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1 STATE OF FLORIDA
CONSTITUTION REVISION COMMISSION
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COMMISSION MEETING
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8 VOLUME 1 OF 2
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10 DATE: March 17, 1998
11 TIME: Commenced at 9:00 a.m.
Concluded at 12:05 p.m.
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PLACE: The Senate Chamber
13 The Capitol
Tallahassee, Florida
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REPORTED BY: JULIE L. DOHERTY, RPR
15 MONA L. WHIDDON
Court Reporters
16 Division of Administrative Hearings
The DeSoto Building
17 1230 Apalachee Parkway
Tallahassee, Florida
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1 APPEARANCES
2 W. DEXTER DOUGLASS, CHAIRMAN
3 CARLOS ALFONSO
CLARENCE E. ANTHONY
4 ANTONIO L. ARGIZ
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 (ABSENT A.M. SESSION ONLY)
VALERIE EVANS
9 MARILYN EVANS-JONES
BARBARA WILLIAMS FORD-COATES
10 ELLEN CATSMAN FREIDIN
PAUL HAWKES
11 WILLIAM CLAY HENDERSON
THE HONORABLE TONI JENNINGS
12 THE HONORABLE GERALD KOGAN
DICK LANGLEY
13 JOHN F. LOWNDES
STANLEY MARSHALL
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
20 JUDGE GERALD T. WETHERINGTON
STEPHEN NEAL ZACK
21
IRA H. LEESFIELD
22 LYRA BLIZZARD LOGAN
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1 PROCEEDINGS
2 SECRETARY BLANTON: All unauthorized visitors, please
3 leave the chamber. All commissioners, indicate your
4 presence, all commissioners, indicate your presence.
5 (Pause.)
6 SECRETARY BLANTON: All unauthorized visitors, please
7 leave the chamber. All commissioners, indicate your
8 presence, all commissioners, indicate your presence.
9 (Quorum taken and recorded electronically.)
10 CHAIRMAN DOUGLASS: We have got one that says he is
11 not here. Commissioner Sundberg, you are reflected as
12 being absent by your own vote here. Is everybody signed
13 up yet? We are ready to get going, we have got a long
14 day.
15 All right. If you will come to order, please.
16 Everybody take your seats, please, for the opening prayer.
17 If everybody would please rise for the opening
18 prayer, Commissioners. Commissioners, at this time I
19 would like to call on the Reverend James H. Monroe of
20 Tallahassee who is going to offer the opening prayer this
21 morning. Reverend Monroe.
22 REVEREND MONROE: What a sobering, thrilling task you
23 have. You are privileged. Let us pray. Eternal God,
24 whose awesome acts of creation were to bring order out of
25 chaos, light into darkness, and to separate the discrete
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1 elements one from the other, who made all things in an
2 orderly progression, pronouncing each part to be good, who
3 culminated all by creating humanity with features similar
4 to yourself and finally pronounced the whole of your
5 creation as very good, and who gave this God-like creature
6 a charge to act in a God-like way by managing and caring
7 for your work, bless these your servants who have come
8 here today to do God-like things, to bring renewed order
9 into what always tends towards chaos, to inject fresh
10 light into what is always fading, and to separate out
11 distinct and discrete parts of human interaction which are
12 always tending to merge and intermingle and confuse.
13 Do not let your servants be diverted from the central
14 task by peripheral concerns. Give them boldness to
15 entertain lofty visions and courage to acknowledge noble
16 dreams. Grant that their fruit, the fruit of their work
17 today may be good, and at the conclusion of their work the
18 people recognize it is very good. For those of us who
19 live today and for those who shall live tomorrow, amen.
20 CHAIRMAN DOUGLASS: Amen. The pledge of allegiance
21 will led by Susan Evans, the daughter of Commissioner
22 Valerie Evans, along with Sara Tanner and Rachel Tanner
23 fellow home schoolers from Orlando. Where are my pledge
24 people this morning? You can stand there, if you like,
25 ladies.
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1 (Pledge of allegiance.)
2 CHAIRMAN DOUGLASS: I'd like to also introduce our
3 two pages, two of our pages for today. They are Stephanie
4 and Elizabeth Provow. They are nieces of Billy Buzzett,
5 our executive director, from Grayton Beach. And if you
6 can't tell them apart, there is a good reason. They are
7 identical twins. Where are you? They are right over
8 here, and we are glad to have them. You just call for
9 them and you are going to think you got the same one.
10 Commissioner Evans, you wanted to be recognized for
11 an introduction. Commissioner Evans is recognized.
12 COMMISSIONER EVANS: I would like to recognize Sara
13 and Rachel's mom, Angela Tanner, who is here with the
14 video camera. We home school together and we have been
15 studying Florida history this year. So this is a Florida
16 history field trip for them. And then the home school dad
17 of Susan Evans is in the back, Bob Evans.
18 (Applause.)
19 CHAIRMAN DOUGLASS: I thought he was a home school
20 mom you told me. Judge, we are glad to have you with us
21 and, ladies, likewise. Are there any other introductions
22 anybody has at this time?
23 Those of you that haven't designated your presence, a
24 couple just came in, please let the Secretary know you are
25 here. We will now proceed. Commissioner Barkdull, if you
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1 can get a little order, I'm going to ask you to present
2 the Rules Committee report. Ladies and gentlemen,
3 Commissioners, if you would, please take your seats and we
4 will get started. We have got a long day ahead, I know
5 you know that. So as soon as we get this over with, we
6 will start moving.
7 Commissioner Barkdull, you are recognized.
8 COMMISSIONER BARKDULL: Thank you, Mr. Chairman,
9 Members of the Commission. You have on your desk the
10 regular calendar which we will generally follow. There is
11 one item that is out of place that is under education and
12 really belongs under the executive branch. When we get to
13 the appropriate place on the calendar, I will move that we
14 temporarily pass it until we get to the executive section.
15 The book that we will be working out of today is the
16 white packet, not a colored sheet, the white packet. And
17 the reason for this is we want to work off of this because
18 it is Style and Drafting's material and it has the proper
19 lines if you want to offer amendments. The other packets
20 that you have are not in sync with this packet. So you
21 need to work off of this one, particularly in proposing
22 any amendments, because you need to have the proper line.
23 If you do not have it on your desk, raise your hand and
24 they will get it to you.
25 CHAIRMAN DOUGLASS: There are a couple that don't
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1 have it.
2 COMMISSIONER BARKDULL: Well they will get them to
3 them before we get to the calender.
4 CHAIRMAN DOUGLASS: This is the right one right here.
5 COMMISSIONER BARKDULL: Yes, sir.
6 CHAIRMAN DOUGLASS: This packet, this white packet.
7 That's the one that we will be working off of today. Any
8 questions about that? Anybody that doesn't have it, raise
9 your hand.
10 COMMISSIONER BARKDULL: They are coming around with
11 them, just keep your hands up.
12 CHAIRMAN DOUGLASS: Just keep your hands up and she
13 will get them to you.
14 COMMISSIONER BARKDULL: That's the right one.
15 CHAIRMAN DOUGLASS: All right. Commissioner
16 Barkdull, you may proceed.
17 COMMISSIONER BARKDULL: All right. You also have on
18 your desk a memorandum in reference to the procedure that
19 will be followed today with the five hands and the, for
20 reconsideration. Any amendments that will offered to a
21 matter that is brought up by five hands will be subject to
22 a majority vote. This follows the procedure that we
23 established at the last meeting as to what we would do
24 after the public hearings.
25 I would like to suggest, Mr. Chairman, that we have a
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1 time limit on debate on the issues today. And to put it
2 before the body I would move you, sir, that we have ten
3 minutes, pro and con, and two minutes for the mover of the
4 proposal to close on the items as we reach them.
5 CHAIRMAN DOUGLASS: All right. All those in favor
6 say aye; opposed?
7 (Verbal vote taken.)
8 CHAIRMAN DOUGLASS: It carries. We will have a time
9 limit of ten minutes per proposal with two minutes to
10 close by the proponent. We will try to get a timekeeper
11 so we can kind of keep up with it because we have a lot of
12 bookwork to do today. Commissioner Barkdull, proceed.
13 COMMISSIONER BARKDULL: I would like to know if there
14 is any committee chairman, particularly committee Chairman
15 Mills, if he has any announcements to make at this time.
16 CHAIRMAN DOUGLASS: Style and Drafting Chairman
17 Mills, you are recognized.
18 COMMISSIONER MILLS: Mr. Chairman, the Style and
19 Drafting Committee will meet tomorrow morning at
20 9:00 o'clock, room to be announced.
21 CHAIRMAN DOUGLASS: You will be preparing for our
22 next meeting on the groupings; is that correct? And any
23 other matters you might have to take up. Proceed,
24 Commissioner Barkdull.
25 COMMISSIONER BARKDULL: I would like to know if there
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1 are any other matters by any member of the commission they
2 want to take up before we start to vote.
3 CHAIRMAN DOUGLASS: Anybody? Okay. Commissioner
4 Barkdull, go ahead.
5 COMMISSIONER BARKDULL: Seeing none, Mr. Chairman,
6 I'd like to have a point of personal privilege, the
7 opportunity to address --
8 CHAIRMAN DOUGLASS: First of all, without objection
9 the report and recommendations of the Rules Committee are
10 accepted. And now you may proceed. Do you have something
11 else?
12 COMMISSIONER BARKDULL: Yes, sir. On a point of
13 personal privilege, I'd like to address the body from the
14 well.
15 CHAIRMAN DOUGLASS: You are granted the privilege of
16 doing that. I think we have everybody here. No,
17 Commissioner Barnett hasn't made it yet, and Commissioner
18 Crenshaw. His plane didn't crash, it just turned around;
19 is that right, Commissioner Jennings? And I think
20 Commissioner Barnett is coming, but she probably had a
21 firm meeting.
22 Commissioner Barkdull is recognized on a point of
23 personal privilege. Please give him your attention.
24 COMMISSIONER BARKDULL: Mr. Chairman and
25 Commissioners, as we begin the defining votes of this
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1 commission, I would like to speak to you on the welfare of
2 this body. I have been asked by many members to give my
3 thoughts on the comparison of this commission with the
4 other commissions that I was privileged to serve on.
5 The '68 commission was charged differently than this
6 commission. It was a statutory commission charged with
7 the responsibility of making a complete review of the
8 Constitution of 1885, and its some 150 amendments, for
9 consideration by the Legislature. This rewrite was
10 ultimately submitted to the public in 1968 by several
11 joint resolutions adopted by the Legislature. This
12 Constitution provided the constitutional authorization for
13 a Constitution Revision Commission in the ten years
14 following its adoption and every 20 years thereafter.
15 In 1978 the Constitution Revision Commission was
16 charged differently. It was charged with the
17 responsibility of conducting public hearings and
18 recommending changes, if any. This commission recommended
19 59 proposals, all of which were defeated at the polls,
20 although many were subsequently submitted to the people by
21 joint resolution or adopted as general law. Today in
22 1998, under the same charge, we have adopted some 47
23 proposals.
24 After the '68 success of the rewrite of the
25 Constitution, those of us that were privileged to
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1 participate in that constitutional revision were able to
2 bask in ten years of reflected success. After the 1978
3 debacle, we had to spend 20 years trying to explain the
4 failure. The first experience, obviously, made those of
5 us that participated proud. And the latter experience
6 left each of us deeply disappointed.
7 I fear that the present path of this commission, with
8 the multitude of proposals, may be embarking on the latter
9 course and not the former.
10 At the time we organized in June, each of the
11 appointing authorities gave us certain charges. Governor
12 Chiles said in part, "Today I believe our Constitution
13 needs a tune-up. I would like to see this commission use
14 a rifle shot approach and tackle a limited number of
15 revisions impacting major issues." I'd like to repeat
16 that last sentence: "A limited number of revisions
17 impacting major issues."
18 President Jennings said in part, "As we look at the
19 issues, it is almost superfluous to say we need to
20 concentrate on those issues that should be in the
21 Constitution." And I again repeat the last sentence: "We
22 need to concentrate on those issues that should be in the
23 Constitution."
24 Speaker Webster said, in speaking of responses he
25 received from prospective appointees in reference to
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1 constitutional revision, "It should not contain
2 substantive law, that's left to the Legislature. I would
3 challenge you to leave it that way. The Constitution
4 Revision Commission should review carefully, should review
5 rigorously but revise cautiously." And I again repeat the
6 concluding remarks: "The Constitution Revision Commission
7 should review carefully, review rigorously, but revise
8 cautiously."
9 And Chief Justice Kogan charged: "Let's address
10 those things that we feel need to be addressed and not
11 just meet here for the purpose of changing everything."
12 And I again conclude with his final remarks: "Let's
13 address those things that we feel need to be addressed and
14 not just meet here for the purpose of changing
15 everything."
16 The '78 Constitution was prone to act as a
17 super-Legislature. And so far this commission, I believe,
18 has emulated them. We must remember we were all appointed
19 to examine the Constitution and to make recommendations,
20 if any, for change. We were not appointed to substitute
21 ourselves for the elected representatives of the people
22 and the Legislature.
23 As I have previously mentioned, one of the effects of
24 too many proposals is that negative voters, when they go
25 to the polls, will many times vote no on all proposals to
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1 be sure they have voted against the one they came
2 specifically to vote against; whereas, those who go to the
3 polls to vote affirmatively many times vote only for the
4 propositions and do not vote on other proposals.
5 As we have all been told, this Constitution Revision
6 Commission, as an appointed body, is unique in this
7 country in its ability to submit constitutional changes.
8 Our membership, save and except the Attorney General not
9 having been elected by the people, our focus should be on
10 constitutional change and we should not encroach on the
11 legislative branch of government.
12 We need to look to the Constitution's basic
13 principles. We must give up personal preferences in
14 exchange for the ability to offer to the people of Florida
15 needed changes in our state's basic structure of
16 government. We each should give our support for a
17 proposal only if we truly believe it is needed to effect
18 constitutional change, and not to merely satisfy a
19 personal desire.
20 We must put the greater need of the state ahead of
21 any personal agendas, or personal animosities. We took an
22 oath, which reads in part as follows: To support the
23 Constitution and government of the United States and of
24 the state of Florida and that we would well and faithfully
25 perform the duties as a member of the Constitution
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1 Revision Commission.
2 The section of the Constitution creating the revision
3 commission reads in part as follows: That we were to
4 examine the Constitution of the state, we are to hold
5 public hearings, and we are to file with the Secretary of
6 State its proposals, if any, for a revision of the
7 Constitution or a part of it.
8 We have no charge to act as a super-Legislature
9 passing general laws. Examining the proposals so far
10 adopted in light of our constitutional charge I find only
11 seven that I think truly warrant constitutional change.
12 As we have begun to take our definitive votes of this
13 commission, I hope you will also examine to determine
14 which you believe are truly needed for constitutional
15 change, and leave to the Legislature the further
16 consideration of those proposals that might be the subject
17 of general law or merit additional constitutional review.
18 With each affirmative vote we cast, we add to the
19 length of the ballot questions. The success of our work
20 and the acceptance by the people will be in inverse
21 proportion to the length of the ballot. And may each of
22 us, when this day's work is completed, feel that we have
23 discharged the responsibility reposed in us in conformity
24 with the oath we took at the onset of this commission.
25 Thank you.
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1 CHAIRMAN DOUGLASS: All right. We will proceed. I
2 think that's enough personal privilege, that took ten
3 minutes. And I'm not going to rebut that or anything else
4 at this point. Commissioner Wetherington, did you rise
5 for recognition?
6 COMMISSIONER WETHERINGTON: I rise to say that I take
7 issue with a number of things that Commissioner Barkdull
8 said. I don't disagree about the purposes, I think that
9 the, what I determined here is that people are voting on a
10 high-minded basis, I don't see any indication of a
11 super-legislative mentality. There may be some issues
12 that I don't think would be appropriate, but I think that
13 basically what I've felt from the beginning is that
14 everybody on the commission has been acting within the
15 spirit and purposes of the reason why we are here.
16 And if there is any implication to the contrary, I
17 specifically reject it, I don't believe in it. I believe
18 in the commission, I think everybody has done their very
19 best. They are motivated by the highest ideals and I
20 think that's what we should be remembered for.
21 CHAIRMAN DOUGLASS: Thank you, sir.
22 Okay. Before we get underway, I would like to say
23 just two or three short remarks as chairman. Number one,
24 it has been a real privilege to serve this group. I don't
25 know a group of people that I have come to respect and
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1 know as friends, regardless of whether we agreed or not.
2 This has been an outstanding group of people dedicated, as
3 Judge Wetherington just, Commissioner Wetherington just
4 said, to doing what they think is correct.
5 The only charge that you have is the one in the
6 Constitution. And, that is, you are to do what you think
7 is correct, not what I think is correct or anybody else
8 does. And each of these issues, I know, that have come
9 this far have people that are just dedicated to having
10 them on the ballot. And if it comes out that way, if we
11 had 200 that all of you together wanted, I would be out
12 supporting them. And I'm sure each of you would do the
13 same.
14 What I would like to say before we get started on
15 this journey today is thank you. Thank you for allowing
16 me to serve as your chairman, thank you for your dedicated
17 service, thank you for being great friends, thank you for
18 being true Floridians and Americans. Each one of you is
19 unique. Each one of you has unique points of view. And I
20 have had the pleasure to hear them and to stand here and
21 hear them coming from all directions.
22 But there is one thread that runs through this group.
23 We are here to do the right thing. We are not here to
24 advance somebody else's agenda. We are here to do the
25 right thing and to present before the people the
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1 opportunity to vote on what we collectively think is the
2 right thing to vote on.
3 With that we will proceed to get started. The first
4 item on the special order is on reconsideration, the
5 Committee Substitute for Proposal 6. So there won't be
6 any misunderstanding, this is on reconsideration. If it
7 gets a majority vote, it will go forward to the next
8 meeting. It will have to go to the Style and Drafting
9 under the rules and would not be voted on for 22 votes, if
10 it gets a majority vote at this meeting. It would go
11 forward. It has to be considered by Style and Drafting
12 before we act on it.
13 So if it does, we will have to wait and see, but
14 that's my understanding of the rules. So we will start
15 with Committee Substitute for Proposal No. 6, Commissioner
16 Nabors. And, Commissioner Nabors, you are recognized
17 because you are the one that got it reconsidered.
18 We have already voted to reconsider it so it is on
19 reconsideration at the moment.
20 COMMISSIONER NABORS: Mr. Chairman, I don't know
21 whether staff is here or not, but there is an amendment
22 that Commissioner Lowndes and I worked on that should be
23 ready to be handed out that --
24 CHAIRMAN DOUGLASS: First of all, we will ask, read
25 the proposal and then read Amendment No. 1.
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1 READING CLERK: Proposal 6, a proposal to create
2 Article VII, Section 19, Florida Constitution.
3 By Commissioner Nabors on Page 1, Line 15, through
4 Page 3, Line 6, strike all of said lines and insert
5 lengthy amendment.
6 CHAIRMAN DOUGLASS: All right. So it is a
7 strike-everything amendment? Commissioner Nabors, on the
8 amendment, explain the amendment, please.
9 COMMISSIONER NABORS: Members of the Commission, this
10 is the language that I sent to you, each of you a week ago
11 by Federal Express. It does not change at all the
12 substance of the proposal, it is an attempt that
13 Commissioner Lowndes and I spent in trying to simplify the
14 language. And essentially we have collapsed the language
15 into the same three sections but into one sentence.
16 The first sentence basically reads that any
17 exemptions shall, any future exemptions shall be in a
18 single bill dealing with that exemption only and should
19 declare the advancement of the state public purpose,
20 including encouraging economic development and
21 competitiveness, supporting educational, governmental,
22 religious or charitable initiatives, while securing tax
23 fairness.
24 The second section is the issue that directs the
25 Legislature in the year 2000-2001 to do a tax fairness
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1 initiative and to reduce the sales tax rate from six to
2 five, and to achieve revenue neutrality by either
3 repealing existing exemptions or taxing excluded services.
4 It makes it clear that in this process it can be done
5 in one or two general laws and does not require the single
6 subject considerations. In other words, there is no
7 sunset, there is no vote up and down on every exemption.
8 The Legislature is directed to do that tax fairness
9 initiative.
10 And the third section is much simpler language. It
11 is the revenue neutrality guarantee which says that in
12 that process, in the year 2000-2001, that the Legislature
13 will have to generate the same sales tax dollars as the
14 previous year, adjusted for growth. And any money in
15 excess of that will be used to reduce school property
16 taxes.
17 In the spirit of trying to move this issue to a final
18 vote, I would urge that we adopt this amendment so we
19 would have more simple language and we could have a fair
20 debate on the merits of this proposal.
21 CHAIRMAN DOUGLASS: Any discussion on the amendment,
22 on the amendment? If not, all in favor of the amendment
23 say aye; opposed?
24 (Verbal vote taken.)
25 CHAIRMAN DOUGLASS: The amendment is adopted. We are
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1 now on the proposal as amended, which was a
2 strike-everything amendment. You may continue,
3 Commissioner Nabors.
4 COMMISSIONER NABORS: Mr. Chairman, we have on this
5 debate limited to ten minutes. Do you want to take who
6 wants to talk or how do you want me to do that?
7 CHAIRMAN DOUGLASS: Get going. You already used one
8 minute of your time.
9 COMMISSIONER NABORS: Well I think there are others
10 that want to talk.
11 CHAIRMAN DOUGLASS: Well they will talk. You just
12 worry about Commissioner Nabors.
13 COMMISSIONER NABORS: Okay, Mr. Chairman, that sounds
14 good. I'm worried about Commissioner Nabors and 22 votes.
15 Let me speak to the merits of this. All of you, it's
16 been a long road since June. And as all of you know, this
17 is a proposal that I feel strong about. I think I have
18 met with each of you individually. We have attempted over
19 the period of time to reduce the proposal to simple
20 language, I think we have achieved that. And it is a
21 relatively straightforward proposition.
22 It's a proposition that in my judgment is the most
23 fundamental issue that we can look at. It goes to the
24 heart of how we raise money in this state, whether you
25 believe in education, whether you believe in basic rights,
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1 the judicial system, we have got to have a stable and
2 dependable source of revenue for Florida to survive in the
3 next 20 years.
4 This is not a liberal proposal, it is not a
5 conservative proposal. It doesn't generate any new money,
6 it doesn't cut government, it leaves that to the
7 Legislature. But in my judgment it is a fundamental
8 proposal for Florida for the next 20 years. It is an
9 absolute fundamental -- it is what we are about as a
10 Constitution Revision Commission.
11 And those of you who may be on the fence on this
12 issue, who are debating whether to vote or not, I'll
13 represent to you the vote is close on this issue. That
14 the votes are -- but I would submit that we have an
15 obligation, almost a duty, on a proposal of this magnitude
16 to let the people debate. Let the people decide the
17 issue.
18 It will be healthy for this state to have a debate on
19 our sales tax base over the next few months. And I
20 believe that the wisdom of this proposal will survive. We
21 fundamentally have got to recognize the strain that we
22 received in trying to deal with our state needs with your
23 limited base now. There is no other place we can go.
24 There is no other place we can go.
25 The Legislature is institutionally incapable of
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1 putting this proposal towards the people or dealing with
2 this issue. It will fail under a single subject
3 initiative process. So the only people that can put this
4 to the people for a fair debate is this commission and I
5 would urge you to vote for it.
6 CHAIRMAN DOUGLASS: All right. Commissioner Lowndes.
7 COMMISSIONER LOWNDES: Yes, sir. I rise in favor of
8 this. I would like to point out a couple things which
9 this is not. It is not a reinstitution, necessarily, of
10 the services tax, as a lot of people have suggested. And
11 it is not a sunsetting of the existing exemptions, as
12 people have suggested.
13 What it does is it reduces the sales tax and it
14 encourages the Legislature to broaden the base of the
15 sales tax. It doesn't restrict the Legislature as to how
16 to broaden the base of the sales tax, it simply encourages
17 the Legislature to do that.
18 It is, I think, from a lot of the public hearings
19 that we heard, there is an important need to broaden the
20 base. Broader based taxes are better for everybody. A
21 reduction of 5 percent certainly is a better
22 across-the-board proposition for the average person in
23 Florida.
24 So I would speak in favor of this amendment. Also,
25 the first part of it I think is also a very important
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1 proposition, that future amendments or future exemptions
2 would have to be contained in a single bill so they
3 couldn't be done late at night and tacked on to something
4 else. So I think it is a good proposal and I would urge
5 you to vote for it.
6 CHAIRMAN DOUGLASS: Commissioner Evans.
7 COMMISSIONER EVANS: Question.
8 CHAIRMAN DOUGLASS: Question of Commissioner Nabors
9 or Commissioner --
10 COMMISSIONER EVANS: Commissioner Nabors.
11 CHAIRMAN DOUGLASS: All right. He yields.
12 COMMISSIONER EVANS: I have seen in some newspaper
13 editorials as well as materials that we have received on
14 this issue that the rollback to 5 percent would be for two
15 years and I want that clarified. To me it says one year,
16 state fiscal year singular. And yet with the 2000-2001 I
17 take it that some people are saying two years. Am I
18 correct? What are the exact dates of that fiscal year?
19 COMMISSIONER NABORS: The rollback that will be
20 mandated is for one year. It's the year 2000-2001. There
21 is only one year rollback. After that year --
22 COMMISSIONER EVANS: It is a calender period of
23 366 --
24 COMMISSIONER NABORS: It is a state fiscal year
25 running from July the 1st to June the 30th. The
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1 Legislature then would have the ability in future years to
2 raise the rate. The two years that's discussed is the
3 Legislature would have two years from the time it is
4 adopted, two legislative sessions, to get to the fiscal
5 year 2000-2001 budget.
6 COMMISSIONER EVANS: Two years from now?
7 CHAIRMAN DOUGLASS: Commissioner Sundberg.
8 COMMISSIONER SUNDBERG: Mr. Chairman, I rise to speak
9 in favor of this proposal, as I have the earlier
10 permutations of it.
11 We have had really the opportunity, unlike many other
12 bodies or almost any other body in this state, because of
13 our significant number of public hearings across the
14 state, to listen to the people about the problems that
15 face Florida. Many of them center on education. But
16 there are other problems. One that's going to have to be
17 addressed, because of action that we are proposing to take
18 and to put on the ballot having to do with the shifting of
19 costs from local governments to the state government for
20 the judiciary. And that's right and proper to do.
21 But I suggest to you that almost every one of these
22 problems will be if not cured at least eased if we can get
23 a more stable and appropriate tax system for this state.
24 We desperately need to, for state purposes, to broaden the
25 base of the taxes which we rely upon. Now, we have heard
25
1 on many instances, and I think it is an appropriate
2 comment to make, let the people at least make a judgment
3 on this issue.
4 For example, I would have let the people make a
5 judgment on whether or not they want to continue a
6 prohibition on personal income tax. They are the ones who
7 are going to be, you know, burdened with these taxes. But
8 aren't they entitled to say, We want a better Florida with
9 a broader tax base than that very narrow tax base that we
10 have had to rely on?
11 And Commissioner Lowndes is absolutely right. This
12 doesn't mandate the elimination of any exemption. But I
13 suspect if it is, you know, if it is carefully
14 scrutinized, as this directs the Legislature to do, that
15 they may arrive at the conclusion that we have become much
16 more a service-oriented state than a manufacturing or
17 goods-oriented state.
18 But that's good, too. What that means is the
19 Legislature will be obliged to reassess where we are. The
20 statement has been made that the Legislature can't
21 possibly do this because of the number of exemptions. I
22 have suggested earlier that that argument is
23 self-defeating simply because it points out there are so
24 many exemptions that the Legislature really should take a
25 look at this great volume of exemptions we have.
26
1 I suggest to you they can rationally do that. And
2 what it says is going forward, going forward the
3 Legislature before it exempts any industry or any segment
4 of our society from its taxation -- and after all, this
5 actually happens to be the backbone of a democracy and
6 that is everybody contributes from their wherewithal to
7 make this government work.
8 And so I urge you, let the people, after we have had
9 a, you know, a full debate on this issue, let the people
10 decide what they think is a fair means of taxation and
11 raising revenues for the many, many needs we have in this
12 state. Thank you, Mr. Chairman.
13 CHAIRMAN DOUGLASS: All right. Any further debate?
14 Commissioner Langley.
15 COMMISSIONER LANGLEY: It is kind of hard to rise
16 against three of the brightest people in here with Judge
17 Sundberg and Mr. Lowndes and Commissioner Nabors, but, you
18 know, the problem is this isn't the normal intellectual
19 and participation level in the state of Florida. If every
20 citizen was as informed as these three gentlemen, it would
21 be a great idea to submit this to the public but I dare
22 say I don't know how many of us even understand this in
23 its present state.
24 Certainly I don't think Commissioner Sundberg meant
25 to mislead us with saying this didn't mandate taxes, but
27
1 if you will look in (b) there it says, The Legislature
2 shall reduce the general state sales tax, and three lines
3 later, by taxing currently-excluded services. That's
4 pretty much of a mandate if you pass this.
5 But you have got to take it, take it home to where
6 the rubber meets the road. My old buddy Joe Lunchbucket
7 got up at 5:30 this morning and grabbed a McDonald's
8 burger on the way and reported to work. And he is going
9 to work all day. And about 5:30 he will start back home,
10 and he is not concerned with this amendment. And he does
11 not know anything about it and he is not going to take the
12 time to read about it.
13 But you know what he does? He follows the local
14 paper and he knows how his representative is voting on
15 these things. And he knows his representative and he
16 knows whether he is a tax and spend liberal or a
17 conservative. He knows something about it, and he depends
18 on him to make these decisions.
19 Because he comes up here with 400 lobbyists on each
20 side to fill him in on the information and he reads and he
21 knows the budget and he knows the effect of this
22 amendment. But don't ask those poor people out in the
23 hinterlands to have any comprehension of what this
24 amendment does.
25 And as our Judge Barkdull said earlier, you confuse
28
1 them with something like this, they are going to go in and
2 vote against everything. So if you have something on here
3 you want, don't contaminate it with this.
4 CHAIRMAN DOUGLASS: All right. Now the proponents
5 have just about used all the time. I'm going to recognize
6 an opponent, if there is one. Commissioner Planas. Are
7 you an opponent, Commissioner Barnett? Okay. Proceed.
8 COMMISSIONER PLANAS: My fellow commissioners, I
9 agree with Commissioner Sundberg that we have a lot of
10 problems in the state of Florida. And we have a lot of
11 tax problems, too much taxes. Everybody says that in the
12 state of Florida. We cannot burden the citizens of the
13 state of Florida with more taxes. You can call this
14 proposal anything, but I still hear that quacking that
15 says, It is a tax, it is a tax.
16 I go out and say to you all, let's go ahead and vote
17 no. We cannot bring any industry if we have got this tax
18 problem going on. Thank you.
19 CHAIRMAN DOUGLASS: Commissioner Barnett.
20 COMMISSIONER BARNETT: Mr. Chairman, I'll be brief
21 because most members have heard my feelings on this. This
22 proposal does two things. One, it is a tax increase.
23 Believe it or not, it is a tax increase. And it is a tax
24 reduction at the same time.
25 The tax reduction obviously comes in the mandate to
29
1 reduce the sales tax for one year down 1 percent. But the
2 tax increase comes in the mandate to find $1.8 billion to
3 replace the revenues that are going to be lost by that tax
4 reduction.
5 So -- and it does mandate and it does direct where
6 you find that money. And that is in the current
7 exemptions to the sales tax and in the current services
8 that are excluded from the sales tax. So it does revise
9 the tax, the sales tax on services.
10 I have deep respect for Commissioner Nabors, and
11 others who support this, because I believe the state needs
12 to do this. But I firmly believe it is impossible to do
13 it in a deliberative, thoughtful way by mandating it in
14 the Constitution. It is a legislative function. The
15 Legislature is the one that needs to debate the public
16 policy reasons behind certain exemptions.
17 There is a presumption in this proposal that all
18 exemptions are bad. And we know that there are many
19 exemptions that serve legitimate public policy needs of
20 this state and economic development needs of this state.
21 And to wholesale eliminate those would put Florida
22 potentially at a competitive disadvantage with our
23 neighboring states. And I fear that it would have a very
24 serious impact on our economic development activities and
25 our standing with your business community around the
30
1 country.
2 And so for those reasons, I will vote against it. I
3 do believe that the provision mandating a single subject
4 is important. And I hope that if this fails, there is an
5 opportunity to find a place to put that in another
6 proposal because I think that is a constitutional issue.
7 But a mandated tax is not.
8 CHAIRMAN DOUGLASS: All right. The time is up for
9 debate. And you have the right to close, Commissioner
10 Nabors.
11 COMMISSIONER NABORS: Briefly in response. There is
12 no wholesale removal of any exemptions by passage, by your
13 vote or the vote of the voters. It is the Legislature who
14 will make those fundamental public policy decisions, which
15 exemptions serve a public purpose, which serve a special
16 interest.
17 And they have two years to do that. It is
18 inconceivable they cannot do that in two years. If we
19 really believe that, then we have basically given up on
20 any ability to straighten out Florida's tax reform. If
21 everybody pays their fair share, everybody pays less. It
22 reduces the rate and spreads the base in a more broader
23 way.
24 I disagree with Mr. Langley. I trust the average
25 person, the wisdom of the average person to understand
31
1 this. They understand that there are exemptions that
2 serve a special interest and they understand the fact that
3 there is going to be a rate reduction and a fairness in
4 terms of how those exemptions are given.
5 The average person is very smart about these issues.
6 They are not tax lawyers, and they're not accountants, but
7 they see through the wisdom of a fundamentally fair
8 proposal of tax reform. And let's give them a chance to
9 have that debated and let them decide that.
10 We serve as citizens to have a rule of restraint to
11 decide what we will let people -- we have an obligation to
12 present to our citizens, our fellow citizens, things that
13 are of fundamental importance to their future. And this
14 is one of those issues. I urge strongly your vote in
15 favor of this proposal.
16 CHAIRMAN DOUGLASS: All right. We will prepare to
17 vote on Proposal No. 6 as amended. Would you unlock the
18 machine and vote.
19 (Vote taken and recorded electronically.)
20 CHAIRMAN DOUGLASS: Has everyone voted? Lock the
21 machine and announce the vote.
22 READING CLERK: Seventeen yeas, 18 nays,
23 Mr. Chairman.
24 CHAIRMAN DOUGLASS: By your vote you have defeated
25 Proposal No. 6.
32
1 We will now move to the special order. The next
2 proposal is Committee Substitute for Proposals 36 and 38.
3 Would you read the proposal, please?
4 READING CLERK: Committee Substitute for Proposal
5 Nos. 36 and 38, a proposal to revise Article II, Section
6 7, Florida Constitution.
7 CHAIRMAN DOUGLASS: All right. It takes five hands
8 to revote. Do I see five hands that want to do it? There
9 are five hands. Proceed to read -- there is an amendment
10 on the table by the Style and Drafting Committee and
11 Commissioner Mills will be recognized after it is read.
12 Read the amendment, please.
13 READING CLERK: Committee Substitute for Proposals 36
14 and 38, by the Committee on Style and Drafting, on Page 1,
15 Lines 21 and 22, strike "for future generations."
16 CHAIRMAN DOUGLASS: Commissioner Mills, you are
17 recognized.
18 COMMISSIONER MILLS: Mr. Chairman, the Committee on
19 Style and Drafting in considering this proposal and
20 specifically Commissioner Lowndes pointed out something
21 that actually made a great deal of sense. The way this
22 was written we were preserving and protecting natural
23 resources for future generations and not for ourselves.
24 So this simply means that the preserve and protect would
25 be both for this generation and for future generations.
33
1 And I think that amendment is technical.
2 Actually, if you want, Mr. Chairman, I can go ahead
3 and explain the bill briefly.
4 CHAIRMAN DOUGLASS: Proceed. This will be part of
5 your time.
6 COMMISSIONER MILLS: Yes, sir.
7 CHAIRMAN DOUGLASS: Well we better vote on the
8 amendment first. All those in favor of the amendment say
9 aye; opposed?
10 (Verbal vote taken.)
11 CHAIRMAN DOUGLASS: Amendment carries. Now you can
12 proceed to debate the issue.
13 COMMISSIONER MILLS: Thank you, Mr. Chairman. This
14 proposal dealing with conservation and protection of
15 natural resources is both consistent with and responsive
16 to what we heard throughout this state from everybody from
17 hunters, fishermen, to gun owners, who all said, We want
18 to conserve and protect the natural resources for our
19 future.
20 I think it is also important to look at the wording.
21 Conservation and protection are the words that denote the
22 kind of programs Florida has been using in the recent
23 past, which is for land acquisition and protection of
24 long-term property use. These all protect property rights
25 and are nonregulatory in nature. That's important.
34
1 It is also important that thematically this is
2 precisely what the rest of the environmental package does
3 and sets it off. The rest of the environmental package
4 deals with lacn acquisition and preservation and
5 protection and conservation for land for future
6 generations.
7 The third issue to vote for it is because of what it
8 doesn't do. You have heard some conversation in the past
9 about whether this may or may not generate litigation. In
10 terms of determining that answer, we asked Professor
11 Gudridge of the University of Miami, and those of you who
12 were at the St. Pete hearing heard his answer. And his
13 answer was, This is not self-executing, this does not
14 generate litigation, it is not enforceable judicially, it
15 is a political directive. It is a political directive to
16 the Legislature to enact conservation and preservation
17 measures in any form they see fit.
18 You know, Mr. Chairman, I just want -- I've been
19 involved in environmental issues in a lot of different
20 countries. And the basic conservation and protection
21 issue is one that we as this generation with the
22 opportunity to vote for future conservation protections
23 should take advantage of it.
24 I was in Haiti, which is a country that has gone a
25 little bit beyond where we have in consuming our natural
35
1 resources. And I was walking in an area that used to be
2 rain forest and is as desolate and dry as any desert you
3 could see. And the program we were implementing would be
4 the replanting of trees. And all I could think about was
5 these folks that are planting the trees would never sit in
6 their shade. And the only thing that I think that they
7 thought about was that maybe their children could.
8 So I hope that we enact this conservation and
9 protection directive of the Legislature, which is
10 perfectly consistent with the rest of our package.
11 CHAIRMAN DOUGLASS: Let me tell you that in this
12 package you have got, they are in numerical order by the
13 number of the proposal. So if you are having difficulty
14 finding them, that's the way they are set up in this
15 handout. So it's Proposal No. 36 and No. 38. And that's
16 the one we are on. But when we get to them, listen to the
17 proposal number and you can find them by going to the
18 number in the packet. Is there further debate? Does
19 anybody else want to be heard on this? Now this is a
20 22-vote vote.
21 All right. If you are ready, we will proceed to
22 vote. Unlock the machine and let's vote.
23 (Vote taken and recorded electronically.)
24 CHAIRMAN DOUGLASS: Has everybody voted? Lock the
25 machine and announce the vote.
36
1 READING CLERK: Twenty-three yeas, 12 nays,
2 Mr. Chairman.
3 CHAIRMAN DOUGLASS: By your vote you have sent this
4 to the ballot.
5 Proceed to the next proposal, which is Committee
6 Substitute for Committee Substitute for Proposal 45 by the
7 Committee on Executive and Legislative and Commissioner
8 Henderson. This is the unification amendment. There is
9 one amendment on the table. Would you read it, please,
10 and then we will read the amendment that's on the table.
11 READING CLERK: Committee Substitute for Committee
12 Substitute for Proposal No. 45, a proposal to revise
13 Article IV, Section 9, Florida Constitution.
14 CHAIRMAN DOUGLASS: All right. Before we proceed
15 with the amendment, are there five hands that want to
16 proceed with this? It received 23 votes so if you don't
17 raise five hands it will go to the ballot.
18 There are five hands. Now please read the amendment.
19 Commissioner Henderson, you almost won. Read the
20 amendment, please.
21 READING CLERK: By Commissioner Thompson, on Page 1,
22 Line 23, delete that line and insert "life and freshwater
23 aquatic life, and shall also exercise regulatory and
24 executive powers of the state with respect to marine life,
25 except" --
37
1 COMMISSIONER HENDERSON: Mr. Chairman.
2 CHAIRMAN DOUGLASS: We have two amendments so I guess
3 we can read the second amendment if you would like or we
4 can proceed with yours, Commissioner Thompson.
5 COMMISSIONER THOMPSON: It doesn't matter to me.
6 Commissioner Henderson, what's your pleasure?
7 COMMISSIONER HENDERSON: Mr. Chairman, what I'd like
8 to do is go ahead and read my amendment, I'll explain the
9 posture we're in --
10 CHAIRMAN DOUGLASS: All right. Read the Amendment
11 No. 2. Does everybody understand that Amendment No. 1 has
12 been read by Commissioner Thompson and we are now reading
13 Amendment No. 2 by Commissioner Henderson?
14 READING CLERK: By Commissioner Henderson, on Page 2,
15 Lines 4 through 8, after the period insert lengthy
16 amendment.
17 CHAIRMAN DOUGLASS: All right. Who wants to go
18 first? Are you going first Commissioner Henderson? Go
19 ahead.
20 COMMISSIONER HENDERSON: Thank you, Mr. Chairman, and
21 I'll try to be brief. I hope the commissioners understand
22 at this point I have almost lost my voice because of
23 working through this issue yesterday. We spent about --
24 CHAIRMAN DOUGLASS: They believe it is because you
25 stayed up too late last night.
38
1 COMMISSIONER HENDERSON: That's also true,
2 Mr. Chairman. But the issue here relates to the --
3 actually there are two components of this: Whether all of
4 the regulatory authority concerning marine life moves from
5 DEP to the new commission, and what is the status of fees
6 derived from saltwater fishing licenses and federal
7 matching programs as a result of this transfer.
8 The Department has raised issues concerning both of
9 those things. The agreement which we worked out and has
10 been previously adopted by this commission was that the
11 regulatory authority which was being transferred was
12 narrow in scope to the Marine Fisheries Commission, as it
13 exists March 1st of 1998. That is what is being
14 transferred. We have set up the mechanism for other
15 regulatory authority to be transferred to the commission
16 by subsequent legislative acts. The only transfer by
17 operation of constitutional law, if this were to pass,
18 would be the transfer of the Marine Fisheries Commission.
19 So the amendment which Commissioner Thompson offers
20 really deals with this very narrow issue of whether or not
21 there is any regulatory authority which will currently
22 still remain at DEP. And the answer to that is, yes, we
23 did not move, for instance, manatees or turtles with this,
24 with this amendment. We have only moved the Marine
25 Fisheries Commission.
39
1 The second issue relates to saltwater fishing
2 licenses. Currently, that money is allocated for a lot of
3 different reasons, a lot of different purposes. The
4 Marine Patrol is part of that. Thirty percent of
5 saltwater fishing licenses goes to the Marine Patrol.
6 The concern is that if language is there as it is,
7 then the Legislature will be required then to send all
8 money to the new commission. And DEP is concerned that
9 some of that money would not come back to take care of
10 some of the things that they will continue to do, as
11 contemplated that they will continue to do.
12 We spent several hours yesterday with all of the
13 parties; the proponents of the initiative, the general
14 counsel for DEP, the general counsel for the Game
15 Commission, other interested parties. And I would
16 represent to the commission that we did not reach an
17 agreement on language. My amendment is my best shot at
18 it; Commissioner Thompson's amendment is his best shot at
19 it. And so that is where we are.
20 I proposed this to the Committee on Style and
21 Drafting last night. I will not speak for Commissioner
22 Alfonso, I'll let him do that, but Commissioner Alfonso
23 found that this is not a technical change but a
24 substantive change and opposes it.
25 And so that is where we are. So now that I have
40
1 explained that, Mr. Chairman, I will withdraw my
2 amendment.
3 CHAIRMAN DOUGLASS: So you have now withdrawn your
4 amendment; is that correct?
5 COMMISSIONER HENDERSON: I have now withdrawn my
6 amendment and now will defer to Commissioner Thompson.
7 CHAIRMAN DOUGLASS: Without objection, the amendment
8 is withdrawn and we'll now proceed to Amendment No. 1 by
9 Commissioner Thompson.
10 COMMISSIONER THOMPSON: I had a question. I'm sorry,
11 Mr. Chairman, I am just a little bit slow sometimes. You
12 called that objection before --
13 CHAIRMAN DOUGLASS: I'll say you objected. Go ahead
14 and ask your question.
15 COMMISSIONER THOMPSON: I just wanted to ask him a
16 question. You said there were two problems.
17 COMMISSIONER HENDERSON: That's right.
18 COMMISSIONER THOMPSON: The first one was what
19 happens to license fees? The second is, what authority
20 are we transferring? Your amendment dealt only with the
21 first; is that correct?
22 COMMISSIONER HENDERSON: Mine dealt with the
23 saltwater fishing license issue.
24 COMMISSIONER THOMPSON: So if you withdraw yours and
25 even if mine passes, this proposal would require all
41
1 saltwater license fees to go directly to this commission;
2 is that correct?
3 COMMISSIONER HENDERSON: Under the current language,
4 that's true. Nevertheless I would argue, and maybe we
5 need to state a record here, that if there is still
6 residual regulatory authority within DEP, then this issue,
7 as with some of these other issues, are going to have to
8 be addressed by the Legislature next spring, before this
9 takes effect on July 1. And they are going to have to
10 open up the saltwater fishing license statute to be able
11 to make the allocation.
12 It's clearly contemplated by all those involved that
13 the new commission could contract with DEP to carry on any
14 number of functions that they are doing now.
15 CHAIRMAN DOUGLASS: Are you ready to proceed on your
16 amendment?
17 COMMISSIONER THOMPSON: Well right now I thought I
18 was objecting to his withdrawal and asking a question or
19 two.
20 CHAIRMAN DOUGLASS: Go ahead.
21 COMMISSIONER THOMPSON: His withdrawal, which is kind
22 of an awkward position to be in. But I think everybody
23 needs to understand clearly what we would be doing if we
24 don't adopt his amendment. And I thought that he was
25 going to pursue his amendment and then mine would solve
42
1 the regulatory problem, his would solve the license fee
2 problem. Let me tell you what the problem is with not
3 having his amendment.
4 CHAIRMAN DOUGLASS: All right. What I'm going to do
5 is to rule that he withdraws his withdrawal. The
6 amendment is on the floor, it's Amendment No. 2 that's
7 been explained by Commissioner Henderson. And as I
8 understand it, if we adopt this one, Commissioner Thompson
9 then feels that his would be appropriate after the
10 adoption. Is that correct, Commission Thompson?
11 COMMISSIONER THOMPSON: Correct, Mr. Chair.
12 CHAIRMAN DOUGLASS: All right. So we are on the
13 amendment by Commissioner Henderson, which he attempted to
14 withdraw which is no longer withdrawn. Commissioner
15 Morsani.
16 COMMISSIONER MORSANI: I don't understand anything
17 either one have said.
18 CHAIRMAN DOUGLASS: We are voting on Henderson's
19 amendment.
20 COMMISSIONER MORSANI: And as a result, if I
21 understand our procedures, if we vote on his amendment and
22 adopt it, then that goes in as part of his proposal; is
23 that correct?
24 CHAIRMAN DOUGLASS: That's correct.
25 COMMISSIONER MORSANI: Well, I don't think we have
43
1 enough information to vote to accept that amendment. I
2 mean, personally, gosh, we debated these things and the
3 committees came forth with what we had up to this time. I
4 have a real serious and sincere question about taking --
5 you know, making this decision so quickly with all of the
6 deliberations that we have had for about 11 months now.
7 I must rise to oppose, I think, both of these
8 amendments rather vociferously, if I have used the right
9 language, because I think that we are embarking on some
10 dangerous ground that we don't have any business in at
11 this late stage.
12 CHAIRMAN DOUGLASS: We are going to have quite a few
13 amendments that are offered by Style and Drafting. And as
14 I understand it, this one was going to be offered by Style
15 and Drafting, but Commissioner Alfonso felt that it had a
16 substantive matter in it. And therefore it was brought in
17 this form. Am I correct on that, Commissioner Alfonso?
18 COMMISSIONER ALFONSO: Absolutely, correct,
19 Mr. Chairman.
20 CHAIRMAN DOUGLASS: It is appropriate, Commissioner
21 Thompson, for Commissioner Alfonso to speak to the
22 amendment, I think is what we'll have at the moment.
23 COMMISSIONER THOMPSON: Sure.
24 CHAIRMAN DOUGLASS: This is on the Henderson
25 amendment. That's what we are on.
44
1 COMMISSIONER THOMPSON: Right. I just want to speak
2 to it at the appropriate time.
3 CHAIRMAN DOUGLASS: All right, sir. Commissioner
4 Alfonso.
5 COMMISSIONER ALFONSO: We spent a lot of time working
6 on this unification package and a lot of people have been
7 involved. And at the late hour we have this amendment
8 that really waters down unification. To quote a fellow
9 commissioner, is it the critters and the resource that we
10 care about or the staff that manages it? And let's really
11 think about that.
12 What is the logic of this? Are we going to split
13 fees and have a fight over who does what or are we going
14 to take care of this commission as we have been working
15 hard to do? I would remind all of you that we had a
16 unanimous vote on the pure unification proposal that we
17 have worked on from the start, a unanimous vote, zero
18 dissenting votes. I would urge you, I would implore you,
19 to not vote for this amendment.
20 CHAIRMAN DOUGLASS: All right. Anybody else want to
21 speak on the amendment? Commissioner Thompson, on the
22 amendment, Commissioner Henderson's amendment.
23 COMMISSIONER THOMPSON: Let me see if I can explain
24 this. It's not very difficult, fortunately, or I
25 certainly couldn't explain it. But if you look at the
45
1 present wording of the proposal on Page 1, on Line 23, it
2 says, after it delegates the authority and regulatory
3 authority, it says, "Except that all license fees for
4 taking wild animal life" -- now, that's the Game and
5 Freshwater Fish Commission right now -- "and freshwater
6 aquatic life" -- that's the Game and Freshwater Fish
7 Commission right now, they get all of those license
8 fees -- but what we add here "and marine life and
9 penalties for violating regulations shall be prescribed by
10 general law."
11 Now what that means is that all of that money, all of
12 the license fees for those things will go to the
13 commission, the new commission. And the problem is -- and
14 Commissioner Alfonso, there's nothing wrong with any of us
15 learning something at any time. And I think we'll
16 probably learn some more before this stuff comes back from
17 Style and Drafting. But what we have learned is that
18 there are federal laws that track your state license fees.
19 And so they require that in order to get the money, you
20 have got to, you have got to use that money where you send
21 your license fees.
22 And so if you send it all to the new agency for the
23 Marine Fisheries Commission, all of the federal money has
24 to go there. And all of the things that DEP presently
25 does in respect to all of that money, and part of it as I
46
1 understand it is based on a federal law named
2 Wallop-Breaux named after the legislators that initiated
3 it, and that money goes to DEP and is used in a lot of
4 different programs.
5 Now I don't know all of the things that it's used
6 for. And I just bet you that you don't know either. And
7 I just bet you that you may not think that this new
8 commission will be set up immediately to handle all of
9 that money. But I can tell you, if we are mandated in the
10 Constitution, it's going to go there, and the Legislature
11 is not going to have any discretion. They're not going to
12 have any judgment to exercise in that respect.
13 We did not intend when we set out on this -- and I'm
14 one of the people that have worked hard on it in your
15 committee and everywhere -- we did not intend to move any
16 jurisdiction of the Marine Fisheries Commission beyond
17 what it presently has.
18 If you will look on Page 2 at the bottom, sub B, that
19 is very clear. And we worked on that several times and we
20 have talked about it several times. The jurisdiction of
21 the Marine Fisheries Commission, as set forth in statutes
22 in effect on March 1st, '98, shall be transferred to the
23 new entity. It goes on to say, The jurisdiction of the
24 Marine Fisheries Commission transferred to the commission
25 shall not be expanded except as provided by general law.
47
1 Yet you are going to dump all of this money into this new
2 commission.
3 So what this amendment does is that it goes back and
4 says that the Legislature will have the jurisdiction over
5 those license fees from the Marine Fisheries. And we
6 don't upset the Game and Fish Commission and the license
7 fees that they presently get. But the license fees for
8 the Marine Fisheries is not going to automatically just be
9 dumped into the new agency. That's all the amendment
10 says. The Legislature will have that jurisdiction.
11 I expect that over a period of time that some of
12 these things are going to be transferred. I expect that
13 probably at some point, for example, the Marine Patrol's
14 functions on the water of enforcing and regulating the
15 taking of sports fish and so forth will be transferred,
16 but that's not going to be dictated if we do it this way.
17 We only transfer the jurisdiction that the Marine
18 Fisheries Commission has on March the 1st of '98, and then
19 let the Legislature fund that appropriately and don't
20 mandate that all of the license fees go there and then the
21 federal money goes there, and then the Legislature says,
22 Well, there's all of your money. And then all of the
23 programs that DEP is exercising up the rivers or wherever
24 they might be are then transferred over there and then you
25 really don't have an agency that's set up with an
48
1 appointed commission that cares about that.
2 This commission primarily is for game and fish and
3 also now saltwater fish. That's what we are really trying
4 to set up here. And DEP needs to continue its regulatory
5 authority. So for those reasons, I would request that you
6 vote for the Henderson amendment. Thank you.
7 CHAIRMAN DOUGLASS: Commissioner Alfonso.
8 COMMISSIONER ALFONSO: Briefly I will read a memo
9 from DEP to you and just pick some of the operative
10 language.
11 "DEP staff and a number of programs will be adversely
12 affected by the fee transfer. Loss of those staff would
13 require that DEP do an immediate damage control
14 reorganization in several program areas so that critical
15 tasks would not go undone. The DEP would then need to
16 petition the Legislature for funds to restaff."
17 Think through that. "It could not absorb to the loss
18 of the license fees and continue to meet all of its
19 responsibilities. The division of law enforcement and the
20 division of marine resources would be most heavily
21 impacted."
22 All of us think that the Marine Patrol would not help
23 to go patrol the resources. We are going to give them the
24 saltwater fishery, but we're not going to give them the
25 fees. I would just like everyone to look through the
49
1 logic of what's happening here, and just vote on how you
2 think this should be done. Thank you.
3 CHAIRMAN DOUGLASS: All right. I think we have used
4 enough time, unless you want to close, Commissioner
5 Henderson.
6 COMMISSIONER HENDERSON: I'm getting lots of
7 conflicting advice here. I just represent to my
8 colleagues here, we gave this our best effort. I
9 recognize the awkward position that I'm in. When I stood
10 here last time, we had all of the interests together that
11 had signed off on the language that Commissioner Thompson
12 had just read to you and this has come at the last minute.
13 When we were working through this yesterday, we were
14 saying we could do one or the other, but not both, which
15 is the reason why I withdrew my amendment. I think that
16 that part of it can be fixed with the Thompson amendment.
17 CHAIRMAN DOUGLASS: All right. Ready to vote?
18 Unlock to machine and let's vote.
19 (Vote taken and recorded electronically.)
20 CHAIRMAN DOUGLASS: Lock the machine and announce the
21 vote. Hold it, Commissioner Sundberg was hidden. All
22 right, we are going to include you in the roll call, come
23 up here and tell them how you voted. Okay. Close the
24 machine and lock the vote. By your vote it fails 26 to 9,
25 including Commissioner Sundberg's vote.
50
1 Now Commissioner Thompson's amendment, which is
2 Amendment No. 1 that you have that is before you.
3 Amendment 2 has been defeated.
4 COMMISSIONER THOMPSON: Okay. Amendment 1 was
5 previously read and you have it in front of you. And I've
6 kind of backed into the explanation of it. And it has to
7 do with the regulatory side. You just voted on what to do
8 with the license money. The second part of it is the
9 regulatory side.
10 I'll just explain that again by saying that all along
11 we have thought we were transferring a limited
12 jurisdiction, with the Legislature then having the
13 authority to come back and do whatever they wanted to in
14 that respect.
15 Under the present law -- and this is the kind of
16 thing that happens all the time in drafting. And that's
17 the reason I mentioned earlier that we review things that
18 we have done and we find that they have unintended
19 consequences sometimes.
20 But on Page 1, beginning with the sentence beginning
21 on Line 21, "The commission shall exercise" -- and this
22 will be the new and expanded commission now -- "shall
23 exercise the regulatory and executive powers of the state
24 with respect to wild animal life, freshwater aquatic
25 life" -- both of those are already the Game and Fish
51
1 Commission -- "and marine life."
2 Now I want to submit to you that that is not
3 consistent with sub B on Page 2, which says, "The
4 jurisdiction of the Marine Fisheries Commission as set
5 forth in statutes in effect on March 1st, '98, shall be
6 transferred to the Fish and Wildlife Conservation
7 Commission. The jurisdiction of the Marine Fisheries
8 Commission transferred to the commission shall not be
9 expanded except as provided by general law." That's been
10 our intent all along.
11 This provision that's on the first page is presently
12 inconsistent with that. So my amendment makes clear, and
13 shall also exercise regulatory and executive powers of the
14 state with respect to marine life as the Legislature sees
15 fit. And that's all that there is to it. It is a very
16 simple provision that just allows the Legislature to make
17 the decision as to whether to expand that jurisdiction.
18 And a lot of that is going to be based on the money. You
19 have just voted on some of that.
20 But what I'm trying to tell you is this: If you want
21 to vote with my amendment here, if you don't know what all
22 of the regulatory and executive powers of the state with
23 respect to marine life is, if you don't know what that is,
24 then you had better let the Legislature decide what it is
25 based on hearings, testimony and present programs and
52
1 future programs. That's all I'm suggesting.
2 CHAIRMAN DOUGLASS: Any further debate? Commissioner
3 Alfonso.
4 COMMISSIONER ALFONSO: Just a note. The Legislature
5 has been deciding matters of the resource for a long time.
6 So if you want to let the Legislature decide how to do
7 this, go ahead. If not, I urge you to vote against this
8 amendment.
9 CHAIRMAN DOUGLASS: Commissioner Barnett, just a
10 short time please.
11 COMMISSIONER BARNETT: Question, just a question.
12 CHAIRMAN DOUGLASS: Sure.
13 COMMISSIONER BARNETT: Maybe of Commissioner Thompson
14 or of Commissioner Henderson.
15 As people have talked to me about the unintended
16 consequences that may result in this particular proposal,
17 one of them is that a current unified permitting system
18 that DEP has in place, that's been very, very successful,
19 might be negatively impacted if all of the regulatory and
20 executive functions are transferred to this new
21 commission. And I've been told this is needed to make it
22 clear that some of that -- that that type of regulatory
23 control does not get transferred but remains wherever the
24 Legislature designates it, which is currently DEP.
25 Is that an accurate concern and does this take care
53
1 of that concern?
2 CHAIRMAN DOUGLASS: Commissioner Thompson.
3 COMMISSIONER THOMPSON: Would my amendment take care
4 of the concern? I think so.
5 CHAIRMAN DOUGLASS: Are you for or against it,
6 Commissioner Barnett?
7 COMMISSIONER BARNETT: For.
8 CHAIRMAN DOUGLASS: If we are ready to vote. Well,
9 unlock the machine and we'll vote on the amendment, which
10 is Commissioner Thompson's amendment.
11 (Vote taken and recorded electronically.)
12 CHAIRMAN DOUGLASS: Lock the machine and announce the
13 vote.
14 READING CLERK: Nineteen yeas and 17 nays,
15 Mr. Chairman.
16 CHAIRMAN DOUGLASS: By your vote you have adopted the
17 amendment. Now we are on the proposal as amended, adding
18 Amendment No. 1 only. Commissioner Henderson.
19 COMMISSIONER HENDERSON: Thank you, Mr. Chairman. In
20 support of the package as now amended, I want to make very
21 clear that what we are doing is a narrow transfer of the
22 Marine Fisheries Commission to a new Fish and Wildlife
23 Conservation Commission. By the Thompson amendment, we
24 recognize that there are still some matters that still
25 remain within the regulatory authority of DEP; namely at
54
1 this time, manatees and sea turtles. There may be some
2 other things.
3 The amendment contemplates that future Legislatures
4 will be able to transfer additional authority to the new
5 commission. And as Commissioner Thompson said a few
6 moments ago, I believe that five years from now, ten years
7 from now, this will not be an issue. Because in time
8 people will see that we have a critter agency for the
9 protection and conservation of the fish and wildlife. And
10 it will be an agency that's primarily responsible for all
11 dealing with regulatory matters.
12 As I've said before, we have taken great pains to
13 work with the entire regulated community to reach
14 accommodation on a number of issues that have been raised
15 throughout this process. We have reached essential
16 agreement on all those outstanding issues.
17 I know that there are some of you, because you have
18 told me, and I believe it is true, believe it, none of
19 this stuff should be in the Constitution. The reality of
20 it is, however, that the Game Commission has been in the
21 Constitution for more than 50 years. And in that
22 capacity, the Game Commission has been able to the do an
23 outstanding job of conservation of our freshwater fish
24 resources and our nongame and game wildlife.
25 The only way that we can handle the situation of
55
1 dealing with this, frankly absurdity, of having saltwater
2 fisheries and freshwater fisheries regulated in different
3 ways is to combine them in one agency. And we have done
4 it this way.
5 The other thing that I might say to you, because I
6 know that all of you are concerned about the issue of
7 Cabinet reform. I would remind you that this is Cabinet
8 reform, because we have taken away from the responsibility
9 of the Governor and Cabinet having to deal month by month
10 with a lot of these little issues, concerning when to take
11 a lobster, the size of a sea trout, when you can or when
12 you cannot take a red fish.
13 I would also suggest to you if this had been in
14 place, all of the debate that we heard about the net ban
15 over the course of our 11 public hearings might well have
16 been moot because a commission set up in this way, to deal
17 with the issues in an independent way, perhaps would have
18 reached a different result.
19 I commend to you an amendment that has broad public
20 support, I commend to you an amendment that has probably
21 been endorsed by more newspapers than any other amendment
22 that is before us, and I commend to you an amendment which
23 has already been endorsed by the signatures of 100,000
24 citizens of this state and urge its adoption.
25 CHAIRMAN DOUGLASS: All right. Any further debate?
56
1 This is on the 22 votes. We already got 22 once, but now
2 it's amended so we have to vote again. Unlock the machine
3 and let's vote.
4 (Vote taken and recorded electronically.)
5 CHAIRMAN DOUGLASS: Lock the machine and announce the
6 vote.
7 READING CLERK: Thirty-six yeas, zero nays,
8 Mr. Chairman.
9 CHAIRMAN DOUGLASS: By your vote you have adopted for
10 the ballot Proposal No. 45.
11 We will now move to Committee Substitute for Proposal
12 64, Committee on Bonding and Investments. Would you read
13 it, please?
14 READING CLERK: Committee Substitute for Proposal
15 No. 64, a proposal to revise Article VII, Section 11,
16 Florida Constitution.
17 CHAIRMAN DOUGLASS: All right. This proposal passed
18 24 to 1. Unless there is a show of five hands, it will
19 stand as passed. There's not a show of five hands, this
20 one is passed.
21 Committee Substitute for Proposal 102 by the
22 Committee on General Provisions and Commissioner
23 Henderson. Would you read it, please? There's one
24 amendment on the desk.
25 READING CLERK: Committee Substitute for Proposal
57
1 No. 102, a proposal to revise Article X, Florida
2 Constitution.
3 CHAIRMAN DOUGLASS: All right. Would you read
4 Amendment No. 1 by the Committee on Style and Drafting and
5 Commissioner Mills? We'll read the amendment first.
6 READING CLERK: By the Committee on Style and
7 Drafting, on Page 1, Lines 13 to 18, strike all of said
8 lines and insert lengthy amendment.
9 CHAIRMAN DOUGLASS: All right. Who speaks for --
10 Commissioner Barnett speaking for Style and Drafting moves
11 the amendment. You are recognized on the amendment,
12 Commissioner Barnett.
13 COMMISSIONER BARNETT: Thank you, Mr. Chairman. Let
14 me explain the changes in the amendment. Although this
15 proposal passed our last meeting, some concerns were
16 raised about language that Style and Drafting had actually
17 inserted into the original proposal. And that language
18 had consequences that no one expected or intended, but
19 specifically language that said -- that's in the current
20 proposal, no interest in real property.
21 We were concerned that an interest in real property
22 is much broader than the fee simple interest and includes
23 things such as easements, rights-of-way, mineral
24 interests. And we felt that was not the intent of the
25 proposer, and they confirmed that. So you will see that
58
1 this substitute from Style and Drafting -- this amendment
2 from Style and Drafting talks about the fee interest in
3 real property.
4 Also, the language that Style and Drafting had sent
5 to you before inserted into the proposal lands acquired
6 for conservation purposes or held for conservation
7 purposes. And there was a concern about how that
8 designation and how the characterization of something that
9 may have initially been acquired for purposes unrelated to
10 conservation became held for conservation purposes, and
11 then ultimately a concern about the disposition section.
12 So the amendment that you have before you addresses
13 each of those issues. It is our understanding that this
14 amendment more accurately reflects the intent of the
15 proposers that lands that are acquired by the state for
16 conservation purposes may be disposed of at a time when
17 they are no longer needed for those purposes by a
18 two-thirds' vote of the governing entity that has title to
19 the land.
20 CHAIRMAN DOUGLASS: All right. I neglected to ask
21 for five hands. And I assume since there were six members
22 of Style and Drafting, we had five hands. Show me five
23 hands so that we can proceed. Okay, we are now proper.
24 Thank you for reminding me of that. Commissioner Langley,
25 you are recognized.
59
1 COMMISSIONER LANGLEY: If Commissioner Barnett will
2 take the floor and answer a few questions.
3 CHAIRMAN DOUGLASS: She does.
4 COMMISSIONER LANGLEY: First, can the trustees
5 currently dispose of this land?
6 COMMISSIONER BARNETT: Not all of this land is
7 necessarily land that would be owned by the trustees, it
8 could be owned by various governmental entities. I think
9 there's a question -- the answer is yes. I think one of
10 the questions comes, and perhaps Commissioner Henderson is
11 a better person to address this, comes from trading lands,
12 where you may want to trade lands, as opposed to an
13 outright sale or you have a large parcel of land and you
14 want to carve out an out-parcel that's no longer needed
15 for conservation purposes and dispose of that.
16 This is distinguishable from, and I think it's
17 important to make this note, this does not deal with
18 sovereign lands. Sovereign lands are covered in another
19 section of the Constitution and are subject to the public
20 trust doctrine. But this is lands other than sovereign
21 lands that are held for conservation purposes.
22 COMMISSIONER LANGLEY: All right. If I wanted to
23 make it easier to transfer some of this land for other
24 purposes, public or private, that aren't needed for
25 conservation, would I be for or against this amendment?
60
1 COMMISSIONER BARNETT: I think you would be for this
2 amendment.
3 COMMISSIONER LANGLEY: Under this rewording on your
4 amendment, as I read it, you could actually lease land
5 under that as well; is that not right? You could lease a
6 portion of the land, like you could lease it to a school
7 board or you could lease it to a county commission?
8 COMMISSIONER BARNETT: The answer is probably yes.
9 COMMISSIONER LANGLEY: I'm trying to get some intent.
10 COMMISSIONER BARNETT: The answer is probably yes.
11 It deals with managing and disposition. And if
12 disposition includes leasing, yes.
13 CHAIRMAN DOUGLASS: All right. Commissioner
14 Sundberg.
15 COMMISSIONER SUNDBERG: For a question. Would you
16 yield, please --
17 CHAIRMAN DOUGLASS: Commissioner Barnett yields.
18 COMMISSIONER SUNDBERG: -- Commissioner Barnett?
19 COMMISSIONER BARNETT: This is not my proposal. I
20 like it, but --
21 CHAIRMAN DOUGLASS: She's going to quit yielding here
22 in a minute.
23 COMMISSIONER SUNDBERG: I'll leave that one alone.
24 CHAIRMAN DOUGLASS: Good idea.
25 COMMISSIONER SUNDBERG: Commissioner Barnett, can you
61
1 tell me, and perhaps you explained it but I missed it, why
2 did we reduce the quality of the estate or increase it to
3 only a fee interest? Because the state can have easements
4 and other lesser than a fee. Why was that eliminated? In
5 the original proposal it says, you know, it dealt with any
6 interest in real property owned by the state for
7 conservation purposes. This is limited just to fee, why
8 is that?
9 COMMISSIONER BARNETT: I will make an attempt to
10 answer that, and then Commissioner Henderson may want to
11 expand on it. Because of the concern about the burden
12 that may place on the state that other mineral interests,
13 easements, rights-of-ways, other things, the burden of
14 having a supermajority vote to dispose of that might be
15 too much. That what they were really looking at were fee
16 interests in the property and the ability, frankly, to
17 dispose of what may become surplus lands at some point in
18 time when they were no longer needed for conservation
19 purposes, either through the sale or trade of those lands.
20 COMMISSIONER SUNDBERG: What does the quality of the
21 estate have to do with the ability to dispose of it? You
22 know, it's not uncommon to have a term of years, very long
23 term, 99 years, which is tantamount to a fee interest. I
24 don't understand why that affects the ability to dispose
25 of it, whether it's for a term of years or what have you.
62
1 Perhaps Commissioner Henderson could explain it.
2 COMMISSIONER BARNETT: I'll let him try. I don't
3 think the intent was ever to deal with anything other than
4 fee simple interest and the related management, cost, and
5 burden on the state when those lands were no longer needed
6 for conservation purposes, the cost of management and then
7 to be able to ease the disposal of those lands.
8 CHAIRMAN DOUGLASS: All right. Ready to go on the
9 amendment. Everybody understand the amendment and ready
10 to vote on the amendment? Open the machine and let's cast
11 your vote.
12 (Vote taken and recorded electronically.)
13 CHAIRMAN DOUGLASS: Lock the machine and announce the
14 vote.
15 READING CLERK: Thirty-four yeas, 1 nay,
16 Mr. Chairman.
17 CHAIRMAN DOUGLASS: All right. As amended, we are on
18 the proposal now, No. 102, as amended. This is a 22-vote
19 vote. Open the machine and let's vote.
20 (Vote taken and recorded electronically.)
21 CHAIRMAN DOUGLASS: Lock the machine and announce the
22 vote.
23 READING CLERK: Thirty-one yeas, 5 nays,
24 Mr. Chairman.
25 CHAIRMAN DOUGLASS: By your vote you sent this to the
63
1 ballot. We'll now move to Proposal No. 135 by
2 Commissioner Henderson. Would you read it please and
3 there's an amendment on the table by Style and Drafting.
4 READING CLERK: Proposal No. 135, a proposal to
5 revise Article VII, Section 3, Florida Constitution.
6 CHAIRMAN DOUGLASS: All right. This one passed
7 before but without 22 votes. I need five hands to proceed
8 to hear the amendment. I see five hands.
9 COMMISSIONER HENDERSON: Mr. Chairman, excuse me,
10 this one has passed unanimously every time that it's come
11 before us.
12 CHAIRMAN DOUGLASS: I'm sorry, I was looking at the
13 wrong one. I didn't mean to slight you there,
14 Commissioner Henderson. It still takes five hands. All
15 right.
16 For Style and Drafting, Commissioner Mills, who
17 yields to Commissioner Lowndes of the committee to offer.
18 Would you read, please, the proposal first? Have we read
19 it? Read the amendment, please.
20 READING CLERK: By the Committee on Style and
21 Drafting, on Page 3, Lines 9 to 12, strike all of said
22 lines and insert "a county or municipality may be
23 authorized by general law to grant ad valorem tax
24 exemptions for real property used for conservation
25 purposes as defined by general law."
64
1 CHAIRMAN DOUGLASS: All right. On the amendment,
2 Commissioner Lowndes for Style and Drafting.
3 COMMISSIONER LOWNDES: Thank you, Mr. Chairman. The
4 Style and Drafting amendment does not change and is not
5 intended to change the substance of the proposal. It is
6 simply a simplification of the language. And it simply
7 eliminates some unnecessary and somewhat redundant words.
8 It makes clearer, in the view of the Style and Drafting
9 Committee, the intent of the proposal. I would be happy
10 to answer any questions that anybody has about it.
11 CHAIRMAN DOUGLASS: All right. Any questions on the
12 amendment? All in favor of the amendment, say aye;
13 opposed?
14 (Verbal vote taken.)
15 CHAIRMAN DOUGLASS: The amendment carries. We are
16 now on the proposal. Are you ready to vote on the
17 proposal? Unlock the machine and let's vote.
18 (Vote taken and recorded electronically.)
19 CHAIRMAN DOUGLASS: Everybody voted? Lock the
20 machine and announce the vote.
21 READING CLERK: Thirty-five yeas, zero nays,
22 Mr. Chairman.
23 CHAIRMAN DOUGLASS: By your vote you have adopted
24 No. 135 as amended.
25 We'll now move to Proposal No. 2 by Commissioner
65
1 Sundberg, Commissioner Smith. I need five hands to
2 reconsider, to go forward with it. Are there five hands?
3 I beg your pardon?
4 COMMISSIONER SMITH: May I -- I guess it is a
5 personal privilege.
6 CHAIRMAN DOUGLASS: You have a personal privilege.
7 COMMISSIONER SMITH: Thank you, Mr. Chairman. First
8 of all, let me thank the members of the commission for
9 their support of Proposal 2. And I think basically their
10 support has evidenced really a commitment of the members
11 of this commission to the spirit of what we are about as a
12 people, and that is to ensure equal opportunity for all.
13 Let me thank my good friend and right-hand man,
14 Commissioner Sundberg, for his committed floor management
15 of Proposal 2, and his courageous standing up for the
16 proposition of equal opportunity. I would also like to
17 thank the members of the Declaration of Rights Committee
18 for their favorable recommendation.
19 And as you know, the first time this matter came up,
20 we had 23 votes in favor. The last time it came up we had
21 21 votes, and at least three members, who were excused
22 absences, were prepared to support it, including my good
23 friend Commissioner Anthony who was on his honeymoon at
24 the time.
25 Based upon personal commitments that I have received,
66
1 if they hold true, and they have always held true, we have
2 22 votes to move this forward today. However, based upon
3 consultation with my friends in the civil rights community
4 throughout the nation and in the state of Florida, and
5 particularly the Lawyers Committee for Civil Rights in
6 Washington, D.C., the Washington bureau of the National
7 Association for the Advancement of Colored People and the
8 Florida state chapter of the NAACP, I'm going to request
9 that Commissioner Sundberg withdraw this proposal at this
10 time.
11 While we believe that it's always appropriate to try
12 to advance the cause of equal opportunity, we feel that
13 with regard to this proposal being placed in this
14 Constitution at this particular time, that the timing is
15 not appropriate for us to ensure that the proposal will in
16 fact be appropriately explained to the people of the state
17 of Florida, and that we'll be able to galvanize the kind
18 of financial support that we need to ensure that we do not
19 regress from the present status.
20 And let me just say, we did a survey of the nation,
21 Florida has some of the best equal opportunity proposals
22 in its university system. And based upon the governmental
23 allocation of funds, most of which are mandated by the
24 government, federal government, one in particular dealing
25 with transportation, which you were handed a newspaper
67
1 article about, where the United States Senate just
2 rebuffed an action to regress from the equal opportunity
3 proposals throughout the states where monies are sent for
4 transportation.
5 And we would like to, at this time, and I have
6 already spoken to Commissioner Sundberg and he is
7 reluctantly in agreement with this, but I just wanted to
8 make sure I stated for the record and I wanted to make
9 sure that I commended each of you for your past support
10 for the concept of equal opportunity.
11 I'm very confident that we will face this issue in
12 the not too distant future and I'm sure that I will be on
13 the front lines of the battleground. And those of you who
14 oppose it, I look forward to discussing this with you
15 probably in the year 2000, as this issue will definitely
16 be one that's confronted by the people of the state of
17 Florida. Thank you very much.
18 CHAIRMAN DOUGLASS: It's not necessary to withdraw
19 it. If it doesn't get five hands, it's no longer
20 available for consideration.
21 COMMISSIONER SUNDBERG: Mr. Chairman, may I be heard?
22 CHAIRMAN DOUGLASS: For what purpose?
23 COMMISSIONER SUNDBERG: To explain why I will not
24 urge five members of this group to bring this up for
25 consideration, if I may.
68
1 CHAIRMAN DOUGLASS: Well, try to make it short, we
2 have got a long day.
3 COMMISSIONER SUNDBERG: With great reluctance, but
4 even greater deference to H.T. Smith, I urge you not to
5 bring this matter further before this body.
6 CHAIRMAN DOUGLASS: That was a great speech. Do we
7 have five hands? If not, the matter is no longer
8 available for consideration.
9 We now move to Proposal No. 5 by Commissioner Planas.
10 Do I see five hands? If not, it will be referred to Style
11 and Drafting for grouping and put on the ballot.
12 Proposal No. 11 by Commissioner Freidin. Do I see
13 five hands? There are five hands. All right. Would you
14 read No. 11, please?
15 READING CLERK: Proposal No. 11, a proposal to revise
16 Article I, Section 2, Florida Constitution.
17 CHAIRMAN DOUGLASS: All right. Commissioner Freidin,
18 you are recognized on the Proposal No. 11.
19 COMMISSIONER FREIDIN: Lest there be any confusion
20 about what we are talking about here, this is the proposal
21 that adds the words "female and male alike" after the
22 words "all natural persons" in Article I, Section 2, of
23 our Constitution.
24 Commissioners, I wish that I had the eloquence of
25 Commissioner Smith because I wish that there were
69
1 something more I could do to urge upon you than I have
2 already done to urge upon you the passage of this
3 proposal. As the commissioner said, I know that each and
4 every one of us is absolutely committed to doing what is
5 right for the people of Florida. And I submit to you that
6 passage of this proposal and placing it on the ballot is
7 right for all of the people of Florida.
8 It has been 150 years that women in our country have
9 been trying to attain equality. And while we, as we have
10 discussed in the past, we have attained equality in many,
11 many ways, we have not attained equality in our Florida
12 Constitution. The Constitution -- the purpose of a
13 Constitution is to set out the basic ideals and the basic
14 principles and the basic protections that should be
15 afforded to all of our people.
16 It is inexcusable that our Constitution in 1998 does
17 not mention women. It is inexcusable that other classes
18 of people are mentioned in our Constitution with specific
19 protections and that women, more than 50 percent of our
20 population, are not mentioned. It is difficult for me to
21 believe, and it is difficult for many people to believe
22 how there would possibly be a question or problem with
23 adding these words into the Constitution.
24 I urge you to join with the thousands and thousands,
25 and millions, actually, of women in this state who want to
70
1 see equality for women embedded in our Constitution.
2 CHAIRMAN DOUGLASS: Further debate. Commissioner
3 Langley, you are recognized.
4 COMMISSIONER LANGLEY: Thank you, Mr. Chairman. You
5 know, when you have an issue and the proponents won't tell
6 you whether or not this does anything, either it does make
7 the law different or it doesn't change anything. And to
8 be very simple in logic, if it doesn't do anything, why do
9 it?
10 If it does make changes, i.e., homosexual marriages,
11 homosexual adoptions, no more alimony maybe, you know, no
12 more responsibility for spouses, nobody says, yes, that
13 will or no, that won't. So either you are going to vote
14 to do nothing -- and again, I always thought that all
15 natural persons included male and female -- either you are
16 going to do nothing by adding it or either you are going
17 to open Pandora's box as to who knows what it does.
18 And the worst example I know is when I sat here in
19 good faith in 1980-something and voted for the right of
20 privacy to be put in our Constitution, never, never would
21 I have dreamed that the Supreme Court would say that gave
22 a teenager the right to have an abortion without parental
23 knowledge or consent.
24 So what can a court do with this? I don't know. And
25 I certainly submit to you the sponsors don't know either,
71
1 or they have a secret agenda that they do know and won't
2 tell you. That is the issue. And with that background, I
3 can't vote for it.
4 (Commissioner Thompson assumes the Chair.)
5 COMMISSIONER THOMPSON: Further debate? Commissioner
6 Riley.
7 COMMISSIONER RILEY: We don't have a secret agenda,
8 Commissioner Langley. And I think our agenda and
9 certainly my agenda is very open on this issue.
10 In 1918 Alice Paul wrote the Equal Rights Amendment.
11 And it says, if I may, "Equality of rights under the law
12 shall not be denied or abridged by the United States or by
13 any state on account of sex." This is not the Equal
14 Rights Amendment in those words, this is a compromise set
15 of words.
16 And I can tell you that it does do something. It
17 says to the thousands and thousands of women in this state
18 that this group is willing to put on the ballot the
19 ability of men and women in this state to choose to put
20 these words in the Constitution and make sure that if
21 there's any question that women do not have equal rights
22 at any point, that this will give strength to the ability
23 to give rights to those women, and to all women.
24 This is Women's History Month, and I can't think of a
25 better thing that we could do in the month of March than
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1 to put this on the ballot. This is our opportunity. We
2 cannot let another 20 years pass and allow this
3 possibility to go by. It will tell the thousands of
4 women, and you received a resolution as you came in this
5 morning, or at least on your desk, that represents over 27
6 groups in the state, men and women, and represents over
7 50,000 members of those organizations.
8 I can tell you that there is no organization in this
9 state that is a women's organization that does not support
10 this proposal. I would strongly urge you, Commissioners,
11 if you are sitting on the fence, by any chance sitting on
12 the fence, if you are not sure how you want to vote on
13 this issue, this is the time to say to all the women in
14 the state of Florida, We think you should have equal
15 rights and this is our opportunity to make sure that that
16 happens.
17 COMMISSIONER THOMPSON: Okay. I have Commissioners
18 West, Kogan, Smith, Barnett, Connor, Evans-Jones and
19 Evans. The proponents have four minutes and the opponents
20 have eight. Commissioner West, you are recognized.
21 COMMISSIONER WEST: I just have a question for
22 Commissioner Freidin.
23 COMMISSIONER THOMPSON: Well, let's wait until she
24 closes. Is that okay with you?
25 COMMISSIONER WEST: That will be fine.
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1 COMMISSIONER THOMPSON: Okay, thank you. Next would
2 be Commissioner Kogan. Commissioner Morsani, I'll put you
3 down at the end, too. Okay.
4 COMMISSIONER KOGAN: We have heard from the women,
5 but this is not solely a women's issue. This is a
6 statement that this Constitution Revision Commission can
7 make. And the statement is that once and for all this
8 state will go on record as saying that there is no
9 question but that under the law of this state, men and
10 women are equal. And I say this on behalf of the men who
11 make up approximately half of the population of this
12 state.
13 And for our spouses, our daughters, our friends that
14 are women, there is no hidden agenda here. But the time
15 has finally come for us to put at rest this issue once and
16 for all. And by saying that men and women are equal under
17 the law, then we have made that statement that the time
18 has finally come for it. And I recommend to all of you to
19 vote in favor of this proposal.
20 COMMISSIONER THOMPSON: Okay. Proponents have two
21 minutes. Commissioner Smith is the next one to be
22 recognized. Do you wish to be recognized?
23 COMMISSIONER SMITH: Thank you, Mr. Chairman. This
24 job that we have as members of the Constitution Revision
25 Commission is not a job for the fainthearted. And so for
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1 those of you who are sitting there concerned about the
2 fact that controversy is going to ensue, every struggle
3 for human rights should be a matter of controversy and
4 conviction.
5 I can remember it like it was yesterday the debate in
6 the United States Congress when the issue of the civil
7 rights laws were being debated. And people rose one after
8 another saying, Why do we need a civil rights law when we
9 have it in the Constitution that all men are created
10 equal? I never would have thought that all men created
11 equal didn't mean me.
12 We know for a fact that there's discrimination
13 against women. We see it in income, we see it around us.
14 This is the time for the people of the state of Florida to
15 step into the 21st century two years in advance and say,
16 There is no doubt that the conscience and the conviction
17 of the people of the state of Florida is that women and
18 men are created equal.
19 And I'm proud that I was given an opportunity to
20 serve here on behalf of my grandmother who ran a
21 restaurant for my brother because the bank wouldn't give
22 her a loan because she was a woman, because of my mother
23 who couldn't get a job that she wanted because she was a
24 woman, and because of my two daughters, one of whom is in
25 FAMU right now, to say that there will be no
75
1 constitutional impediment for you to reach your dreams.
2 And so I urge you to join the proponents and vote yes
3 for the women and girls of this great state. Thank you.
4 (Chairman Douglass resumes the Chair.)
5 CHAIRMAN DOUGLASS: All right. I'm told that we have
6 two minutes for the proponents left. Commissioner
7 Morsani.
8 COMMISSIONER MORSANI: Thank you. I won't take two
9 minutes. I stand before you today because of two women.
10 (Pause.)
11 CHAIRMAN DOUGLASS: Are you looking at your black
12 book?
13 COMMISSIONER MORSANI: That would be better maybe.
14 Okay, thank you. Because of my mother-in-law and my
15 mother. And my mother-in-law marched for women's
16 suffrage, and you mentioned that 1917, my mother-in-law
17 was there.
18 And when I was asked to come on this commission, my
19 mother-in-law, who was born in 1898 and recently deceased,
20 and who was as articulate as anyone in this room within
21 seven hours of her death, and my mother, who is 90, said,
22 If there's anything that you do, son -- (Commissioner
23 crying.)
24 Let's do it.
25 CHAIRMAN DOUGLASS: All right. Commissioner
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1 Evans-Jones.
2 COMMISSIONER EVANS-JONES: Thank you, Mr. Chairman.
3 I know that some of you have been concerned about the
4 intent of this, whether it was really for equal rights or
5 whether there was a hidden agenda. And I requested
6 Commissioner Freidin to explain that to me. And she has
7 written this to have in the record and I think it's
8 important that you understand this.
9 And she says, "As a sponsor of the proposal, I state
10 unequivocally that in offering this proposal I do not
11 intend and have never intended for it to form the basis
12 for a right to same-sex marriage in this state.
13 Furthermore, I'm satisfied that adoption of this proposal
14 by the voters would not confer such a right." And I just
15 wanted to share that with you if anyone had any concerns
16 about that.
17 CHAIRMAN DOUGLASS: One minute left for proponents.
18 Commissioner Barnett.
19 COMMISSIONER BARNETT: Mr. Chairman, words indeed
20 matter. And particularly in a constitutional setting.
21 And let me call your attention to the words "all natural
22 persons." Those words in our Constitution today have
23 historically been in there to distinguish people from
24 corporate entities. They did have a meaning and it meant
25 all natural persons, meaning corporate entities did not
77
1 get the rights that are in this basic section.
2 And I think it is important that we go forward and
3 say "all natural persons, men and women alike" to make it
4 clear that that term was not an exclusive term, but an
5 inclusive term. And to make the statement that Brother
6 Smith so eloquently made.
7 CHAIRMAN DOUGLASS: We have got three minutes left
8 for opponents, no time left for proponents, except close.
9 Opponents? Commissioner Evans.
10 COMMISSIONER EVANS: Just for the record, while ago
11 we had eight minutes and none of us have spoken.
12 CHAIRMAN DOUGLASS: Okay, well keep going. We only
13 have five.
14 COMMISSIONER EVANS: I am a member of Concerned Women
15 for America, and Florida has many tens of thousands of
16 members. And I submit to you that the organizations that
17 Commissioner Riley referred to do not include Concerned
18 Women for America. So there are many tens of thousands of
19 women in Florida who do not support this, including me,
20 and there are many hundreds of thousands of women who are
21 members of Concerned Women for America nationwide that do
22 not support this amendment.
23 So I just want to make the record clear that the
24 proponents do not speak for all women and do not even come
25 close to speaking for all women.
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1 CHAIRMAN DOUGLASS: All right. Any more opponents?
2 Opponents. Commissioner Connor.
3 COMMISSIONER CONNOR: Mr. Chairman, I rise in
4 reluctant opposition to the proposal. And I would like to
5 explain the basis for that. I worked closely with
6 Commissioner Freidin and Commissioner Riley to come up
7 with language that would avoid the problem of creating a
8 heightened standard of review as it related to
9 gender-based discrimination, and felt strongly that we had
10 done that. And that's why I spoke strongly in support of
11 the proposal as it is presently framed.
12 And I do support equal rights for women. My wife has
13 been an equal partner with me from the day of our
14 marriage. I have two children who are females who are
15 pursuing their careers. And I want them to experience
16 equal protection of the law.
17 The concern I have relates to matters that occurred
18 after our vote. The very day after our vote, after we
19 sought to change the language so that it does not present
20 the problem that I registered concern about, Charlene
21 Carres, who is a very able lawyer and against whom I've
22 appeared in a variety of venues, made this statement in
23 the Tampa Tribune.
24 She indicated, excuse me, Charlene indicated, "If
25 this ends up being put in the Florida Constitution, it
79
1 should mean that the courts will have to treat the laws
2 that treat the sexes differently with the same high level
3 of suspicion as with race," said Charlene Carres, a civil
4 rights lawyer and women's rights advocate. The change
5 would make the Florida Constitution consistent with the
6 Florida Civil Rights Act, the Federal Civil Rights Act,
7 and other laws that bar sex discrimination, according to
8 the article.
9 Now, if that's the case, if indeed it does carry with
10 it this heightened scrutiny, then I would submit to you
11 that's the very path on which Hawaii wound up arriving at
12 the conclusion that it did, that heterosexual marriages
13 were presumptively unconstitutional because of sex-based
14 discrimination. I raise the same concern about the Alaska
15 decision, because Alaska, which came to a similar result,
16 has in its Constitution an explicit privacy provision, as
17 does Florida.
18 This weekend when I was in Boston attending a track
19 meet that my son was running in, I went to a coffee shop
20 with my wife and daughter, sat down and picked up a
21 newspaper that was stacked up there entitled Bay Windows.
22 It is, according to its masthead, New England's largest
23 gay and lesbian newspaper. And the headline is, "Alaska
24 marriage ruling is hailed by activists as a hit out of the
25 park." And in that article it discusses the profound
80
1 significance that the Alaska ruling will have in advancing
2 the gay rights agenda.
3 I'm deeply concerned, that notwithstanding the best
4 of intentions, and I credit the sponsor of this proposal
5 with her explicit and unequivocal statement of intent and
6 those of you who have likewise registered your statement
7 of intent.
8 In my judgment, that is clearly the intention that
9 has been all along to divorce the gay rights agenda and
10 same sex marriages from women's rights. Notwithstanding
11 that, and having seen the outcome of the privacy amendment
12 from the 1978 Constitution and recognizing how, in my
13 judgment, the court stood the plain language of that
14 amendment on its head, I fear that we may be facing the
15 very same problem in the future as it relates to the
16 same-sex marriage issue. Thank you.
17 CHAIRMAN DOUGLASS: Commissioner West for a question,
18 I understand.
19 COMMISSIONER WEST: I just have a question if
20 Commissioner Freidin will yield.
21 CHAIRMAN DOUGLASS: She yields.
22 COMMISSIONER WEST: Can you address that concern?
23 You know, in speaking with you privately, you know, I
24 don't think there's nobody in here, I would suspect there
25 is nobody in here that wouldn't support what Commissioner
81
1 H.T. Smith mentioned. I know I would. But the concern of
2 how the courts can take this, whether it is the intention
3 or not, can you address -- I like what Commissioner
4 Evans-Jones had mentioned, but how far will that intent go
5 when it's being ruled by a panel of judges?
6 COMMISSIONER FREIDIN: Well, I'm not a judge, but I
7 have seen over and over and over again courts looking at
8 what was expressed by a body that was passing on or
9 considering a particular law, proposal, constitutional
10 provision. And with all of us standing here making these
11 statements about intent, I am certain that that would come
12 into play in a court decision.
13 I think that we need to, to reflect upon the fact
14 that we had -- you know, Commissioner Connor, is quoting
15 an attorney who made some statement in the newspaper. And
16 she in fact didn't say anything about same-sex marriage, I
17 don't think, in the newspaper. We heard testimony at both
18 of our public hearings from a professor of constitutional
19 law at the University of Miami.
20 And I -- he actually wrote out his, summarized some
21 of his comments, faxed them to me late last night and I
22 couldn't get them distributed to all of you today. But I
23 would like to read to you from his comments, with regard
24 to the same-sex marriage question.
25 He says, "The addition of the phrase 'women and men
82
1 alike' to existing Article I, Section 2, will not legalize
2 same-sex marriage in Florida. The Hawaii Supreme Court
3 plurality opinion reasons from language in the Hawaii
4 Constitution that bars discrimination because of sex."
5 Different language than what we are proposing here. "That
6 language, the Hawaii judges thought, makes any legislative
7 reference to men and women constitutionally suspect.
8 Proposal 11, in sharp contrast, treats as proper
9 legislative references men -- the treatment of women and
10 men alike.
11 "As the dissenting judge in the Hawaii case noted,
12 the exclusion of same-sex marriage there treated women and
13 men alike. Neither men nor women could enter into
14 same-sex marriages."
15 The Alaska court, which Commissioner Connor just
16 mentioned that opinion, that court opinion decision rests
17 on a reading of an Alaska constitutional right to privacy.
18 This opinion, the Alaska opinion, is irrelevant to what we
19 are proposing to put into the Florida Constitution now,
20 the question of the meaning of female and male alike.
21 CHAIRMAN DOUGLASS: Commissioner Freidin, it's been
22 about four minutes over on the proponents' side.
23 COMMISSIONER FREIDIN: I was simply responding to his
24 question.
25 CHAIRMAN DOUGLASS: I've started to say you have
83
1 responded long enough and that's your close, but we will
2 let you close, okay. You can put that in the record if
3 you would like.
4 COMMISSIONER FREIDIN: I wanted to make sure that he
5 was satisfied in terms of the response to that. And we
6 will also offer it into the record.
7 CHAIRMAN DOUGLASS: All right. Would you now proceed
8 to close?
9 COMMISSIONER FREIDIN: I am going to yield to
10 Commissioner Wetherington to close.
11 CHAIRMAN DOUGLASS: Commissioner Wetherington, you
12 are recognized to close.
13 COMMISSIONER WETHERINGTON: Thank you very much. It
14 is an honor to be permitted to close on this very
15 important issue.
16 It is not a long walk that the women of the state of
17 Florida are asking us to take with them. They are asking
18 us to treat them in the same way that we treat men. This
19 principle is found in the Bible and is an ideal that is
20 worthy of our belief. As Chief Justice Kogan so
21 eloquently stated, now is the time for Florida to adopt
22 this principle and place it in its Constitution. And I
23 strongly urge your support of this proposition. Thank
24 you.
25 CHAIRMAN DOUGLASS: All right. We are now ready to
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1 vote on this proposal. Unlock the machine and we will
2 vote on Proposal No. 11.
3 (Vote taken and recorded electronically.)
4 CHAIRMAN DOUGLASS: Has everybody voted? Lock the
5 machine and announce the vote.
6 READING CLERK: Thirty yeas, 5 nays, Mr. Chairman.
7 CHAIRMAN DOUGLASS: By your vote you have adopted
8 Proposal No. 11 and the proposal is referred to Style and
9 Drafting for grouping.
10 We now move to Proposal No. 14 by the Committee on
11 Declaration of Rights and Commissioner Freidin. Read it
12 and then we will see if we get five hands. Read it,
13 please.
14 READING CLERK: Committee Substitute for Proposal 14,
15 a proposal to revise Article I, Section 2, Florida
16 Constitution.
17 CHAIRMAN DOUGLASS: This was passed by a vote of 29
18 to 1. If there is not five hands, it will be referred to
19 Style and Drafting for grouping. Seeing no hands, this is
20 referred to Style and Drafting for groups.
21 Now we move to Proposal No. 58 by Commissioner Zack.
22 All right. If I see five hands, we will proceed to
23 revisit this. If we don't get five hands -- okay, we have
24 five hands. Read it and there is an amendment on the
25 desk.
85
1 READING CLERK: Proposal No. 58, a proposal to revise
2 Article I, Section 21, Florida Constitution.
3 CHAIRMAN DOUGLASS: All right. There is an amendment
4 on the desk by Style and Drafting. Who is going to handle
5 that for Style and Drafting, Commissioner Mills, the
6 amendment on Proposal 58?
7 COMMISSIONER MILLS: Commissioner Lowndes.
8 CHAIRMAN DOUGLASS: Commissioner Lowndes will handle
9 this for Style and Drafting. Read the amendment, please.
10 READING CLERK: By the Committee on Style and
11 Drafting, on Page 1, Lines 16 to 19, strike the underlined
12 language and insert "in any action for personal injury or
13 wrongful death, the right of a personal recovery shall not
14 be denied or abridged because of age."
15 CHAIRMAN DOUGLASS: Commissioner Lowndes on the Style
16 and Drafting amendment.
17 COMMISSIONER LOWNDES: Just give me one second, if
18 you would.
19 CHAIRMAN DOUGLASS: All you have done is substitute
20 the word "shall" for "may"; is that correct?
21 COMMISSIONER LOWNDES: That's right. Now it comes
22 back to me, Mr. Chairman. The word "shall" was put in
23 simply to make it consistent with the first sentence of
24 Section 21 of Article I, and make it clear that it is not
25 a permissive proposition, that it is a mandatory
86
1 proposition so far. And I believe that is the intent of
2 the proposer, and simply to conform the language to the
3 existing section and make clear what the intent of the
4 proposer was. And the only change was, as you suggested,
5 was the word from "may" to "shall."
6 CHAIRMAN DOUGLASS: Does everybody understand the
7 amendment? Commissioner Barkdull. I wonder if we could
8 have a little order here, please, and get everybody back
9 in the chamber. We have 36 people present, have had. We
10 may have 37, but they are not always here.
11 Commissioner Barkdull, you wanted to be recognized on
12 the amendment?
13 COMMISSIONER BARKDULL: No, sir, on the proposal as
14 amended if it passes.
15 CHAIRMAN DOUGLASS: All right. If there is no
16 debate, all in favor of the amendment say aye; all
17 opposed?
18 (Verbal vote taken.)
19 CHAIRMAN DOUGLASS: The amendment is adopted and now
20 we are on Proposal No. 58. The proponent of that is
21 Commissioner Zack who has the right to open.
22 COMMISSIONER ZACK: For the last six months, we have
23 debated issues in this chamber regarding fairness,
24 regarding the rights of people to be treated equally. I
25 don't think there is a single person in this chamber who
87
1 would question the right of a black person to be treated
2 the same as a white person, a woman to be treated the same
3 as a man, we have the nationality origin proposal, no one
4 can question the right of a Hispanic to be treated the
5 same as an Anglo, or a Christian to be treated the same as
6 a Jew.
7 We have one vestige of discrimination left in our
8 Constitution. Just one. And now is the time to eliminate
9 that one. It only applies to the difference between the
10 old and the young. It has been said that every
11 civilization has been judged historically by the way they
12 treat the elderly. And we likewise one day will be judged
13 by the same standard.
14 As we went to the public hearings around the state,
15 and I attended every single one of them, there was no cry
16 heard that was louder and more painful than the people who
17 had lost their parents, their loved ones, and had felt
18 totally frustrated, had felt totally impotent to right a
19 wrong.
20 As a matter of fact our Constitution says there
21 should be no wrongs for which there is no right. But to
22 each of these individuals who are over 25 years of age,
23 they could do nothing about how their parents were killed.
24 Unintentional as it may have been, accidental as it may
25 have been. They sat there with their pain and found no
88
1 way of relieving it until they came before us and told us
2 their story.
3 And we today have a right, an obligation I suggest,
4 to do something about that pain and about the
5 discrimination that continues, the legal discrimination
6 that continues in our Constitution.
7 You know, it is ironic I guess that today -- or
8 poignant probably more than ironic -- that my daughter's
9 birthday is today. And frankly I wish I was home with
10 her. But today if she turned 26, and I walked across the
11 street and I was killed by a drunken driver, she would
12 have no cause of action. Where yesterday she would. And
13 if her brother was 24 and she was 26, both who I hope love
14 me the same, one would be able to recover and one would
15 not.
16 No degree of intellectual honesty can let that
17 situation continue within our state. As a matter of fact,
18 we are the only state in the country that has this
19 provision. It makes no sense, it is morally wrong. And
20 frankly, the Supreme Court has not looked at the equal
21 protection aspects of it and I personally believe it is
22 legally wrong. But there will be no question about that
23 once this commission, hopefully, acts to remove this
24 discrimination on age.
25 Now, I have heard some people say, you can't bring
89
1 back your lost mother or father, money won't bring them
2 back. And it was interesting because a couple of the
3 women who spoke said, We are not interested in money. I
4 don't think any of them were interested in money. What
5 they were interested in is following the Biblical
6 admonition to honor thy mother and thy father. And it was
7 their view that their mother and father's memory were
8 dishonored by their inability to have the people who
9 caused their death respond to that death.
10 And when I say respond, that means to act
11 responsibly. Our system of justice is based on taking
12 responsibility for one's actions.
13 There is a poem by Robert Burns that some of us have
14 heard from time to time and probably one that we should
15 remember at this time. It says, Come live with me, the
16 best is yet to be. The last of life for which the first
17 was made. It is wrong to take away the very best part of
18 life, the time that you share with your family, with your
19 mother, with your father as grandparents, that your
20 children should share with them, the very best part of
21 life and say that there is no accountability in the state
22 of Florida but in every other state there is.
23 CHAIRMAN DOUGLASS: All right. Commissioner
24 Wetherington.
25 COMMISSIONER WETHERINGTON: Question.
90
1 CHAIRMAN DOUGLASS: Question. He yields.
2 COMMISSIONER WETHERINGTON: Am I correct that the
3 Legislature could tomorrow morning decide that it is going
4 to eliminate pain and suffering, mental anguish as an
5 element of damages and therefore leave only economic
6 recovery; is that right?
7 COMMISSIONER ZACK: That is correct.
8 COMMISSIONER WETHERINGTON: So basically if this got
9 too burdensome and they thought this was too burdensome,
10 they could just make it an economic damage base and what
11 effect would that have on the situation you are talking
12 about?
13 COMMISSIONER ZACK: I believe that there is no
14 possibility of the Legislature taking away the wrongful
15 death benefits from every citizen of the state of Florida.
16 You know, you could say the same thing about just about
17 any law that you want to go through the same process with.
18 But the fact is that this is a discriminatory statute and
19 it is wrong and I do not believe that that would be a
20 justification for voting against it.
21 COMMISSIONER WETHERINGTON: The Legislature moved the
22 age, up one time it was 18, I think, or 21 and they moved
23 it up to 25. I mean, they did make an adjustment, didn't
24 they, on the age under the wrongful death statute?
25 COMMISSIONER ZACK: Absolutely. And the 21
91
1 limitation was wrong as well. There should be no age
2 limitation. If they raise it to 26 or 27« or 28 and
3 three-quarters, the fact of the matter is there should be
4 no age limitation. This is pure discrimination.
5 COMMISSIONER WETHERINGTON: Why isn't this a
6 matter -- this is part of our wrongful death remedy
7 procedure. Why isn't this something we should leave to
8 the Legislature to change?
9 COMMISSIONER ZACK: Because it historically has shown
10 that it is unable to do it. What I have noticed during
11 the course of these proceedings is that virtually
12 everything can be changed by the Legislature. And people
13 who are in favor of a matter say that should be a
14 Legislature prerogative.
15 Those people who believe that every 20 years this
16 Constitution Revision Commission listens to the people of
17 the state of Florida, and determines whether there is a
18 stranglehold on the Legislature, for whatever reason, by
19 whatever group, that they have the ability to go directly
20 to us and we have the ability to go directly to the
21 citizens of the state of Florida and have the citizens
22 make that decision. And I believe that this is precisely
23 the kind of issue that you go to the citizens.
24 CHAIRMAN DOUGLASS: Commissioner Freidin.
25 COMMISSIONER FREIDIN: I wanted to talk a bit about
92
1 the practical impact of the law as it exists at the
2 present time. There has been some question about whether
3 there, whether this is something that really needs to be
4 done. Do children of parents who are wrongfully, who die
5 wrongfully as a result of malpractice or some other
6 wrongful act really need to be able to recover?
7 And the question is the recovery is only part of what
8 we are talking about here. And the reason for that is
9 that these, the doctors in particular who may be sued as a
10 result of malpractice will not be sued in these cases. As
11 a practical matter, if there is not a sufficient recovery,
12 lawyers will not take these cases. These cases will not
13 be brought because these cases have to be brought on
14 contingency fees. The people who bring these cases can't
15 afford to pay hourly fees for their lawyers.
16 So this is an enforcement mechanism as well as a
17 recovery mechanism. And as a practical matter, it is
18 essential to policing of malpractice cases that something
19 be done about this problem. It is apparently not, it has
20 not been done in the Legislature and I urge you to vote
21 favorably on this proposal.
22 CHAIRMAN DOUGLASS: Commissioner Barkdull.
23 COMMISSIONER BARKDULL: Opponent.
24 CHAIRMAN DOUGLASS: Opponent. I recognize you. I'll
25 be back to you, Commissioner Leesfield.
93
1 COMMISSIONER BARKDULL: Mr. Chairman, Members of the
2 Commission, I rise as an opponent of this for the simple
3 reason that this is a statutory cause of action which this
4 proposal wants to move into the Constitution. I don't
5 think we should do that. You are going to lock in this
6 specific cause of action, and I think this cause of action
7 is purely statutory and it ought to be left to the
8 Legislature.
9 CHAIRMAN DOUGLASS: Commissioner Leesfield.
10 COMMISSIONER LEESFIELD: Chairman Douglass, I'd like
11 to speak in favor of 58 and respond to the very good
12 question asked by Commissioner Wetherington and raised by
13 Commissioner Barkdull.
14 This is not a Legislature matter because it deals
15 with an arbitrary provision. This is a provision that
16 only discriminates based upon age. This is an arbitrary
17 approach to treating people of different ages within our
18 state population. It has nothing to do really with -- the
19 Legislature could fix anything. What we have got here is
20 a child who loses a parent, if that child is 24 they have
21 a cause of action, if that child is 25 they have no cause
22 of action. If a parent loses a child that is over the age
23 of 25 and single, there is no cause of action.
24 So this is age-based discrimination. And there is no
25 better place to cure discrimination in an arbitrary way
94
1 than in the Constitution. So all of the proponents for
2 this, you can say what you want about every single measure
3 that comes before us, send it to the Legislature, from gun
4 control on.
5 But when we were dealing with people being treated
6 differently because of their age, and I can tell you from
7 a practical basis that in my office every single week I
8 have had members of the Legislature come in with their
9 parents who are in their 60s or 70s who were killed in a
10 hospital setting. And they come and say, My mother went
11 in for an endoscope and she came out dead. Now I want to
12 bring a lawsuit.
13 Anybody in this room and anybody in this state can be
14 faced with the identical situation. They come in and say,
15 My parent went in for a procedure and now they are gone,
16 let's go find out the reasons, let's make a wrong a right,
17 let's find out how we can equal the playing field. You
18 can't do it. That person has no cause of action and you
19 have to turn to a member of the Legislature or a member of
20 the judiciary or a member of the public and say, There is
21 no cause of action based upon age.
22 So this is a Constitutional provision to even the
23 playing field for people of all ages.
24 CHAIRMAN DOUGLASS: All right, proponent?
25 Commissioner Ford-Coates.
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1 COMMISSIONER FORD-COATES: Commissioner Zack, would
2 you just clarify for me --
3 CHAIRMAN DOUGLASS: Question for Commissioner Zack.
4 COMMISSIONER FORD-COATES: And then I'd like to speak
5 in opposition of the proposal.
6 As I read the law that these people came to us about
7 in 768, just am I correct that a survivor can sue for
8 medical costs and burial costs and support, it is only the
9 noneconomic damages that they can't sue for, the pain and
10 suffering?
11 COMMISSIONER ZACK: Is there a way that I can answer
12 it that you would vote in favor of it?
13 COMMISSIONER FORD-COATES: Probably not. I mean, am
14 I correct in that statement?
15 COMMISSIONER ZACK: There is very little expense in
16 burying somebody because once they are dead -- as a matter
17 of fact, your question goes to the very point that it is
18 much better to kill somebody and there is an interest in
19 killing somebody because there is such a limitation on any
20 type of liability compared to actually helping them.
21 COMMISSIONER FORD-COATES: But they can sue for
22 future support and loss of support, regardless of age?
23 COMMISSIONER ZACK: If there is support, which there
24 isn't in most of these cases.
25 COMMISSIONER FORD-COATES: Okay.
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1 Commissioners, I was frequently moved to tears by the
2 testimony we heard around the state on this issue. And
3 when the proposal came up, I am a layperson, I don't
4 understand torts and the rest of this stuff very well. So
5 I went back and I tried to look at this law and say, Well,
6 what can they sue for? They can sue for economic damages.
7 I then asked, Okay, if they can't sue for pain and
8 suffering, noneconomic damages, how are these physicians
9 and hospitals held accountable?
10 And I learned about the Agency for Health Care
11 Administration. Last week I went and looked up on the
12 Internet to see if that agency really was there. And I
13 found a web page that gave me complaint forms, information
14 on claims on doctors throughout the state. I printed out
15 some of that information, I didn't -- you know, all the
16 paper is being used up by faxes in other areas,
17 Commissioner Rundle, but -- so I didn't print out the
18 whole thing. But there is a method there to discipline
19 physicians and health care providers when medical
20 malpractice occurs.
21 In the last year, the Legislature has made
22 significant changes to that discipline process. And I
23 have a list of those, one, two, three, four, five, six,
24 seven major changes to that disciplinary process that make
25 it stronger. And more work is being done everyday by the
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1 Legislature to ensure that these problems of medical
2 malpractice are dealt with appropriately.
3 I think we need to remember two things in particular.
4 This proposal does not just cover the medical malpractice
5 stories that we heard, it covers all personal injury. And
6 I can't begin to understand what the effect of that will
7 be. Because of that, I think again, just to reiterate, I
8 think it is a legislative matter. But, secondly, I must
9 tell you that as I have told Commissioner Zack, my good
10 friend, whom I usually agree with, I personally have a
11 problem with suing for pain and suffering.
12 I think in this country we have become very litigious
13 and I think that the general public agrees with economic
14 damages, agrees with discipline, but has some questions
15 about pain and suffering and some of the outrageous awards
16 that we have seen around the country.
17 I am particularly concerned about how this proposal
18 will affect hospitals in rural areas and public hospitals.
19 In my own community, Sarasota Memorial Hospital is for the
20 first time in its history -- and Sarasota Memorial is open
21 24 hours a day, seven days a week, there to service anyone
22 who walks through the door -- for the first time in our
23 hospital's history, they are facing a $12 million deficit
24 because of problems with Medicare funding and
25 reimbursement.
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1 And last year they made major cuts in their budget.
2 They have cut physicians, they have cut some services.
3 This kind of change to our Constitution will increase the
4 number of suits against the hospital at a cost to defend
5 of probably $100,000 a suit.
6 We are, Commissioners, in a state that has an aging
7 population. People die. And one of the stages of grief
8 is anger. And one of the results of that anger is filing
9 suit. I suggest to you that the results of this change in
10 our Constitution will be complex and far reaching. The
11 only reasonable place to deal with this is the Legislature
12 because when the Legislature makes a decision, if the
13 impact, the unseen impact is significant, the Legislature
14 can come back and fix that proposal.
15 So I suggest to you that because of the unknown
16 consequences, and even though my heart goes out to those
17 people who suffered their losses, I must tell you that my
18 own mother went in a small rural hospital in the mountains
19 of Virginia one night complaining about pain, was released
20 from that hospital and went home and died that night. I
21 certainly know what it feels like to have someone who is
22 part of your life die as a result of possible medical
23 malpractice.
24 But I submit to you there are better ways to deal
25 with holding those institutions and those physicians
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1 accountable. It does not belong in our Constitution.
2 Thank you.
3 CHAIRMAN DOUGLASS: Commissioner Scott. Excuse me,
4 Commissioner Morsani, I'll recognize you. There is two
5 minutes left for the opponents.
6 COMMISSIONER SCOTT: Thirty seconds. I want to point
7 out to you, I have personally supported in the Legislature
8 and committees the object of this proposition. However,
9 if you put this in the Constitution, what will happen is
10 this right has only existed for anything to recover for
11 any claims for pain and suffering and noneconomic damages
12 since I believe 1990.
13 And what could happen and what would have to happen,
14 there would be no authority for the Legislature to pick
15 and choose, and this really is a legislative matter. You
16 are going in and picking 2 percent of the 98 percent
17 subject and putting it in the Constitution. And when you
18 do that, the Legislature could only then eliminate
19 noneconomic damages for every claim in Florida. And so --
20 regardless of age, medical malpractice or whatever.
21 So for that reason I don't think it should be in the
22 Constitution and will vote not to put it there.
23 CHAIRMAN DOUGLASS: Commissioner Morsani.
24 COMMISSIONER MORSANI: Again for 30 seconds. I
25 certainly agree with the previous two speakers. I think
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1 the claim is hollow when the claim says it is not for
2 economic advantages, meaning pain and suffering, I think
3 that is a hollow claim. I think that Commissioner Coates,
4 Ford-Coates, has done an excellent job of outlining the
5 reasons why not to vote for this proposal. I would
6 encourage you not to vote for this today.
7 CHAIRMAN DOUGLASS: All right. There is no further
8 debate. Commissioner Zack, you have the right to close.
9 COMMISSIONER ZACK: I always listen very, very
10 carefully when Commissioner Ford-Coates speaks. And the
11 questions regarding the Agency for Health Care
12 Administration and her statements regarding that agency I
13 thought were very interesting and, frankly, important.
14 I want you to know before you cast that vote that the
15 reason those, that agency investigates physicians is when
16 there is a claim or judgment against the physician. That
17 triggers the investigation. That is one of the main
18 things that they look at. And when you have no claim for
19 anyone who is over 25 years of age, you have all those
20 people who never bring a claim and therefore there is no
21 triggering event, or at least one of the triggering events
22 is not occurring.
23 It has been shown, in every state, that malpractice
24 is reduced by one thing and one thing alone, that is
25 accountability. And what we are talking about here is
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1 accountability. But more than accountability, we are
2 talking about pure discrimination. This is not about
3 money, this is about fairness, justice and discrimination.
4 Look at your calendar. And look at what we just
5 voted for. Proposal No. 5 prohibits discrimination based
6 on national origin. Of course we are all against that.
7 Proposal No. 11 prohibits gender discrimination. Next
8 number, Proposal 14 prohibits discrimination on physical
9 handicap and physical disability. Next Proposal 58,
10 discrimination on age.
11 The only difference here is that we are talking about
12 certain vested interests that would like not to be held
13 accountable. All of us would like to go through life
14 being the king, having no accountability. But that's not
15 how our system of justice works, that's not how our sense
16 of fairness works, and that's not what our Constitution
17 should allow.
18 Why is it that the person who experiences anger, as
19 suggested by Commissioner Ford-Coates, who is 25 years of
20 age has any different anger or right to work through that
21 anger or the right to hold the person accountable for that
22 anger because of their age? This is a very, very limited
23 proposal. I want to make --
24 CHAIRMAN DOUGLASS: You have got to wrap it up.
25 COMMISSIONER ZACK: Very, very limited proposal and
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1 it is one that I believe clearly needs to be addressed and
2 what I consider to be an argument that really needs to be
3 looked at very carefully before you vote about the
4 Legislature's right to destroy this cause of action. I
5 believe that our Legislature is going to do the right
6 thing, it did the right thing in allowing the wrongful
7 death statute to exist, and there is no question in my
8 mind that it should not be employed in a discriminatory
9 fashion.
10 I ask you to please vote for this.
11 CHAIRMAN DOUGLASS: All right. It is as amended,
12 Proposal No. 58. Unlock the machine and we will vote.
13 (Vote taken and recorded electronically.)
14 CHAIRMAN DOUGLASS: All right. Lock the machine and
15 announce the vote.
16 READING CLERK: Fifteen yeas, 20 nays, Mr. Chairman.
17 CHAIRMAN DOUGLASS: By your vote you have defeated
18 Proposal No. 58.
19 I'd like to announce that on Proposal No. 11, for the
20 record, Commissioner Rundle's vote did not record. Please
21 correct the record to show her voting in the roll call,
22 making the vote 31 yeas, 5 nays.
23 All right. We will now move to Proposal No. 187. We
24 are going to break for lunch at 12:00, incidentally, we
25 are going to take 45 minutes. And we are moving right
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1 along. But right now we are on Proposal No. 187 by
2 Commissioner Connor. Would you read it, please.
3 READING CLERK: Proposal No. 187, a proposal to
4 revise Article I, Section 3, Florida Constitution.
5 CHAIRMAN DOUGLASS: All right. There is an amendment
6 on the table. Would you read the amendment? This is a
7 Style and Drafting amendment on the table. Would you read
8 the amendment, please?
9 READING CLERK: By Commissioner Butterworth, on
10 Page 1, Line 17, after the comma insert "except with
11 respect to prisoners in jails, prisons or other
12 correctional facilities."
13 COMMISSIONER CONNOR: Mr. Chairman, that's not a
14 Style and Drafting amendment.
15 CHAIRMAN DOUGLASS: Oh, I'm sorry, excuse me, you are
16 absolutely right. It is by Commissioner Butterworth on
17 the amendment. This is the RFRA proposal that you know
18 about and this proposal is by Commissioner Butterworth,
19 the amendment is by Commissioner Butterworth. I'm going
20 to recognize Commissioner Butterworth on the amendment.
21 Commissioner Connor will be recognized on the proposal.
22 COMMISSIONER BUTTERWORTH: Thank you, Mr. Chairman.
23 What this amendment does, it simply exempts from the
24 proposal prisoners who are in jails, prisons or other
25 correctional facilities. I'd like to direct your
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1 attention to a letter that should be on your desk from the
2 Florida Department of Corrections Secretary, Secretary
3 Singletary, who has great concerns with this. And as you
4 know, he is in charge of the prison system in the state of
5 Florida.
6 As it says in the first paragraph, "This particular
7 RFRA proposal mirrors the one that Congress passed a
8 number of years ago and was subsequently struck down by
9 the United States Supreme Court on unrelated grounds." He
10 states that the federal act created serious problems that
11 undermined the safe and orderly management of Florida's
12 correctional system with the number of grievances on
13 religious grounds increasing approximately three-fold.
14 He also stated that it resulted in increased and
15 recognized gangs and hate groups who are known to be
16 masquerading as religious groups. And this proposal
17 without an exemption for inmates will make it increasingly
18 difficult for the department to deny special requests made
19 by those under the guise of religion.
20 When this was passed in Congress, all 50 secretaries
21 of the Departments of Corrections objected to this
22 particular RFRA without the amendment taking out the
23 prison systems because of the problems that it would cause
24 for not only the correctional staff but also everyone else
25 involved. And I urge you to pass this amendment.
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1 CHAIRMAN DOUGLASS: All right. Before we do anything
2 else, I was reminded that I didn't ask for five hands and
3 that we proceed to rehear this matter. Raise your hands
4 if you are for it. Okay. We will go forward. Now we are
5 on the amendment. Does everybody understand the
6 amendment? Or is there a further debate on the amendment?
7 Commissioner Connor, would you like to address the
8 amendment?
9 COMMISSIONER CONNOR: I would, but I believe
10 Commissioner Barnett had a question first. I'd like to
11 speak in opposition to the amendment.
12 CHAIRMAN DOUGLASS: Commissioner Barnett.
13 COMMISSIONER BARNETT: Thank you. I'd like to ask
14 Commissioner Butterworth a question because I think I like
15 the amendment but I want to make sure of one particular
16 thing. If this amendment is adopted, and we went forward
17 and adopted the proposal, then nothing would occur that
18 would diminish the current guarantees under our
19 Constitution that are provided to people in a penalogical
20 institution, it would only mean that the standard of
21 review there would continue to be the reasonableness test
22 as opposed to the higher compelling interest test.
23 COMMISSIONER BUTTERWORTH: Yes, Commissioner, that is
24 correct. It would not change what's happening now. And
25 there are still cases that are brought through the court
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1 system.
2 But the Florida Department of Corrections obviously,
3 and has throughout the years, as Mr. Singletary states,
4 the department supports the rights of all citizens,
5 including inmates, to practice their religious beliefs as
6 afforded under the First Amendment.
7 COMMISSIONER BARNETT: I just wanted to make clear
8 that we are not in any way diminishing the current
9 constitutional protections to prisoners, but that the
10 standard is simply one step lower than the compelling
11 interest standard.
12 COMMISSIONER BUTTERWORTH: That's correct.
13 CHAIRMAN DOUGLASS: All right. Any further --
14 Commissioner Connor on the amendment.
15 COMMISSIONER CONNOR: Commissioners, I'd like to urge
16 you in the strongest possible terms to reject the proposed
17 amendment. You will note in the attachments that I
18 provided for you the results of a survey in 1996 of states
19 on pending RFRA claims regarding prisoners. And you will
20 note that after RFRA there was actually one fewer case
21 filed based on religious liberty issues in the aftermath
22 of RFRA than there were beforehand.
23 Now the effect of adopting this prisoner exemption
24 will be that the coalition which has supported RFRA
25 historically will break down on the basis of the prisoner
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1 exemption. And, ladies and gentlemen, I would submit to
2 you that it is not necessary. The state can easily, the
3 state can easily prove the compelling interest that it has
4 of a penalogical nature as it relates to the exercise of
5 religious freedom.
6 I met for about two hours with an attorney for the
7 Department of Corrections and members of the House
8 corrections committee, both staff and the chairman of that
9 committee, to discuss this issue. And one of the things I
10 learned that the Department of Corrections has available
11 to it now, that the Attorney General has available to him
12 now, is a provision in the Florida Statutes that provides
13 explicitly that in the event a state prisoner brings a
14 frivolous lawsuit and there is a finding that that lawsuit
15 is frivolous, any or all, any -- strike that -- all or any
16 part of the gain time earned by that prisoner is subject
17 to forfeiture. That's Florida Statute 944.28 and also
18 944.279.
19 And the representative of the Department of
20 Corrections readily acknowledged that the department
21 scarcely ever seeks that kind of relief. And so I would
22 submit to you, ladies and gentlemen, that we currently
23 have provisions to deal with this issue.
24 I urge you not to adversely impact, by the breakdown
25 of the coalition, the right to religious freedom of
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1 14 million Floridians because of some few claims that have
2 been filed in the state prison system. And I guarantee
3 you, people with time on their hands and a free prison
4 library available to them are going to be filing
5 complaints.
6 This exemption is not warranted, it is not needed and
7 I urge you respectfully, and with all due regard to the
8 Attorney General to oppose it. Thank you.
9 CHAIRMAN DOUGLASS: All right. This is on the
10 amendment. Unlock the machine and we will vote on the
11 amendment. The amendment is as stated by Commissioner
12 Butterworth.
13 When you are absent from the chamber it is the same
14 as a no vote on these votes. So everybody isn't here
15 obviously voting. We're still missing a few. This is on
16 the Butterworth amendment.
17 (Vote taken and recorded electronically.)
18 CHAIRMAN DOUGLASS: Announce the vote.
19 READING CLERK: Eighteen yeas, 18 nays, Mr. Chairman.
20 CHAIRMAN DOUGLASS: I thought I was breaking the tie
21 and somebody slipped in there and got it. It fails on a
22 tie vote. We now go back to the proposal by Commissioner
23 Connor and you are recognized, Commissioner Connor.
24 COMMISSIONER CONNOR: Thank you, Mr. Chairman.
25 Ladies and gentlemen, I believe that you are very familiar
109
1 with these proposals, or with this proposal. Let me say
2 very simply that I think we would all agree that the right
3 to the free exercise of religion is without a doubt one of
4 the most cherished liberties that we Americans enjoy. It
5 was, after all, provided for and protected in the First
6 Amendment, the very first one.
7 The standard of review and the level of protection
8 that has been historically recognized under the First
9 Amendment was changed in 1990 as a consequence of the
10 Employment Division versus Smith case. That lowered
11 standard of review, that diminished level of protection
12 accorded to the free exercise of religion resulted in the
13 formation of the broadest, most diverse religious
14 coalition in the history of America in support of the
15 Religious Freedom Restoration Act.
16 The United States Supreme Court struck that down
17 because it said that Congress cannot pass a law that was
18 intended to protect the states in that regard, that that
19 was the states' province, but that states were free to
20 pass, in their state Constitutions, those kinds of
21 protections.
22 Now you will note in the materials that you have
23 received from the Gibbs law firm that one of the folks who
24 urged in the strongest of terms for states to pass and
25 strengthen this kind of protection was Justice Brennan.
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1 And Justice Brennan has been hardly considered a raving
2 fundamentalist among judicial officers. And he pointed
3 out the extraordinary importance of states raising the
4 standard of protection that would be afforded to their
5 citizens.
6 I urge you likewise to raise the level of protection
7 that we accord to the 14 million Floridians in this state.
8 I do want to clarify one item. The Coalition for the
9 Exercise of Religious Freedom, which is included in the
10 packet of materials attached to your memo, includes the
11 Antidefamation League. However, the league has indicated
12 that it does not support a state Constitutional protection
13 provision, preferring that that be handled as a matter of
14 legislation by the state Legislature.
15 Respectfully to the league, I would submit to you,
16 ladies and gentlemen, the problem with that approach is
17 that the state Legislature cannot dictate to the state
18 court the standard of review that it will apply in
19 evaluating free exercise claims. That would represent a
20 classic invasion of the judicial prerogative and would
21 raise profound problems with respect to the separation of
22 powers.
23 I urge in the strongest possible terms to support
24 this important proposal. Thank you.
25 CHAIRMAN DOUGLASS: All right. Commissioner Smith.
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1 COMMISSIONER SMITH: Thank you, Mr. Chairman.
2 CHAIRMAN DOUGLASS: You rise as which?
3 COMMISSIONER SMITH: I rise as a proponent and I have
4 a very, very short statement. One, is it needed? Yes.
5 To raise the standard of scrutiny we must have a
6 constitutional amendment.
7 Two, is it wanted? Yes. In my 50 years as a
8 Floridian I have never seen such a broad coalition of
9 religious organizations supporting any type of Legislature
10 on any type of constitutional amendment as this.
11 Third, should we do it? Yes. The founders of this
12 nation made the First Amendment protect religion for a
13 reason. And now we need to take it to the next level and
14 ensure that government for the 21st century doesn't
15 infringe on the protections which are most important to us
16 as a people, and that is the right, however we choose, to
17 express our appreciation for our maker. Thank you.
18 CHAIRMAN DOUGLASS: Commissioner Wetherington.
19 COMMISSIONER WETHERINGTON: Question.
20 CHAIRMAN DOUGLASS: Question of the sponsor?
21 COMMISSIONER WETHERINGTON: Yes. Going back to one
22 of the examples that we talked about earlier is the zoning
23 law. And the zoning law limits the uses that property
24 that's located in a single family residence can be put to.
25 And under that law, it is not a place where you can have a
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1 church, for example.
2 Someone regularly invites 40, 50 people over for
3 church services at their house, the zoning authorities
4 contend that under these circumstances they're violating
5 the zoning laws. Their contention is that their right of
6 free exercise of religion is such that they have a right
7 to do this, and their right is sufficient to override the
8 zoning law under those particular circumstances. All
9 right. That's the question.
10 Now, under this proposal, do they prevail or does the
11 zoning law prevail?
12 COMMISSIONER CONNOR: I think it is important to
13 understand that, first of all, that in order to qualify,
14 in order to assert a deprivation of their religious
15 liberty, first of all, they have to demonstrate that there
16 is a substantial burden that's been imposed on the
17 exercise of their religious freedom.
18 Secondly, I think it is important to understand that
19 under the exercise of police power, the state can
20 typically demonstrate that it has a compelling interest in
21 the zoning laws.
22 Thirdly, where they are either -- and as you know,
23 Commissioner Wetherington, there may be challenges that
24 result in constitutional deficiency as applied or
25 facially. As applied, for example, where, and there have
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1 been cases where people had folks come to their house to
2 worship or for Bible studies and had 40 or 50 people
3 there. And they were prohibited from doing that by the
4 zoning authorities and yet if you had a party or an event
5 at your house and had 40 or 50 people, they were permitted
6 to do that under the zoning laws.
7 As applied under those circumstances, I think that
8 would represent an unconstitutional infringement upon the
9 free exercise. But without seeing the zoning law itself,
10 it is difficult for me to speak to that in a vacuum.
11 There was one example, if I might point out, and you
12 should have a letter from the Gibbs and Crays Law Firm,
13 that illustrates, I think, the kind of thing that RFRA may
14 get at in the kind of context that you made reference to
15 where it says this: "A Florida church was nearly
16 prevented from constructing a new building because it
17 could not afford to construct the handicapped ramp in the
18 baptismal pool. Because of the slant required for the
19 ramp, the baptismal pool would have had to be the size of
20 the entire sanctuary, requiring parishioners to tread
21 water during services." This was surely a burdensome
22 requirement for which the city could not show a compelling
23 interest. Without the RFRA standard then in place, this
24 church might not have been able to construct the new
25 building since the handicapped access laws are generally
114
1 applicable and do not discriminate against religion per
2 se.
3 But first of all, I think what you have to
4 demonstrate is the substantial burden, then the state is
5 required to demonstrate that it has a compelling interest
6 and burdening the free exercise and has acted in a most
7 narrowly tailored manner to do so.
8 CHAIRMAN DOUGLASS: All right. Any further debate?
9 Commissioner Kogan.
10 COMMISSIONER KOGAN: I rise in opposition to this
11 particular amendment. Nothing frightens me more when we
12 attempt to redefine or add to the definition of those
13 basic freedoms; freedom of speech, freedom of religion,
14 the right to assemble, and freedom of press. These items
15 have been, first of all, in the United States Constitution
16 as part of the Bill of Rights since we became a nation.
17 They are enumerated under our Declaration of Rights in our
18 state Constitution.
19 I want to read for you, if I can and with your
20 indulgence, through the Declaration of Rights' statement
21 in the Florida Constitution as it now exists and then I'll
22 read it to you with the proposed amendment. Article I,
23 Section 3, Religious Freedom: There shall be no law
24 respecting the establishment of religion or prohibiting or
25 penalizing the free exercise thereof. I would say
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1 everybody basically understands what that means.
2 The next part says, "Religious freedom shall not
3 justify practices inconsistent with public morals, peace
4 or safety." That I submit is understandable to everyone.
5 It continues, "No revenue of the state or any political
6 subdivision or agency therefore shall ever be taken from
7 the public treasury directly or indirectly in aid of any
8 church, sect or religious demonstration or in aid of any
9 sectarian institution." Understandable to the average
10 person, yes.
11 The addition to this amendment reads as follows:
12 "The state or any political subdivision or agency thereof
13 may not substantially burden the free exercise of
14 religion." That's understandable. Now listen, "even if
15 the burden results from a rule of general applicability
16 unless the state demonstrates that application of the
17 burden is in furtherance of a compelling interest and is
18 the least restrictive means of furthering that compelling
19 interest.
20 And that I submit to you, my fellow commissioners, is
21 not capable of being understood by the average citizen of
22 this state when lawyers have difficulty understanding and
23 deciding what it may mean.
24 Why on earth do we want to add this to the
25 Constitution of the state of Florida if it is going to
116
1 cause our citizenry to not understand what this is all
2 about, and not really know what they are voting on? Let's
3 not mess with the definitions that are now contained in
4 the Declaration of Rights in the Florida Constitution.
5 And I urge you to vote against this.
6 CHAIRMAN DOUGLASS: Commissioner Sundberg.
7 If there are people on the floor that aren't members,
8 it would be appreciated if you would not go to the desks
9 of the various members while we are in debate.
10 Commissioner Sundberg.
11 COMMISSIONER SUNDBERG: In opposition, Mr. Chairman.
12 Nothing is more sensitive in our basic document or no
13 subject matter is more sensitive than the free exercise of
14 religion. Speech, assembly, they do not touch as deep
15 into the well of each individual as the free exercise
16 clause.
17 There is, I submit to you, a very well-developed body
18 of law in recognition of the sensitive balance that must
19 be maintained whenever government seeks to intrude upon
20 those issues that are so sensitive to each individual.
21 The addition of this language, it is maintained, is simply
22 to reverse a particular decision of the United States
23 Supreme Court that says, you apply in most instances, just
24 like you do to any other entity, neutral principles of law
25 when you are talking about zoning and construction and
117
1 this sort of thing you have to do to comply with what
2 people in an organized society have to do when they live
3 amongst one another and build structures.
4 But I caution you, the decisions of both the United
5 States and the Florida Supreme Court, there is a very,
6 very well-developed body of law carefully crafted to
7 address this very, very sensitive issue of the
8 establishment of a religion. This language, as Justice
9 Kogan indicates, takes us I know not where.
10 I urge you to leave in place those principles which
11 we now understand. They aren't understated as they are
12 currently in our Constitution. And I suggest you make a
13 big mistake by adding language to them. Thank you.
14 CHAIRMAN DOUGLASS: Commissioner Mathis.
15 COMMISSIONER MATHIS: I rise in support of this
16 proposal having dealt with a church in a, with a local
17 government in central Florida where the local government
18 opposed the church's expansion, not because it would harm
19 the health, safety or welfare of the citizens, but because
20 the church had stood against adult entertainment coming to
21 that town.
22 What this proposal does is clarify that government
23 cannot misuse its position to inhibit the free exercise of
24 religion. I know I am standing in opposition to two
25 recent Supreme Court justices but I as a little citizen of
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1 Florida who want to go and worship and for my church to
2 expand and be a part of the community, have seen the need
3 for this language. So have a number of people throughout
4 this country. And so has a large population in the state
5 of Florida, having put this proposal before us.
6 I say that there is a broad-based coalition, diverse
7 and overwhelming, that supports this proposition and they
8 see the need. There is a need for clarification and we
9 are the only entity that can do that. This needs to be
10 done in the Constitution. The United States Supreme Court
11 has said and invited state governments to do this, propose
12 this proposal in their Constitutions. All we are doing
13 here is accepting their invitation to clarify the free
14 exercise of religion. And I would urge you to support
15 this proposal.
16 CHAIRMAN DOUGLASS: Commissioner Freidin.
17 COMMISSIONER FREIDIN: There is nobody in this
18 chamber that, I am certain, that does not hold religious
19 freedom to be the most cherished of the freedoms that are
20 provided to us in our United States Constitution and in
21 the Florida Constitution.
22 But I think that as you review the Florida
23 Constitution you will find that there is not another place
24 in it where there is a standard of review that is set out.
25 This is a very, very unusual thing. Now why is it? The
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1 reason is is that this started out as a federal statute.
2 And when it was held unconstitutional by the United States
3 Supreme Court as an intrusion into states' rights, in
4 part, and for other reasons, there was a movement among
5 the proponents of this to have it passed throughout the
6 country as legislation.
7 This is the only, well there is one other state that
8 is currently considering it as a possible constitutional
9 amendment, but numerous states have actually passed it as
10 legislation. In fact, it is my understanding, that it has
11 been filed with this session of the Legislature in this
12 very building. And I am not aware what the status of it
13 is, but it has been filed.
14 This is a legislative matter, it is not a
15 constitutional matter. There are so many questions that
16 are being raised about what does it do. Let's not put it
17 in a place where it is going to be for the next 20 years
18 with difficulty or impossibility of changing it. If it is
19 something that should go forward, let's let the
20 Legislature deal with it. It does not have to be in the
21 Constitution. This is one of those matters that can be
22 handled legislatively if there is in fact a need for it.
23 CHAIRMAN DOUGLASS: All right. Any further debate?
24 If not, Commissioner Connor, you may close.
25 COMMISSIONER CONNOR: Thank you, Mr. Chairman. Let
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1 me, if I may, read to you from the comments sent to us by
2 the American Jewish Congress as it relates to this matter.
3 "The principle is a simple one: Every citizen is
4 entitled to ask government to justify interference with
5 his or her religious liberty. Depending on the
6 circumstances, it may or may not be possible to
7 accommodate religious practice in the face of legitimate
8 government concerns. But every citizen is entitled to
9 insist on a second look to ensure that government does not
10 needlessly trample religious freedom.
11 "This principle is flexible enough to take legitimate
12 governmental concerns into account and yet stringent
13 enough to offer real protection for religious liberty."
14 Now with all due deference to our judicial colleagues
15 who are in this body, they well know what a compelling
16 interest standard means and what the requirements are for
17 narrowly tailoring legislation to accomplish that
18 interest. They deal with it everyday. This is not some
19 amorphous, fuzzy, undetermined kind of concept that we are
20 dealing with here.
21 The issue is whether or not we are going to accord
22 the highest measure of protection for religious liberty in
23 this state -- which we historically enjoyed up until 1990
24 when the Supreme Court of the United States eroded that
25 protection in the Smith case -- or not.
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1 Now if you worry about people and the impact on the
2 culture and society or perhaps on you who are serious
3 about the exercise of their religious freedom, then you
4 ought to vote against this proposal.
5 But if you believe that religious freedom is
6 something that should not just be tolerated, but protected
7 and cherished, and that it ought to be among our most
8 precious of rights, then I would submit to you that you
9 ought to vote in support of this. And to suggest that we
10 are creating some kind of ambiguity, the likes of which we
11 know not what will happen or where it will lead us, I
12 would suggest to you is a smoke screen and nothing short
13 of facetious. Thank you.
14 CHAIRMAN DOUGLASS: Unlock the machine we will vote
15 on the proposal.
16 (Vote taken and recorded electronically.)
17 CHAIRMAN DOUGLASS: Has everybody voted? Lock the
18 machine and announce the vote.
19 READING CLERK: Twenty-two yeas, 13 yeas,
20 Mr. Chairman.
21 CHAIRMAN DOUGLASS: By the barest of margins you have
22 sent this forward for grouping to Style and Drafting.
23 It is now time for lunch. I want to tell you,
24 though, we have lunch in the back in the lounge. So we
25 are going to cut our lunchtime and we are going to do 30
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1 minutes for lunch. And I will entertain a motion that we
2 recess for lunch and it is in the members' lounge. And
3 the chamber will be secured. The chamber will be secured.
4 So you may leave everything where it is.
5 (Lunch recess.)
6 (Session recessed at 12:05 p.m., to be continued in
7 Volume 2.)
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1 CERTIFICATE
2
3 STATE OF FLORIDA:
4 COUNTY OF LEON:
5
WE, JULIE L. DOHERTY, and MONA L. WHIDDON, Court
6 Reporters, certify that we were authorized to and did
stenographically report the foregoing proceedings and that the
7 transcript is a true and complete record of our stenographic
notes.
8
9 DATED this ______ day of ____________, 1998.
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_________________________________
12 JULIE L. DOHERTY, RPR
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15 _________________________________
MONA L. WHIDDON
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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