, because
21 strategically someone may feel that letting the public
22 know who the number two person is at an early date is
23 an advantage, so I just wanted to ask what your intent
24 was.
25 COMMISSIONER CONNOR: Yes, my intent was to do
172
1 that, believing that this enables candidates to form
2 and build the strongest teams at the time of the
3 general election. And it certainly would be -- a
4 candidate may -- there is a school of thought that
5 says you may be better off to field your team early
6 and you may do better in the primary because of it.
7 But the intent here was to foreclose the selection of
8 the Lieutenant gubernatorial candidate until they
9 wound up going forward in the general elections.
10 COMMISSIONER SMITH: And my second question is,
11 would you as the opponent be ultimately opposed --
12 COMMISSIONER CONNOR: No, I would not --
13 COMMISSIONER SMITH: -- to an amendment?
14 COMMISSIONER CONNOR: -- to providing that it be
15 discretionary rather than mandatory.
16 COMMISSIONER SMITH: I make it, yes.
17 CHAIRMAN DOUGLASS: We don't have any amendments.
18 COMMISSIONER CONNOR: With a unanimous consent,
19 could we accept that, Mr. Chairman?
20 CHAIRMAN DOUGLASS: Well, it has to be in
21 writing.
22 COMMISSIONER CONNOR: All right. Do you want to
23 put that in writing?
24 CHAIRMAN DOUGLASS: Did you have a question,
25 Commissioner Barton?
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1 COMMISSIONER BARTON: Yes.
2 CHAIRMAN DOUGLASS: Who to?
3 COMMISSIONER BARTON: To Commissioner Connor.
4 CHAIRMAN DOUGLASS: All right. He yields.
5 COMMISSIONER BARTON: My question is, by doing
6 this in this manner, which timetable --
7 COMMISSIONER CONNOR: With the amendment now that
8 we are speaking of or as drafted?
9 COMMISSIONER BARTON: Both.
10 COMMISSIONER CONNOR: Okay.
11 COMMISSIONER BARTON: My question doesn't relate
12 to that, but it could. By doing it in this manner
13 with this timetable, would you not also preclude
14 possible candidates from running for office because
15 they have to qualify before the primary? In other
16 words, you may have all sorts of people hanging out
17 there waiting to be selected Lieutenant Governor who
18 then could not run -- I mean, it fixes one thing but
19 it causes other problems, I think, too.
20 COMMISSIONER CONNOR: I don't really see that,
21 frankly, as much of a problem. There are many people
22 who feel that when you run for Governor, people vote
23 for the top of the ticket. Someone who is a
24 Lieutenant gubernatorial aspirant is, you know, wants
25 to consider something else, this would require them to
174
1 fish or cut bait earlier than they otherwise might be,
2 based on what you are saying.
3 In other words, if they aspire to another office
4 but held out hoping to become a Lieutenant Governor's
5 candidate, they would have to qualify earlier if they
6 were going to run for another office.
7 CHAIRMAN DOUGLASS: Hold on just a minute. We
8 are going to read the amendment so we can discuss it
9 again. Would you read the amendment, please, offered
10 by Commissioner Henderson, is it?
11 READING CLERK: By Commissioner Henderson, the
12 following amendment on Page 1, Line 22, delete
13 "shall," insert "may."
14 CHAIRMAN DOUGLASS: All right. We are on the
15 amendment now. And Commissioner Henderson to explain
16 his amendment.
17 COMMISSIONER HENDERSON: I'll do it very briefly,
18 Mr. Chairman. I think that when we elected the
19 Governor, that we as voters are entitled to know that
20 the most important decisions that the Governor is
21 going to make are in the area of appointments. The
22 first decision that a gubernatorial candidate makes
23 with regard to an appointment is who the running mate
24 should be.
25 I don't think this is a bad idea that is being
175
1 proposed, but I don't want to preclude us from asking
2 the Governor, the gubernatorial candidate, who is your
3 Lieutenant Governor candidate going to be and preclude
4 them from the strategic step of choosing to do that
5 early and running as a team from the beginning so the
6 voters can see exactly the chemistry of the proposed
7 new administration.
8 CHAIRMAN DOUGLASS: We are on the amendment. I
9 might tell you that I have chosen my candidate for
10 Lieutenant Governor, and it's Commissioner Scott. He
11 and I are going to run as a team. And we'll beat them
12 too, okay.
13 COMMISSIONER CONNOR: Then I'm not at all adverse
14 to the amendment.
15 CHAIRMAN DOUGLASS: All right. Everybody ready
16 to vote on the amendment? Everybody understand the
17 amendment? All in favor of the amendment say aye.
18 All opposed, no.
19 (Verbal vote taken.)
20 CHAIRMAN DOUGLASS: It carries, it is amended,
21 the amendment is adopted. Now, Commissioner Connor is
22 a proponent. Do we have other proponents that want to
23 speak? Any opponents that want to speak?
24 Commissioner -- we waited a little too long, we have
25 got another amendment. This is an amendment by
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1 Commissioner Langley, Barnett and Langley.
2 Which one of you is Lieutenant Governor and the
3 other one Governor, Commissioner Langley?
4 COMMISSIONER LANGLEY: This amendment is serious,
5 folks.
6 CHAIRMAN DOUGLASS: All right. Let's pay
7 attention to Commissioner Langley and Barnett's
8 amendment.
9 COMMISSIONER LANGLEY: I think this would readily
10 pass the people, and this abolishes the position of
11 Lieutenant Governor. They don't do anything now but
12 spend money and cut ribbons, you know, so let's do
13 away with it.
14 (Inaudible.)
15 CHAIRMAN DOUGLASS: I like that, I like that.
16 Point of order.
17 COMMISSIONER MILLS: I believe that at some time
18 now we have been involved in debate on this issue, so
19 I would ask that at least they start to run the clock
20 now.
21 CHAIRMAN DOUGLASS: Before we run the clock,
22 there is an amendment. Read the amendment.
23 READING CLERK: By Commissioners Barnett and
24 Langley, on Page 1, Lines 18 and 25, delete line 18,
25 And Lieutenant Governor, and Line 25, And Lieutenant.
177
1 CHAIRMAN DOUGLASS: Okay. Commissioner Langley,
2 on your amendment, you and Barnett. Okay, you go.
3 COMMISSIONER LANGLEY: Nothing tricky about it,
4 it just says, you know, why have a Lieutenant
5 Governor. We voted one in, when, '68 or whenever we
6 did that. And a good trivia question was, who was
7 Graham's first Lieutenant Governor? We got one answer
8 from the senior citizen there, he was the only one who
9 knows.
10 CHAIRMAN DOUGLASS: He was Governor, Mixon.
11 COMMISSIONER LANGLEY: Yeah, for three days or
12 something. That was the second one, you missed the
13 trivia question.
14 CHAIRMAN DOUGLASS: He was the first one, too.
15 COMMISSIONER LANGLEY: Jim Williams was the first
16 one, wasn't he?
17 CHAIRMAN DOUGLASS: No, he ran.
18 COMMISSIONER LANGLEY: Well, the point is, nobody
19 knows and no one cares.
20 CHAIRMAN DOUGLASS: Commissioner Mixon cares.
21 COMMISSIONER LANGLEY: Well, and he is a great
22 guy. But anyway, I yield to Commissioner Barnett.
23 CHAIRMAN DOUGLASS: You are recognized.
24 COMMISSIONER BARNETT: Thank you, Mr. Chairman, I
25 do think this is a serious proposal.
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1 CHAIRMAN DOUGLASS: Commissioner Barnett, you are
2 recognized.
3 COMMISSIONER BARNETT: Thank you. I do think
4 this is a serious proposal. When this came up before,
5 a number of us talked about, why not at least discuss
6 the question of what role the Lieutenant Governor
7 plays in Florida's government, and if we are looking
8 towards the future, is there a legitimate role and
9 need for the Lieutenant Governor to be elected with
10 the Governor.
11 I, without any disparagement to the past
12 Lieutenant Governors or current ones, many of whom I
13 think have done a remarkably good job serving the
14 state and have indeed had aspirations to move into the
15 Governor's office, the job they have done is not one
16 the Governor could not have appointed a citizen to do
17 anyway.
18 It's not -- I've seen very few jobs that the
19 Lieutenant Governor does that the Governor could not
20 appoint or assign to a citizen of the state. So I
21 just raise the question in a time of shrinking
22 government, making government more responsible, why,
23 in fact, we need a Lieutenant Governor. And,
24 therefore, this proposal is offered in the spirit of
25 discussion about it, and with the thought that perhaps
179
1 we do not need that office in the future.
2 CHAIRMAN DOUGLASS: Commissioner Brochin, you
3 rise to question the proponent?
4 COMMISSIONER BROCHIN: Yes, I just don't know the
5 answer. If we eliminate the Lieutenant Governor and
6 the Governor dies or becomes incapacitated,
7 constitutionally who then becomes the Governor?
8 COMMISSIONER CONNOR: Article IV, Section 3 is
9 going to require an amendment if this proposal goes
10 forward because of that very issue. Currently under
11 the Constitution the Lieutenant Governor succeeds and
12 then the order of succession is designated by general
13 law. I would suggest that if you want to do this, you
14 may want to couple it with an amendment that says the
15 order of succession will take place by general law and
16 amend that.
17 CHAIRMAN DOUGLASS: Isn't that already in there?
18 Even if we adopted that, wouldn't that already still
19 be in the Constitution?
20 COMMISSIONER CONNOR: Well, it states, upon
21 Article IV, Section 3(a), Upon vacancy in the office
22 of Governor, the Lieutenant Governor shall become
23 Governor, further succession of the office of the
24 Governor shall be prescribed by law.
25 CHAIRMAN DOUGLASS: So, what you are saying is
180
1 you need to strike that.
2 COMMISSIONER CONNOR: You need to change that.
3 CHAIRMAN DOUGLASS: If they are adopted, this
4 amendment will need another amendment.
5 COMMISSIONER CONNOR: Yes, sir.
6 COMMISSIONER BARNETT: He's absolutely right on
7 that, Mr. Chairman, that if this were adopted, that it
8 would require complementary scheduling changes.
9 CHAIRMAN DOUGLASS: Okay. Commissioner Brochin,
10 another questions?
11 COMMISSIONER BROCHIN: In your proposal, do you
12 anticipate constitutionally we would provide for
13 succession, or the Constitution would be silent?
14 Well, the Constitution, as I understands says it will
15 be provided by general law. Is that what you would
16 anticipate us leaving it, or would we
17 constitutionally, since constitutionally now there's
18 one succession provided for, would we try to revise
19 the Constitution also and provide for a successor at
20 least in the first instance?
21 COMMISSIONER BARNETT: There would be two options
22 available, at least two options available. One would
23 be simply to strike the language that mandated
24 succession to Lieutenant Governor and leave that up,
25 as it is now, to the Legislature. Or the commission
181
1 could specify the President of the Senate or the
2 Secretary of State, or whatever other office that we
3 had that would be the automatic successor.
4 CHAIRMAN DOUGLASS: Now, just a moment. We
5 started out, we were going to have 10 minutes on each
6 proposal. We have gone 15 on this and we haven't
7 gotten to the proposal. The proposal is here, this is
8 an amendment. If we are going to start debating the
9 merits of having a Lieutenant Governor and who
10 succeeds and so on, then we need to get on the clock
11 or not.
12 I suggest that we vote on whether or not we want
13 to consider this amendment as part of the proposal.
14 If we do, then we have an entirely new proposal to
15 debate than the one we started with.
16 So, I'm going to call for the vote on the
17 amendment. And we have had discussion on the
18 amendment sufficient to recognize that this totally
19 changes the proposal that Style and Drafting came back
20 with. Commissioner Connor.
21 COMMISSIONER CONNOR: Point of order,
22 Mr. Chairman. Because of that very thing, I would
23 submit to you that the posture that we are in is that
24 this is an amendment that's not germane to the
25 proposal and is out of order.
182
1 CHAIRMAN DOUGLASS: Commissioner Scott, do you
2 want to be heard on the point of order?
3 COMMISSIONER SCOTT: Yes. I don't -- I don't
4 think there's any issue of germanity here. We are
5 talking about changing when a Lieutenant Governor
6 is -- whether they are going to have one or not. I
7 mean, that's clearly germane and I think we are going
8 to run into this on several other proposals. The fact
9 that it doesn't go right to when or where you are
10 going to allow them, I don't --
11 CHAIRMAN DOUGLASS: Commissioner Connor.
12 COMMISSIONER CONNOR: I would suggest it is a
13 difference between if and when. My proposal just
14 simply goes to when you are going to have the
15 Lieutenant Governor run, this issue goes to whether
16 there's going to be a Lieutenant Governor at all.
17 CHAIRMAN DOUGLASS: Commissioner Scott.
18 COMMISSIONER SCOTT: Let me refresh this. And
19 the Secretary can help me. The issue is the same
20 section, is the same subject matter. There's a list
21 of criteria that's used and it fits all of those
22 because it addresses the same section. It could
23 address something else in that section, it doesn't
24 have to just be limited to the one word that you
25 happen to be changing in the Constitution.
183
1 COMMISSIONER CONNOR: I withdraw the point then.
2 CHAIRMAN DOUGLASS: Commissioner Barkdull, do you
3 agree the point of order is not well taken? You are
4 the rules chairman.
5 COMMISSIONER BARKDULL: I agree.
6 CHAIRMAN DOUGLASS: You agree. Okay. We are
7 going to vote on the amendment. The amendment is to
8 abolish the office of Lieutenant Governor and then you
9 will have an appropriate amendment to deal with the
10 other matter; is that correct? If you pass this. If
11 you don't, you won't need it. All right, all of those
12 in favor of the amendment offered by Commissioners
13 Langley and Barnett to abolish the office of
14 Lieutenant Governor, say aye. Opposed?
15 (Verbal vote taken.)
16 CHAIRMAN DOUGLASS: It fails. Now, we now
17 revert, Commissioner Connor, to the amended proposal.
18 And you have the floor to open, starting the clock.
19 COMMISSIONER CONNOR: Thank you. Ladies and
20 gentlemen, I would submit to you that, regardless of
21 your party affiliation, and to the extent that you are
22 interested in good government, that this proposal
23 makes imminent good sense. What it does is to assure
24 that the finest --
25 CHAIRMAN DOUGLASS: Hold on just a minute, you
184
1 are very eloquent, but you just can't command the
2 attention of these that are more eloquent at the
3 moment.
4 (Gavel.)
5 COMMISSIONER CONNOR: What this proposal does, I
6 would submit to you, is to assure that either party is
7 in a position to field its very best team for Governor
8 and for Lieutenant Governor. And I would submit to
9 you that our experience is demonstrated, oftentimes,
10 that the best of the best are oftentimes candidates
11 for Governor, but under our present system, only one
12 of those persons can be nominated for Governor.
13 And I would submit to you that, in the interest
14 of party unification and the aftermath of a factious
15 primary, in the interest of putting forth the very
16 best team to give the voters the best array of
17 choices, that this is the way to go.
18 I would submit to you that the system, as we now
19 have it, means, as a practical matter, that very
20 often, the strongest team, the best team will not be
21 put forth. This proposal would remedy that, and I
22 think it would enhance the choices among the
23 electorate for the positions of Governor and
24 Lieutenant Governor. Thank you.
25 CHAIRMAN DOUGLASS: All right. Opponents? There
185
1 were none. Is that also the close, or was there
2 someone else that wants to close? All right, a lot of
3 people have left the chamber. What I'm going to do
4 after this vote is take a recess if we can't seem to
5 get everybody to sit down and stay in the chamber
6 we'll just all go together and see if we can clog up
7 the works. Okay. Now, open up the machine and let's
8 vote on the proposal.
9 (Vote taken and recorded electronically.)
10 CHAIRMAN DOUGLASS: Lock the machine and announce
11 the vote. Lock the machine and announce the vote.
12 READING CLERK: Twenty-eight yeas, 2 nays,
13 Mr. Chairman.
14 CHAIRMAN DOUGLASS: All right. You picked up one
15 that you lost before, and two more. It passed 25 to 3
16 the first time, but you changed it and got another
17 vote. All right, do you want to take a break now, or
18 can we all think that we can sit down and get to
19 business?
20 Okay. Other than Commissioners Ford-Coates and
21 Mills, everybody else please be seated and we'll start
22 on the next one. It's by Commissioner -- go ahead,
23 it's No. 155.
24 COMMISSIONER MILLS: Mr. Chairman, yes, 155 by
25 Commissioner Scott. I don't think there are any
186
1 amendments, but Commissioner Ford-Coates for an
2 explanation.
3 COMMISSIONER FORD-COATES: Mr. Chairman, would
4 you like to read the proposal?
5 CHAIRMAN DOUGLASS: We will read it, please.
6 READING CLERK: Proposal No. 155, a proposal to
7 revise Article III, Section 16(a), Florida
8 Constitution; providing for the Legislature to
9 apportion the state into single-member senatorial
10 districts of contiguous territory and single-member
11 representative districts of contiguous territory.
12 CHAIRMAN DOUGLASS: All right. Commissioner
13 Ford-Coates.
14 COMMISSIONER FORD-COATES: Commissioners, I
15 hesitate to say this is fairly simple, because when I
16 said it before on things, it didn't turn out to be.
17 But hopefully this will be. Since the apportionment
18 of 1982, the Legislature has apportioned single-member
19 districts, has been apportioned within single-member
20 districts. Though they are not, however, required by
21 the Constitution, this proposal would codify the
22 current practice. So I would like to yield the floor
23 to Senator -- Commissioner Scott.
24 CHAIRMAN DOUGLASS: All right. Now, wait a
25 minute. We have got proponents? Commissioners Smith
187
1 and Scott. Opponents? Commissioner Barkdull. Well,
2 it could be done by general law, I thought.
3 (Laughter.)
4 CHAIRMAN DOUGLASS: You lost that one, okay.
5 Commissioner Scott, you are recognized.
6 COMMISSIONER SCOTT: Now, look, Commissioner
7 Barkdull, we want a unanimous vote on single-member
8 districts here.
9 CHAIRMAN DOUGLASS: He's sandbagging, you
10 understand that.
11 (Laughter.)
12 COMMISSIONER SCOTT: We have already debated
13 this, I think everybody understands it. It should be
14 in the Constitution, it's one of the most important
15 basic rights of such of the people and I think that
16 it's proved to be working, and why not put it in the
17 Constitution so we don't have to worry about -- and
18 this especially could become important if it's going
19 to be done by an independent group.
20 So, with that I would urge that you vote in favor
21 of this amendment unanimously. Single-member
22 districts -- you can be excused.
23 (Laughter.)
24 CHAIRMAN DOUGLASS: Commissioner Henderson.
25 COMMISSIONER HENDERSON: Mr. Chairman, I'm going
188
1 to rise in opposition to it because I don't think it
2 should be stand-alone, I think this proposal should be
3 part of the independent redistricting commission
4 proposal, you know, that they shall be required to do
5 it in independent districts. And that way I'm sure
6 that Senator Scott will join us in support of that
7 proposal.
8 CHAIRMAN DOUGLASS: That's not a bad idea. Any
9 further discussion on this? Commissioner Smith, you
10 asked to be recognized.
11 COMMISSIONER SMITH: I was waiting for
12 Commissioner Barkdull, but I can speak.
13 CHAIRMAN DOUGLASS: He declined to be subjected
14 to further ridicule.
15 (Laughter.)
16 COMMISSIONER SMITH: Thank you very much. Just
17 briefly, I rise to support this. There is a lot of
18 debate and discussion about things that have happened
19 in the last 15 years to really make minority
20 representation a reality and of some effect, and we
21 have some disagreements about some of the things. But
22 one of the things that has, in fact, helped to bring
23 minorities to the table with more than just an
24 appetite is single-member -- has been single-member
25 districts.
189
1 And for that reason, I proudly rise to endorse
2 this proposal with Senator Scott and ask those who are
3 concerned about minority representation to please vote
4 for this proposal.
5 CHAIRMAN DOUGLASS: All right. Any further
6 discussion? Do you want to close? If not, unlock the
7 machine and let's vote on the proposal.
8 (Vote taken and recorded electronically.)
9 CHAIRMAN DOUGLASS: Lock the machine and announce
10 the vote.
11 READING CLERK: Twenty-nine yeas, one nay,
12 Mr. Chairman.
13 CHAIRMAN DOUGLASS: Very well. He can move for
14 rehearing. All right. The next proposal is No. 158
15 by Commissioner Marshall. Would you read the
16 proposal, please?
17 READING CLERK: Proposal No. 158, a proposal to
18 revise Article IX, Section 4, Florida Constitution;
19 providing for nonpartisan school board elections.
20 CHAIRMAN DOUGLASS: All right. Commissioner
21 Ford-Coates.
22 COMMISSIONER FORD-COATES: Currently
23 commissioners' charter counties may provide for
24 nonpartisan school board elections and some do.
25 Non-charter counties cannot do so without a change in
190
1 general law. But Article III, Section 11 prohibits
2 special laws and general laws of local application
3 pertaining to elections, therefore the only way to
4 implement nonpartisan school board elections is
5 through a change in the Constitution. With that,
6 Mr. Chairman, I'd like to yield the floor to the
7 proposer, Commissioner Marshall.
8 CHAIRMAN DOUGLASS: All right. Before we start,
9 are there any questions of Commissioner Marshall who
10 is the sponsor of this? If not, I would like to
11 have -- find out if there are proponents that want to
12 speak for this along with Commissioner Marshall who
13 has the open and close here. Any proponents?
14 Are there any opponents that want to be
15 recognized at this time? All right. If there is time
16 left, you won't be penalized if you decide to take a
17 minute or two. Commissioner Marshall, you now have
18 the floor and it is all yours.
19 (Commissioner Jennings assumes the Chair.)
20 COMMISSIONER MARSHALL: Thank you, Mr. Chairman.
21 It is a fairly simple issue, I believe, Commissioners,
22 and I can summarize it -- my view of it, by saying
23 that many of the issues, I believe most of the issues
24 though not all, that come before school boards do not
25 lend themselves really to political debate, or at
191
1 least they should not.
2 Think of the issues that you can remember having
3 come before your school board. Those issues would
4 probably include the dismissal of students, action to
5 dismiss students for disciplinary reasons, or
6 disciplinary action against a teacher now and then, or
7 the zoning for attendance purposes of the school
8 district into subzones for attendance at various
9 schools, curriculum matters, issues as to what goes
10 into the curriculum, what's proper to teach in the
11 schools and what should not be taught. Those are
12 things that I don't think political office holders
13 ought to be asked to account for.
14 If you are a political office holder in your
15 county, I think you would welcome, I beg your pardon,
16 if you had been an elected school board member by the
17 partisan procedure, I think you would welcome the
18 opportunity not to have to answer questions of those
19 kinds.
20 On issues such as bonding, that's another matter.
21 And I can see how that lends itself to political
22 alignment. But for every issue of that kind it seems
23 to me there are many others that are not really
24 political and ought not to be viewed politically. If
25 I were a political office holder in say this county, I
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1 think I would like to be freed of the questions from
2 my political supporters that might be addressed to me
3 on such issues as curriculum and student discipline
4 and teacher discipline and boundaries for zoning and
5 things of that kind.
6 So, I briefly, Madam Chair, suggest that it is a
7 proposal worth supporting. Thank you.
8 COMMMISSIONER JENNINGS: Commissioner Mills has
9 asked us to remember time frames, so the proponents
10 and openers took two minutes. Do we have opponents on
11 the measure? I see no amendments. Any amendments on
12 the desk?
13 READING CLERK: No amendments.
14 COMMMISSIONER JENNINGS: Well, Commissioner
15 Marshall, would you like to close?
16 COMMISSIONER MARSHALL: I think I just have,
17 Madam Chair.
18 COMMMISSIONER JENNINGS: Okay. That's nice, an
19 open and a close. On motion by Commissioner Marshall
20 to favorably recommend Proposal No. 158, open the
21 machine and indicate your vote.
22 (Vote taken and recorded electronically.)
23 COMMMISSIONER JENNINGS: Lock the machine and
24 announce the vote.
25 READING CLERK: Twenty-one yeas, six nays, Madam
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1 Chairman.
2 COMMMISSIONER JENNINGS: And the proposal passes.
3 Read the next proposal.
4 READING CLERK: Proposal No. 186, a proposal to
5 revise Article VI, Section 1, Florida Constitution;
6 limiting political contributions.
7 COMMMISSIONER JENNINGS: Commissioner
8 Ford-Coates.
9 COMMISSIONER FORD-COATES: I just want to remind
10 Commissioners that -- did we skip 172 and 162 which
11 deal with the apportionment commission? So you are
12 going over a section in your pink packets.
13 COMMMISSIONER JENNINGS: We are on 186.
14 COMMISSIONER FORD-COATES: Right, we are on 186.
15 COMMMISSIONER JENNINGS: Oh, that is what you are
16 saying, that 172 is in your packet next?
17 COMMISSIONER FORD-COATES: Right.
18 COMMMISSIONER JENNINGS: Okay.
19 COMMISSIONER FORD-COATES: It was listed as being
20 next in there, but we are on 186.
21 COMMMISSIONER JENNINGS: So the next one in your
22 packets, just skip over, and 186 is the one that
23 follows that, right?
24 COMMISSIONER FORD-COATES: Yes. We want to make
25 sure that we are looking at this in the whole picture
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1 of elections. This is another one of those simple,
2 noncontroversial proposals. There are no Style and
3 Drafting amendments to this proposal. This proposal
4 limits contributions to political parties to the
5 amount to be contributed to candidates, which in other
6 words would limit them to the currently set by general
7 law, the amount of $500 per election. It also limits
8 the amount that political parties may contribute to
9 candidates, again, to the amount allowed to be
10 contributed to other entities or $500 per election as
11 general law now states.
12 In Style and Drafting we looked at this issue and
13 one of the questions raised was, Are there limits put
14 on political parties in other states in the desire to
15 see if there is any precedent for this. So you have
16 in your packet a table that shows what limits are
17 placed on political parties around the United States.
18 As you can see, more states than not place
19 limitation on these contributions. Florida is one of
20 15 states that impose no restrictions on party
21 contributions whatsoever.
22 With that information, I'd like to yield the
23 floor to the sponsor, Commissioner Thompson, and the
24 beginning of the debate.
25 (Commissioner Douglass resumes Chair.)
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1 CHAIRMAN DOUGLASS: All right. Before we start,
2 are there any questions? Commissioner Barkdull. To
3 Commissioner Thompson?
4 COMMISSIONER BARKDULL: Yes.
5 CHAIRMAN DOUGLASS: Commissioner Thompson, a
6 question.
7 COMMISSIONER BARKDULL: Commissioner Thompson,
8 how does this dovetail in with the public financing
9 which we now adopted?
10 COMMISSIONER THOMPSON: Well, I think if you put
11 the two together you have got a real good election
12 reform proposition to go to the public. It is not an
13 either/or.
14 COMMISSIONER BARKDULL: I understand that, but
15 I -- I understand that answer, but what I'm trying to
16 find out is that, then as I understand public
17 financing, a candidate after he raises a threshold
18 amount will get some money from the State on a
19 dollar-for-dollar or two dollars for every dollar
20 situation. I'm trying to find out where this PAC
21 would fit into that? Can that be counted in the
22 original threshold, or can it be counted in additional
23 moneys that a candidate gets as to get matching funds
24 from the State?
25 COMMISSIONER THOMPSON: Well, I think right now,
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1 and probably that won't change, the matching funds
2 have to be individual contributions, so I don't think
3 it will impact that.
4 COMMISSIONER BARKDULL: Okay, thank you.
5 COMMISSIONER THOMPSON: I think, thereby,
6 combining these two, when you take away the
7 contributions, the huge contribution that the party
8 could make to an individual, by combining these two
9 ideas, you have another source which is public
10 financing to help finance that campaign. And I think
11 from that point of view they will be healthy for each
12 other.
13 COMMISSIONER BARKDULL: But as I understand your
14 explanation, then, the PAC money, even though it's
15 going to be cut down substantially, still cannot be
16 used for the threshold or any matching funds?
17 COMMISSIONER THOMPSON: That's my understanding.
18 At present, present law, I think.
19 COMMISSIONER BARKDULL: Thank you.
20 CHAIRMAN DOUGLASS: Commissioner Evans-Jones. A
21 question?
22 COMMISSIONER EVANS-JONES: Yes, a question.
23 Commissioner Thompson, does this place any
24 restrictions on gifts from labor unions?
25 COMMISSIONER THOMPSON: As far as I know it does
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1 not. This only relates, the plain language of it
2 relates to political parties and its committees and
3 then, of course, nobody can make more than the
4 statutory amount that's established by law to the
5 candidate, so I don't think so.
6 COMMISSIONER SCOTT: Mr. Chairman.
7 CHAIRMAN DOUGLASS: Commissioner Scott. Wait a
8 minute, Commissioner Lowndes was up first. Thank you.
9 COMMISSIONER LOWNDES: I have a question of
10 Commissioner Thompson. What is the time period in
11 which you can only make a limited contribution to
12 political parties? Is that annually, or what does it
13 relate to? It doesn't seem -- I can't relate that to
14 any time period.
15 COMMISSIONER THOMPSON: Well, I hadn't gotten
16 into my initial comments about this proposal yet, I
17 was going to say something about that.
18 CHAIRMAN DOUGLASS: You can probably save your
19 questions. I'll give you another shot at questions.
20 Let him explain his proposal, if that's agreeable with
21 Commissioner Scott, and then question him.
22 COMMISSIONER THOMPSON: Well, however you-all
23 want to work it, but in answer to that question, and I
24 guess in furtherance of some initial comment, under my
25 proposal, the proposal that I filed is not the
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1 proposal that's before you today; we amended that
2 substantially. And one of the things we did is we
3 said that Florida law would control the amounts that
4 can be contributed. Florida law then would control
5 the time frames within which they could be
6 contributed. But if it follows the norm, the pattern,
7 you could contribute an amount to the party and the
8 party could contribute to a candidate in the primary
9 and the second primary and in the general.
10 Right now that would only be $500 each time,
11 that's $1,500. Many people have many corporate
12 entities, they are able to give through family members
13 and so on and so forth. But anyway, that's what it
14 would be today. Now the Legislature -- and I think
15 the good part of this proposal is the Legislature can
16 come back and make any changes they want to to those
17 amounts, and I think they probably will deal with that
18 as time goes by.
19 This whole thing, I think we have discussed it
20 before, is my attempt and I hope your attempt in
21 trying to address this issue of soft money. You turn
22 on the TV and you look at the news media and you find
23 that the Secretary of the Interior is now bogged down
24 in a real mess over whether one native American tribe
25 gave some money and got some influence, so other
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1 native American tribe will or will not be able to go
2 into the casino business. What kind of business is
3 that for government to get involved in? No wonder
4 people don't have much confidence in their government
5 anymore.
6 I submit to you that the reason for that is not
7 just that money can be given, that's the American way,
8 freedom of expression is very important, but freedom
9 of expression doesn't just mean that you can give a
10 lot of money. One of the things that you can do is
11 walk up and put your arm around the candidate and say,
12 I'm for that person, and that's an expression, and you
13 can do that as much as you want to.
14 It is just that when it comes to something as
15 serious as money has become in our country today,
16 things lead to a situation where we can get
17 embarrassed.
18 Let me just quote you from a Wall Street Journal
19 article that was recently printed where the writer
20 says this, Faced with these tight caps, big dollars
21 today increasingly funnel money to candidates
22 indirectly through the two parties. This is Florida,
23 that is because there are no legal limits on the
24 amount an individual can give to a party, and only a
25 $50,000 limit on party contributions to an individual
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1 candidate. What's more, even the $50,000 limit
2 originally passed in '91 has been deleted by several
3 loopholes, including generic ads.
4 What I'm trying to tell you is that we are headed
5 down the wrong road in Florida. We are going to be
6 right where we are with the federal government, we are
7 going to have people embarrassed because it is
8 unseemly for these public officials to get into the
9 posture where they are soliciting money that goes
10 first to the party and then back to the candidate.
11 There are other ways to do this. There are clean ways
12 to get the messages out, but I submit to you that
13 reasonable amounts of money contributed anywhere, to
14 the party or to the candidate, is a healthy situation
15 for our state to be in. And I think if you will let
16 the public have the opportunity to tell us all what
17 they think about this, you will be very pleased.
18 CHAIRMAN DOUGLASS: Question? Commissioner Scott
19 for a question.
20 COMMISSIONER SCOTT: Commissioner, independent
21 expenditures would not be covered by this unless it is
22 by a political party; is that correct? Independent
23 expenditures, such as 3 million by the Teachers Union
24 against whomever, against the slated candidates, like
25 they once upon a time did to a few of us, Senator
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1 Langley and I and others, I mean, that wouldn't be
2 covered, but yet the party would be limited; isn't
3 that true?
4 COMMISSIONER THOMPSON: Independent expenditures
5 in respect to candidates? Independent expenditures in
6 respect to candidates, I think the Legislature can say
7 is a contribution to a campaign. I think the
8 Legislature has moved very close to that in
9 legislation that you have passed recently.
10 COMMISSIONER SCOTT: That's not exactly right.
11 Independent expenditures are basically unlimited. We
12 have got races going on right now in the state where
13 we received notice that such and such a group is going
14 to spend $25,000 against this or that Senate
15 candidate. This would not cover them, I don't
16 believe; am I right about that?
17 COMMISSIONER THOMPSON: Yes, I think you are
18 right if they have no link to the candidate. That's
19 the critical point. And I think as this issue
20 proceeds, and I think as the Legislature and the
21 courts deal with this issue you are going to see more
22 and more of a hands-off requirement.
23 And if it turns out that these expenditures are
24 made in fact with any complicity from the candidate,
25 then they are going to be counted under this and other
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1 laws that have to do with expenditure limits.
2 CHAIRMAN DOUGLASS: Opponents? Now we are
3 getting close to the clock here. Commissioner Connor.
4 COMMISSIONER CONNOR: I'd like to be an opponent.
5 With the clock starting, if that's already.
6 CHAIRMAN DOUGLASS: Go ahead, clock has been
7 going. Look, all of it was not a question. They are
8 keeping time and the clock was going on the proponents
9 when he spoke, and now it is an opponent.
10 COMMISSIONER CONNOR: I'll get cranking, if I may
11 then. Ladies and gentlemen, I will submit to you that
12 if this proposal is not a democratically-inspired
13 proposal, you can bet on the fact that they are
14 praying earnestly in the Democratic party headquarters
15 that this proposal will pass. And I credit
16 Mr. Thompson with ultimate good faith in that regard.
17 But I would suggest to you that when you limit
18 the amount of contributions that one can make to a
19 party, when you are in a period where your party base
20 is eroding in a state, that that's one way that you
21 can help stop the slippage. And I would submit to
22 you, ladies and gentlemen, that political speech has
23 been recognized under our Constitution as a preferred
24 form of speech, and that if you apply the principles
25 enunciated by the U.S. Supreme Court in the case of
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1 Buckley versus Valeo which equates the expenditure of
2 money with freedom of expression, that there is no way
3 that we can justify the language of Paragraph A. I
4 would support this proposal if it were limited to
5 Paragraph B. Commissioner Thompson has expressed his
6 concern about soft money contributions coming into the
7 parties and then that money funneling on down and
8 filtering on down in the campaigns. Paragraph B
9 solves that problem, it eliminates that problem.
10 I am concerned about shutting off the flow of
11 funds to political parties to promote their divergent
12 and differing philosophies and to foster political
13 expression, and I don't believe we ought to pass it in
14 the form that this now exists, and I oppose it.
15 CHAIRMAN DOUGLASS: We will have time for how
16 many more opponents, Commissioner Mills? Three
17 minutes. Go, Commissioner Scott or Commissioner
18 Hawkes. Commissioner Scott is recognized.
19 COMMISSIONER SCOTT: The main point I want to
20 make is that general, the Paragraph A is the problem.
21 I voted for this, before but I didn't understand that
22 it was limiting or trying to limit the amount that
23 individuals could contribute to their political party.
24 I mean, they ought to be able to contribute whatever
25 they want to, weekly, monthly, yearly, according to
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1 their means, and the party ought to be able to espouse
2 its ideas and its plans for the future of Florida or
3 any county or whatever. And to try to limit that is
4 really not a good idea.
5 The idea of trying to limit, which we tried and
6 probably need to improve the limits on how much
7 parties can contribute or support any particular
8 candidate is one thing, but to limit what they can
9 contribute to the party is not a good idea.
10 CHAIRMAN DOUGLASS: A minute and a half,
11 Commissioner Hawkes.
12 COMMISSIONER HAWKES: Very briefly. Thank you,
13 Mr. Chairman. I think that you -- if you believe the
14 professionals in Tallahassee ought to have more
15 influence and the people back home or back in the real
16 state of Florida ought to have less influence, then
17 you ought to vote for this proposal. Because I know a
18 lady, and she is a sweet lady, and she has been very
19 successful, and for some reason she believed it is her
20 obligation to give $5,000 a year to the Democratic
21 Party and she is what they call a trustee. And she
22 does that, and every year, but now she is going to
23 give $500, I suppose if this passes.
24 But if she were a professional in Tallahassee,
25 she could just form 10 PACs and now she would have
205
1 zero times the influence of someone back home, and
2 this is -- the goal may be worthy, but the path is not
3 the path we want to take. Thank you, Mr. chairman.
4 CHAIRMAN DOUGLASS: All right, Commissioner
5 Barton. This is proponent?
6 COMMISSIONER BARTON: No opponent.
7 CHAIRMAN DOUGLASS: Time is up, I think.
8 COMMISSIONER BARTON: Just one quick. On the 11
9 states --
10 CHAIRMAN DOUGLASS: Go ahead.
11 COMMISSIONER BARTON: If you will look at this
12 chart in here behind the bill or behind the proposal,
13 only 11 states limit what they can give to a party,
14 what individuals can give it a party. So, it is not
15 the overwhelming number that was mentioned by
16 Commissioner Thompson.
17 CHAIRMAN DOUGLASS: Commissioner Thompson, this
18 isn't the way this thing started, is it, this
19 proposal? Did it get amended on the floor, or where
20 did it get amended?
21 COMMISSIONER THOMPSON: I don't understand what
22 you --
23 CHAIRMAN DOUGLASS: I thought originally you had
24 a proposal that limited contributions from every
25 source to $500 or something.
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1 COMMISSIONER THOMPSON: Yeah, $500.
2 CHAIRMAN DOUGLASS: But this doesn't do that?
3 COMMISSIONER THOMPSON: No, we tried to be more
4 generic so the Legislature can handle it by general
5 law. We didn't want to put the amount in the
6 Constitution.
7 CHAIRMAN DOUGLASS: Well, that proposal then has
8 never come up?
9 COMMISSIONER THOMPSON: We substituted this for
10 that.
11 CHAIRMAN DOUGLASS: Substituted this for that?
12 COMMISSIONER THOMPSON: Yes.
13 CHAIRMAN DOUGLASS: Okay. I think what I thought
14 was that the other one was the one you were dealing
15 with. All right, so go ahead.
16 COMMISSIONER SMITH: Before he closes, may I ask
17 a quick question?
18 CHAIRMAN DOUGLASS: Go ahead.
19 COMMISSIONER SMITH: Because if the answer is
20 yes, I could be working while he is talking.
21 Commissioner Thompson, in view of what you heard, and
22 in view of it appearing to be a consensus that people
23 want to move in the right direction and we feel that
24 (b) is appropriate and (a) is not, would you be
25 amenable to an amendment that would eliminate (a)? If
207
1 so, I will work on it; if not, I'll just sit down.
2 COMMISSIONER THOMPSON: Well, let me tell you a
3 couple things. First of all, Commissioner Connor, the
4 Democratic party is going to be real happy to hear
5 they have got a new supporter in me because I have
6 never been involved in party politics much at all and
7 I never talked to anybody there, wherever they are,
8 about this measure.
9 This is something that has come to me and I think
10 I said this in the beginning about this, this is the
11 only thing I really filed. I did put my name on
12 another one or two things as chairman of the
13 Legislative Committee. So it is not party politics
14 that has generated this, and I want everybody here to
15 be sure and understand that; that's not my deal.
16 My deal is this, the only way to really stop the
17 soft money from flowing is stopping it from coming in.
18 Now, Commissioner Smith, I see what you are saying,
19 you are trying to save my proposal. And I'll tell you
20 the truth, I don't know what to tell you. I have been
21 out here helping a lot of other people with proposals
22 and this is my only one, so I don't know exactly what
23 to do.
24 I am inclined to say this, though, the problem
25 arises because of raising the money. The problem is
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1 that you go get these elected officials, the party
2 people do, and they get them to come in and help them
3 raise money, and then they have to look in the eye of
4 the special interests, Commissioner Connor, that they
5 are dealing every day with. And instead of soliciting
6 $500 for so-and-so's campaign or getting a group of
7 them in and saying I need $500 a piece, would y'all
8 please help old so-and-so down here that's running
9 against so-and-so, they have a little private meeting
10 and they ask them for $25,000. And they ask them for
11 $10,000, and they ask them for $5,000. And they get
12 all that money, and then you see they can give
13 $50,000.
14 And so what I am saying to you is, just let the
15 public help us decide this. Just vote for it today,
16 cut off the flow of funds, and if those independent
17 expenditures need to be made, I'll tell you what will
18 happen, they will set up a PAC or some kind of entity
19 over there and the philosophy will be carried on. But
20 we will get them out of the business of
21 over-influencing our elected officials and they can go
22 on and do what they are supposed to do.
23 So, I would submit to you, I appreciate your
24 help, I'd like to keep it alive. I ask everyone of
25 you to vote for if to keep it alive. As we move
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1 forward, it may be that we all decide it is not the
2 right thing to do, but right now I think we should
3 move it on to the next stage. I appreciate your offer
4 to help.
5 CHAIRMAN DOUGLASS: Commissioner Smith.
6 COMMISSIONER SMITH: Thank you. I have a
7 question concerning procedure. If in fact a hostile
8 amendment was made to my dear friend's proposal, which
9 eliminated (a), and if it was able to stay alive with
10 the majority vote; after the public hearings, is it
11 possible then to amend it if it was deemed
12 appropriate, amend it back, or something like it which
13 would be less of a problem?
14 CHAIRMAN DOUGLASS: That is correct.
15 COMMISSIONER SMITH: Okay.
16 CHAIRMAN DOUGLASS: You have to get five hands to
17 reconsider it if it loses, and then you can bring it
18 up at the next round, right? If it goes forward, it
19 can be amended in any event, in this or the last
20 round, okay.
21 All right. Is everybody ready to vote? Is that
22 correct; do you understand? Okay. Everybody ready to
23 vote? Open the machine and let's vote.
24 (Vote taken and recorded electronically.)
25 CHAIRMAN DOUGLASS: All right. Lock the machine
210
1 and count the vote.
2 READING CLERK: Twelve yeas, 20 nays,
3 Mr. Chairman.
4 CHAIRMAN DOUGLASS: All right. By your vote you
5 have defeated that proposal. Let's see, we now go to,
6 we skip over to Article V issues, Committee Substitute
7 for Proposal 66 by the Committee on Judicial, and
8 Commissioner Wetherington. Would you read it please?
9 READING CLERK: Committee Substitute for Proposal
10 Nos. 172 and 162, a proposal to repeal Article III,
11 Section 16.
12 CHAIRMAN DOUGLASS: No, no, come on, we are on
13 the next one. Proposal 66, it is the next one.
14 READING CLERK: Committee Substitute for Proposal
15 No. 66, a proposal to revise Article V, Sections 10
16 and 11, Florida Constitution; providing for circuit
17 court judges and county court judges to run for
18 re-election unless the electors within the circuit or
19 within the county approve a local option whereby the
20 circuit court judges or the county court judges are
21 selected by merit selection and are subject to a vote
22 of retention.
23 CHAIRMAN DOUGLASS: All right. Commissioner
24 Mills. There is an amendment.
25 COMMISSIONER MILLS: Mr. Chairman, ladies and
211
1 gentlemen, the order of the special order is in your
2 special order calendar. This issue is the Article V
3 issue. If you go to your pink packet and turn to
4 Article V issues you will be able to retrieve this.
5 There were two issues in Article V that were
6 considered. One was withdrawn yesterday, that is the
7 issue on age. And so we are left with this issue,
8 which relates to merit retention.
9 And Mr. Chairman, if you would recognize
10 Commissioner Lowndes who is handling the Article V
11 Section for Style and Drafting.
12 COMMISSIONER LOWNDES: Mr. Chairman.
13 CHAIRMAN DOUGLASS: Commissioner Lowndes.
14 COMMISSIONER LOWNDES: I consider it a vote of
15 confidence that when they gave Commissioner
16 Ford-Coates the election with eight things to explain
17 and me only one, I think that --
18 (Laughter.)
19 COMMISSIONER LOWNDES: -- it was a comment on
20 their view of my capacity. But in any event, this is
21 the Proposal 66 which deals with the election or
22 appointment of judges and provides that there will be
23 a mandatory election in November of the year 2000 for
24 the purpose of providing each circuit and each county
25 with the opportunity to opt into the system of merit
212
1 selection and retention.
2 It also has, contains that if a county or circuit
3 does not opt in, it has to wait for another two years
4 before it can have a similar vote to opt in again.
5 And if it does opt in, there is a provision that
6 allows it to opt out.
7 Now you have passed out an amendment, and it is
8 not the one in the book, it is the one that was handed
9 out. And as I understand it, this is the Style and
10 Drafting kind of cleanup of the original as it
11 originally was passed. I have read it and I am
12 assured also by the staff it doesn't change anything,
13 it separated some things into paragraphs, numbered
14 paragraphs, and so it seems to me that this proposal
15 which you have in your hand needs to be adopted as an
16 amendment to the proposal originally passed.
17 Also there is in the handout, too, additional
18 amendments which is not -- which are not from Style
19 and Drafting, which I believe are from Commissioner
20 Scott, which deal with the term of the county court
21 judges.
22 CHAIRMAN DOUGLASS: Let me have the amendment
23 read, and then we have a couple of amendments to the
24 amendment on the table. But we will start with the
25 amendment, which is what you are offering.
213
1 COMMISSIONER LOWNDES: Yes, I would move the
2 amendment.
3 CHAIRMAN DOUGLASS: All right. Now, would you
4 read the amendment, please?
5 READING CLERK: By the Committee on Style and
6 Drafting, the following amendment: Delete everything
7 after the proposing clause and insert lengthy
8 amendment.
9 CHAIRMAN DOUGLASS: All right. Now you are
10 explaining your amendment as the lengthy amendment
11 that was referred to.
12 COMMISSIONER LOWNDES: Yes, the lengthy amendment
13 would simply be a cleanup, a little bit of
14 reorganization of the proposal which was originally
15 passed. It does not change anything in the intent and
16 very little in the rhetoric of the proposal.
17 CHAIRMAN DOUGLASS: All right. And now there are
18 two amendments on the table both by Commissioner
19 Scott. Amendment No. 1. Would you read it, please?
20 READING CLERK: By Commissioner Scott, the
21 amendment to the amendment. On Page 2, Lines 4 and 5,
22 delete those lines and insert, Of six years the term
23 will be.
24 CHAIRMAN DOUGLASS: Commissioner Scott, this is
25 your first amendment which is I believe increases
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1 county judges terms to six years.
2 COMMISSIONER SCOTT: Right, if it is appropriate
3 now, both of these amendments, I didn't know if the
4 proponent was going to -- but both of these amendments
5 do exactly the same thing.
6 CHAIRMAN DOUGLASS: All right. So I need to have
7 her read amendment two at the same time?
8 COMMISSIONER SCOTT: Well, no, the first one, I
9 am just explaining that what they do is they allow
10 county judges to serve a six-year term, the same as
11 circuit courts. It is that simple.
12 CHAIRMAN DOUGLASS: All right. Read Amendment
13 No. 2, amendment to the Amendment No. 2 by
14 Commissioner Scott.
15 READING CLERK: By Commissioner Scott, the
16 amendment to the amendment on Page 3, Lines 21 through
17 23, delete those lines and insert the terms of circuit
18 judges and judges of county court shall be for six
19 years.
20 COMMISSIONER SCOTT: That is what I have
21 explained.
22 CHAIRMAN DOUGLASS: That is what you were
23 explaining, that you were just making them conform in
24 two places to show that your amendment to the
25 amendment would provide for six-year terms in place of
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1 four-year terms for county judges which they now have.
2 So we are on the first amendment first. So, the
3 issue is going to be the same when we get to No. 2.
4 But the issue is, if you vote for this amendment you
5 will be amending the amendment to grant six-year terms
6 to county judges instead of four. And do you want to
7 discuss that, I think? All right. Does anybody want
8 to discuss this amendment?
9 The amendment has been moved. From four to six
10 for county judges. Questions? Or do you want to
11 debate it? Now we are going to vote on it. All in
12 favor of the amendment, say aye. Opposed?
13 (Verbal vote taken.)
14 CHAIRMAN DOUGLASS: All right. We will vote.
15 Open the machines. Everybody know what they are
16 voting on?
17 (Vote taken and recorded electronically.)
18 CHAIRMAN DOUGLASS: Lock the machine and announce
19 the vote.
20 READING CLERK: Seventeen yeas, 12 nays,
21 Mr. Chairman.
22 CHAIRMAN DOUGLASS: All right. Amendment No. 1
23 to the amendment is adopted. Now we will proceed to
24 Amendment No. 2, which is the same result in another
25 spot in the amendment. Does everybody understand we
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1 are voting on basically the same thing increasing
2 county judges' terms to six years from four? All of
3 those in favor of the amendment, open the machine and
4 let's vote. Amendment to the amendment.
5 (Vote taken and recorded electronically.)
6 CHAIRMAN DOUGLASS: Lock the machine and announce
7 the vote.
8 READING CLERK: Sixteen yeas, 13 nays,
9 Mr. Chairman.
10 CHAIRMAN DOUGLASS: You are losing ground. Now,
11 we are on the amendment as amended, which Commissioner
12 Lowndes, your amendment is now amended. Do you want
13 to -- Commissioner Connor, which side do you want to
14 go on?
15 COMMISSIONER CONNOR: Are we on the proposal as
16 amended? I'd like to oppose it.
17 CHAIRMAN DOUGLASS: We are on the amendment to
18 the proposal as amended. In other words, we amended
19 his amendment to include the county judge provisions.
20 Now we are on his amendment.
21 COMMISSIONER CONNOR: So we are not on the final
22 vote?
23 CHAIRMAN DOUGLASS: No, no but does this have the
24 affect of replacing the proposal?
25 COMMISSIONER LOWNDES: Yes, it does but it is
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1 simply a cleanup of the original proposal.
2 COMMISSIONER CONNOR: Then I'd like to be heard
3 in opposition.
4 CHAIRMAN DOUGLASS: Both times, right, if
5 necessary? All right. Then you go ahead, you go
6 ahead Commissioner Lowndes.
7 COMMISSIONER LOWNDES: I don't know what else I
8 can say, except the very intelligent group of people
9 in the Style and Drafting Committee thought it needed
10 a little cleaning up, and this is their presentation
11 with respect to that. It does not change the original
12 proposal of Commissioner Wetherington.
13 CHAIRMAN DOUGLASS: All right. So anybody that
14 wants to be a proponent of the amendment?
15 COMMISSIONER MILLS: Mr. Chairman, I would just
16 suggest that this is not substantive, I just think
17 adopt the amendment and we can have debate on the
18 proposal.
19 CHAIRMAN DOUGLASS: Well, let's adopt the
20 amendment. All in favor of the amendment, say aye.
21 Opposed?
22 (Verbal vote taken.)
23 CHAIRMAN DOUGLASS: It is now amended. Now we
24 are on the proposal, and Commissioner Connor you
25 registered in as an opponent, correct? Anybody else
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1 want to come in?
2 COMMISSIONER LOWNDES: I'd like yield to
3 Commissioner Wetherington.
4 CHAIRMAN DOUGLASS: Just a moment. Commissioner
5 Barton, do you want to be a proponent or an opponent?
6 Opponent. Okay. There is four of you, five of you.
7 Are you all going to have a minute a piece?
8 Proponent, oh, okay, you are proponents, you can have
9 a minute a piece too. Now Commissioner Lowndes to
10 open.
11 COMMISSIONER LOWNDES: I would like to yield to
12 Commissioner Wetherington, this was his proposal.
13 COMMISSIONER WETHERINGTON: This is the proposal
14 that we discussed before on merit retention and
15 selection, after thorough discussion in the Judiciary
16 Committee and a thorough discussion before, the
17 proposal consists of the fact that we allow circuit
18 option for those circuits that would like to have a
19 merit selection and retention of their trial judges,
20 they can select both the circuit level and the county
21 level. They can select to have the merit retention
22 and selection of the county but not the circuit, or
23 vice versa.
24 And the feeling is that there are areas that may,
25 in this state, that circuits that may select and want
219
1 to have merit retention, they should have that right
2 if they feel that that's the system that's best for
3 them. There may be other areas that want to retain
4 the elected judges and allows those areas to retain
5 the elected judges.
6 We are talking about a 20-year period and there
7 should -- there has been a lot of discussion of pros
8 and cons concerning merit retention and selection
9 versus election. There is a difference of opinion on
10 it. There are very respectable views on both sides of
11 it. There is no perfect method of selecting and
12 retaining judges. This would allow each area to make
13 its own individual decision as to what's best for that
14 area.
15 Some areas may have different needs and different
16 problems with respect to the selection and retention
17 of judges, and that respecting the diversity of the
18 state and respecting the importance of judicial
19 selection and retention, this proposal would allow, in
20 my opinion, both to occur. Those that want to have
21 merit selection and retention to do so, and those that
22 want to retain the election system to do so in a
23 logical fashion.
24 CHAIRMAN DOUGLASS: All right, any -- now an
25 opponent.
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1 COMMISSIONER CONNOR: Yes, Mr. Chairman.
2 CHAIRMAN DOUGLASS: Commissioner Connor.
3 COMMISSIONER CONNOR: Thank you. Mr. Chairman, I
4 oppose this provision with all the vigor that I can
5 muster and I encourage you folks to do likewise. If
6 you will recall back to our public meetings, you heard
7 a great deal of frustration registered by ordinary
8 people about the role of what they perceived to be the
9 imperial judiciary. They perceived that to be, in
10 part, because of the lack of accountability that we
11 find in the judiciary. And I know many of you feel
12 that an ultimate lack of accountability affords
13 independence to the judiciary and that many of you are
14 well-intentioned in seeking to depoliticize this
15 process. I would submit to you that we, under no
16 circumstances, wind up depoliticizing the process when
17 we go to merit retention, all we do is concentrate the
18 political power in the hands of fewer and fewer
19 people, and they are large law firms, contributors to
20 the Governor, and the media.
21 Large law firms because they typically are
22 players in the election of the Governor, and they are
23 going to be heard from, believe me, when it comes to
24 judicial appointments. Contributors to the Governor
25 for the same reason. The media for the reason that
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1 the Governor is much more sensitive to media attention
2 and discussion than ordinary people are.
3 So, the net effect is that you wind up driving
4 the politics underground and out of the sunshine so it
5 simply seems much less visible. If you think that
6 this depoliticizes the process, call Senator John
7 Grant and ask him his assessment of politics in the
8 judicial arena. Call any of the nominees for any
9 circuit position who are filling a vacancy that is
10 being filled by appointment under the present system.
11 I would submit to you that as a practical matter,
12 for those of you who have worried about the influence
13 of money in political campaigns, that you assure much
14 greater potential influence in the hands of someone
15 who is able to influence a vote on a committee of
16 nine, or a vote by the Governor or decision by the
17 Governor much more so than somebody who contributes
18 $500 to a judicial campaign where $100,000 is raised.
19 So I would submit to you that you, in many
20 respects, potentially diminish the independence of
21 judicial appointees because of the sway that a single
22 person can have on a judicial nomination committee or
23 on the Governor.
24 You also elevate substantially the standing of
25 the general counsel to the Governor with regard to the
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1 judicial selection process, not referring to
2 Commissioner Douglass necessarily, it is just the way
3 it works. I can tell you in my experience, having
4 seen three different governors involved in this
5 process, the general counsel to the Governor in many
6 respects becomes the de facto appointing authority
7 particularly as it relates to Circuit judges. And I
8 can speak to that from having been experienced with
9 all of the general counsels in many respects for all
10 the Governors.
11 And so, ladies and gentlemen, I would submit to
12 you that we ought not to change this process in the
13 manner in which we are doing. If you think the people
14 are too ignorant to select or elect a judge, I would
15 submit to you then that they are too ignorant to
16 reject a judge. And I know that the argument will be
17 made, we are just giving the people the choice. But
18 the choice we are giving to them is a wrong choice, in
19 my judgment, because we are asking them to give up
20 their vote.
21 CHAIRMAN DOUGLASS: Time is up. Five minutes up
22 for the proponents, now the opponents. He was an
23 opponent, proponents I mean. The opponents have used
24 all of their time. Now, who wants to go first with
25 the proponents? Commissioner Kogan.
223
1 COMMISSIONER KOGAN: All right. Let me say this
2 to all of you. First of all, we are not say -- I will
3 save you time, okay, stop me at four minutes. Let me
4 say this to everybody. The one thing which you have
5 to understand here -- what's that?
6 (Off-the-record discussion.)
7 CHAIRMAN DOUGLASS: Trying to get a little order.
8 COMMISSIONER KOGAN: No, I thought the Chair had
9 ruled that the proponents --
10 CHAIRMAN DOUGLASS: It is your turn as the
11 proponent, you have five minutes left.
12 COMMISSIONER KOGAN: Okay, okay. Let me say this
13 from the very outset, by passing this particular
14 proposal and putting it on the ballot, what we are
15 essentially doing is telling those circuits where they
16 want to adopt the merit retention and selection
17 system, that they can do it.
18 There is nothing in this proposal that requires
19 any circuit in this state to go ahead and adopt this
20 proposal. It's in the hands of the people. And I'm
21 going to tell all of you something that you should
22 recognize and realize. Whether or not on the trial
23 level the judges are appointed by the Governor or they
24 are elected to office, chances are, more likely than
25 not, that particular judge will not have, during the
224
1 balance of his or her term on the bench, any
2 opposition at all. So come election day, the citizens
3 of this state are not going to have the right to vote
4 on the trial level.
5 As far as the appellate judges are concerned, we
6 are the only public officials in the state of Florida,
7 and I want all of you to mark my words when I am
8 telling you this, because I have sat here for months
9 and I have heard about how unaccountable the judges
10 are to the public, but I can assure you that we are
11 the only public officials in the state of Florida who
12 every six years, with opposition or not, have to stand
13 before the voters of this state with our name on that
14 ballot for them to decide whether or not we are fit to
15 hold office.
16 You can't challenge it, it is a fact, we are the
17 only public officials in the state of Florida. If you
18 are running for the House of Representatives, if you
19 are running for the State Senate, if you are running
20 for a Cabinet position, if you don't have opposition
21 you don't go on that ballot and you get that office by
22 default. We don't. We are accountable because we are
23 on that ballot. And the voters of this state can at
24 any time take us out of office.
25 You try to think of another public official who
225
1 has to face the voters like we do every six years.
2 And that's all you are saying to these circuits. Now,
3 the people of this state if you want this system, you
4 can have it, you have to vote for it. So I commend to
5 all of you, this is a good proposal, it is a great
6 compromise, please vote for it.
7 CHAIRMAN DOUGLASS: All right. I have three
8 other proponents, Commissioner Smith, Morsani and
9 Langley. You are going to have to divide your
10 minutes. And we have one opponent still to speak,
11 Commissioner Barton. Commissioner Barton is going to
12 be recognized first unless you have a question?
13 COMMISSIONER BARTON: No.
14 CHAIRMAN DOUGLASS: Okay. You are recognized,
15 Commissioner Barton as an opponent.
16 COMMISSIONER BARTON: Thank you. I am an
17 opponent to this on a very gut level. I don't believe
18 you should ever take away somebody's rights to vote,
19 particularly at the local level which our circuit and
20 county judges are. And I think that the people who
21 vote for those folks know them best and are perfectly
22 capable of making those choices. We let them make
23 choices about their school boards, their county
24 commissions, their city councils. My goodness, they
25 even elect Governors and Cabinet members, they are
226
1 certainly capable of electing judges who serve in
2 their communities.
3 I would say that to move it to a merit retention
4 and appointment process is elitist. We don't do that
5 with any other people who serve us in our communities.
6 And I really think that the judges are ill-served by
7 removing them from the election process, for when they
8 are out there in their communities they become more
9 aware of the tone and temp and what the feelings of
10 the people are, and they need to know that when they
11 are acting in a court just as well as anybody else
12 does who serves the public. So I would urge you to
13 vote against this proposal.
14 CHAIRMAN DOUGLASS: Commissioner Smith.
15 COMMISSIONER SMITH: I rise as a proponent.
16 CHAIRMAN DOUGLASS: Proceed.
17 COMMISSIONER SMITH: I originally raised my hand
18 as an opponent because I was temporarily hot that
19 after all of the work of our wonderful Judiciary
20 Committee and all the compromises at the 11th hour
21 this county court judges' thing came in, but I have
22 calmed down and that's not right. We will maybe get
23 another bite at that.
24 I oppose, I am an opponent of merit selection.
25 But I am a proponent of allowing the people to decide
227
1 how they want to select their judges. I agree with
2 Commissioner Barton, it would be elitist of us to take
3 away the people's right to decide, it would be very
4 democratic of us to allow the people to decide how
5 they want to elect or select the judges, and for that
6 reason I'm going to vote yes now and look forward
7 later to reconsidering the county court judges
8 six-year proposal.
9 CHAIRMAN DOUGLASS: All right. Any other
10 opponents? If not, we had other -- you are an
11 opponent?
12 COMMISSIONER BARKDULL: Proponent.
13 CHAIRMAN DOUGLASS: Proponent, well we had
14 Commissioner Morsani was next as a proponent.
15 COMMISSIONER MORSANI: Briefly. I don't agree at
16 all that we are taking away anyone's right to vote. I
17 think it has been succinct that we are giving people
18 the opportunity, we have talked about flexibility in
19 this commission, this is flexibility. But let's
20 really examine the problems, especially in the large
21 counties, we have had this debate, let's not forget
22 it, let's not forget the debate that in large counties
23 our people do not know who they are voting for.
24 You can keep saying, well, it's free and they
25 could find out, but they don't take the time to find
228
1 out. As a result, people can -- there are some of our
2 countrymen that attempt to become judges who are not
3 qualified to be judges. And those people who are
4 involved, I think the JQC has done a good job by and
5 large, I think the appointments have been positive. I
6 think we are giving the people the flexibility.
7 I have investigated the Missouri plan, and I
8 think that's a popular name around here, and I had
9 some attorneys give me some very good advice and did
10 some detailed study of it, I think we are doing the
11 right thing. Personally over dinner parties and
12 others, I even did, just real quickly, a survey among
13 my own people, 310 employees. It was overwhelming
14 that they felt that that's a position that should be
15 appointed, and if you are down here where I am, you
16 are dealing with the skilled and unskilled laborers of
17 these communities, you will find that they appreciate
18 it because they don't know who they are voting for,
19 they don't know if they are getting the right person
20 in the judgeships, and they really do want the right
21 person in our judgeships. And I think that
22 Commissioner Kogan is 100 percent right and I urge
23 your support.
24 CHAIRMAN DOUGLASS: All right. We have used up a
25 little more time than should have been used for this
229
1 on the proponents, and therefore I think we should
2 close the debate based on our previous adoption of the
3 motion. I know that Commissioner Langley wanted to
4 speak, Barkdull, and also Commissioner Zack. And
5 Commissioner Wetherington does get to close. You may
6 close.
7 COMMISSIONER WETHERINGTON: I'd like to have
8 Commissioner Langley close for me.
9 CHAIRMAN DOUGLASS: All right. How about that,
10 Commissioner Langley, you are recognized to close.
11 COMMISSIONER LANGLEY: Thank you, thank you
12 Commissioner Wetherington. I hate merit selection. I
13 think it is terrible. I voted against it in the
14 Legislature when we first started with the Supreme
15 Court and the appellate court and then the trial
16 courts, but man this state has changed. We didn't
17 have those problems before, you know, before you knew,
18 you knew who your judges were. How many judges in
19 Dade County? Over 100 judges in Dade County now, you
20 know. When I first started practicing law, we had one
21 circuit judge in my county. Well, you knew him, you
22 better know him. But, you know, things have changed.
23 And I have no doubt that in the metropolitan areas and
24 the urban areas of this state there are real problems,
25 and I don't think the best people get in office that
230
1 way. I wish it were not that way, but that's the way
2 it is.
3 One important thing about this, Commissioner
4 Connor, that you may or may not know, this is opt out,
5 not opt in. In other words, you have, pardon me, it
6 is opt in, not out, that you have to have a vote of
7 the electorate to say, yes, we want to give up our
8 right to elect and let somebody else appoint, and
9 that's the only way it can be done.
10 By the way, the timetable on this, it will be
11 2002 before this takes effect because there will be an
12 election in 2000 and it won't become effective until
13 the next one. But I think it is a good compromise, we
14 came a long way from the uniformly doing it all to
15 this, where you can do it on a county level, you do it
16 on a circuit level, and frankly from the people I have
17 talked to back home, including the judges, they are
18 all for it also.
19 So I think it is a good deal and one of the
20 changes that I think will have good support in the
21 eventual voting on these matters. Thank you.
22 CHAIRMAN DOUGLASS: All right. Having closed on
23 the proposal as amended, we are now prepared to vote
24 on Proposal 66 as amended. And if you will open the
25 machine and we will vote.
231
1 (Vote taken and recorded electronically.)
2 CHAIRMAN DOUGLASS: Lock the machine and announce
3 the vote.
4 READING CLERK: Twenty-four yeas, seven nays,
5 Mr. Chairman.
6 CHAIRMAN DOUGLASS: By your vote you have adopted
7 Proposal No. 66 as amended. We will now proceed to
8 Committee Substitute for Proposals 159, 163 and 182 by
9 the Committee on Executive, by Commissioners Mathis,
10 Evans-Jones and Riley. Commissioner Mills?
11 COMMISSIONER MILLS: Yes, Mr. Chairman. This
12 section, if you will look again on your special order
13 as set by the Rules Committee and look in your pink, I
14 believe it is the pink folder, yellow folder, the
15 Executive Branch. Commissioner Alfonso has the Style
16 and Drafting issues. There are three proposals in the
17 Executive Branch, and Commissioner Alfonso will
18 discuss those and the proposed amendments.
19 CHAIRMAN DOUGLASS: All right. Commissioner
20 Alfonso, you are recognized on behalf of -- right
21 after I read the proposal or have it read, to give the
22 Style and Drafting report.
23 COMMISSIONER ALFONSO: Thank you.
24 CHAIRMAN DOUGLASS: Would you read the proposal,
25 please?
232
1 READING CLERK: Committee Substitute for Proposal
2 Nos. 159, 163 and 182. A proposal to revise Article
3 IV, Sections 3(b), 4, and 8, and Article XII, Section
4 9(c), Florida Constitution; and create Section 22,
5 Article XII, Florida Constitution; providing for
6 membership of the Florida Cabinet.
7 CHAIRMAN DOUGLASS: All right. Commissioner
8 Alfonso you are recognized. Also there's an amendment
9 on the table. Should I read the amendment?
10 COMMISSIONER ALFONSO: Yes, please, and this one
11 was -- this amendment was added by Style and Drafting.
12 CHAIRMAN DOUGLASS: Read the amendment please.
13 READING CLERK: By Committee on Style and
14 Drafting, the following amendment; on Page 3, Lines 19
15 through 21, strike all of said lines.
16 COMMISSIONER ALFONSO: Okay. Thank you. This
17 amendment strikes the language that had been added on
18 the floor which allowed for the Department of Law
19 Enforcement to be headed by the Governor and the
20 Cabinet. That amendment was necessary at the time
21 because we had another proposal, 168, that would have
22 prohibited agencies being headed by the Governor and
23 the Cabinet. Since we have fixed that situation,
24 Commissioner Barnett, if you are over there, by
25 deleting the prohibition from Proposal 168, we found
233
1 that the FDLE amendment would no longer be necessary.
2 CHAIRMAN DOUGLASS: Does everybody understand the
3 amendment proposed by Style and Drafting? All right.
4 All in favor of amendment, say aye. Did anybody vote?
5 All in favor of the amendment, say aye. All opposed,
6 no?
7 (Verbal vote taken.)
8 CHAIRMAN DOUGLASS: The amendment is adopted. I
9 remembered it that time. All right. You may proceed
10 with the proposal as amended. Are there other
11 amendments on the table?
12 READING CLERK: No, there are not, Mr. Chairman.
13 CHAIRMAN DOUGLASS: Commissioner Alfonso has the
14 floor. Do you want to ask him a question? All right,
15 do you yield?
16 COMMISSIONER ALFONSO: I yield.
17 CHAIRMAN DOUGLASS: He yields.
18 COMMISSIONER LANGLEY: Commissioner Alfonso, this
19 committee, will it handle the retirement trust fund
20 also? You know we have that board that is --
21 COMMISSIONER ALFONSO: Yes.
22 COMMISSIONER LANGLEY: -- currently, is that
23 covered in here?
24 COMMISSIONER ALFONSO: Yes. That's the State
25 Board of Administration, that's correct.
234
1 CHAIRMAN DOUGLASS: All right. Commissioner
2 Alfonso, you are recognized on the proposal.
3 COMMISSIONER ALFONSO: Thank you, Mr. Chairman.
4 As you all know, we have discussed this, this is the
5 Cabinet reform package reducing the size of the
6 Cabinet from seven down to three. The combination of
7 the Comptroller and the Treasurer and the Chief
8 Financial Officer and the elected Attorney General,
9 both of those elected serving with the Governor. The
10 Education Commissioner will be appointed by the State
11 Board of Education, which will be a seven-member board
12 appointed by the Governor who then appoints their
13 Commissioner.
14 The proposal remains silent at this time as to
15 the Secretary of State and the Agriculture
16 Commissioner, although Proposal 168 which we will deal
17 with shortly establishes a State Board of Agriculture
18 which would appoint the Agricultural Commissioner. We
19 feel that this places great emphasis on agriculture
20 and education together in this package. The proposal
21 ensures that the Cabinet and the Governor continue to
22 sit as the trustees of the Internal Improvement Trust
23 Fund and the land acquisitions trust fund, as we just
24 mentioned. Which acquisition and management of state
25 lands, and the Governor and Cabinet would sit as the
235
1 State Board of Administration, which is investment and
2 retirement funds and state bonding. And the other
3 duties would be as prescribed by law.
4 These changes would apply beginning with the
5 general election of the year 2002.
6 CHAIRMAN DOUGLASS: All right. Now who --
7 proponents be identified, those that want to speak as
8 proponents of the proposal. The other introducers
9 were, let's see, Commissioners Mathis, Evans-Jones and
10 Riley were the introducers originally. If there's
11 anybody who wants to be a proponent, let me know now.
12 Any opponents? Commissioner Marshall is an opponent.
13 Commissioner Henderson is an opponent.
14 (Inaudible comment.)
15 CHAIRMAN DOUGLASS: Yes. We have been doing
16 that, so I see no reason not to. All right. The
17 proponents. Do you want to designate Commissioner
18 Mathis as a proponent? Let's see, we will go with the
19 opponent first, we will take Commissioner Marshall
20 first as an opponent to this proposal. You are
21 recognized Commissioner Marshall.
22 COMMISSIONER MARSHALL: Thank you, Mr. Chairman.
23 I think I understand this proposal well enough to
24 comment on it. The aspect of it that troubles me is
25 addressing Cabinet reform without really addressing
236
1 Cabinet reform by pulling the Education Commissioner
2 out and having him or her appointed rather than
3 elected as distinct from the rest of the Cabinet I
4 think has the effect of weakening the influence of the
5 Education Commissioner on the broad range of
6 government affairs as a Cabinet officer. Do I
7 understand it correctly, Commissioner Alfonso, that
8 is -- yeah.
9 COMMISSIONER ALFONSO: That is correct.
10 COMMISSIONER MARSHALL: I think the Commissioner
11 of Education brings a set of ideas and values and
12 cultural understanding, perspectives that ought to be
13 valued and ought to be recognized and incorporated in
14 much of what goes on in the Cabinet affairs. If we
15 were addressing the entire range of Cabinet reform, I
16 would be interested in changing the status of the
17 Education Commissioner, as indeed I was, Commissioner
18 Evans-Jones and I, as many of you know, served for a
19 year on the Cabinet Reform Commission.
20 And I took the position then that the Cabinet,
21 that the Governor's office was weak and we needed to
22 strengthen it by having more appointed Cabinet
23 officers. But to do this on a piecemeal basis as we
24 seem to be doing now, I think, disturbs the balance
25 that the Cabinet now has in a way that is dangerous,
237
1 and for that reason I oppose the proposal.
2 CHAIRMAN DOUGLASS: You are recognized as a
3 proponent.
4 COMMISSIONER MATHIS: I think the issue here is
5 accountability. And I think we need to have
6 accountability in the governorship. I don't think
7 that anyone contemplates that the Commissioner of
8 Education will be making decisions on clemency. I
9 think people contemplate that issue being dealt with
10 directly by the Governor. And I think if we are going
11 to have a Governor, we ought to let the Governor be
12 the Governor and do away with what we have now, which
13 is I think a plural executive of seven people.
14 And I think it would also help to restore economy
15 and efficiency in the executive department and give
16 the Governor the authority and responsibility, I
17 believe, that the citizens of Florida currently
18 falsely believe that he has. And I think that this
19 proposal addresses that issue. And so I would urge
20 your support.
21 CHAIRMAN DOUGLASS: Commissioner Henderson as an
22 opponent.
23 COMMISSIONER HENDERSON: Mr. Chairman, I opposed
24 this matter in committee and I opposed this matter
25 when it came before the body last time, I continue my
238
1 opposition. The information that Commissioner
2 Marshall brought before this body, I think, is very
3 important. What we spend more money on than anything
4 else is education, and yet the proposal before us
5 takes away our ability to elect an Education
6 Commissioner to run campaign, run statewide on the
7 issue of education.
8 I know that all of you have heard also from
9 members of the agricultural community that are
10 concerned about the loss of their ability to vote for
11 a Commissioner of Agriculture. I would suggest to you
12 that it is not about accountability, it is about
13 perspective. There are so precious few people in this
14 state who have a statewide perspective. We worked in
15 gaining that in the last year. But I think the state
16 benefits from seven people running for office on a
17 statewide basis in their various fields.
18 And there is something special about the Cabinet.
19 I think it is a system which works. It works to
20 settle disputes on a statewide basis, it helps to
21 elevate issues to a statewide level that have helped
22 in many things regarding policy issues in this state.
23 I have, it has been my privilege to appear before
24 and work before the Cabinet under several different
25 Governors. I think it is a system that works. I am
239
1 not embarrassed to stand here and tell you that I
2 support it. I think that it is something -- it is an
3 institution which has served this state well.
4 I know that there are Governors who disagree with
5 that. But I know that this Governor and the current
6 Governor and former Governors who have all taken that
7 position they have had just a good job, it has been
8 easy for them to deal with the Cabinet, they have done
9 very well.
10 I suggest that this is one of those issues where
11 people are going to hear from the people, we are going
12 to hear the people think the system is not broken, and
13 we are going to hear that indeed this is perhaps too
14 bold of a step for this commission to take, so I would
15 urge that this proposal not go any farther.
16 CHAIRMAN DOUGLASS: I believe that's all the time
17 for the opponents. Commissioner Alfonso, you are
18 recognized to close on behalf of the proposal.
19 COMMISSIONER ALFONSO: Thank you, Mr. Chairman.
20 Well, we have discussed this before and as it matures
21 we have seen a lot of thought take place on this
22 thing. Again, every living Governor, liberal,
23 moderate or conservative has been a proponent of this,
24 of a stronger Cabinet. We have fixed the other two
25 branches, this is the last branch that still dates
240
1 back 100 years, the Governor having to work with six
2 other elected, sometimes opposing, members.
3 This position which was proposed by two
4 bipartisan members of the current Cabinet, you know, a
5 Republican and a Democrat, Milligan and Nelson, is a
6 compromise between the wholesale abolishment in making
7 it an appointed Cabinet like in many other states and
8 keeping the system that we have. You say that it is a
9 bold move for us. It seems to me that having been up
10 here and not having been in government before, there
11 is -- it is so difficult to change anything up here
12 and to streamline. I consider this a streamline move.
13 It is not a consolidation, it is a streamlining.
14 It gives the Governor the ability to be the
15 Governor, the ability to lead. It lets the legal
16 aspects of the state still be in the hands of the
17 people-elected officials, the same -- it combines the
18 financial and insurance into the Chief Financial
19 Officer.
20 When we were dealing with education and with now
21 agriculture, which will come up in Proposal 168, that
22 was really meant to strengthen those two entities.
23 And Commissioner Marshall says that he thinks that the
24 Commissioner of Education would not be dealing in many
25 of the cultural aspects of the state, I guess. I
241
1 never elected the Commissioner of Education to worry
2 about the fisheries or to worry about, you know, state
3 lands. That's not really -- I understand that's a
4 well-rounded thing, but there are literally hundreds
5 of things that those commissioners deal with that are
6 not their auspices.
7 But with this proposal you insulate education,
8 you let seven professionals elect their chief
9 professional. Same thing with agriculture. You
10 insulate them from the whims of an electorate. And I
11 recognize that that hasn't come up under this
12 proposal, but that is our plan to consolidate that.
13 The whims of the electorate could be that they decide
14 that one of these entities all of a sudden is not
15 serving the needs of the people overall as we have
16 seen in some of these other, such as the net ban, and
17 then all of a sudden they get, they elect a
18 Commissioner that is contrary to the needs of the
19 professionals of that industry, and I have a problem
20 with that. I have a problem with that from the
21 fundamentals of running an organization, I have a
22 problem with that.
23 I know there has been a lot of late opposition
24 here to some of this, and I hear, you know, especially
25 from agriculture. And this has been -- I consider
242
1 them as a strengthening of both of those departments.
2 I guess just in closing, this received favorable
3 recommendation from the Committee on Executive, it
4 received 20 votes last time. This, in my opinion, is
5 a vote for good government, for streamlining. It is a
6 vote to let the leader of the state that the people
7 pick lead the state, and I just urge your vote. Thank
8 you.
9 CHAIRMAN DOUGLASS: All right. The time has
10 expired. Unlock the machine and let's vote.
11 (Vote taken and recorded electronically.)
12 CHAIRMAN DOUGLASS: Lock the machine and announce
13 the vote.
14 READING CLERK: Twenty-four yeas, seven nays,
15 Mr. Chairman.
16 CHAIRMAN DOUGLASS: By your vote you have adopted
17 Proposals 159, 163 and 182 as presented by the
18 Committee on Executive. And we will move on.
19 Proposal 168, the next proposal, by Commissioner Corr.
20 Would you read it please?
21 READING CLERK: Proposal No. 168 a proposal to
22 revise Article IV, Section 6, Florida Constitution;
23 providing that an entity purportedly within an
24 executive department which is not subject to the
25 direct supervision of the agency head is a department;
243
1 providing that the amendment does not affect the
2 status of such entities to issue revenue bonds before
3 a specified date; creating Article IV, Section 14,
4 Florida Constitution; creating a State Board of
5 Agriculture; providing for the board to appoint the
6 Commissioner of Agriculture; creating Article IV,
7 Section 15, Florida Constitution; providing for the
8 establishment for the office of custodian of state
9 records, providing for duties of the office; creating
10 Article XII, Section 23, Florida Constitution;
11 providing that the amendment does not affect the
12 status of such entities in existence on the effective
13 date of the adoption of the amendment.
14 CHAIRMAN DOUGLASS: All right. There is an
15 amendment on the table and the Style and Drafting is
16 being handled by Commissioner Alfonso. Is that a
17 Style and Drafting amendment? Would you read the
18 amendment please?
19 READING CLERK: By Committee on Style and
20 Drafting, the following amendment: On Page 2, Lines 7
21 through 21, delete those lines and insert lengthy
22 amendment.
23 CHAIRMAN DOUGLASS: All right. Commissioner
24 Alfonso, would you explain the lengthy amendment?
25 COMMISSIONER ALFONSO: Lengthy amendment coming
244
1 up here. This amendment incorporates two changes.
2 First it deletes -- well first it simply moves some
3 language from one place to another for clarity. What
4 is currently in Paragraph B is preceded by the word
5 "except," and it is important that we keep this
6 language that's represented as an exception. In the
7 underlying proposal the "except" had been stricken.
8 And then that is really the only amendment. The
9 first one we didn't do.
10 CHAIRMAN DOUGLASS: All right. The amendment
11 then has been explained. Any discussion on the
12 amendment? All in favor of amendment, say aye.
13 Opposed?
14 (Verbal vote taken.)
15 CHAIRMAN DOUGLASS: The amendment is adopted.
16 Now we revert to the proposal as amended.
17 Commissioner Alfonso, are you going to handle this for
18 the Executive Committee, or do you want to yield to
19 Commissioner Corr at some point? You are a proponent,
20 are you not Commissioner Corr?
21 COMMISSIONER ALFONSO: No, I will explain it.
22 CHAIRMAN DOUGLASS: And Commissioner Corr is a
23 proponent. Are there any opponents or proponents that
24 want to be heard on this? All right. Proceed.
25 COMMISSIONER ALFONSO: Well this is the proposal
245
1 that says that, yes, the people meant it when they
2 said that executive departments were to be limited to
3 25 in number. A savings provision is included in the
4 schedule language to ensure the status of all agencies
5 until July 1st, 1999 to give the Legislature an
6 opportunity to again compress executive agencies to
7 25. We want to particularly ensure that there is no
8 question as to the liability of bond issuing agencies.
9 This proposal also contains the possession
10 earlier discussed which establishes a State Board of
11 Agriculture which says that the Governor appoints
12 seven commissioners and then those commissioners
13 appoint the Commissioner of Agriculture.
14 CHAIRMAN DOUGLASS: All right. Commissioner Corr
15 as a proponent.
16 COMMISSIONER CORR: I'm going to waive my time, I
17 think it has been adequately explained. Thank you.
18 CHAIRMAN DOUGLASS: There is no registered
19 opponents. We will proceed to vote. Unlock the
20 machine and vote.
21 (Vote taken and recorded electronically.)
22 CHAIRMAN DOUGLASS: Lock the machine and announce
23 the votes.
24 READING CLERK: Twenty-two yeas, six nays,
25 Mr. Chairman.
246
1 CHAIRMAN DOUGLASS: Before we go to
2 Commissioner -- excuse me, Proposal 174 by
3 Commissioner Sundberg. Read it, please?
4 READING CLERK: Proposal 174, a proposal to
5 create Article IV, Section 14, Florida Constitution;
6 providing for a public utilities commission
7 established by the Legislature to be an executive
8 agency that exercises quasi-legislative and
9 quasi-judicial powers.
10 CHAIRMAN DOUGLASS: Commissioner Sundberg, do you
11 want to yield to him, or do you want to -- go ahead
12 Commissioner Alfonso and then Commissioner Sundberg.
13 COMMISSIONER ALFONSO: Well, there is one Style
14 and Drafting amendment.
15 CHAIRMAN DOUGLASS: Would you read the amendment,
16 please?
17 READING CLERK: By the Committee on Style and
18 Drafting, the following amendment on Page 1, Lines 17
19 through 19, strike, may exercise quasi-legislative and
20 quasi-judicial powers as provided by law.
21 CHAIRMAN DOUGLASS: All right. Does everybody
22 understand the amendment? Would you like to --
23 Commissioner Alfonso, your machine wasn't on there.
24 COMMISSIONER ALFONSO: Well, it's a pretty
25 self-explanatory amendment, that's the case anyway
247
1 with or without those words, so we just went ahead and
2 incorporated them.
3 CHAIRMAN DOUGLASS: Okay. So, on the amendment.
4 Everyone in favor of the amendment, say aye.
5 Opposed?
6 (Verbal vote taken.)
7 CHAIRMAN DOUGLASS: It carries. All right. We
8 are now on the proposal as amended, Commissioner
9 Sundberg is recognized as a proponent. Is there an
10 opponent? All right. Proceed, Commissioner Sundberg.
11 COMMISSIONER SUNDBERG: I may be that opponent,
12 Mr. Chairman. Quite frankly, in the whole scheme of
13 things, I've lost some of my verve for this proposal.
14 And although I would vote for it, I cannot say that we
15 need in the same sense that there are -- this occupies
16 the same priority as many others do. If there's
17 someone who would like to find some verve for this,
18 please stand and be counted.
19 CHAIRMAN DOUGLASS: All right. Commissioner
20 Smith.
21 COMMISSIONER SMITH: Thank you, Mr. Chairman. It
22 appears that Commissioner Barkdull has at least
23 influenced one of our members with regard to this, so
24 it hasn't been fruitless, his efforts to make us think
25 about how important these issues are.
248
1 CHAIRMAN DOUGLASS: All right. As I understand
2 it, what did he do? I was talking to Commissioner
3 Thompson.
4 COMMISSIONER SMITH: He basically said that he's
5 lost his verve for this proposal, in the sense that he
6 doesn't realize that this is some monumental issue
7 that the public needs to have addressed at this time.
8 CHAIRMAN DOUGLASS: All right. We won't vote on
9 whether or not he's lost his verve, we'll just vote on
10 whether or not to adopt this proposal. Commissioner
11 Alfonso, you are recognized.
12 COMMISSIONER ALFONSO: To close?
13 CHAIRMAN DOUGLASS: Yes.
14 COMMISSIONER ALFONSO: Let's vote.
15 CHAIRMAN DOUGLASS: This vote will be in the
16 honor of the verve of Commissioner Sundberg, whatever
17 that was. All in favor -- no, open the machine and
18 let's vote.
19 (Vote taken and recorded electronically.)
20 CHAIRMAN DOUGLASS: Well, we certainly didn't
21 want to make it unanimous that he lost his verve, so
22 lock the machine and announce the vote.
23 READING CLERK: Eight yeas, 22 nays,
24 Mr. Chairman.
25 CHAIRMAN DOUGLASS: One thing about it,
249
1 Commissioner Sundberg, you can't correct an opinion of
2 the Supreme Court, can you? I said, You can't correct
3 the opinion of a Supreme Court, can we?
4 COMMISSIONER SUNDBERG: No.
5 CHAIRMAN DOUGLASS: Okay. Now --
6 (Inaudible comment.)
7 CHAIRMAN DOUGLASS: That's not quite right, but
8 in this case we don't have to worry about it anymore.
9 Commissioner -- let's see, our next proposal, if I can
10 find it, it is Commissioner Barkdull's, if I haven't
11 lost it. I never should have talked to Commissioner
12 Thompson. Proceed Commissioner Mills. It's 123,
13 please read it.
14 READING CLERK: Proposal No. 123, a proposal to
15 revise Article XI, Florida Constitution, repealing
16 Section 6 relating to the Taxation and Budget Reform
17 Commission.
18 CHAIRMAN DOUGLASS: Now, Mr. Mills from Style and
19 Drafting.
20 COMMISSIONER MILLS: Mr. Chairman, the next
21 segment of topics deal with amendments. There is one
22 that deals with, amending the Constitution. The first
23 one deals with the Tax and Budget Reform Commission as
24 proposed by Commissioner Barkdull.
25 I believe the second proposal is by Commissioner
250
1 Barkdull as well, which is on the extension of time
2 for the Constitution Revision Commission. Style and
3 Drafting has no amendments, Mr. Chairman. So
4 Commissioner Barkdull would be appropriate to
5 recognize.
6 CHAIRMAN DOUGLASS: There is an amendment on the
7 table.
8 COMMISSIONER MILLS: There is an amendment, not
9 from Style and Drafting.
10 CHAIRMAN DOUGLASS: There's an amendment from
11 Commissioner Barnett. Read the amendment please. Do
12 you have the amendment? Everybody has it,
13 Commissioner Barnett's amendment.
14 READING CLERK: Commissioner Barnett offers the
15 following amendment: On Page 1, Line 9, strike all of
16 said lines and insert lengthy amendment.
17 CHAIRMAN DOUGLASS: Lengthy amendment,
18 Commissioner Barnett to explain.
19 COMMISSIONER BARNETT: Thank you, Mr. Chairman.
20 Members of the Commission, this is an amendment that
21 essentially puts the Taxation and Budget Reform
22 Commission back in the Constitution. The current
23 proposal repeals it outright, but the change I have
24 made is along the lines of an earlier change I
25 suggested, but more -- but it's different.
251
1 What I have done in this proposed amendment is
2 eliminate the language that mandates the voting
3 procedures of the Tax and Budget Reform Commission.
4 The Commission will have rules -- the ability to adopt
5 its own rules, much like we do; and therefore, can
6 adopt rules relating to the voting. The current
7 procedures in the Constitution many people believe
8 have contributed to the difficult time that the
9 commission had in not only getting its work product
10 completed, but in presenting a meaningful product to
11 the people. And if I could just ask you all, just for
12 a minute, to pay attention.
13 CHAIRMAN DOUGLASS: All right. You all give
14 attention here. This is a major amendment being
15 offered by Commissioner Barnett that requires a little
16 bit of attention to understand it. And she's
17 proposing here, and for those that haven't been
18 fortunate enough to hear this, the amendment that
19 she's offering relates to the Taxation and Budget
20 Commission; she's revising what she considered to be
21 the problems with it in carrying it forward rather
22 than abolishing it, which the original proposal was.
23 Am I right on that so far?
24 COMMISSIONER BARNETT: Yes, you are.
25 CHAIRMAN DOUGLASS: Now, you are telling us what
252
1 you are proposing in your amendment. Would you
2 proceed.
3 COMMISSIONER BARNETT: The current status of the
4 recommendation from this commission is to abolish the
5 Tax and Budget Reform Commission. As you all know
6 from past meetings, I believe that the state of
7 Florida needs that commission and that we need an
8 opportunity in this state for a deliberate,
9 concentrated review of the tax structure of this
10 state.
11 This commission has not been able to do that.
12 The Legislature is not able to do that, not because of
13 a lack of concern about our current revenue structure
14 and budgeting structure of this state, but for our
15 purposes on this commission, a lack of time for the
16 Legislature, a lack of time, and I think sometimes
17 perhaps, a lack of will.
18 This commission provides us an opportunity --
19 it'll meet again in two years for a concentrated
20 review of the revenue structure of this state. And I,
21 for one, believe that we need that in going forward in
22 the millennium. The kind of people, the expertise,
23 the information that's needed may differ very much
24 from the people who are on this commission, it may
25 differ from the people who are in the Legislature, it
253
1 may give us an opportunity, really, to come up with
2 proposals that we can take out to the people, "we"
3 meaning "we the people" out to the people about
4 revising our tax structure.
5 It's very, very difficult to ask sometimes our
6 elected officials to make some of the hard decisions
7 that you have to make when it deals with taxing and
8 revenue and spending, but these are the critical
9 issues, in my judgment, for this state in the
10 millennium.
11 The commission currently is in the Constitution.
12 Our group has a proposal to abolish that. One of the
13 concerns that I and many people had who served on the
14 initial Inaugural Tax and Budget Reform Commission was
15 the voting procedures mandated in the Constitution,
16 and that was a super majority vote of all members of
17 the commission as well as a majority vote of the
18 members appointed by each appointing body.
19 It made it very, very difficult to move forward.
20 What this -- what I'm proposing is that we continue to
21 have a Tax and Budget Reform Commission but that we
22 remove those cumbersome voting procedures and allow
23 this process to go forward.
24 CHAIRMAN DOUGLASS: Question? Commissioner Scott
25 has a question.
254
1 COMMISSIONER SCOTT: As I'm hearing you,
2 originally, on the -- when this amendment was here
3 before we removed the requirement of specific
4 majorities or super majorities of each appointing
5 authority, but we put in a two-third's requirement.
6 Commissioner Connor had it in, we put in a two-third's
7 requirement, but you have taken that out. Am I
8 correct on that?
9 COMMISSIONER BARNETT: The current Constitution
10 requires an affirmative vote of two-thirds plus this
11 other, plus this additional step. And I think that
12 the original proposal simply removed the requirement
13 that related to the majority members of each
14 appointing body.
15 COMMISSIONER SCOTT: But you now are removing the
16 two-third's requirement, I'm looking at it.
17 COMMISSIONER BARNETT: Yes, that's what we are
18 trying to do and simply leave it up to that
19 commission, much as it was left up to this commission
20 to come up with its voting procedure through its
21 rules.
22 COMMISSIONER SCOTT: Okay. So, then this
23 proposal would mean that a majority of whoever is
24 appointed by the Governor and the Speaker and whoever
25 could put on the ballot the personal income tax, the
255
1 services tax mandate, and any other kind of tax matter
2 that they might choose; is that correct?
3 COMMISSIONER BARNETT: No, what it means is that
4 a majority of that commission could adopt rules to
5 reflect the will of that commission as to what the
6 vote ought to be.
7 COMMISSIONER SCOTT: But it could be just a
8 majority vote?
9 COMMISSIONER BARNETT: It could be a majority of
10 one, if they wanted to do that, it would simply leave
11 it up to that body the right to set its own rules and
12 procedures. I would hope, much as we did, that that
13 body would look at a two-third's vote or a super
14 majority vote of some type. I believe that is
15 appropriate when you take matters to the ballot for
16 the people. But the majority vote would be of the
17 commission to adopt its own rules.
18 CHAIRMAN DOUGLASS: All right. On the amendment
19 now, is there any questions? You have other
20 questions. Commissioner Langley has a question,
21 Commissioner Barnett.
22 COMMISSIONER LANGLEY: I want to speak against it
23 also.
24 CHAIRMAN DOUGLASS: Proponents other than
25 Commissioner Barnett? Commissioner Barkdull. Well,
256
1 I'll recognize Commissioner Scott who has been up, and
2 then we'll go to you.
3 COMMISSIONER SCOTT: I was up for a question. I
4 want to refresh you about the debate on this. I mean,
5 this is a whole -- this group just met, and if this
6 was adopted they would meet again in less than two or
7 three years, 2001, and we are now going to have all of
8 the tax policies in this state, all of the economic
9 developmental issues that people are interested in is
10 going to be back and placed in the hands of an
11 appointed group with only a majority of that group
12 having direct access to the ballot.
13 And if you, if we have all learned anything
14 serving on here in the last nine months, we know how
15 important and significant this is, that's why we are
16 spending all of this time debating every single
17 proposal and amendment to them, is how important it is
18 to have direct access to the ballot. And you will be
19 just cart blanche giving to a majority of some
20 commission that will be appointed in less than three
21 years, to now put back on the table, all of the tax
22 policies of this state which severely can affect our
23 economic development efforts. And I just think that,
24 you know, that it's a bad idea.
25 And originally when we debated this there was at
257
1 least a two-third's requirement, which is no longer in
2 here. So, I would urge you not to adopt this
3 amendment and stick to the original proposal. And if
4 you don't like that, vote that down, but let's don't
5 go with this amendment, which would really, totally
6 open it up.
7 CHAIRMAN DOUGLASS: We are on the amendment, the
8 amendment offered by -- okay, Commissioner Barkdull.
9 COMMISSIONER BARKDULL: I rise as an opponent.
10 CHAIRMAN DOUGLASS: Okay. Commissioner Langley
11 was opposing prior to you. It's his turn.
12 COMMISSIONER LANGLEY: Thank you, Mr. Chairman.
13 One thing that impressed me serving in the Legislature
14 were the committee staffs, and particularly here in
15 the Senate where I spent some 12 years, it was Finance
16 and Tax Committee on Appropriations. Now they have
17 been merged, I understand, but some really bright
18 people, people who really know the tax structure of
19 this state, people with whom the Senators and
20 Representatives are constantly in contact and get
21 advice from. They know so much more about this, and
22 our elected representatives have access to all of this
23 information. We don't need this commission.
24 We particularly don't need an appointed
25 commission with direct access to the ballot to put
258
1 income tax, or services tax, or any other tax that
2 they may come up with. If they are appointed, they
3 are not responsible to the people like their
4 Legislatures are. It is just a great idea, whoever is
5 the sponsor of this, to repeal it, it is a great idea
6 and we ought to stick with it.
7 CHAIRMAN DOUGLASS: Commissioner Barkdull as an
8 opponent.
9 COMMISSIONER BARKDULL: Yes, I rise to oppose
10 this amendment because, as has been indicated, this is
11 going to let an appointed body go directly to the
12 ballot with a proposal by a simple majority which can
13 change the tax structure of the state, and that
14 certainly can end up with taxation without any elected
15 representation. And I think it is a very bad
16 proposal.
17 If the Legislature wants to present something on
18 the ballot, they have got to have a three-fifth's
19 vote. We have arranged that this commission has
20 basically a three-fifth's vote to put anything on the
21 ballot. I think this is a very bad amendment and
22 ought to be defeated.
23 CHAIRMAN DOUGLASS: Are you ready to vote on the
24 amendment? Commissioner Barnett needs to close, I'm
25 sorry. You are recognized Commissioner Barnett.
259
1 COMMISSIONER BARNETT: Thank you. The Tax and
2 Budget Reform Commission will consider things other
3 than the personal income tax or the services tax or
4 any of those things. It will consider those, if we
5 are lucky, but it'll also consider the budget process
6 of this state, the appropriations process of this
7 state. It'll take testimony from citizens of this
8 state, it'll have the benefit of the staff, as
9 Commissioner Langley says that are so competent, but
10 it will also have the benefit of experts that it can
11 call in to talk about where this state is going in the
12 next 20 years, what are the demographics of this state
13 going to be, what do we need to do about
14 accountability and budget reform, what do we need to
15 do about accountability to the people of the State of
16 Florida.
17 I wish that our commission had addressed the
18 major tax issues facing this state. I really wish we
19 had. We had an opportunity; we still have some
20 opportunity. But in truth, we have not done much. If
21 you look at the tax proposals we have, we have not
22 done much. If anything, the one that seems to have
23 the most interest may be the most special-interest
24 oriented tax proposal that we have before us.
25 I wish we had done it. I wish the Legislature
260
1 would address these issues, but I don't think it is,
2 not in the way that we need for the fastest growing
3 state in the United States to have these issues
4 addressed. It doesn't mean they will put something on
5 the ballot. Each of you knows, from serving on this
6 commission, the personal constraints and restraints
7 that we place upon ourselves and how seriously we take
8 our responsibilities to the people.
9 I think it is disingenious to assume that another
10 commission is somehow going to be a run-away
11 commission, run-away commission and somehow not have
12 the best interest of this state in mind when we
13 consider the revenue structure and the budgeting
14 appropriation structure of this state. Our state is
15 in desperate need of a review of our revenue structure
16 in my judgment. And I ask you please to keep this
17 body alive so that we can have that review.
18 CHAIRMAN DOUGLASS: All right. Now, on the
19 amendment by Commissioner Barnett. Unlock the machine
20 and let's vote.
21 (Vote taken and recorded electronically.)
22 CHAIRMAN DOUGLASS: Lock the machine and announce
23 the vote.
24 READING CLERK: Eight yeas, 19 nays,
25 Mr. Chairman.
261
1 CHAIRMAN DOUGLASS: By your vote, the amendment
2 fails. Now we go to your proposal. Commissioner
3 Barkdull, you are recognized as the proposer.
4 COMMISSIONER BARKDULL: I'm not going to take up
5 a lot of time. I think everybody knows what this
6 does, it abolishes the Budget and Tax Reform
7 Commission, I ask we vote.
8 CHAIRMAN DOUGLASS: All right. Unlock the
9 machine and let's vote.
10 (Vote taken and recorded electronically.)
11 CHAIRMAN DOUGLASS: Has everybody voted? Lock
12 the machine and announce the vote.
13 READING CLERK: Twenty yeas, nine nays,
14 Mr. Chairman.
15 CHAIRMAN DOUGLASS: By your vote, you have passed
16 Proposal No. 152. Now, we move into the section
17 Commissioner Mills has called technical and
18 noncontroversial. We'll soon find out. Commissioner
19 Mills, you are recognized. Oh, I passed 152, yes,
20 okay. Proposal No. 152, you need to read that,
21 please.
22 READING CLERK: Proposal No. 152, a proposal to
23 revise Article XI, Section 2, Florida Constitution;
24 amending the deadline by which the Constitution
25 Revision Commission must file any proposed revision
262
1 with the Secretary of State.
2 CHAIRMAN DOUGLASS: Commissioner Barkdull.
3 COMMISSIONER BARKDULL: What this does is give
4 the next commission that meets 20 years from now, up
5 until 90 days of the general election to file with the
6 Secretary of State rather than 180 days which we are
7 under at this time.
8 CHAIRMAN DOUGLASS: All right. Does anybody want
9 to speak for or against? Which are you, you are a
10 proponent?
11 COMMISSIONER FORD-COATES: Amendment, there
12 should be an amendment on the desk.
13 CHAIRMAN DOUGLASS: Amendment on the table. I
14 know always which side you are on. There is an
15 amendment on the table, would you read the amendment,
16 please?
17 READING CLERK: There are none on the table,
18 Mr. Chairman.
19 CHAIRMAN DOUGLASS: Beg your pardon? You said
20 that you had an amendment.
21 COMMISSIONER FORD-COATES: I gave it to staff
22 yesterday. Ms. Kearney, the amendment to 152?
23 (Pause.)
24 COMMISSIONER FORD-COATES: I have a copy of it
25 here. Let me bring it up.
263
1 CHAIRMAN DOUGLASS: I think we now have a new
2 copy machine, maybe we can get these a little quicker
3 than we have been getting them. I noticed at the
4 lunch hour they had a box out there. Whether we got a
5 new machine or not, we got a new box. Where are we on
6 this, we are waiting on an amendment, Commissioner
7 Mills?
8 COMMISSIONER MILLS: Mr. Chairman, while we are
9 waiting on this, I thought I might propose a means of
10 dealing with some of these technical, noncontroversial
11 once we get this amendment taken care of. If people
12 would take a look at this, there's a process that we
13 used two years in the Legislature, which essentially
14 could expedite noncontroversial matters, and what we
15 would do, I would propose that we spend 3 minutes
16 per -- unless there is an objection after there is an
17 explanation.
18 And if there's an objection after the
19 explanation, we'll go the full 10 minutes. I just
20 wanted to let people think about that while we are
21 looking for the amendment. That would allow us to get
22 through these ten that I believe are noncontroversial.
23 If there are any comments on that I would welcome
24 them.
25 CHAIRMAN DOUGLASS: I believe we have to vote on
264
1 each one.
2 COMMISSIONER MILLS: Mr. chairman, that is what I
3 am suggesting, we vote on each one with a 3-minute
4 time limit, unless someone suggests it's
5 controversial, in which case it then falls to the
6 10-minute time limit.
7 CHAIRMAN DOUGLASS: Okay. We'll see how it
8 works. If it works, it works. If not, we are not
9 going to cut off the debate.
10 Are you ready with the amendment yet?
11 Commissioner Barkdull.
12 COMMISSIONER BARKDULL: Commissioner Ford-Coates
13 has talked to me about, I believe two amendments, one
14 which would move the time from 90 days to 120 days,
15 she thinks that the public officials need that much
16 time for advertisement, and the other one was to
17 change, I believe, in the time of appointment. I
18 didn't realize there was a third. The first one, I
19 don't have any objection to, I would accept that
20 amendment, to move it from 90 to 120.
21 CHAIRMAN DOUGLASS: That would mean that whoever
22 was doing this wouldn't have to do it when the
23 Legislature was in session, they would have 60 days
24 after the Legislature was in session to complete their
25 work?
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1 COMMISSIONER BARKDULL: Correct.
2 CHAIRMAN DOUGLASS: And one of the problems that
3 we run into at the time that they originally adopted
4 this, the Legislature met earlier?
5 COMMISSIONER BARKDULL: Yes. I would accept that
6 amendment from 90 to 120.
7 CHAIRMAN DOUGLASS: Okay. But that amendment
8 isn't on the table yet, so I don't know if it's
9 coming. Commissioner Ford-Coates, while we are
10 waiting, do you have some comments?
11 COMMISSIONER FORD-COATES: Yes, I think I could
12 explain the substance of my proposed amendment if I
13 could get the Commissioners' attention.
14 CHAIRMAN DOUGLASS: All right. Commissioners,
15 please give your attention to Commissioner
16 Ford-Coates. And before we do that, we are going to
17 read the amendment. Commissioner Morsani, I'm going
18 to get to you in a minute.
19 READING CLERK: By Commissioner Ford-Coates,
20 offers the following amendment, Page 1, Line 10, to
21 Page 2, Line 7, strike all said language and insert
22 lengthy amendment.
23 CHAIRMAN DOUGLASS: Lengthy amendment.
24 COMMISSIONER FORD-COATES: You will have it on
25 your desk in a just a second. Let me tell you what it
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1 does; it has three very simple areas. As Commissioner
2 Barkdull explains, I had some concerns that if the
3 proposals were submitted to the Secretary of State
4 within 30 days, within 90 days before the election --
5 further on in the Constitution you will see that the
6 Secretary of State must advertise in the tenth week
7 and the sixth week in every newspaper in general
8 circulation in each county.
9 I felt that by submitting that to the Secretary
10 of State the first of August it made it kind of tight
11 to do that by August 25th, approximately, and that it
12 would be more appropriate to do it in, by the first
13 part of July, which would actually even be before the
14 filing deadline for other candidates. So, that was
15 the first part of my amendment.
16 The second part deals with --
17 CHAIRMAN DOUGLASS: All right, a little order.
18 COMMISSIONER FORD-COATES: The second part deals
19 with another problem we have had in the process, which
20 was getting up and running more quickly. My amendment
21 would provide that the appointments be made in the 30
22 days before the Legislature convenes, so that people
23 who will be serving on the Constitution Revision
24 Commission will know in February that they need to
25 start clearing their calendars after the Legislature
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1 completes their session. We had a lot of people say,
2 Gee, if I had known I had public hearings in the
3 summer, I could have cleared my calendar. We could
4 have been a lot farther along in this process if
5 people knew ahead of time that they were serving on
6 this commission.
7 The third area, which I've discovered as I've
8 gone out and spoken to various groups about the
9 amendment that will be on the ballot, when they ask
10 me, How many will you have. I would say, Well, we
11 have hoped for five. I'm sure there will be no more
12 than 10, but don't forget there may be petition
13 initiatives on the ballot and there may also be
14 amendments created by the Legislature, so I'm
15 submitting an amendment that would provide that in the
16 years in which the Constitution Revision Commission
17 places amendments on the ballot, no other amendments
18 would appear on that general election ballot.
19 So what I'm trying to do is simplify the work of
20 the next commission. Can I answer any questions?
21 Have they made the copies yet?
22 CHAIRMAN DOUGLASS: You know, I don't know, did
23 the copies get distributed, staff? You mean, the new
24 machine doesn't work? Operator error. Everybody is
25 waiting. Commissioner Barkdull. I'll get to you,
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1 Commissioner Morsani if I ever get something to
2 distribute. Commissioner Barkdull.
3 COMMISSIONER BARKDULL: Well, I have no objection
4 to temporarily passing this to later on this
5 afternoon.
6 CHAIRMAN DOUGLASS: It won't be much later on
7 this afternoon.
8 COMMISSIONER BARKDULL: I wonder what the
9 sentiment of the body would be if we go through these
10 noncontroversial items before we adjourn tonight? I
11 am hearing yes around here, and I would like to so
12 move at this time.
13 CHAIRMAN DOUGLASS: We, I'll tell you what we
14 need to do, get moving and have a little order. If we
15 had this amendment we could complete this one that's
16 not noncontroversial and let's get it off of the deck,
17 and then we can proceed with the noncontroversial on
18 the basis outlined by the chairman of the Style and
19 Drafting, which was 3 minutes for each one, if
20 necessary. If its got to be controversial, we could
21 temporarily pass it and put it at the end and go 10
22 minutes. So, here we go. Do we have an amendment?
23 COMMISSIONER BARKDULL: I'll accept the
24 amendment.
25 CHAIRMAN DOUGLASS: All right. The amendment is
269
1 accepted by the sponsor, but I don't believe that is
2 the whole way to do it, you have to vote on it. All
3 in favor of the amendment. All right, we have got an
4 opponent, okay.
5 Commissioner Morsani has first crack at this
6 because he has stood there very patiently holding the
7 mike. Commissioner Morsani, you are recognized.
8 COMMISSIONER MORSANI: Thank you, Mr. Chairman.
9 The presenter said that they would take questions.
10 And I would ask, first of all, I have a lot of
11 questions about all of the amendments that you made.
12 I think extending this process is going to erode the
13 process 20 years from now. The tighter we keep this
14 process, I think the more that's going to get done.
15 We are already seeing the erosion of attendance in
16 this 20 years in 1998.
17 I think it's pretty doggone good, what we are
18 having to work with, meaning the time frame. I really
19 don't think that we should be putting in there about
20 the year 2018 when it's going to be meeting again.
21 Also, the commitments of people, if you are going to
22 extend this thing, people just can't make these
23 commitments.
24 I think you are going to lower the quality of the
25 people that are appointed to this commission. If this
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1 group, and I think, represents, there's an awful lot
2 of you, there are a lot of quality, automobile used
3 car mechanics exempt from that.
4 CHAIRMAN DOUGLASS: I'm going to rule you out of
5 order if you view yourself as a used car mechanic one
6 more time as president of the Chamber of Commerce, we
7 don't accept that.
8 COMMISSIONER MORSANI: Okay. But I'm very
9 serious, I don't think that extending this process is
10 in the best interest of this commission. I really
11 have a great deal of reservation about it. I think
12 it's worked well, but even this has been a long
13 process. And to extend this process, I just don't
14 think that you are going to get people to make that
15 commitment because I just -- they are to busy, and in
16 the year 2018, they are going to be a lot busier than
17 the 37 people on this commission today. I'm sorry,
18 but I don't know where I would start my questions,
19 honestly. I know I'm objecting to all of them, I
20 guess, if you want to know the truth.
21 COMMISSIONER FORD-COATES: Commissioner Morsani,
22 may I respond that I agree with you on the workings
23 and the process, and I think that these amendments
24 allow us both to get started earlier and maybe not
25 even use any of the time after the legislative session
271
1 meets next time, but at least we won't be faced with
2 what we are faced with now, which is having to
3 schedule one day in the middle of the session. If the
4 commission in 20 years get to February 28th and
5 decides that they need to meet a couple of more times,
6 then they can meet in May and June and finish up,
7 whether it be one day or two days.
8 It doesn't say they have to work this more, but
9 it does say that the facilities will be available. I
10 submit to you that the reason the year 2017 is in here
11 is purely procedural, because 1997 already appears in
12 the previous section, we just changed that because
13 what I'm saying is, if you had known in February of
14 last year that you were going to have to serve in the
15 summer and had looked at the calendar that the
16 steering committee prepared for you, we could have
17 already blocked out those days, we wouldn't have had
18 to meet the end of June, we could have met in the
19 middle of May, we could have gotten our work done and
20 our public hearings completed in July and been long
21 through this process before February. So, I think it
22 gives us an opportunity to get in and get the job
23 done. That was the intention.
24 CHAIRMAN DOUGLASS: I would like to make a
25 suggestion, this is getting a little bit going here.
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1 We can TP this and let's go through these
2 noncontroversial ones, and let's be sure that we get
3 them and then we'll come back to this matter because
4 this is certainly not pressing, we can take it up at
5 another time. If everybody is agreeable to that
6 without objection, we'll move to technical,
7 noncontroversial. Commissioner Barkdull.
8 COMMISSIONER BARKDULL: I move that time of
9 recess be extended until we conclude those technical
10 matters and announcements and so forth.
11 CHAIRMAN DOUGLASS: All right. It's been moved
12 that we continue through these so-called, we are going
13 to find out if they are noncontroversial amendments,
14 until we complete those. All in favor, say aye.
15 Opposed?
16 (Verbal vote taken.)
17 CHAIRMAN DOUGLASS: We'll do so, the motion
18 carries. Now, for the first one, by Commissioner
19 Langley, Style and Drafting is going to present this.
20 Read it please? You may not even have to say
21 anything. Read Proposal No. 4.
22 READING CLERK: Proposal No. 4, proposal to
23 revise Article I, Section 18, Florida Constitution,
24 clarifying the Department of Military Affairs through
25 courts-martial, to impose sentences of imprisonment
273
1 and other penalties.
2 CHAIRMAN DOUGLASS: All right. This was adopted
3 by a vote of 31 to 0. Commissioner Langley.
4 COMMISSIONER LANGLEY: One of the courts in its
5 dicta, the opinion didn't center directly on this
6 issue, but indicated that the Department of Military
7 Affairs would be an agency, and as an agency under the
8 current Constitution, it's not allowed to impose a
9 sentence of imprisonment. This makes it clear that
10 the Department and the dually-confirmed court-martial
11 could do that.
12 CHAIRMAN DOUGLASS: Does everyone recall and
13 remember this one? If so, open the machine and we'll
14 vote.
15 (Vote taken and recorded electronically.)
16 CHAIRMAN DOUGLASS: Lock the machine and announce
17 the vote.
18 READING CLERK: Unanimous vote, Mr. Chairman.
19 CHAIRMAN DOUGLASS: It lost four votes, five
20 votes. It was 31 to nothing last time, and it's 26 to
21 nothing this time. All right. Proposal No. 8 by
22 Commissioner Barkdull.
23 COMMISSIONER BARKDULL: This is one that just
24 gives the governor a little more time to examine
25 matters for veto purposes after the conclusion of
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1 session.
2 CHAIRMAN DOUGLASS: All right. Commissioner
3 Mills.
4 COMMISSIONER MILLS: Mr. Chairman, it is a Style
5 of Drafting Amendment on Page 1, Line 18, strike --
6 CHAIRMAN DOUGLASS: Is that on the table? It's
7 in the package. All right, it's Amendment No. 1 in
8 the package to Proposal No. 8, and it's now being
9 explained by the chairman of Style and Drafting, the
10 amendment.
11 COMMISSIONER MILLS: This simply conforms the
12 seven-day periods to one another, to put it right back
13 to what it was originally intended, which I believe
14 Commissioner Barkdull would agree with.
15 CHAIRMAN DOUGLASS: All right. Does everybody
16 understand the amendment? All in favor of the
17 amendment, say aye. Opposed?
18 (Verbal vote taken.)
19 CHAIRMAN DOUGLASS: The amendment carries. Now
20 we are on the Amended Proposal No. 8 by Commissioner
21 Barkdull which we have read, and does anybody want to
22 speak on it? If not, open the machine and we will
23 vote.
24 (Vote taken and recorded electronically.)
25 CHAIRMAN DOUGLASS: Well, everybody is changing
275
1 votes here on us. Has everybody voted and changed
2 their vote to where they want to be? All right, lock
3 the machine and announce the vote.
4 READING CLERK: Twenty-one yeas, nine nays,
5 Mr. Chairman.
6 CHAIRMAN DOUGLASS: All right. Before we go
7 ahead, Proposal No. 4, the vote, instead of unanimous,
8 was 26 to zero. I think I announced that, but they
9 didn't get it in the journal. Okay.
10 Proposal 25 by Commissioner Langley, who is going
11 to be a Colonel in the National Guard when we finish
12 this. Colonel Langley, we have just promoted you in
13 the National Guard, it's Proposal 25.
14 COMMISSIONER LANGLEY: It's just another
15 conforming amendment to allow for the court-martial
16 trials.
17 CHAIRMAN DOUGLASS: Commissioner Connor.
18 COMMISSIONER CONNOR: I would like to ask a
19 question.
20 CHAIRMAN DOUGLASS: Okay.
21 COMMISSIONER CONNOR: Commissioner Langley, if we
22 pass all -- if we pass this technical,
23 noncontroversial amendment along with all 11 of them,
24 does this go forward then with a special status?
25 COMMISSIONER LANGLEY: Under the rules that we
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1 adopted today, it'll just go to the public hearing.
2 When it comes back, if five people want a revote on
3 it, then it's revoted. Otherwise, it'll carry with
4 the 22 votes or more.
5 COMMISSIONER CONNOR: In your view, is there an
6 inverse relationship between the number of proposals
7 that appear on the ballot and the likelihood of their
8 passage?
9 COMMISSIONER LANGLEY: Well, Commissioner Connor,
10 it is the intent, I understand, of Style and Drafting,
11 to have a catch-all, where the noncontroversial,
12 technicals will be in one big amendment, unlike the
13 legislative proposals and initiatives, we can mix
14 subjects, and they plan to have a catch-all to put all
15 of these nontechnical -- these are truly housekeeping.
16 COMMISSIONER CONNOR: Okay, thank you.
17 CHAIRMAN DOUGLASS: We are on Proposal No. 25 by
18 Commissioner Langley. Unlock the machine and we'll
19 vote.
20 (Vote taken and recorded electronically.)
21 CHAIRMAN DOUGLASS: Lock the machine and announce
22 the vote.
23 READING CLERK: Twenty-eight yeas, one nay,
24 Mr. Chairman.
25 CHAIRMAN DOUGLASS: Commissioner Rundle, you have
277
1 a dishonorable discharge. Commissioner Smith.
2 COMMISSIONER SMITH: Mr. Chairman, this is a
3 question I'm asking today, not for the purpose of
4 getting an answer, but for consideration as we move to
5 March 17th. One of the proposals which is listed as
6 technical and noncontroversial, and it may happen
7 again, did not receive 22 votes.
8 CHAIRMAN DOUGLASS: That will have to be voted on
9 again.
10 COMMISSIONER SMITH: I understand. My question
11 is, by definition, is it noncontroversial if it can't
12 even get 22 votes in here? It's not to be addressed
13 now, but we need to address that.
14 CHAIRMAN DOUGLASS: I'll address it this way, a
15 lot of people have skiddoodled and we don't have the
16 same number of people in here. But nevertheless, if
17 it doesn't get 22 votes, whether it's controversial or
18 not, won't make any difference.
19 So, we are moving to Proposal No. 32 by
20 Commissioner Ford-Coates. Commissioner Rundle.
21 COMMISSIONER RUNDLE: If I could please have your
22 apologies, I would like to change my vote on the last
23 one. I was getting a little sloppy while reading
24 something else.
25 CHAIRMAN DOUGLASS: We'll take judicial notice of
278
1 the fact that you were getting a little sloppy there,
2 reading something else.
3 COMMISSIONER RUNDLE: Well, as long as I get the
4 other half, my vote changed.
5 CHAIRMAN DOUGLASS: Okay. Your vote will be
6 recorded as yea instead of nay.
7 COMMISSIONER RUNDLE: Thank you.
8 CHAIRMAN DOUGLASS: Therefore, the recorded vote
9 should be recorded accordingly. She just had her
10 first chance to vote for something of yours, that's
11 why she had to do it. Commissioner Mills, let's move
12 onto Proposal No. 32.
13 COMMISSIONER MILLS: Yes, Mr. Chairman, you might
14 want to read it.
15 CHAIRMAN DOUGLASS: Has it got an amendment?
16 COMMISSIONER MILLS: Technical amendment.
17 CHAIRMAN DOUGLASS: To 32?
18 COMMISSIONER MILLS: Yes.
19 READING CLERK: Proposal No. 32, a proposal to
20 revise Article IX, Section 2, Florida Constitution;
21 reducing the voting age to 18.
22 CHAIRMAN DOUGLASS: All right. An amendment by
23 the committee -- by Commissioner Mills for the
24 Committee on Style and Drafting.
25 COMMISSIONER MILLS: It inserts the words, "The
279
1 county where registered," which is a grammatical
2 change.
3 CHAIRMAN DOUGLASS: All right. Does everybody --
4 COMMISSIONER MILLS: As required by law, shall be
5 an elector of that county where registered.
6 CHAIRMAN DOUGLASS: Okay. So, does everybody
7 understand the amendment? All in favor of the
8 amendment, say aye. Opposed?
9 (Verbal vote taken.)
10 CHAIRMAN DOUGLASS: The amendment carries. Now,
11 we'll proceed to the proposal, as amended, which
12 changes the voting age constitutionally from 21 to 18,
13 which it is. Open the machine and cast the vote.
14 (Vote taken and recorded electronically.)
15 CHAIRMAN DOUGLASS: Lock the machine and announce
16 the vote.
17 READING CLERK: Thirty-one yeas, zero nays,
18 Mr. Chairman.
19 CHAIRMAN DOUGLASS: All right. We'll now go to
20 Proposal No. 35 by Commissioner Freidin. Read the
21 amendment.
22 READING CLERK: Proposal No. 35, a proposal to
23 revise Article II, Section VIII, Florida Constitution;
24 relating to ethics in government, including in that
25 section the requirements set out in Article III,
280
1 Section 18, Florida Constitution; which requires
2 creation of a Code of Ethics, repealing Article III,
3 Section 18, Florida Constitution, as a distinct
4 section.
5 CHAIRMAN DOUGLASS: Commissioner Mills, on behalf
6 of the committee, do you have a comment?
7 COMMISSIONER MILLS: Commissioner Freidin will
8 explain it. This simply transfers the language from
9 one section to another.
10 CHAIRMAN DOUGLASS: Commissioner Freidin, you are
11 recognized.
12 COMMISSIONER FREIDEN: That's all it does.
13 CHAIRMAN DOUGLASS: Okay. I think we recall this
14 when we passed it, it just changed from one section to
15 another, no substantive change in the Constitution.
16 COMMISSIONER FREIDEN: There's no substantive
17 change, it takes a conflict of interest section out of
18 Article III and puts it in with the rest of the Code
19 of Ethics, the Ethics in Government section of Article
20 II, there's no substantive change whatsoever.
21 CHAIRMAN DOUGLASS: Style and Drafting reviewed
22 it and agrees with that; is that correct?
23 COMMISSIONER MILLS: Yes.
24 CHAIRMAN DOUGLASS: All right. Unlock the
25 machine and -- what is the technical problem?
281
1 (Inaudible discussion.)
2 CHAIRMAN DOUGLASS: Okay. Unlock the machine and
3 let's vote.
4 (Vote taken and recorded electronically.)
5 CHAIRMAN DOUGLASS: Lock the machine and announce
6 the vote.
7 READING CLERK: Thirty-two yeas, zero nays,
8 Mr. Chairman.
9 CHAIRMAN DOUGLASS: All right. By your vote you
10 have adopted Proposal 35. We move now, but slowly, to
11 Proposal 37 by Commissioner Freidin. As I understand,
12 we have got a little technical problem with the voting
13 here that they are straightening out, but at this
14 point we are going to proceed with Proposal 37. Would
15 you read it please?
16 READING CLERK: Proposal 37, a proposal to revise
17 the Florida Constitution by adopting language that's
18 not gender specific.
19 CHAIRMAN DOUGLASS: Commissioner Mills.
20 COMMISSIONER MILLS: Mr. Chairman, this is the
21 non-gender specific language, which I think we
22 determined at 26 places it makes it non-gender
23 specific. Is that right, 26? Yeah, I think so.
24 CHAIRMAN DOUGLASS: I have a question. Could I
25 have a question? Do we have to put anything on the
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1 ballot other than that, Commissioner Barkdull?
2 COMMISSIONER BARKDULL: I would like an answer to
3 that from Style and Drafting or the proposer because
4 this affects --
5 CHAIRMAN DOUGLASS: Well, you certainly don't
6 want the whole Constitution in the newspaper.
7 COMMISSIONER BARKDULL: That's my question.
8 CHAIRMAN DOUGLASS: That's my understanding, and
9 the reason I asked that, we don't have to do it on the
10 ballot language, on the ballot language we can
11 describe it just a little bit. But we have to publish
12 this revision in the Press at a considerable expense
13 all over the state, in a whole bunch of newspapers,
14 and if we adopt this it's going to require publication
15 of almost the entire Constitution. I've been advised
16 that by several experts on the subject.
17 Now, I think before we go doing that, we probably
18 ought to have a very definite answer on that.
19 COMMISSIONER BARKDULL: What does the Chairman --
20 COMMISSIONER MILLS: Do you want to drop it to
21 the back of noncontroversial for a moment until you
22 answer that question?
23 CHAIRMAN DOUGLASS: Yes. What do you want to do,
24 move on?
25 COMMISSIONER MILLS: Just move on to the rest of
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1 noncontroversial and when we come back to it if we can
2 get an answer to that question in the next 10 minutes.
3 CHAIRMAN DOUGLASS: All right. We will, without
4 objection, we'll pass by this one and return to it
5 later. Proposal 34 is next by Commissioner Langley.
6 Commissioner Langley, sir. Read it, please.
7 COMMISSIONER LANGLEY: General to you, please.
8 CHAIRMAN DOUGLASS: One more time and we are
9 going to make you Secretary of Defense. Read it
10 please.
11 COMMISSIONER LANGLEY: This is the third leg of
12 the three-legged stool to correct the court-martialing
13 deal. In the interest of keeping military justice
14 decisions uniform, the Supreme Court, appellate courts
15 can get an advisory opinion from the military court
16 justice.
17 CHAIRMAN DOUGLASS: All right. Does everybody
18 understand, this is another one of General Langley's
19 proposals to straighten out matters with the
20 court-martials. If you are ready to vote, unlock the
21 machine and we are ready to vote.
22 (Vote taken and recorded electronically.
23 CHAIRMAN DOUGLASS: Lock the machine and announce
24 the vote.
25 READING CLERK: Thirty yeas, zero nays,
284
1 Mr. Chairman.
2 CHAIRMAN DOUGLASS: All right. Now, we go to
3 Committee Substitutes for Proposals 112 and 124 by the
4 Committee on Finance and Taxation by Commissioner
5 Mills and Ford-Coates. Please read it.
6 READING CLERK: Committee Substitute for Proposal
7 Nos. 112 and 124, a proposal to revise Article VII,
8 Section 3, Florida Constitution, providing for an
9 exemption from ad valorem taxation for certain
10 tangible, personal property.
11 CHAIRMAN DOUGLASS: Now, this -- there's an
12 amendment on the table by Commissioner Ford-Coates on
13 behalf of the committee. Read the amendment.
14 READING CLERK: By Commissioner Ford-Coates,
15 offers the following amendment: On Page 3, Line 8 to
16 18, strike all of said lines and insert, "In addition
17 to any other exemption granted to tangible personal
18 property, a county may exempt all appurtenances and
19 attachments to mobile home dwellings that are
20 classified as tangible personal property and all
21 appliances, furniture and fixtures classified as
22 tangible personal property, which are included in
23 single-family and multi-family residential rental
24 facilities that have ten or fewer individual housing
25 units, as provided by general law. The general law
285
1 shall require the adoption of the exemption on a
2 county-option basis and may specify conditions for its
3 application.
4 CHAIRMAN DOUGLASS: The Chair has a question to
5 the Committee. How did this get to be
6 noncontroversial?
7 COMMISSIONER FORD-COATES: Well, it passed 26 to
8 nothing which seemed to make it fairly
9 noncontroversial in the Committee's eyes. All it does
10 is allow the county the option of exemption of
11 attachments to mobile homes and rental furnishings,
12 which testimony in committee showed were generating
13 less money than it was costing to collect those items.
14 And since it -- the amendment itself is just a redraft
15 making more sense of the original proposal, it does
16 not change the substance of the proposal whatsoever.
17 CHAIRMAN DOUGLASS: All right. We have heard,
18 you have told us I guess what it is. I'm not sure I
19 understand it.
20 COMMISSIONER FORD-COATES: Would you like me to
21 do that again?
22 CHAIRMAN DOUGLASS: I think it would help
23 probably. There may be one or two others besides me
24 that don't understand it.
25 COMMISSIONER FORD-COATES: Property is taxed, ad
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1 valorem property is taxed in Florida, tangible
2 personal property consists of three things, business,
3 taxes on business equipment and furnishings, taxes on
4 rental properties. In other words, if you own a
5 condominium and rent it out. And attachments to
6 mobile homes, which means carports and screen rooms.
7 The average amount for those are somewhere between $20
8 and $40, depending on which county you look at, the
9 estimate for the cost of collection runs greater than
10 that $20 to $40, so what we are doing is taxing for
11 the sake of taxing and not raising revenue. We are
12 actually costing the counties money.
13 So, this would give the county commissions the
14 option, as provided by general law, of deciding
15 whether or not to exempt those properties; and
16 therefore, not send out tax bills to people just for
17 the sake of sending out a tax bill. It is a tax
18 relief proposal. That is why we felt that it was
19 noncontroversial.
20 CHAIRMAN DOUGLASS: Well, if it is a tax relief
21 proposal, it still requires something other than the
22 Constitution to provide the relief, does it not?
23 COMMISSIONER FORD-COATES: Correct, it requires
24 the county to make that decision.
25 CHAIRMAN DOUGLASS: It might be a relief in one
287
1 county and not in another?
2 COMMISSIONER FORD-COATES: That's correct. Some
3 counties don't have tangible tax, so they are not
4 really worried about it.
5 CHAIRMAN DOUGLASS: Everybody understand that
6 now? And the amendment, which she just explained,
7 which will become the proposal.
8 COMMISSIONER FORD-COATES: They are both the
9 same, it's just semantics.
10 CHAIRMAN DOUGLASS: Right. Let's vote on the
11 amendment. All in favor of the amendment say aye.
12 Opposed, no?
13 (Verbal vote taken.)
14 CHAIRMAN DOUGLASS: It carries. Now, on the
15 proposal, we are going to vote on the proposal.
16 Commissioner Riley on the proposal.
17 COMMISSIONER RILEY: Question, please.
18 CHAIRMAN DOUGLASS: Question to whom?
19 COMMISSIONER RILEY: To the maker of the
20 proposal, or perhaps Style and Drafting. I see this
21 perhaps as noncontroversial but not technical. So,
22 when you are talking about, as it goes in the
23 Constitution, would it go in a section or would it go
24 under -- I mean, when it goes on the ballot?
25 CHAIRMAN DOUGLASS: Commissioner Mills.
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1 COMMISSIONER MILLS: Mr. Chairman, the ultimate
2 grouping of this is all in your judgment. It is, one
3 of our proposals will likely include a
4 noncontroversial, technical section. Some of these
5 are truly technical, some could be considered
6 noncontroversial, but that's up to you. I mean, we'll
7 end up grouping a section that will do that with the
8 hope that, I think, as Commissioner Connor was
9 alluding to, that we reduce the number by having these
10 truly noncontroversial ones in one section that we
11 could expect to be passed. But the point is, it is
12 going to end up in whatever section it amends.
13 CHAIRMAN DOUGLASS: Let me remind you, though,
14 that we are not voting today on grouping, or what's
15 going to be in anything, we are only voting on these
16 individually. And I know he's calling them technical
17 and noncontroversial, they may get that way before we
18 are finished. We are ready to vote on this proposal.
19 Open the machine and let's vote on the proposal.
20 (Vote taken and recorded electronically.)
21 CHAIRMAN DOUGLASS: Lock the machine and announce
22 the vote.
23 READING CLERK: Twenty-eight yeas, one nay,
24 Mr. President -- Mr. Chairman.
25 CHAIRMAN DOUGLASS: By your vote you have passed
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1 Committee Substitute for the Proposals 112 and 124.
2 Now, Committee Substitute for Proposal 133 by the
3 Committee on Finance and Taxation and Commissioner
4 Scott. Commissioner Scott, you are recognized to
5 explain this. Wait a minute, let's read this. Excuse
6 me, I am in too big of a hurry.
7 COMMISSIONER SCOTT: This is the 72-hour budget
8 straightening out the part --
9 CHAIRMAN DOUGLASS: Read it.
10 READING CLERK: Committee Substitute for Proposal
11 133, a proposal to revise Article III, Section 19(d),
12 Florida Constitution, providing guidelines for the
13 public review period for general appropriation acts.
14 CHAIRMAN DOUGLASS: Commissioner Scott, tell us
15 quickly.
16 COMMISSIONER SCOTT: This is the 72-hours,
17 straightens out the language in the Constitution that
18 was put in there a few years ago that says that you
19 have to wait 72 hours. Only when the bill, the
20 appropriations bill is in the form that it's ready to
21 go to the Governor, which means the conference report
22 doesn't -- but it could be a bill that just both
23 houses are passing the same version.
24 CHAIRMAN DOUGLASS: In my recollection, this was
25 your effort to reform it so that instead of having an
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1 unknown conference bill passed, you could have 72
2 hours to study it before both houses voted on it?
3 COMMISSIONER SCOTT: Right, on the final product.
4 CHAIRMAN DOUGLASS: On the final product.
5 COMMISSIONER SCOTT: You don't have to do it when
6 the House bill passed the House and the House bill
7 passed the Senate and so forth like that.
8 CHAIRMAN DOUGLASS: So, you are all going to be
9 looking at the same thing and have 72 hours?
10 COMMISSIONER SCOTT: Right.
11 CHAIRMAN DOUGLASS: All right. Everybody
12 understand the proposal? Open the machine and let's
13 vote.
14 (Vote taken and recorded electronically.)
15 CHAIRMAN DOUGLASS: Lock the machine and record
16 the vote.
17 READING CLERK: Thirty-one yeas, zero nays,
18 Mr. Chairman.
19 CHAIRMAN DOUGLASS: We now go to Proposal No. 153
20 by Commissioner Barkdull. Read the proposal please.
21 READING CLERK: Proposal 153, a proposal to
22 revise Article V, Section 12, Florida Constitution,
23 providing for membership of a judicial qualifications
24 commission.
25 CHAIRMAN DOUGLASS: Commissioner Barkdull.
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1 COMMISSIONER BARKDULL: This is a glitch proposal
2 to cure a schedule that dropped out one of the members
3 of the judicial qualifications commission after the
4 '96 amendment increased the size. It makes the
5 schedule conform to the body of the Constitution.
6 CHAIRMAN DOUGLASS: All right. Everybody ready
7 to vote? Open the machine and we'll vote.
8 (Vote taken and recorded electronically.)
9 CHAIRMAN DOUGLASS: Lock the machine and record
10 the vote.
11 READING CLERK: Thirty-one yeas, zero nays,
12 Mr. Chairman.
13 CHAIRMAN DOUGLASS: Next proposal is No. 179 by
14 Commissioner Thompson. Would you read it, please?
15 READING CLERK: Proposal No. 179, a proposal to
16 revise Article III, Sections 8, 19, Florida
17 Constitution, providing guidelines for legislative
18 consideration of veto messages; revising calculation
19 of the 72-hour public review period for general
20 appropriation bills.
21 CHAIRMAN DOUGLASS: There is an amendment on the
22 table. Would you read the amendment, please, by the
23 Committee?
24 READING CLERK: By the Committee on Style and
25 Drafting, the following amendment: On Page 4, Lines
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1 11-20, strike all of said lines and insert:
2 Seventy-two Hour Public Review Period. All general
3 appropriation bills shall be furnished to each member
4 of the legislature, each member of the cabinet, the
5 Governor and the Chief Justice of the Supreme Court at
6 least 72 hours before final passage.
7 CHAIRMAN DOUGLASS: Commissioner Scott.
8 COMMISSIONER SCOTT: The new language, what this
9 does is make this conform to 133, which we just
10 discussed a few minutes ago, that is the current
11 thinking of lawyers and whatever that that is the
12 better version. It does the exact same thing, so this
13 would be an amendment. But I think we should, since
14 Commissioner Thompson isn't here, we ought to go ahead
15 and amend this and pass this one also. I move the
16 amendment.
17 CHAIRMAN DOUGLASS: All right. All in favor of
18 the amendment, say aye. Opposed?
19 (Verbal vote taken.)
20 CHAIRMAN DOUGLASS: The amendment is adopted.
21 We'll now vote on the proposal as amended. Open the
22 machine.
23 (Vote taken and recorded electronically.)
24 CHAIRMAN DOUGLASS: Okay. Yes, Commissioner
25 Scott.
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1 COMMISSIONER SCOTT: Before you call this vote, I
2 did not realize that this has in it also the issue --
3 the issue of straightening out the question of when
4 you take up vetoes of Commissioner Jennings. So
5 there's two issues in here. The amendment just
6 changes the part, and staff, correct me if I'm wrong,
7 the amendment just changes the part relating to the 72
8 hours for the budget.
9 CHAIRMAN DOUGLASS: Right. Well, the original
10 proposal, regardless of what's in it, is just the same
11 with this amendment, it just clarified the one portion
12 of it, right?
13 COMMISSIONER SCOTT: That's right.
14 CHAIRMAN DOUGLASS: It passed 28 to nothing the
15 first time, and it has passed 30 to nothing this time.
16 COMMISSIONER SCOTT: Right. The rest of it
17 straightens out this problem about when you take up
18 veto messages.
19 CHAIRMAN DOUGLASS: You are coming right along,
20 you have picked up two votes. It is 30 to nothing.
21 Announce the vote and we'll move on.
22 (Vote taken and recorded electronically.)
23 READING CLERK: Thirty-two yeas, zero nays,
24 Mr. Chairman.
25 CHAIRMAN DOUGLASS: Okay. We picked up two more
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1 votes while we left it open. Okay. Point of order.
2 We voted on both, we voted on the amendment with a
3 voice vote and then we voted on this.
4 The next proposal. We are moving into another
5 section, but I'm perfectly willing to do this, at
6 least two of them and then come back to the other
7 gender one. Yes, Commissioner Mills.
8 COMMISSIONER MILLS: As I understood the motion
9 of the Rules Chairman, it was to extend to the
10 completion of this; is that correct?
11 CHAIRMAN DOUGLASS: Okay. Can we go back then
12 and pick up the gender one, or are we going to wait
13 and do that at another time?
14 COMMISSIONER BARKDULL: We can go back and pick
15 it up, and go back and pick up the one on the 180
16 days, to the 90 days or 120, or I'm prepared to make a
17 motion to extend the time of adjournment until we go
18 through the three year on local government.
19 CHAIRMAN DOUGLASS: I think we probably -- make
20 your motion.
21 COMMISSIONER BARKDULL: Well, I'm not going to
22 make it, I'm going to leave it to -- too many nos.
23 CHAIRMAN DOUGLASS: All right. But we can go
24 back --
25 COMMISSIONER BARKDULL: We can go back and pick
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1 up the two that we temporarily passed.
2 CHAIRMAN DOUGLASS: All right. Let's go back to
3 the one on gender, if you are ready, because I
4 understand it's clear. Give me your attention just a
5 minute on this. On this gender matter, we have
6 checked it. The Constitution requires that every
7 proposal we have in detail or like this one has to be
8 published in every county in the state, twice. And
9 this would require publishing, essentially, the entire
10 Constitution. I'm wondering if the issue is worthy of
11 that much or not. That's the only reason I raise
12 that, because that's the way it is.
13 (Off-the-record discussion.)
14 CHAIRMAN DOUGLASS: All right. I suggest we pass
15 this, get a correct answer to that question, because I
16 have a split in the staff. One group says, the female
17 member says that we ought to do it anyway, because
18 it's not what I said, and the male members have
19 already advised me that it's what I said. Therefore,
20 we will appoint a committee of somebody that's
21 completely neutral, if he or she will raise their
22 hand.
23 Commissioner Langley, there's no way that you
24 have ever been neutral. We are going to pass this,
25 though, and we are going to study this and make an
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1 informed decision at a time when we are a little bit
2 more in order. And what we are going to do, if
3 everybody is ready, we will adjourn.
4 But I need a motion because we do have something
5 pending. Somebody give me a motion.
6 (Inaudible motion made.)
7 CHAIRMAN DOUGLASS: Subject to announcements,
8 there's been a motion that we adjourn until
9 9:00 o'clock tomorrow morning. Are there
10 announcements? Just a minute. Commissioner Barkdull.
11 Your attention, please, announcements.
12 COMMISSIONER BARKDULL: I want to remind you
13 again, there's mail in the offices of CRC over in the
14 Historic Capitol for each of us. Also, there will be
15 no Rules Committee meeting this evening in light of a
16 request that's been withdrawn. And other than that, I
17 don't have any other announcements.
18 CHAIRMAN DOUGLASS: I would like to announce that
19 Commissioner Langley has four catalogs on tennis
20 material over at the CRC if anybody is interested.
21 Commissioner Mills.
22 COMMISSIONER MILLS: Mr. Chairman, the Style and
23 Drafting Committee will meet briefly in room, is it
24 313 -- 317?
25 CHAIRMAN DOUGLASS: Style and Drafting is meeting
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1 upon adjournment in Room 317.
2 All right. If there's no further announcement,
3 we'll stand in recess until tomorrow morning at
4 9:00 o'clock. See you then, it was a good day, we got
5 a lot done.
6 (Proceedings adjourned, to be continued at 9:00
7 a.m. on February 25, 1998.)
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1 CERTIFICATE
2
STATE OF FLORIDA:
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COUNTY OF LEON:
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We, MONA L. WHIDDON, JULIE L. DOHERTY, and
5 KRISTEN L. BENTLEY, Court Reporters, certify that I was
authorized to and did stenographically report the foregoing
6 proceedings and that the transcript is a true and complete
record of my stenographic notes.
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DATED this ______ day of ____________, 1998.
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MONA L. WHIDDON
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13 JULIE L. DOHERTY
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15 ___________________________________
KRISTEN L. BENTLEY
16 Court Reporters
Division of Administrative Hearings
17 1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
18 (850) 488-9675 Suncom 278-9675
Fax Filing (850) 921-6847
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