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1 STATE OF FLORIDA
CONSTITUTION REVISION COMMISSION
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COMMISSION MEETING
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DATE: November 13, 1997
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TIME: Commenced at 9:00 a.m.
11 Concluded at 3:30 p.m.
12 PLACE: Senate Chamber
The Capitol
13 Tallahassee, Florida
14 REPORTED BY: KRISTEN L. BENTLEY
JULIE L. DOHERTY, RPR
15 Court Reporter
Division of Administrative Hearings
16 The DeSoto Building
1230 Apalachee Parkway
17 Tallahassee, Florida
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1 APPEARANCES
2 W. DEXTER DOUGLASS, CHAIRMAN
3 CARLOS ALFONSO
CLARENCE E. ANTHONY
4 ANTONIO L. ARGIZ (ABSENT)
JUDGE THOMAS H. BARKDULL, JR.
5 MARTHA WALTERS BARNETT
ROBERT M. BROCHIN
6 THE HONORABLE ROBERT A. BUTTERWORTH
KEN CONNOR
7 CHRIS CORR (ABSENT)
SENATOR ANDER CRENSHAW
8 VALERIE EVANS
MARILYN EVANS-JONES
9 BARBARA WILLIAMS FORD-COATES
ELLEN CATSMAN FREIDIN
10 PAUL HAWKES
WILLIAM CLAY HENDERSON
11 THE HONORABLE TONI JENNINGS
THE HONORABLE GERALD KOGAN (ABSENT)
12 DICK LANGLEY
JOHN F. LOWNDES (ABSENT)
13 STANLEY MARSHALL
JACINTA MATHIS
14 JON LESTER MILLS
FRANK MORSANI
15 ROBERT LOWRY NABORS
CARLOS PLANAS
16 JUDITH BYRNE RILEY
KATHERINE FERNANDEZ RUNDLE (ABSENT FOR PM SESSION ONLY)
17 SENATOR JIM SCOTT
H. T. SMITH
18 CHRIS T. SULLIVAN
ALAN C. SUNDBERG
19 JAMES HAROLD THOMPSON
PAUL WEST
20 JUDGE GERALD T. WETHERINGTON
STEPHEN NEAL ZACK (ABSENT)
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PAT BARTON
22 IRA H. LEESFIELD (ABSENT)
LYRA BLIZZARD LOGAN (ABSENT)
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1 PROCEEDINGS
2 SECRETARY BLANTON: Quorum call. All commissioners
3 indicate your presence. (Pause.)
4 (Quorum taken and recorded electronically.)
5 CHAIRMAN DOUGLASS: Everybody take your seats.
6 SECRETARY BLANTON: Quorum present.
7 CHAIRMAN DOUGLASS: Father Tom Collins will give the
8 invocation this morning. He's from the St. Thomas More
9 Co-Cathedral in Tallahassee. And Father Collins. If
10 everybody would please rise, including the folks in the
11 gallery.
12 FATHER COLLINS: Let us pray. Lord God, I want to
13 thank you and praise you and honor you for the great gift
14 of yours to us which is the state of Florida. You have
15 given us a rich and fertile land unmatched in beauty and
16 you ask us to be responsible stewards with this gift. You
17 have given us a people rich in cultural diversity and
18 talents. And you ask us to honor the dignity that you
19 have given each member, regardless of social status or
20 state in life. You give us a bright and hopeful future if
21 we use the gifts and talents you gave us to seek justice,
22 truth and prosperity for all our people.
23 And so, God, I ask you to bless this commission given
24 the task to be part of the planning for the future. Give
25 them wisdom, understanding and knowledge. Help them to
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1 help us, the voters, to make the right decisions for all
2 the people of this great state. Make their work fruitful
3 and help their deliberations to be made in charity and
4 respect.
5 And finally, Lord, let your favor be upon all the
6 people of this great state. Grant us prosperity and
7 virtuous lives and give success to the work of our hands,
8 I humbly ask this in your name. Amen.
9 CHAIRMAN DOUGLASS: Thank you, Father. I'd like to
10 call on Commissioner Sullivan to please come forward and
11 lead us in the Pledge of Allegiance this morning.
12 (Pledge of Allegiance.)
13 CHAIRMAN DOUGLASS: Good morning. We've got to start
14 our real work today. Before we do that, however, are
15 there any communications?
16 READING CLERK: None on the desk, Mr. Chairman.
17 CHAIRMAN DOUGLASS: Are there any introduction of
18 proposals?
19 READING CLERK: None on the desk, Mr. Chairman.
20 CHAIRMAN DOUGLASS: We will get to the reports of the
21 committee after the next matter.
22 Today is a very significant day here for one of the
23 people that is with us. When she was four years old, she
24 started working for the Florida Senate. That's based on
25 the number of years she claims to have worked for the
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1 Florida Senate. And today is the anniversary of her first
2 year as being the secretary of the Florida Senate. And
3 she was the first person of her gender, is that the way to
4 say that, to serve in that capacity. And, of course,
5 she's our own secretary and does such a great job for us.
6 In honor of your one-year service, we have some
7 momentos to give to you. We refrained from giving you
8 champagne because we knew you didn't drink, but we were
9 afraid you'd give it to Ed and we might lose him for a
10 week. So I believe our General Counsel has the gift --
11 she's disappeared. Is it all right if I allow her up
12 here, Commissioner Jennings? Is that okay?
13 COMMISSIONER JENNINGS: It's your rostrum today.
14 CHAIRMAN DOUGLASS: Just today.
15 (Laughter.)
16 CHAIRMAN DOUGLASS: We'd like to present this to you,
17 Fay. And all of us are very proud of your accomplishments
18 and we are delighted to have you serving with us. And I
19 remember you from '78 as a ten-year-old girl. Would
20 everybody rise and give her a round of applause.
21 (Applause.)
22 (Off-the-record discussion.)
23 CHAIRMAN DOUGLASS: Now that we've been able to do
24 that, I might tell you that Commissioner Sullivan, I was
25 having a chat with him. One of the reasons I called on
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1 him this morning to lead the pledge, he's been on a grand
2 tour of the world. He went to Australia where they have
3 no Outback Steakhouses. That's correct; isn't it?
4 COMMISSIONER SULLIVAN: That's correct.
5 CHAIRMAN DOUGLASS: To determine if he was still in
6 the outback, and then from there to the Philippines and
7 Hawaii. And you do have Outbacks in those venues, of
8 course. And we're all very glad to have you back and glad
9 you made it safely. And as a result of my acknowledging
10 him, he's promised me that I can promise my wife that we
11 won't have to wait on the porch in order to get in. Thank
12 you for your fine work. She won't have to wait, I'll have
13 to wait.
14 COMMISSIONER SULLIVAN: You got it.
15 CHAIRMAN DOUGLASS: Fair enough.
16 We'll proceed now with the business. Commissioner
17 Barkdull, report, please, on the committee on rules and
18 administration. Commissioner Barkdull.
19 COMMISSIONER BARKDULL: Mr. Chairman, members of the
20 commission. First, the air conditioner is not operative
21 in this room today. And without objection, the members
22 will be able to take their coats off if they would like
23 to.
24 CHAIRMAN DOUGLASS: That is the men. The male
25 members.
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1 COMMISSIONER BARKDULL: Well, the ladies can take
2 their jackets off, if they would like to.
3 CHAIRMAN DOUGLASS: Jackets, yes, sir. I really got
4 them going.
5 COMMISSIONER BARKDULL: I can't keep up with you,
6 Mr. Chair.
7 Today's calendar is before you. The rules committee
8 has set the special order as the proposed special order
9 was on the calendar of yesterday. Overnight the staff has
10 put together the yellow package you find on your desk
11 which is the staff analysis of each of the proposals and
12 the order in which they will come up, for your
13 consideration.
14 We're scheduled to meet today until 4:00 p.m. We
15 will take an hour off for lunch, 12:00 to 1:00, and you
16 will be on your own for lunch. At 4:00 p.m. there's a
17 declaration of rights committee scheduled, at 5:00 p.m.
18 there is a rules committee scheduled, at this point. That
19 might change in time later on depending on how the
20 calendar goes. At the present time, we're scheduled to
21 meet tomorrow at 9:00 until the calendar is concluded. If
22 it is concluded today, we probably won't meet tomorrow.
23 It came up before the rules committee yesterday the
24 policy that would be followed if a member desired to
25 withdraw a public proposal or had reached a point where
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1 they did not desire to sign a proposal after it was
2 drafted by the bill drafting committee. It was the
3 consensus of the rules committee that the proper way to
4 handle this would be for the member to stand up and ask
5 for unanimous consent to withdraw that particular
6 proposal.
7 If it received unanimous consent, it would be
8 withdrawn. If it does not receive unanimous consent, the
9 person or persons that object will then become sponsors of
10 that proposal. So the burden is on each of the members
11 who have previously indicated that they wanted to move a
12 public proposal, and now decide they do not want to go
13 forward, to ask for consent, unanimous consent of the body
14 to withdraw that proposal.
15 CHAIRMAN DOUGLASS: Does everybody understand that?
16 What we're going to do is the rules chairman is going to
17 announce the proposal, or I guess maybe we'll do it from
18 the rostrum, and then the person, we will identify the
19 person who sponsored it and wants to withdraw it. We will
20 then ask if there are no objections, it will be withdrawn.
21 If there is an objection, then the person who objects or
22 the person, whoever desires, will become the sponsor and
23 will need to sign it and it will then be referred to
24 committee and proceed forward.
25 Is that clear? Does anybody have any questions? All
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1 right.
2 COMMISSIONER BARKDULL: Mr. Chairman, I have one
3 motion that I would like to make on behalf of all the
4 committee chairmen. I would like to move that the time
5 for consideration of all proposals that have been referred
6 to their committees be extended through the termination of
7 our session in December.
8 CHAIRMAN DOUGLASS: Is that a motion?
9 COMMISSIONER BARKDULL: Yes, sir.
10 CHAIRMAN DOUGLASS: All right. Any discussion on the
11 motion? Maybe you'll explain why.
12 COMMISSIONER BARKDULL: The reason is the committees
13 are reaching a deadline on their times and they have not
14 had an opportunity to fully discuss certain of these
15 proposals. And some of the committee chairmen have asked
16 for extensions.
17 CHAIRMAN DOUGLASS: Does that extend the time to move
18 for a rehearing or not, reconsideration?
19 COMMISSIONER BARKDULL: I don't think that extends
20 the time for reconsideration. This just extends the time
21 for initial consideration of the proposals.
22 CHAIRMAN DOUGLASS: Very well. All in favor, please
23 say aye.
24 (Verbal vote taken.)
25 CHAIRMAN DOUGLASS: Motion carries.
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1 COMMISSIONER BARKDULL: That concludes the report,
2 Mr. Chairman.
3 CHAIRMAN DOUGLASS: The secretary advises me that
4 this packet is the revised rules and they are on your desk
5 for your use and consideration. It includes the
6 Constitution and the index to the rules and the index to
7 the Constitution. So it will be a very valuable tool for
8 your use.
9 One other announcement. Susan Evans is our page
10 today. Susan, would you stand up, please? She's
11 available and you have a button on your desk that says
12 "page." So when you want something, push the button and
13 Susan will respond. She's acting as our page.
14 While we're on that, if you have children that are
15 nine to, or young people, nine to 14 or so, that you'd
16 like to have serve as pages at our sessions, speak to the
17 secretary in advance and we'd be delighted to have them.
18 In '78 I think many of the members had children that
19 served and you may have -- some of ours may have
20 grandchildren or whatever that might like to. Keep that
21 in mind and you can speak to the secretary. And that's a
22 good experience for these young people.
23 All right. We'll proceed forward with the special
24 order calendar. I guess I'll call on the chairman of the
25 judicial committee to present the first set of proposals.
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1 COMMISSIONER FREIDIN: Mr. Chairman, I'm a little
2 unclear on when the appropriate time to do this would be,
3 but I'd like to withdraw a couple of proposals I filed.
4 Is this the appropriate time?
5 CHAIRMAN DOUGLASS: It is the appropriate time.
6 COMMISSIONER FREIDIN: I'd like to withdraw proposals
7 12 and 68, unless there's an objection.
8 CHAIRMAN DOUGLASS: Do them one at time, please.
9 Proposal No. 12. Which is what?
10 COMMISSIONER FREIDIN: Access to the courts
11 regardless of age.
12 CHAIRMAN DOUGLASS: All right. We've heard the
13 motion of Commissioner Freidin to withdraw consideration
14 of the public proposal to have access, is that it?
15 COMMISSIONER FREIDIN: Access to the courts
16 regardless of age.
17 CHAIRMAN DOUGLASS: Any objection? Commissioner
18 Langley.
19 COMMISSIONER LANGLEY: Just a question of
20 Commissioner Freidin. Is there another proposal that
21 covers the access for the over 25 and the under, for the
22 deceased parents?
23 COMMISSIONER FREIDIN: There is but I was going to
24 withdraw that one, too. The reason that I'm withdrawing
25 both of these at this time is I have asked some
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1 constitutional scholars to look at them. They have raised
2 genuine concerns. So I don't think that they are
3 constitutionally sound. I don't think that they probably
4 achieve -- either one of them probably achieves what we're
5 trying to achieve in terms -- I mean, and I would welcome
6 some input from anybody because I certainly remain
7 committed to trying to fix that problem, but I don't think
8 that this is the way to do it. And I'm being told that
9 this is not the way to do it by people I respect. That's
10 why I'm moving to withdraw both of them.
11 CHAIRMAN DOUGLASS: Let me point out, Commissioner
12 Langley, I think you pointed this out to me yesterday,
13 that any Commissioner can still introduce proposals up
14 until, what is it, November 25th. So there is nothing to
15 prevent, even if this one is withdrawn, for a Commissioner
16 to submit one which accomplishes or addresses the same
17 subject.
18 Without objection, we will allow the withdrawal of
19 this particular proposal. Is there any objection? If
20 not, it's withdrawn. And No. --
21 COMMISSIONER FREIDIN: 68.
22 CHAIRMAN DOUGLASS: -- 68, covering the same subject?
23 COMMISSIONER FREIDIN: Yes, sir.
24 CHAIRMAN DOUGLASS: Without objection, we will allow
25 Commissioner Freidin to withdraw her sponsorship of that.
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1 COMMISSIONER FREIDIN: Thank you.
2 CHAIRMAN DOUGLASS: Is there any objection? If not,
3 it's withdrawn. Are there any others? We had some
4 others. Where are they? We had some that people had
5 sponsored on the floor but they won't sign the jacket.
6 What happened to those? These are public proposals, they
7 wouldn't be proposals that they offered.
8 (Off-the-record discussion.)
9 CHAIRMAN DOUGLASS: We don't have a list, unless some
10 of you know who you are and want to move to withdraw. I
11 know there are several proposals that people sponsored and
12 we furnished them with the proposal of the draft and they
13 said they didn't want to sign them. And that would be
14 tantamount to withdrawing them. It would be the same as
15 this. I thought maybe we could cover them at this
16 meeting.
17 (Off-the-record discussion.)
18 CHAIRMAN DOUGLASS: I guess we can get started now
19 and call on the chairman of the judicial committee to
20 present the first proposals on the special order.
21 Commissioner Wetherington.
22 COMMISSIONER WETHERINGTON: Thank you, Mr. Chairman.
23 The first proposal for consideration is Proposal No. 62
24 which amends Article V, Section 8, to raise the mandatory
25 retirement age of justices and judges from age 70 to age
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1 72, with no opportunity for the justice or judge to serve
2 any remaining term of office. If I remember correctly,
3 the vote in the committee on this was two to two.
4 The reason why I submitted the proposal I submitted
5 was because the Article V commission recommended this,
6 Justice Grimes recommended it, it makes sense. Rather
7 than the present situation which is if you have served
8 less than half your term when you reach age 70, you have
9 to retire at age 70. If you have served more than half
10 your term when you reach age 70, you can continue to serve
11 the balance of the term. The purpose of the
12 recommendations is to have a uniform rule at age 72. And
13 that's the reason for the proposal.
14 CHAIRMAN DOUGLASS: All right. As I understand -- if
15 I understand what you're saying is even though the
16 committee two-to-two'd on this and therefore it comes out
17 without approval, you support it.
18 COMMISSIONER WETHERINGTON: I do.
19 CHAIRMAN DOUGLASS: Would you like to tell us why you
20 support it and begin the debate on this subject or would
21 you like to combine it with the next one which deals with
22 the same subject?
23 COMMISSIONER WETHERINGTON: The next proposal would
24 be to eliminate Commissioner Sundberg's proposal, which is
25 Proposal No. 9, which would eliminate the requirement of a
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1 mandatory retirement at age 70 for judges and justices.
2 CHAIRMAN DOUGLASS: Was that one 2/2 also?
3 COMMISSIONER WETHERINGTON: This was defeated.
4 CHAIRMAN DOUGLASS: Let's move with the first one
5 then and you can present that and then Commissioner
6 Sundberg can speak to the other proposal when you finish,
7 when we finish with this one.
8 COMMISSIONER WETHERINGTON: On the age 72, it's not a
9 major matter, but it obviously makes a great deal of sense
10 rather than having the system we have now where
11 arbitrarily some people have to leave at age 70, others
12 can serve to perhaps as much as age 73. And to put
13 everybody on an equal plane, you just have one date
14 everybody leaves on. That was the reasoning behind the
15 Article V commission's recommendation.
16 Justice Grimes appeared before our committee and he
17 agreed with this. He did not agree with eliminating the
18 mandatory retirement, but he did agree with this
19 particular provision. And for those reasons, that's why
20 I've submitted this proposal.
21 CHAIRMAN DOUGLASS: Commissioner Connor.
22 COMMISSIONER CONNOR: Mr. Chairman, I'd like to ask a
23 question.
24 CHAIRMAN DOUGLASS: Do you yield to Commissioner
25 Connor?
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1 COMMISSIONER WETHERINGTON: Yes.
2 COMMISSIONER CONNOR: Judge Wetherington, are there
3 any other provisions in the Constitution, or indeed in
4 statutory law in Florida, that either mandate the
5 retirement of a public employee or official at a given age
6 or place any other limitation on their service based on
7 age? On the upper end of the scale as opposed to the
8 lower.
9 COMMISSIONER WETHERINGTON: I'm not aware of any.
10 CHAIRMAN DOUGLASS: I think there may be some
11 statutory requirements, for example, in the university
12 system, I believe, Commissioner Marshall, but they can be
13 waived; is that not correct? Would you respond to that,
14 please, Commissioner Marshall? I know you are familiar
15 with this in the university system. Commissioner
16 Marshall.
17 COMMISSIONER MARSHALL: Yes, Mr. Chairman. There is
18 such a requirement, it's been under review in recent
19 years. I think you're correct when you say the
20 restriction is there at age 70, I believe, but can be
21 waived for fairly casual reasons.
22 CHAIRMAN DOUGLASS: That's the only one I'm aware of.
23 There may be others in the statutes. Some of you members
24 of the Legislature may know. Does that answer your
25 question? Is there any other further discussion in
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1 opposition or in favor? Commissioner Brochin.
2 COMMISSIONER BROCHIN: I just had a question.
3 CHAIRMAN DOUGLASS: Do you yield to Commissioner
4 Brochin?
5 COMMISSIONER WETHERINGTON: Yes.
6 COMMISSIONER BROCHIN: So I'm following along, is the
7 proposal we're considering No. 62 in the package that we
8 got yesterday? Is that the actual language that we're
9 considering in terms of amending the Constitution?
10 COMMISSIONER WETHERINGTON: Yes.
11 CHAIRMAN DOUGLASS: So the committee hasn't changed
12 any of the language on the proposal?
13 COMMISSIONER WETHERINGTON: No.
14 CHAIRMAN DOUGLASS: Commissioner Sundberg, for what
15 purpose do you rise, sir?
16 COMMISSIONER SUNDBERG: Mr. Chairman, just --
17 CHAIRMAN DOUGLASS: First of all, do you yield to
18 Commissioner Sundberg?
19 COMMISSIONER WETHERINGTON: I will.
20 COMMISSIONER SUNDBERG: Commissioner Wetherington, I
21 take it you're seriously --
22 CHAIRMAN DOUGLASS: You're off.
23 COMMISSIONER SUNDBERG: I've been accused of that
24 before.
25 CHAIRMAN DOUGLASS: I mean your sound is off. You've
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1 never been accused of that before.
2 COMMISSIONER SUNDBERG: Thank you. If this provision
3 is adopted, which you urge, it will then preclude the next
4 proposal, will it not; that is, that there be no age
5 limitation on the service of a judge or justice in this
6 state; is that correct?
7 COMMISSIONER WETHERINGTON: That's correct.
8 CHAIRMAN DOUGLASS: Commissioner Langley, you were
9 next. For what purpose do you rise?
10 COMMISSIONER LANGLEY: You're going to hate me for
11 this.
12 CHAIRMAN DOUGLASS: Do you have a question?
13 COMMISSIONER LANGLEY: A point of order. I have
14 heard said by you, Mr. Chairman, also by the rules
15 chairman, that it takes 19 votes for a measure to survive
16 today. And I respectfully request you to consider that
17 that's not what the rule says. The rule says a majority
18 of the commission. And the definitions under Rule 9.4
19 says that a majority of the commission is a majority of
20 those voting. And therefore if there were only 27 here
21 today, it would only take 14.
22 CHAIRMAN DOUGLASS: I'm not sure we're quite to the
23 point where we need to consider that.
24 COMMISSIONER LANGLEY: We're about to vote on
25 something.
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1 CHAIRMAN DOUGLASS: We still have people that want to
2 discuss this issue then we'll take it up. Commissioner
3 Barkdull is going to answer that at the time, not now,
4 soon as the other people -- we'll stay in order and we
5 will continue with Commissioner Wetherington who has the
6 floor. Anybody that wants him to yield for a question,
7 this is the time to do it. Commissioner Smith.
8 COMMISSIONER SMITH: Thank you, Mr. Chairman. First
9 of all, Commissioner Wetherington, will you explain,
10 especially for the nonlawyers, what it means when you said
11 that some people have to retire at 70 and others have to
12 retire at 72 and by now coming forward with a proposal
13 that everybody has to leave at 72 it levels the playing
14 field, that's No. 1.
15 And question No. 2, is this the same proposal in
16 substance that was rejected by the voters in the last
17 election after the Article V commission?
18 CHAIRMAN DOUGLASS: I can answer that. It didn't
19 pass the Legislature.
20 COMMISSIONER WETHERINGTON: On the first point, the
21 way it works now, if you serve less than half your term
22 when you reach age 70, you must retire. If you're a day
23 over half your term, you can then serve out the balance of
24 your, the balance of your term. So theoretically you can
25 serve out close to three years.
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1 Let me add this point, which I think is significant.
2 This is not a major -- this is not a major problem. The
3 idea is that if we end up with, for example, a judiciary
4 proposal that combines a number of issues that are all
5 desirable but are not necessarily earthshaking, this is
6 the kind of proposal that I would envision would be
7 included in that kind of an overall proposal including a
8 number of matters that are desirable, beneficial, but
9 would not meet a very, very high-needs test in terms of a
10 constitutional amendment.
11 And it is being submitted with that in mind. If we
12 can do that combination in the right way without
13 disturbing anything, it would be a desirable thing to do
14 because I think it makes sense, but it would not meet, in
15 my opinion, a high-needs test.
16 CHAIRMAN DOUGLASS: Commissioner West, for what
17 purpose do you rise?
18 COMMISSIONER WEST: Just to ask Judge Wetherington a
19 question.
20 CHAIRMAN DOUGLASS: Do you yield, Judge Wetherington?
21 COMMISSIONER WETHERINGTON: I do.
22 CHAIRMAN DOUGLASS: Commissioner Wetherington, he's
23 no longer a judge, we've removed him.
24 COMMISSIONER WEST: Thank you very much,
25 Mr. Chairman.
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1 Did you have testimony in committee meeting from the
2 justice that spoke, his name was --
3 COMMISSIONER WETHERINGTON: Grimes.
4 COMMISSIONER WEST: Justice Grimes. Did you have
5 testimony from him on his position on Commissioner
6 Sundberg's proposal?
7 COMMISSIONER WETHERINGTON: Yes. He's against
8 eliminating mandatory retirement.
9 COMMISSIONER WEST: Why?
10 COMMISSIONER WETHERINGTON: His feeling was --
11 CHAIRMAN DOUGLASS: I'd like to hold this until the
12 next -- that is the next issue that will arise is the
13 issue of no retirement -- well, I think it's pertinent.
14 Go ahead and answer his question.
15 COMMISSIONER WETHERINGTON: His feeling is although
16 he doesn't want to leave now, he'd like to stay on, his
17 feeling was whereas a lot of people can stay on, there are
18 instances of people that do have problems and that this
19 having a mandatory retirement overall, in his opinion, and
20 I think in the opinion of the Article V commission,
21 eliminates some problems that might otherwise arise.
22 It's difficult to remove people. The Judicial
23 Qualifications Commission has difficulty in removing
24 people simply on the grounds that maybe they're not up to
25 doing their job anymore. And that therefore, overall,
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1 it's probably a good rule. And although it applies to him
2 and he's leaving and he would rather stay, he favored the
3 rule. That was one of the things that was persuasive to
4 me.
5 CHAIRMAN DOUGLASS: All right. Any further questions
6 or debate?
7 Commissioner Barnett, for what purpose do you rise?
8 COMMISSIONER BARNETT: A question really of the
9 sponsor and/or the Chair. I just want to clarify a
10 comment made earlier when Commissioner Sundberg asked
11 whether consideration of this proposal would preclude
12 consideration of his proposal. The answer was yes and
13 what I thought --
14 CHAIRMAN DOUGLASS: The Chair didn't rule, we'll
15 still consider it.
16 COMMISSIONER BARNETT: I want to make sure that what
17 the real implications of that was that the proposals are
18 inconsistent, but that we will debate and consider
19 removing mandatory retirement.
20 CHAIRMAN DOUGLASS: That's correct.
21 COMMISSIONER BARNETT: And it would be possible, at
22 least at this stage, for both to go forward with a
23 positive vote.
24 CHAIRMAN DOUGLASS: It would be possible, but not
25 likely.
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1 COMMISSIONER BARNETT: But it would be possible.
2 CHAIRMAN DOUGLASS: That is correct.
3 Commissioner Connor.
4 COMMISSIONER CONNOR: Mr. Chairman, I rise to speak
5 in opposition to the proposal.
6 CHAIRMAN DOUGLASS: Very well. Hold it just a
7 moment. Do you have anything, Commissioner Barkdull?
8 COMMISSIONER BARKDULL: I speak in favor of the
9 proposition.
10 CHAIRMAN DOUGLASS: Favor? All right. Commissioner
11 Connor, if you'll wait until -- Commissioner Barkdull,
12 you're next.
13 Incidentally, my understanding, Commissioner Jennings
14 and Commissioner Scott, this proposal came from the
15 Article V revision group and it passed the Senate and
16 received a 3/5 vote and it did not pass the House. And
17 therefore it was not on the ballot and it was opposed by
18 the Black Caucus, Commissioner Smith, it's my
19 recollection. And one of the members of that was on the
20 Article V commission and she was successful in keeping it
21 from receiving the 3/5 vote. That's why it was never on
22 the ballot. The people never got to vote on it.
23 Commissioner Barkdull.
24 COMMISSIONER BARKDULL: I speak in favor of this
25 proposal as one affected by the present Constitution, I
24
1 think, and also as one who served for a number of years on
2 the Judicial Qualifications Commission and also as one who
3 served with certain individuals that were exempt from the
4 70 provision.
5 As many of you know, I have served on previous
6 commissions and I also served on the Article V task force.
7 I have never thought strongly that this should be changed.
8 I've had recently people ask me about it, would I support
9 the change, and I said, no. The reason I said, no, is I
10 knew what it was when I took the job, that the term
11 expired in accordance with the terms of the Constitution
12 and that I would be gone. And I think, on balance, it is
13 a very good provision and I would urge that you support
14 the proposition as advanced by Commissioner Wetherington.
15 CHAIRMAN DOUGLASS: Anyone else as a proponent?
16 Commissioner Connor is an opponent.
17 COMMISSIONER CONNOR: Mr. Chairman, I rise in
18 opposition to the proposal because I have a general
19 reluctance to endorse age-based caps for service. I have
20 talked with several judges about this proposal, all of
21 whom have favored that because they frankly indicated that
22 they found in a number of instances, not many instances,
23 that there were some judges when they reached a given age
24 lacked the energy, and drive and capacity to manage their
25 caseloads.
25
1 And that it was uncomfortable and difficult for them
2 to confront those judges about that and to raise issues
3 about their qualifications. And that is certainly
4 understandable.
5 The flip side of that, I believe, is that when we
6 adopt an age-based limit of service that in effect we are
7 affirming, in a very real sense, a form of age
8 discrimination, indicating there is a presumption that
9 when a person reaches a given age, to wit in this instance
10 72, that they lack the capacity to go forward and carry
11 out the execution of their duties.
12 I think that's a wrongheaded approach and I don't
13 think that we should adopt such a wrongheaded approach to
14 relieve others in positions of responsibility who have a
15 duty to do the difficult task of grasping the medal and
16 confronting someone who is incapable of service or who
17 doesn't measure up or whatever, and relieving them of that
18 rather difficult political responsibility.
19 So I think we substitute a much greater problem by
20 adopting any form of age-based or age-capped service. And
21 I will object -- I object to it, will vote against it and
22 will vote to support Commissioner Sundberg's proposal.
23 CHAIRMAN DOUGLASS: Any further debate or discussion?
24 Anybody else in opposition or now anyone in rebuttal?
25 All right. Before we vote, Commissioner Langley's
26
1 point of order, Commissioner Barkdull, on whether or not
2 it takes a majority of those present and voting or whether
3 it takes 19 votes, regardless.
4 COMMISSIONER BARKDULL: I've been advised by people
5 with great wisdom that it takes a majority of those
6 present.
7 CHAIRMAN DOUGLASS: Anybody want to address that
8 before the Chair rules? Commissioner Scott.
9 COMMISSIONER SCOTT: I agree with him and I think
10 particularly at this stage when we still have the 22 vote
11 requirement for the final passage. And also I'm kind of
12 worried about reconsideration, would that take 19 votes.
13 So I think it's a majority for everything except where
14 specifically provided.
15 CHAIRMAN DOUGLASS: I was one of those with great
16 wisdom that he referred to. The Chair is going to rule
17 that it takes a majority of those present and voting, as
18 long as we have a quorum. But I want to remind you that
19 that's subject to appeal, the ruling of the Chair. So if
20 anybody wants to appeal it, now is your shot.
21 (No response.)
22 CHAIRMAN DOUGLASS: Very good. Commissioner Langley,
23 thank you for bringing that to our attention. We can now
24 proceed with great vigor. Is there any further discussion
25 on the first proposal? If not, we'll proceed to vote.
27
1 Read it, we didn't do this and I think we need to
2 have it read. You can leave your votes up there.
3 READING CLERK: Proposal 62, proposal to revise
4 Article V, Section 8, Florida Constitution, raising the
5 mandatory retirement age for justices and judges.
6 CHAIRMAN DOUGLASS: Has everybody voted? Lock the
7 machine.
8 (Vote taken and recorded electronically.)
9 READING CLERK: Fourteen yeas and 13 nays,
10 Mr. Chairman.
11 CHAIRMAN DOUGLASS: By the barest of margins, it
12 stays alive. Commissioner Langley, shake hands with
13 Commissioner Wetherington, you've saved the day. This is
14 one we probably may want to reconsider that close vote.
15 (Off-the-record discussion.)
16 CHAIRMAN DOUGLASS: We'll stand in informal recess,
17 but don't open the chamber. We'll take a five-minute
18 break while they are trying to repair the printer.
19 (Brief recess.)
20 CHAIRMAN DOUGLASS: Okay. Come to order. We now
21 have everything in working order. If everybody will take
22 their seats. Would you check back there to make sure they
23 know we're meeting?
24 SECRETARY BLANTON: All members indicate your
25 presence. Quorum call. All members indicate your
28
1 presence.
2 CHAIRMAN DOUGLASS: Commissioner Scott, indicate your
3 presence please. Commissioner Freidin is here. She needs
4 to indicate her presence. Commissioner Connor, he's here.
5 Here he comes. Okay. Thirty-two members present. We'll
6 now proceed.
7 Commissioner Wetherington, you yielded to
8 Commissioner Sundberg to present the next proposal.
9 Before you do, I ask the clerk to read the proposal.
10 READING CLERK: Proposal 9, proposal to revise
11 Article V, Section 8, Florida Constitution, repealing the
12 provision that stipulates a maximum age beyond which
13 individuals may not serve as justices or judges.
14 CHAIRMAN DOUGLASS: Commissioner Sundberg, you're
15 recognized.
16 COMMISSIONER SUNDBERG: Thank you, Mr. Chairman. I
17 rise to speak in favor of this proposal, which as has been
18 indicated, plain and simply would eliminate the provision
19 for constitutional senility when it comes to judges. The
20 argument is made that we really will not lose the services
21 of these judges because they always can continue to serve
22 as senior judges and it provides the check that the chief
23 judge or the chief justice who must pass on their
24 qualifications can make a determination if they are, in
25 fact, qualified to serve.
29
1 The problem with that is that when a judge goes on
2 senior status, in order to qualify to serve inactive
3 service, that judge has to accept a salary or actually a
4 payment of, I'm not sure, it's probably $200 a day. Judge
5 Wetherington, is that accurate?
6 COMMISSIONER WETHERINGTON: 250 a day.
7 COMMISSIONER SUNDBERG: 250 a day. That, of course,
8 is far less than what the judge or justice was receiving
9 in active service. So that requires that in order for a
10 senior judge to continue to serve as a resource for the
11 state court system, he or she has to make the sacrifice of
12 accepting less than the full salary or the compensation he
13 or she would have received in active service.
14 Furthermore, any one of those individuals, it's been
15 my experience, is quite able to serve as a mediator or
16 arbitrator and is in fairly great demand amongst parties
17 for that service, at which they can receive as much as
18 $250 an hour for that service. It calls for, in my
19 judgment, quite a sacrifice to ask these senior status
20 people to continue to serve the state court system.
21 The other thing that I think makes it -- and the
22 argument is we've all seen individuals who have lost their
23 intellectual prowess at a certain point in time and age
24 and hence they don't bring the kind of vitality to the job
25 that they should. I will grant you that that does pose a
30
1 problem.
2 However, and I must defer to Commissioner Barkdull
3 who served from the beginning for many, many years on the
4 JQC. But there are the mechanics of the JQC for judges
5 who suffer from a mental or emotional disability that
6 makes them unfit to serve in office and they can be
7 removed in those instances. I grant you it's not an easy
8 task, but I can remember an occasion, one judge that was
9 removed simply because he couldn't make a decision. He
10 broke out in a rash every time he was called upon to make
11 a decision. And I think Commissioner Barkdull recalls
12 that case.
13 It is -- and unlike the federal system where those
14 judges are appointed for life, there is not a comparable
15 system to check those judges who have reached that point
16 in time where they should not continue to serve.
17 In response to Commissioner Barkdull's statement that
18 he knew what the deal was when he ran for the office or
19 undertook the office, that isn't the point at all. I
20 don't urge this proposal on you for the benefit of the
21 judge. I urge this proposal on you for the benefit of the
22 public.
23 I had the great good opportunity to serve on a
24 collegial court with some people who were absolutely
25 outstanding legal scholars and yet at a time when their
31
1 faculties were fully in force and continue today to be
2 fully in force, had to leave the bench. Justice Jimmy
3 Adkins was one of the finest legal minds I've ever seen in
4 my life. And until the day he died, long after he had
5 reached age 70, he continued to have that kind of
6 facility.
7 Justice Ray Ehrlich, whom you all know or should if
8 you don't, today has those faculties that would permit him
9 to serve well, but he was required to leave the bench.
10 And most recently of course, Justice Grimes is being
11 required to leave. Steve Grimes' faculties are as acute
12 today as they ever have been.
13 So I urge you at a time when it seems to me in almost
14 every other sector of our society we recognize that age is
15 not necessarily disqualifying, that we extend that to this
16 situation which is, as was I think borne out by
17 Commissioner Connor's question, in almost no other that I
18 can think of, a conditional provision in the university
19 system that can be waived, do we say that it is
20 disqualifying.
21 We have the experience of the federal system, which
22 is a far different problem from the standpoint of being
23 able to relieve those judges. They are appointed for
24 life. At least judges here are only going to be in that
25 position until an election period arrives. There is that
32
1 check. And there is a much more significant check by our
2 Judicial Qualifications Commission than they have in the
3 federal system.
4 For all of those reasons, I urge you to support this
5 proposal and let's not lose the services of the Steve
6 Grimes, and the Ray Ehrlichs and the Jimmy Adkins and
7 many, many more that I have not had personal experience
8 with that I'm sure are out there in the state court
9 system. Thank you, Mr. Chairman.
10 CHAIRMAN DOUGLASS: Any proponents or questions
11 directed to the sponsor?
12 Commissioner Brochin.
13 COMMISSIONER BROCHIN: Yes, I have a question.
14 CHAIRMAN DOUGLASS: Do you yield?
15 COMMISSIONER SUNDBERG: I yield.
16 COMMISSIONER BROCHIN: Did the committee consider the
17 historical creation of this amendment that capped it at 70
18 years? As I understand it was passed in 1985, or is that
19 not correct? My question was did the committee consider
20 how it came about that we decided 70 was the appropriate
21 age and therefore the reason for --
22 CHAIRMAN DOUGLASS: Do you yield to Commissioner
23 Barkdull who was present in 1904?
24 COMMISSIONER SUNDBERG: Gladly I'd yield to
25 Commissioner Barkdull.
33
1 COMMISSIONER BARKDULL: Commissioner Brochin, in
2 answer to your question, in the reorganization of the
3 appellate court system, before the Legislature in 1955,
4 part of the proposal in that joint resolution that there
5 was a mandatory retirement age at 70.
6 I believe it was in 1963, this is why this appears in
7 the disciplinary section and not somewhere else in Article
8 V, when the Judicial Qualifications Commission was up for
9 consideration, there was a situation where the judge and
10 former justice and former Governor Caldwell was allowed to
11 be able serve out his term and not have to leave when he
12 was 70. And it was figured out when he reached 70 he was
13 to be over halfway into his term and that's the way that
14 got into the Constitution.
15 The 70 business did not come in in '85, it's been in
16 existence since 1955. It originally provided a
17 grandfather clause for all those judges and justices that
18 were serving on June 30th, 1957. It was changed, I
19 believe, when we adopted Article V in 1972 and moved one
20 day to July 1, 1957. The reason for that was that on
21 July 1, 1957 the District Courts of Appeal came into being
22 and there were also some other statutory courts at the
23 trial level that were having additional judges added to
24 them.
25 So between June 30th and July 1 there was a
34
1 substantial difference in the number of judiciary. But
2 that's been in existence some 40-odd years now.
3 COMMISSIONER SUNDBERG: If I may respond. None of
4 that information was brought to the attention of the
5 committee during our deliberations.
6 CHAIRMAN DOUGLASS: I understand the answer in a one
7 liner is it's been in the Constitution for 40-odd years;
8 is that correct, in one form or another, 70 retirement
9 mandatory?
10 COMMISSIONER SUNDBERG: But as I understood the
11 question by Commissioner Brochin was whether or not the
12 committee considered that historical information and the
13 answer is no.
14 CHAIRMAN DOUGLASS: Commissioner Barnett, for what
15 purpose do you rise?
16 COMMISSIONER BARNETT: To speak in opposition to the
17 proposal.
18 CHAIRMAN DOUGLASS: First, are there any
19 commissioners who wish to speak in favor of the proposal?
20 (No response.)
21 CHAIRMAN DOUGLASS: All right. Commissioner Barnett.
22 COMMISSIONER BARNETT: Thank you. I hesitated to do
23 this, but I decided that I think there are some issues
24 about this that need to be discussed.
25 First, I had the great privilege and honor of having
35
1 former Justice Ray Ehrlich as my law partner. And while
2 he delights in telling people that until Steve Grimes
3 retires this month, he's the only person in the state
4 who's been declared constitutionally senile, I can tell
5 you he is not, that he is one of our most energetic and
6 productive lawyers in our law firm. He really sets a
7 model for some of the younger lawyers in the firm.
8 Perhaps just having the opportunity to have someone
9 like Ray Ehrlich come back into the private bar is enough
10 for me to support some type of mandatory retirement for
11 judges because but for this provision I suspect he as well
12 as Steve Grimes and other great justices would still be on
13 the court.
14 But I don't believe that is the issue and I don't
15 believe that it is the question necessarily of the
16 senility or ability of the justice or a judge to continue
17 to serve. I think the JQC could in fact handle those
18 issues, although I suspect that if we had the statistics
19 we would find that over the years there have been very,
20 very few situations where a judge has actually been
21 removed. And normally I think that would be for
22 misconduct as opposed to omission to act or failure to act
23 with appropriate energy, although maybe someone can
24 provide that information. I don't think that is the
25 issue.
36
1 For me, the issue is the opportunity in our judiciary
2 to continue to have new faces, new people participate in
3 the judicial branch of government. We have a situation
4 right now in the state of Florida, like today, yesterday
5 and tomorrow occurring that to me illustrates why this is
6 important. And that is, with the vacancy created in the
7 Florida Supreme Court with the retirement of Justice
8 Grimes.
9 Most of you know, probably know, that at this point
10 in time there are no women on the Florida Supreme Court,
11 although a substantial number of the members of the Bar
12 are women and certainly a substantial number of the
13 population of this state are women. There is only one
14 African-American on the Florida Supreme Court although,
15 again, there are many, many lawyers in this state who are
16 African-American and there are many, many citizens of this
17 state who are African-American.
18 I believe that our court system needs to reflect the
19 people that it serves appropriately and that the time has
20 come for us to have a more diverse court. And indeed the
21 five people who have presented to the governor, of those
22 five there are four women. And I think there is a
23 substantial possibility that we will have a justice on the
24 court who is a woman, a very qualified woman.
25 It is the opportunity that mandatory retirement
37
1 presents to bring in fresh ideas, fresh faces and new
2 enthusiasm to the judicial branch that compels me to
3 oppose this proposal, although I don't like to be -- I
4 don't want to be characterized in any way as being for
5 discrimination. And to the degree this is age
6 discrimination, I may have the same reaction Commissioner
7 Connor does. But I believe there are many instances in
8 our statutes where we make distinctions based on age and
9 it is not necessarily discrimination.
10 So I come down in favor of continuing the current
11 status of the Constitution.
12 CHAIRMAN DOUGLASS: Commissioner -- do you have a
13 question, Commissioner Connor, or are you --
14 COMMISSIONER CONNOR: A rejoinder.
15 CHAIRMAN DOUGLASS: You'll have to wait. I believe
16 you want to speak in opposition, Commissioner Smith?
17 COMMISSIONER SMITH: That's correct.
18 CHAIRMAN DOUGLASS: You're recognized.
19 COMMISSIONER SMITH: Thank you, Mr. Chairman.
20 Although it's extremely difficult for me to oppose any
21 idea that could, a proposal that could get both Justice
22 Sundberg and my dear friend Mr. Connor to agree to, I must
23 respectfully object.
24 I object not for the great justices Ehrlich and
25 Adkins and others who have served so well, I object
38
1 because of what the people of the state of Florida have
2 said to us by their actions and by their testimony.
3 Clearly the trend throughout this state is not to extend
4 the service of public servants, but to limit the terms of
5 public servants. As we've seen with Eight is Enough,
6 whether that's right or wrong, the people have a right to
7 speak. They have a right, as Judge Wetherington so
8 eloquently said yesterday, they have the right to make bad
9 decisions. It is their government.
10 With regard to this issue, we have heard at every
11 stop along the way people's frustration with our legal
12 system, their frustration with what they perceive as the
13 arrogance of the Bar to tell them what is best for them in
14 their court system. I think this proposal sends a bad
15 message. That while you're telling us even to limit the
16 terms of judges, while you're telling us to give new
17 people an opportunity to serve, as my friend Ms. Barnett
18 has so eloquently stated, that you folks know better.
19 And so in the face of what we are saying, you believe
20 that you're going to extend the terms. Let me tell you
21 something, there are -- as brilliant as he is, there are
22 other young Justice Sundbergs out there. As brilliant as
23 Ehrlich is, there are other young brilliant Ehrlichs out
24 there. Give them a chance.
25 Thank you.
39
1 CHAIRMAN DOUGLASS: Any other speakers in opposition?
2 All right. For those in favor, Commissioner Connor.
3 COMMISSIONER CONNOR: Mr. Chairman, I believe
4 Commissioner Barnett and Commissioner Smith made a
5 compelling case, by virtue of their very arguments for
6 term limits for judges, which I support. What I oppose is
7 the notion that we should conclude that one is somehow
8 legally incapacitated by virtue of age and unable to carry
9 out the duties of office.
10 We live in a period of marvelous health care, of
11 increased life expectancies, in a state in which the
12 population who is over age 65 exceeds that of any other
13 state in the union and our population of those who exceed
14 80 is growing as well.
15 I think it's a mistake and I think it's the wrong
16 message to send to say that we believe that older folks in
17 our society are legally incapacitated to carry out the
18 duties of public office, particularly as it relates to the
19 judiciary. I would be much more in favor of a term limit.
20 I know it's not a popular opinion, but please don't cut me
21 off, Mr. Chairman --
22 CHAIRMAN DOUGLASS: It's the mikes, I would not cut
23 you off.
24 COMMISSIONER CONNOR: -- I would be much more
25 supportive of a term limits proposal which would infuse
40
1 fresh faces, new blood, new energy, new creative ideas, et
2 cetera, than I would to say that if you reach 70 years
3 old, or you reach 72 years old you are presumptively,
4 constitutionally senile and incapable of carrying out your
5 duties.
6 So in order to accomplish Ms. Barnett's goal and to
7 further debate, I'll support a proposal that would provide
8 a limitation of terms for judges to conform to those of
9 other public servants in the state.
10 CHAIRMAN DOUGLASS: I might caution you, you must
11 ultimately do that by the 25th of this month, unless you
12 want to make an amendment.
13 Any further debate? Commissioner Sundberg.
14 COMMISSIONER SUNDBERG: May I close?
15 CHAIRMAN DOUGLASS: Yes.
16 COMMISSIONER SUNDBERG: In response to Commissioner
17 Barnett's premise I'm not sure there is anything -- that
18 there is particular merit in new faces in the institution
19 of the judiciary.
20 Just anecdotally, I can tell you that when I went on
21 the Supreme Court there were four members of the court,
22 including me, who were under the age of 44 years old. We
23 profited greatly by the presence of Jimmy Adkins on that
24 court because of the maturity he brought to it that we had
25 no idea about. So, you know, turnover for the sake of
41
1 turnover, make space for, is not a very compelling
2 argument to me.
3 And the two instances you raise, and I'm not sure
4 you're not suggesting that we discriminate against one
5 group in favor of another group if we're to make way for
6 women and African-Americans and Latins by virtue of
7 shoving other people out the other end.
8 And I would suggest to you that the only woman who
9 has ever served on the Florida Supreme Court did not
10 undertake that service because of someone's having to
11 leave because of age. She filled a space that was vacated
12 by James Alderman, who was about 50 years old when he left
13 the court.
14 The second African-American, and the one who serves
15 on the court today, took my position on the court and I
16 was not then and I'm even not now constitutionally senile.
17 CHAIRMAN DOUGLASS: You don't want a ruling from the
18 Chair on that, do you?
19 COMMISSIONER SUNDBERG: I said constitutionally. I'm
20 talking about de jure, not de facto. So those arguments
21 are not compelling and should not be compelling to us.
22 In addressing my good friend Commissioner Smith's
23 remarks, and I know they are deeply felt, first of all,
24 this is not a term limits issue. It has nothing to do
25 with term limits. If a person were elected at age 68 or
42
1 appointed at age 68, he would still have to leave or she
2 would still have to leave at age 70 under the current
3 Constitution. So it's not a term limits issue.
4 And whether or not the people have the right to
5 speak, sure they have the right to speak. But they might
6 want to distinguish between the skills and talents that
7 are required to serve in the judiciary as opposed to the
8 skills and talents to serve in the executive or
9 legislative branch of government. So if you want to let
10 the people speak, put this on the ballot and let them
11 speak to it. I thank you very much, Mr. Chairman.
12 CHAIRMAN DOUGLASS: All right. Proceed to vote on
13 Proposal 9.
14 (Vote taken and recorded electronically.)
15 READING CLERK: 10 yeas and 21 nays, Mr. Chairman.
16 CHAIRMAN DOUGLASS: The proposal fails. Now we go to
17 Proposal 67. I ask the clerk to read the title please.
18 READING CLERK: Proposal 67, proposal to revise
19 Article V, Section 8, Florida Constitution, and to create
20 Article XII, Section 21, Florida Constitution, providing
21 for an increase in the length of membership in the Florida
22 Bar which is required of a candidate for the office of
23 circuit judge or county judge.
24 CHAIRMAN DOUGLASS: Commissioner Wetherington to
25 present the proposal for the committee which passed it out
43
1 with approval; is that correct?
2 COMMISSIONER WETHERINGTON: That's correct. This
3 proposal was also recommended by the Article V commission.
4 And the purpose of it is to increase the legal experience
5 level of those who are either appointed or elected to the
6 circuit or county courts in an effort to increase the
7 overall competence and experience of the judiciary.
8 That's the only purpose of it. I think it's the right
9 thing to do.
10 CHAIRMAN DOUGLASS: All right. Any -- Commissioner
11 Smith, for what purpose do you rise?
12 COMMISSIONER SMITH: For a question.
13 CHAIRMAN DOUGLASS: Do you yield?
14 COMMISSIONER WETHERINGTON: I do.
15 COMMISSIONER SMITH: You mentioned this was
16 recommended by the Article V task force. What happened to
17 it after its recommendation?
18 COMMISSIONER WETHERINGTON: It isn't -- hasn't been
19 -- I don't think its been passed on.
20 CHAIRMAN DOUGLASS: I don't think it passed in the
21 Legislature.
22 COMMISSIONER WETHERINGTON: It hasn't been submitted
23 to the people, in other words.
24 CHAIRMAN DOUGLASS: Commissioner Barkdull, did the
25 task force actually recommend this?
44
1 COMMISSIONER BARKDULL: Yes, sir.
2 CHAIRMAN DOUGLASS: Am I correct in saying it did not
3 pass the Legislature?
4 COMMISSIONER BARKDULL: I can't answer that. I think
5 Mr. Buzzett can.
6 CHAIRMAN DOUGLASS: Is that correct, Commissioner
7 Wetherington?
8 COMMISSIONER WETHERINGTON: What was the question?
9 CHAIRMAN DOUGLASS: It did not pass the Legislature;
10 is that right? Mr. Buzzett was the executive director of
11 that commission.
12 COMMISSIONER WETHERINGTON: It was never taken up by
13 the Legislature, according to Mr. Buzzett.
14 CHAIRMAN DOUGLASS: That's the same thing as not
15 passing it, I think.
16 COMMISSIONER WETHERINGTON: Right.
17 CHAIRMAN DOUGLASS: Is there any other debate, any
18 pro or con, or any further questions of Commissioner
19 Wetherington on this issue?
20 Commissioner Wetherington, I have a question.
21 COMMISSIONER WETHERINGTON: Yes.
22 CHAIRMAN DOUGLASS: This applies to everybody, is
23 that right?
24 COMMISSIONER WETHERINGTON: Correct. There's an
25 exception in there I think for counties under --
45
1 CHAIRMAN DOUGLASS: Tell us what the exception is and
2 why it's in there, if you would.
3 COMMISSIONER WETHERINGTON: I think there's an
4 exception for the counties -- there are some counties that
5 still have nonlawyer judges, small counties.
6 (Off-the-record discussion.)
7 COMMISSIONER WETHERINGTON: I think it should be in
8 there.
9 CHAIRMAN DOUGLASS: What this does though for
10 counties under 40,000, it requires them to just be a
11 member of the Bar?
12 COMMISSIONER LANGLEY: That's right.
13 CHAIRMAN DOUGLASS: And have we phased out all the
14 nonlawyer county judges? Commissioner Langley, are you
15 familiar with that? So this wouldn't change that; is that
16 correct? Could you respond?
17 Commissioner Thompson, you probably know more about
18 this than the rest of us.
19 COMISSIONER THOMPSON: Mr. Chairman, to tell you,
20 it's been so long since I've been in the legislature and
21 dealing with this that I haven't paid too much attention
22 to it. But I do know that we do have county judges that
23 are nonlawyers. And I think the way the law is is they
24 can continue to run so long as they are in office. But if
25 there's a gap, in other words if a nonlawyer quits, then a
46
1 lawyer has to run. That just happened in Liberty County,
2 as you probably know.
3 Now I tell you one of the things that concerns me,
4 folks, is that 40,000 may not be the good magic figure
5 anymore. I'm thinking of my home county is probably at
6 44,000. Jackson County is probably at 45-. And a lot of
7 the lawyers are doing kind of like me, they are moving,
8 you know, so you don't have a lot of lawyers in those
9 counties. So you may have trouble getting any kind of a
10 choice. In some of the counties that may be pushing up
11 toward 50.
12 I wonder if we're going to recommend this ultimately,
13 I would recommend to you-all that we go to 50,000 or maybe
14 more, I don't know. But 50- is probably a pretty good
15 place to stop, based on the counties that I'm familiar
16 with. You-all are familiar with other counties.
17 How do you put an amendment up there?
18 CHAIRMAN DOUGLASS: You put it in writing. We have
19 people here to put it in writing for you.
20 COMISSIONER THOMPSON: While the debate ensues, I'll
21 do that.
22 CHAIRMAN DOUGLASS: Mr. Buzzett, will you see that
23 his amendment is prepared?
24 I have a question while you're here. Somebody said
25 yesterday, maybe it was Commissioner Langley or someone
47
1 that looked at this problem, that 80 percent of all the
2 judges came from counties with over a 100,000 population.
3 Is that -- who told me that? Commissioner Evans-Jones?
4 COMMISSIONER EVANS-JONES: I have a question for
5 Commissioner Wetherington.
6 Commissioner Wetherington, could this be done by
7 statute by the Legislature? Does it have to be a
8 constitutional amendment?
9 COMMISSIONER WETHERINGTON: I think it does, yes.
10 COMMISSIONER EVANS-JONES: You think it does?
11 COMMISSIONER WETHERINGTON: Yes, it does have to be a
12 constitutional amendment.
13 COMMISSIONER EVANS-JONES: Thank you.
14 COMMISSIONER BARKDULL: I'd like to make an
15 observation, Mr. Chairman. That whatever exemption we put
16 in for the counties of lesser population, we either put it
17 in in a schedule form where it can be changed by the
18 Legislature, or we provide that in counties below a
19 certain level the Legislature by law may provide an
20 exemption.
21 So whatever arises as to lawyers moving out or where
22 the lawyers not within a county of a certain years of
23 experience that there will be some availability, because
24 that's been the problem that executives have in filling
25 some of these smaller counties particularly. You can't
48
1 find a lawyer or you can't find a lawyer with even five
2 years' experience. But I think if you left it optional
3 with the Legislature to fix whatever minimum requirements,
4 it would be better than us trying to write it in the
5 Constitution.
6 CHAIRMAN DOUGLASS: Are you going to prepare that and
7 offer it as an amendment?
8 COMMISSIONER BARKDULL: I'll see how it goes.
9 CHAIRMAN DOUGLASS: You're not going to have much
10 longer at it. Commissioner Scott, did you want to be
11 recognized?
12 COMMISSIONER SCOTT: Yes.
13 CHAIRMAN DOUGLASS: Is it for a question?
14 COMMISSIONER SCOTT: No, just a statement in support
15 of the pending amendment.
16 I'm sure many lawyer members probably know this, but
17 what happens in small counties, I have a ranch out in
18 Holmes County, they have a circuit and you're part of a
19 bigger circuit. And all the circuits are generally the
20 same size. So there will be a lot of counties to chose
21 circuit judges from. But county is just, I mean,
22 population -- I think there is only four lawyers in the
23 town or maybe eight out there.
24 And if you start limiting them in age -- and the
25 other point is you might be lessening the quality. It may
49
1 well be that there's right in some small county a very
2 qualified person, but if he's limited, somebody that maybe
3 is not and is sort of mediocre or happens to be somewhere
4 else will move into the county. So I really think it
5 probably ought to be 60,000 to give a little bit of leeway
6 to counties like Jackson County.
7 CHAIRMAN DOUGLASS: Do you yield to a question from
8 the Chair?
9 COMMISSIONER SCOTT: Yes.
10 CHAIRMAN DOUGLASS: It was raised it would be better
11 to leave this to some extent to the Legislature, if it's
12 under a certain amount. And we're talking about a 20-year
13 period before this will be addressed by another revision
14 commission. And we've gone now to the point where our
15 larger counties are becoming much larger and our middle
16 and small counties are beginning to swell.
17 When we select a figure in population, whether it be
18 40 or 50 for this thing, doesn't that create a problem
19 potentially in the next ten years? Commissioner Scott,
20 you're familiar with the state.
21 COMMISSIONER SCOTT: Right. I think Judge Barkdull's
22 idea is a good one to put it in a schedule. The way it's
23 worded, it's not clear. It says, unless otherwise
24 provided by general law. It sort of implies that the
25 Legislature could keep those counties from -- in other
50
1 words, they could go in one direction but not necessarily
2 in the other. So I think we need to probably clarify that
3 they could change the population figure if it became
4 appropriate.
5 CHAIRMAN DOUGLASS: Are you amenable to a suggestion,
6 Commissioner Wetherington, that we temporarily pass this
7 and that the people who have expressed this concern, at
8 this meeting, come back with an amendment proposal that we
9 could deal with this? Is that agreeable to those that are
10 concerned with this? Commissioner Scott, Commissioner
11 Thompson, Commissioner Barkdull?
12 If it is, I would entertain a motion to temporarily
13 pass this and move on with the special order and we will
14 come back to it later in the session today, if that's
15 agreeable. Can somebody move it?
16 Without objection then we'll temporarily pass it.
17 Thank you, Commissioner Thompson.
18 All right. We'll move on then on the special order.
19 And does that -- that next one is Proposal 44 Commissioner
20 Langley. Would you yield to Commissioner Langley to
21 present this? Commissioner Langley, would you present it
22 please?
23 Oh, before you do that, I'll ask the clerk to read
24 it.
25 READING CLERK: Proposal 44, proposal to revise
51
1 Article V, Section 2, Florida Constitution, allowing the
2 State Supreme Court to District Courts of Appeal to submit
3 questions of military law to the Federal Court of Appeal
4 for the Uniform Services for an advisory opinion.
5 CHAIRMAN DOUGLASS: Commissioner Langley.
6 COMMISSIONER LANGLEY: Thank you, Mr. Chairman. To
7 answer the first question, yes, this is constitutionally
8 necessary. The next three proposals, they all relate to
9 one problem that has come up because of a decision of our
10 Supreme Court in dicta, not directly related to the matter
11 before it, but in it said that, in fact, if an
12 imprisonment sentence in a court-martial by the Florida
13 National Guard came before them, that it would most likely
14 not be constitutionally sound.
15 The Florida National Guard, when not under call of
16 the federal government, is basically a state agency or has
17 been ruled as that. In the Waterman case, interpreting
18 one of the articles of the Constitution, it says, no
19 imprisonment nor unscheduled fine can be levied by an
20 agency.
21 Now if the National Guard is called out, then they
22 become a agent of the federal government, they're subject
23 to the Uniform Code of Military Justice and there is no
24 question but that they can impose fines, imprisonments,
25 demotions or whatever they may want to do under the
52
1 Uniform Code of Military Justice. But when they are just
2 not that way; i.e., weekend camps and what have you, if a
3 member breaks that Code of Justice it has been ruled by
4 the Supreme Court, at least indirectly, that probably the
5 current Florida National Guard could not imprison that
6 soldier for breaking the rules.
7 So there's a series here of three of them which gives
8 the Florida National Guard, and its military tribunal the
9 right to impose those sentences provided under the Uniform
10 Code of Military Justice. And these three amendments do
11 that. The world is probably going to go on without this,
12 but you do need, in the military, you do need the
13 discipline, you do need that as the ultimate discipline.
14 Incidentally, the ultimate punishment it 280 days in
15 the military stockade. And that would be the maximum
16 punishment that they can render. So these next three do
17 all of that including the right of the military tribunal
18 to seek the opinion of a district military court as to any
19 legal matters relating to those particular proceedings.
20 So that's what it is, Your Honor.
21 Let me tell you, with Chairman Wetherington in the
22 judiciary committee, we have a consensus in the committee
23 that we're going to do a catchall amendment. There are a
24 lot of small things that need to be fixed in Article V in
25 the judiciary. And this might be one of those things that
53
1 we fix in a multi-subject amendment that will cure a bunch
2 of little problems that we have in the Constitution.
3 CHAIRMAN DOUGLASS: Something like a reviser's bill
4 that's not controversial?
5 COMMISSIONER LANGLEY: Yes, sir. And I submit to you
6 that it will not be anything controversial.
7 CHAIRMAN DOUGLASS: Does anybody have any questions
8 to Commissioner Langley? Is there anybody that wants to
9 speak as a proponent? Anybody that wants to speak as an
10 opponent? If not, we'll proceed to vote.
11 (Vote taken and recorded electronically.)
12 CHAIRMAN DOUGLASS: Lock the machine.
13 READING CLERK: Twenty-nine yeas and zero nays,
14 Mr. Chairman.
15 CHAIRMAN DOUGLASS: Commissioner Langley.
16 COMMISSIONER LANGLEY: Yes, sir. The next is the
17 second part of the package --
18 CHAIRMAN DOUGLASS: I'll ask him to read the title of
19 Proposal No. 4 -- 25, excuse me. That was 44, this is 25.
20 READING CLERK: Proposal 25, a proposal to revise
21 Article V, Section 1, Florida Constitution, providing for
22 military court-martial to be conducted by military judges
23 of the Florida National Guard with the direct appeal to
24 the District Court of Appeals, First District.
25 COMMISSIONER LANGLEY: That's the second part of that
54
1 same issue. The first one allowed the appeal for an
2 advisory opinion and this direct appeal to the --
3 CHAIRMAN DOUGLASS: Any debate? If not, we'll vote.
4 (Vote taken and recorded electronically.)
5 CHAIRMAN DOUGLASS: Lock the machine.
6 READING CLERK: Thirty yeas and zero nays,
7 Mr. Chairman.
8 CHAIRMAN DOUGLASS: All right. Now we'll move to
9 No. 4, Proposal 4. Would you read the title?
10 READING CLERK: Proposal 4, proposal to revise
11 Article I, Section 18, Florida Constitution, clarifying
12 the authority of the Department of Military Affairs,
13 through court-martial to impose sentences of imprisonment
14 and other penalties.
15 CHAIRMAN DOUGLASS: Any proponents or opponents?
16 COMMISSIONER LANGLEY: I have a question.
17 CHAIRMAN DOUGLASS: They can't do that now?
18 COMMISSIONER LANGLEY: No, sir, that's what the
19 Waterman case said that they could not.
20 CHAIRMAN DOUGLASS: They had done it in the past.
21 COMMISSIONER LANGLEY: Yes, sir. Let me answer it.
22 They are doing it now but the Supreme Court has said if
23 that were before us, we would probably rule that you can't
24 do that now.
25 CHAIRMAN DOUGLASS: So that's the reason for this?
55
1 COMMISSIONER LANGLEY: Yes.
2 CHAIRMAN DOUGLASS: All right. Any further debate or
3 questions? If not, we'll proceed to vote.
4 (Vote taken and recorded electronically.)
5 CHAIRMAN DOUGLASS: Lock the machine.
6 READING CLERK: Thirty-one yeas and zero nays,
7 Mr. Chairman.
8 CHAIRMAN DOUGLASS: You increased it one vote with
9 that one. Now we'll move on to the next proposal which is
10 the last one other than the one we're coming back to by
11 the judicial committee today, Proposal No. 87. Would you
12 read the title then I'll recognize Commissioner
13 Wetherington to present it.
14 READING CLERK: Proposal 87, a proposal to revise
15 Article V, Section 1, Florida Constitution, allowing the
16 Legislature to establish by general law a system of family
17 magistrates.
18 CHAIRMAN DOUGLASS: Commissioner Wetherington, you're
19 recognized.
20 COMMISSIONER WETHERINGTON: This is comparable in
21 some ways to the traffic hearing officers, or traffic
22 magistrates that were approved and added as recognized
23 constitutional officers. The problem basically is this.
24 In our family courts, we have a problem with respect to
25 the volume of child support cases and other family cases
56
1 that require expedited hearings and part of this
2 requirement is because of federal requirements to their
3 funding that they give and grants they give to the state.
4 They require expedited hearings with respect to such
5 matters, for example, as child support.
6 We're presently doing that by using child support
7 hearing officers and also we're doing it by General
8 Masters that are in existence in 16 out of the 20
9 counties. There are some problems that come up in these
10 two areas. And one is the long-standing constitutional
11 provision in the state of Florida and that is if you refer
12 something to a Master or something to a non -- to somebody
13 who's not a judge, you have to have the consent of the
14 parties. And there are certain other limiting factors
15 that are involved.
16 In order to have a more effective system of judicial
17 support through our Masters and our hearing officers to
18 eliminate some of the legal impediments to the effect of
19 use of these aids to the Court, this provision would allow
20 the Legislature to create a system of family magistrates
21 in the state of Florida which would be state funded. It
22 would allow, in other words, for a uniform system, uniform
23 regulations, uniform standards and it would be something
24 that would aid, in other words, in the family court.
25 That's the purpose of the proposal. Problems do come up
57
1 because of the constitutional impediments that exist with
2 respect to the referral system like that. It would be
3 eliminated if we had this.
4 CHAIRMAN DOUGLASS: Do you yield to Commissioner
5 Barkdull?
6 COMMISSIONER WETHERINGTON: I do.
7 COMMISSIONER BARKDULL: Commissioner Wetherington, I
8 have a question that goes right to your last statement.
9 At the present time, if a family matter has a controversy
10 against the will of one of the parties, it cannot be
11 referred out to a third person to be determined it must be
12 determined by the judge himself. Will this prevent that
13 from happening or -- what I'm getting at is I would hate
14 to see us get away from the Supreme Court decisions that
15 say that when you have a judicial controversy it will be
16 decided by the judge unless you agree that it will go to a
17 special Master. Will that eliminate this?
18 COMMISSIONER WETHERINGTON: It could. The
19 Legislature could decide to do it either way it wanted to
20 do it. For example, in the federal magistrate system you
21 have -- a lot of the matters are referred over to federal
22 magistrates to handle certain kinds of matters without the
23 consent of the parties. And the Legislature could
24 provide, under a family magistrate system, that there are
25 certain matters. For example, child support. Right now
58
1 we're referring child support to child support hearing
2 officers without the consent of the parties because
3 there's a feeling that we have to do this to meet federal
4 guidelines. Now a question can be raised as to whether or
5 not that is constitutional.
6 And the answer is, do we refer matters for expedited
7 hearings when the courts are backed up to the child
8 support hearing officer without the consent of the parties
9 and the answer is, yes, we do. And the answer is, is this
10 something we need to do in order to get expedited
11 determinations in this critical area. And the answer in
12 many areas of the state is, yes, we need to do this.
13 And, yes, it would result in some instances in which
14 the parties would have a matter just like in the traffic
15 area too that they will have to go in front of the traffic
16 hearing officer, although I recognize that's of much less
17 importance, but it could lead to the fact these
18 magistrates, in order to be effective, with the volume of
19 the court and the need to move family cases and to get
20 prompt hearings would be in a position to where they would
21 have a matter referred and they would make a decision.
22 That decision may be subject to review by the judge
23 in that particular division but it would not necessarily
24 require the consent of the parties. And absolutely that
25 is one of the big factors that's involved in the creation
59
1 of a family magistrate system.
2 Our magistrates, for example, in Dade County, Broward
3 County, and many are selected. They are rated -- they get
4 an average rating of about 87 to 88 percent on the Bar
5 rate. They rate average, better than the average judge in
6 terms of satisfaction by the parties and they are
7 well-respected, they are well regulated and this would
8 allow for a system of carefully monitored, well-regulated,
9 well qualified people to do essentially judicial functions
10 under judicial supervision but in a more limited way, it
11 would involve that.
12 I know your court has taking the view many times
13 which we respect, that you have to have consent of the
14 parties, that's what the law is in the state of Florida.
15 There's a question of whether that's required in the
16 hearing officer matter. But this would involve being able
17 to refer these matters in order to get expedited hearings
18 in these critical matters.
19 CHAIRMAN DOUGLASS: Commissioner Barkdull, do you
20 have another question or an observation or whatever?
21 COMMISSIONER BARKDULL: No. I've got an observation
22 and I guess that answers itself. And that is any
23 qualifications for these people would be regulated by the
24 Legislature. And the way I read this, they could regulate
25 their qualifications. Thank you.
60
1 CHAIRMAN DOUGLASS: Let me ask you something. I'm
2 not sure that I'm very alert here but what I read within
3 the body of this is the Legislature may establish by
4 general law or the Supreme Court may establish by rule a
5 family court magistrate system to hear family law matters.
6 If established the family court magistrates should be
7 funded by the state.
8 I raise the question immediately this will not be a
9 noncontroversial amendment, number one, because you're
10 creating a new system of judges with this. But you're
11 also taking away from the Legislature and giving it to the
12 judicial branch the right to create courts and they shall
13 be funded. So I think that question should be answered
14 and it has not even been addressed. I mean you've told us
15 that the Legislature could do this but this says the
16 Supreme Court can; is that not true?
17 COMMISSIONER WETHERINGTON: I have no problem
18 eliminating the Supreme Court part if that's offensive.
19 CHAIRMAN DOUGLASS: Well, that's not my question.
20 The way it is now --
21 COMMISSIONER WETHERINGTON: It could be either.
22 CHAIRMAN DOUGLASS: The Legislature and the Supreme
23 Court as the judicial branch could create judges and they
24 are required to be funded by the Legislature.
25 COMMISSIONER WETHERINGTON: Well, we could eliminate
61
1 the Supreme Court part if that's offensive.
2 CHAIRMAN DOUGLASS: Well, the judicial branch does
3 not create judicial office; is that correct?
4 COMMISSIONER WETHERINGTON: That's not entirely
5 correct. We have a Master --
6 CHAIRMAN DOUGLASS: But they are not judges.
7 COMMISSIONER WETHERINGTON: Well, they perform quasi
8 judicial functions, exactly the same thing as the family
9 magistrates are going to perform.
10 CHAIRMAN DOUGLASS: I'm not arguing with you, I'm
11 just telling you Judge Barkdull points out that you have
12 the right to go back to the judge if you don't like what
13 the Master did and you would have a right to do that with
14 a magistrate system too. But I understand your point, if
15 there's an objection to the part dealing with the Supreme
16 Court doing the appointment, the establishment of the
17 standards, I don't have any problem amending that and
18 deleting that.
19 Commissioner Scott.
20 COMMISSIONER SCOTT: We're preparing an amendment to
21 take out the words "or the Supreme Court by rule" which I
22 will offer.
23 COMMISSIONER WETHERINGTON: I'll accept that.
24 CHAIRMAN DOUGLASS: All right, sir. As soon as it's
25 in writing, we'll take up the amendment.
62
1 Commissioner Langley.
2 COMMISSIONER LANGLEY: I rise in semi-support of the
3 bill.
4 CHAIRMAN DOUGLASS: Semi-support you're going to have
5 to explain that.
6 COMMISSIONER LANGLEY: Halfheartedly. Seriously, we
7 need something to deal with multiplicity of all the
8 domestic problems that we have and I think this is a step
9 in the right direction. I support Senator Scott's
10 amendment. I don't think the Supreme Court ought to order
11 it and tell the Legislature to fund it without the
12 responsibility.
13 But if you'll look at the language, it only says --
14 this only allows the Legislature to do that if it chooses
15 to. There is no mandate that the Legislature do it but
16 there was some question about whether or not the
17 Legislature could create these in and of its own power.
18 And that is why the amendment is there. So again, we're
19 not ordering it to be done, we're saying if the
20 Legislature wants to do it, wants to fund it, and wants to
21 provide an appeal back to a real judge, then that could be
22 done by law also.
23 CHAIRMAN DOUGLASS: Commissioner Scott, I think your
24 proposed amendment is on the desk, is it not? Would you
25 read the proposed amendment, it's moved by Senator Scott
63
1 -- Commissioner Scott.
2 READING CLERK: By Commissioner Scott on Page 1,
3 Lines 25 and 26, delete, "or the Supreme Court may
4 establish by rule."
5 CHAIRMAN DOUGLASS: All right. You move that. Would
6 you like to speak -- anybody want to speak in opposition?
7 Commissioner Thompson has a question -- Commissioner Scott
8 or Commissioner Wetherington? All right, Commissioner
9 Wetherington yields.
10 COMISSIONER THOMPSON: I just wonder and the answer
11 very well may be yes if the term "family law," I mean,
12 don't know that I've seen it anywhere else in any
13 Constitution, is it a well-enough defined thing in the law
14 so that the Legislature is going to know what the
15 jurisdiction of these magistrates would be or would not
16 be? Because the cases that I know about sometimes can get
17 very, very complicated and go beyond -- I mean, you know,
18 you have to get accountants in to find out what businesses
19 are worth and all these kinds of things. And I'm just
20 wondering if this is a good term to use in the
21 Constitution and whether or not it's well-enough defined
22 elsewhere in law to be placed in the Constitution.
23 COMMISSIONER WETHERINGTON: Well, the specific
24 functions and all could be set forth by the Legislature.
25 The concept of magistrate is well-recognized in the law.
64
1 We have federal magistrates, we use the traffic hearing
2 magistrates, it's a term that's used, for example, in the
3 federal system. We recognize it. The question is what
4 duties or what limitations do you want to impose on the
5 system that can be done by the Legislature in creating the
6 system. They can say -- they can define it if they want
7 to. And they can say the family magistrates will have the
8 following jurisdiction or so on and so forth and they can
9 lay it out in that respect. Any further questions,
10 Commissioner Smith? Do you have a question?
11 COMMISSIONER SMITH: No, sir.
12 CHAIRMAN DOUGLASS: I have a question. Family law
13 generally means adoptions. It also means domestic
14 violence, it means injunctive relief which you can put
15 people in jail for violating the injunction. So if we're
16 allowing the Legislature then to create a new court if
17 we -- if the people so desire if they approve this
18 amendment; is that not correct?
19 COMMISSIONER WETHERINGTON: That's correct, but we as
20 a court that presently exists right now, it's not -- this
21 isn't a new court. This is a court that exists right now.
22 CHAIRMAN DOUGLASS: It does not exist as a judge does
23 it, Commissioner Wetherington? It exists under the
24 auspices of a duly appointed or elected circuit judge or a
25 circuit court. It is not a -- an authorized judge that
65
1 can take final action such as entering an injunction.
2 COMMISSIONER WETHERINGTON: It's a quasi-judicial
3 officer in the same way that a magistrate would be to some
4 extent --
5 CHAIRMAN DOUGLASS: I'm going to have to leave the
6 chair if I keep debating you.
7 COMMISSIONER WETHERINGTON: No, you can keep -- no,
8 no, no. This is perfectly -- the point is right now on
9 the hearing officers, the child support hearing officers,
10 the matters are referred to them. In order for us to get
11 federal money we have to do it. And that's what we're
12 doing every day. And what's happening is, a matter is
13 being deferred over in order for there to be a prompt
14 child support hearing.
15 Now, we're doing that right now. Now, you can call
16 it whatever you want to, but the person sitting in that
17 row sits down and listens to the evidence from one side
18 and then sits down to listen to the evidence in the other
19 side and that person says, the child support will be X
20 dollars. Now, that can be subject to review by the judge
21 just in the way that a family magistrate would make that
22 exact same decision and that can be reviewed by the judge.
23 And if the Masters are doing it, the only difference
24 is that if the parties -- the parties have to agree to the
25 referral. Once they agree to the referral, the magistrate
66
1 sits down every day -- the General Masters are sitting
2 down every day and they are trying, with the agreement of
3 parties, in some instances the entire divorce case, right
4 now. And they're making findings and rulings that are
5 subject to review by the trial judge and then that's
6 subject to appeal by the appellate court. That's going on
7 right now. Now, if you don't want to call that being a
8 judge, that's okay.
9 CHAIRMAN DOUGLASS: All right. I think we strayed
10 from the matter on the floor. There's an amendment on the
11 floor that's been proposed by Commissioner Scott. And the
12 debate now is on the merits which we'll come back to. Are
13 you on the amendment, Commissioner Barnett?
14 COMMISSIONER BARNETT: Question.
15 CHAIRMAN DOUGLASS: A question on the amendment?
16 COMMISSIONER BARNETT: No, on the rule.
17 CHAIRMAN DOUGLASS: All right. Let's hold it and
18 vote on the amendment.
19 Does anybody have any questions or debate on the
20 amendment? Would you read the amendment again and we'll
21 vote.
22 READING CLERK: By Commissioner Scott on Page 1,
23 Lines 25 and 26. Delete, "or the Supreme Court may
24 establish by rule."
25 CHAIRMAN DOUGLASS: All right. Is everybody ready to
67
1 vote, if so, let's vote. We'll just take a voice vote.
2 All in favor of the amendment say aye. Opposed like sign.
3 (Verbal vote taken.)
4 CHAIRMAN DOUGLASS: It carries. Did somebody oppose
5 it? This is the amendment. All right. Now we'll refer
6 to the proposal as amended. Commissioner Mills and then
7 Commissioner Barnett.
8 COMMISSIONER MILLS: Mr. Chairman, would the
9 gentleman yield to a question?
10 COMMISSIONER WETHERINGTON: Yes.
11 COMMISSIONER MILLS: I think this goes to your
12 question, some questions that I've heard around here.
13 That is, is the term magistrate or is the term magistrate
14 system anywhere else in the Constitution?
15 COMMISSIONER WETHERINGTON: No.
16 COMMISSIONER MILLS: All right. Well, I mean
17 that's -- the question then is what is the magistrate
18 system the first time it's mentioned in the Constitution?
19 Does it need further definition or does that say enough to
20 everybody -- these folks in here are not quite clear if
21 that adopts the current magistrate system in which they
22 must return to the court constantly, et cetera. In other
23 words, there is a -- this is again a definitional issue.
24 The first time we introduce something in the
25 Constitution, somebody is going to pay attention to it.
68
1 And if it's not very clear -- and in fact since what we
2 say here is important to clarify that. If our intent is
3 unclear, we need to actually say it in words. If our
4 intent is clear, we need to say what it is.
5 CHAIRMAN DOUGLASS: Commissioner Barnett.
6 COMMISSIONER BARNETT: I have a question. I'm not
7 prepared to answer his question.
8 CHAIRMAN DOUGLASS: All right. Well just wait a
9 minute, we'll get to you and then we'll get to
10 Commissioner Scott. Commissioner Wetherington, do you
11 understand the question posed to you by Commissioner
12 Mills?
13 COMMISSIONER WETHERINGTON: I understand. And the
14 answer is that the Legislature -- you can call them
15 anything you want to, I'm not wedded to the word.
16 Magistrate is just the word that we really took because
17 that's the way the federal system does. They have
18 magistrates that assist the judges over there in the
19 performance of matters so it's a recognized concept in
20 that context.
21 But the answer to the question is the Legislature
22 will define the jurisdiction and the authority if they
23 should decide to establish this. They would define this
24 themselves and they would say what the jurisdiction would
25 be and what they would be allowed to hear and what they
69
1 would not be allowed to hear. And that's what you would
2 do in any -- in the creation of any -- just like they did
3 with the traffic hearing officers. The traffic hearing
4 officer's jurisdiction was subsequently defined and that's
5 the way it was done.
6 CHAIRMAN DOUGLASS: All right. Commissioner Barnett,
7 you had a question. Do you yield?
8 COMMISSIONER WETHERINGTON: Yes, sure.
9 COMMISSIONER BARNETT: The simple statement or the
10 question is why -- explain why this needs to be a
11 provision in the Constitution. As I heard the debate, it
12 sounds like many of these functions are currently being
13 performed under our current circuit court -- our current
14 judicial system, in that the only constitutional question
15 is whether the Legislature has the authority to establish
16 a new court and that would be what the authorization was.
17 But I am confused and need to know whether this is
18 something that needs to be done constitutionally or can be
19 done now statutorily.
20 COMMISSIONER WETHERINGTON: The reason why you have
21 to have constitutional recognition is that under the
22 present state of our constitutional law, a matter cannot
23 be referred by a judge to a quasi judicial officer such as
24 a hearing -- such as a special Master or maybe even a
25 child support hearing officer without the consent of all
70
1 parties, that's the main -- apart from the other factors
2 which are having uniformity and standards throughout the
3 state in terms of family law which are additional
4 considerations.
5 But the main, the centerpiece frankly, is right now
6 you cannot refer anything out unless everybody agrees
7 under the constitutional cases. Now because these --
8 because general Masters or child support hearing officers
9 for that matter are not Constitution officers, they are
10 not recognized in the Constitution and they could not --
11 not having that status, they could not be given that
12 authority.
13 This would allow -- it would be a system, which in
14 some ways would be similar in some ways to the federal
15 magistrate system where a matter could be referred out
16 whether it's a child support matter, temporary child
17 support, an alimony matter or whatever else the judge felt
18 was appropriate to refer out to the family court
19 magistrate.
20 They would hear the matter, they would make a
21 decision subject to review by the trial judge. But it
22 would not require the consent of the parties before the
23 referral could be made. That cannot be done now under the
24 law without the constitutional change. Whether or not
25 it's important enough to do it is a different matter. And
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1 there's been a tremendous emphasis in our state on family
2 law. We have a huge number of cases, particularly we're
3 getting a mushrooming number of pro se litigants in our
4 system. We have to handle the problem. We have the
5 problem of the child support hearing officer which is
6 mandated in effect by the federal funding. We are going
7 to give up millions and millions and millions of dollars
8 if we can't do this.
9 So the question is this would allow a more efficient
10 system for judicial assistance in this area which requires
11 prompt decisions. We can't -- in some of these cases we
12 can't wait in other words. And it helps with the
13 tremendous backlog of cases. It makes it easier, it makes
14 it more efficient and that's the whole purpose of it.
15 Commissioner Barnett.
16 COMMISSIONER BARNETT: Just a follow-up question.
17 CHAIRMAN DOUGLASS: Do you yield?
18 COMMISSIONER WETHERINGTON: I do.
19 COMMISSIONER BARNETT: As I understand the proposal,
20 it would be left up to the Legislature to create this
21 magistrate system and funded by the Legislature. But the
22 question is under our current judicial system, do the
23 circuit courts have the authority or does the Legislature
24 have the authority either to create family court divisions
25 and then if the problem is the need for additional judges
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1 in funding, create those divisions, authorize the new
2 judges, and fund the family court division.
3 I mean, is there any reason we couldn't do that other
4 than the will of the Legislature to do it?
5 COMMISSIONER WETHERINGTON: You can do it but
6 constitutionally can't solve the problem I'm talking about
7 without some recognition in the Constitution of these
8 persons, whatever you want to call them, being
9 constitutionally-recognized officers.
10 And if you take a look at a family court now to
11 handle the volume that we've got, as complicated as family
12 law is and as important as it is, we have hearing
13 officers, we have general Masters, we have judges, we have
14 family investigators, we've got family court mediators, we
15 have a whole panoply of professionals that are needed to
16 handle this very, very important area of law in our state.
17 And there is no way -- and everything we've done has
18 been to recognize the importance of this. But we need all
19 these professionals in there. There is no way the judges
20 can do it by themselves. And right now we're using these
21 professionals. There may be some questions raised by the
22 child support hearing officers, I don't know. But we have
23 to have them because of federal funding.
24 All this does would allow for the court to be -- to
25 have a more efficient system to eliminate the problem of
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1 the necessity of consent for the parties with respect to
2 referrals that may be needed and to allow for the creation
3 of a uniform, maybe arguably, a higher quality, more
4 effective way to help our family courts.
5 Can we survive without it? Yes, we can survive
6 without it. But the only reason I put the proposal
7 forward is because of the importance of family law. It
8 isn't going to hurt anybody. The Legislature can tell
9 them to do what they want to do. And if we didn't have
10 the problem of consent, we wouldn't need it.
11 But constitutionally, we have the problem of consent.
12 Because the Masters which have been with us since the time
13 of the 14th century -- we used special Masters since the
14 time of the 14th century in Chancery, the Chancery used
15 special Masters. But the problem with all this is that we
16 have constitutional decisions in the state of Florida
17 which say you have to have the consent even on a minor
18 matter to refer anything to someone other than a judge.
19 That's basically it.
20 CHAIRMAN DOUGLASS: Commissioner Scott, I believe you
21 raised your hand. You'll be next, Commissioner Freidin.
22 Are you speaking?
23 COMMISSIONER SCOTT: Mr. Chairman, yeah, I was going
24 to -- I think I'm going to speak against it. And I would
25 like to make this caveat with all due respect to the
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1 committee and Commissioner Wetherington. There are enough
2 questions raised here -- first of all, I'm not sure that
3 it's all bad to require consent for someone other than a
4 judge to determine rights which are in some respects even
5 greater and longer lasting and more potentially
6 devastating not only financially but to children and
7 others to have them decided by our court system. And the
8 court system is not perfect and it's, you know, it's often
9 delayed and may become more delayed in this area.
10 But in view of what Commissioner Mills said, I don't
11 really frankly like the word "magistrate" for starters.
12 Something about that goes back to the systems that we've
13 basically gotten rid of including even municipal courts in
14 this state where it is not too completely defined. The
15 fact that the federal government might, in effect, require
16 something, that doesn't move me at all. I mean, we're not
17 sure we're not going to give up the money, but at least
18 we've now got a system where the Court does have a review.
19 And so I would say that for us, as we sit here today, the
20 Legislature could always propose this constitutional
21 amendment after maybe some more work on defining it and so
22 forth.
23 So I'm saying I'm probably going to vote against it
24 just because I don't know enough and because I'm not so
25 sure that it's bad to require consent on those matters.
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1 CHAIRMAN DOUGLASS: Now, Commissioner Freidin.
2 COMMISSIONER FREIDIN: Mr. Wetherington, I had a
3 question about the consent issue and the necessity to have
4 some kind of constitutional validation in order to refer a
5 case to a magistrate or a Master or whatever.
6 Supposing that this amendment were passed and the
7 Legislature in its wisdom chose not to create or fund a
8 system but in Dade County for example we have the system
9 of general Masters who now get referred these cases
10 questionably under the -- questionably with regard to the
11 constitutional authority --
12 COMMISSIONER WETHERINGTON: It's not questionable
13 because we have consent.
14 COMMISSIONER FREIDIN: Consent. Would this solve
15 that problem? I mean would the amendment that's being
16 proposed solve that problem or would it be better to
17 somehow deal with both issues? I mean, the way I'm
18 understanding it there are two issues. One, should the
19 state have a uniform system so that in every circuit we're
20 dealing with the same thing.
21 And, two, in a circuit where there are Masters,
22 should there, if the circuit so chooses and finds a way of
23 funding it, should that be constitution -- should it then
24 become constitutionally permissible for courts to refer
25 matters to those Masters. Is there a way -- does the
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1 amendment -- I mean, does the proposed amendment to the
2 Constitution deal with both of those issues or does it
3 only deal with the uniformity issue?
4 COMMISSIONER WETHERINGTON: I think it deals with
5 both issues. It would allow the Legislature, if it
6 elected to do it, to have these judicial officers to find
7 their jurisdiction, the functions, the way they are
8 selected, the way they are regulated, just like they would
9 any class of judicial officers. It would take care of the
10 whole issue.
11 CHAIRMAN DOUGLASS: Any further -- Commissioner
12 Morsani was up.
13 COMMISSIONER MORSANI: If I might, sir, ask a
14 question. I appreciate all the debate here by the legal
15 minds and I'm certainly not an attorney. But I think
16 there is some -- one element of this is missing that's not
17 in the discussion.
18 In visiting with Chief Justice Kogan, it was his
19 thesis that the purpose of exploring this type of change
20 was twofold. I -- first to bring these kinds of cases
21 closer to home rather than -- and to short-circuit, if you
22 will, and maybe you don't like to hear that as legal
23 minds, but to short-circuit this tremendous logjam or
24 longtime elements. I don't hear that being told here,
25 that it was his intention to bring justice closer to
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1 the -- almost a neighborhood, almost create a neighborhood
2 court so to speak because we've gone so far away from that
3 and caused this tremendous logjam in our courts.
4 I haven't heard that discussion here by you ladies
5 and gentlemen that know the courts and I certainly don't.
6 And then that piece of it I don't hear and then the other
7 piece is the qualifications of these people that might be
8 becoming magistrates. I haven't heard any one of those
9 two things discussed. And in my conversation with Chief
10 Justice Kogan, that was really the thesis for what this
11 was going to be put forth. If I might hear some comments,
12 I would appreciate it.
13 CHAIRMAN DOUGLASS: Commissioner Langley.
14 COMMISSIONER LANGLEY: I'd like to rise in support of
15 the proposition and just tell you that in answer to your
16 question, Commissioner Morsani, now there are almost as
17 many non-married custody support fights as there are
18 dissolution custody support fights. Because so many
19 people are living together and having children, you don't
20 go in with a dissolution, you go to the paternity suit to
21 establish custody, visitation, just like a divorce. And
22 nine out of ten of these people can't afford lawyers.
23 A lot of them are going pre se which is really a mess
24 for the courts and the clerks to deal with. And we need
25 at least an opportunity -- this just says, we are not the
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1 Legislature and we really shouldn't be that concerned with
2 the intricacies of what may or may not be provided once
3 the Legislature may decide to create these domestic
4 magistrates if they do. They will have their hearings,
5 they will set the qualification for the magistrates, they,
6 I hope, will provide an appeal from that magistrate's
7 decision.
8 All that Commissioner Wetherington is asking of this
9 is, the Legislature says we can't do it now -- or the
10 Constitution says the Legislature can't do it now -- let's
11 let the Legislature explore that. And if it's a whole lot
12 cheaper to deal with magistrates than it is to deal with
13 judges and retirements and secretaries and health
14 insurance and all the other things that we do when we
15 create a judgeship, so if we can simplify it, make it more
16 accessible to the poor people of this state that need it
17 and relieve the pressure on the judiciary, all we're
18 saying is let the Legislature look at it. And they may
19 decide they don't want to do it, but that's fine. To say
20 that it shouldn't be done I don't think it's our
21 prerogative.
22 CHAIRMAN DOUGLASS: Commissioner Nabors.
23 COMMISSIONER NABORS: Yes. I'd like to ask you a
24 question Commissioner Wetherington. I'm sympathetic to
25 where you are going. But one of the things that troubles
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1 me about this and maybe we could table it, or whatever the
2 procedure rule is, what troubles me about it is I
3 supported the amendment that basically provided that the
4 Court could not require appropriation. It troubles me
5 just as much on a separation of powers' concept
6 fundamentally to put too much power in the Legislature
7 dealing with jurisdiction and dealing with reconciling
8 jurisdiction, these issues between the circuit and these
9 type courts.
10 And so it seems to me what I'm struggling with is is
11 that appropriate. And it bothers me to say the
12 Legislature can define a family magistrate court system
13 because the Constitution does preserve procedure and other
14 things to the judiciary. So it seems to me that there
15 might be a middle ground between the court adopting rules
16 relating to jurisdiction and procedures and the funding
17 and maybe we can separate those down the line.
18 But does it bother you the fact that you give the
19 Legislature so much power in this area? This is
20 fundamentally different than traffic, for example, issues.
21 COMMISSIONER WETHERINGTON: I agree with what
22 Commissioner Langley said obviously. And that is the
23 means and the mechanisms and the way in which it would be
24 instituted would have to be done, I take it, like we do in
25 many areas which involve both the Court and the
80
1 Legislature.
2 What they would probably do, what they would probably
3 have some kind of analysis done maybe in conjunction with
4 the Supreme Court and if they decided to do it, they would
5 come up with a proposal just like for example with the
6 rules of evidence which are both the Supreme Court and the
7 Legislature, as you know, have signed off on. And they
8 would come up with a proposal that made sense. And after
9 they came up with a proposal that made sense, they would
10 simply define it. And if they wanted to say that the
11 rules and procedures and things like that would be
12 established by the Court, they could do it.
13 I'm not proposing the entire system and all the
14 intricacies and details of the system obviously. I think
15 it's the kind of thing that the Legislature could do
16 probably in consultation with the court if we wanted to
17 have this power in the Legislature to address it. It's
18 not as radical a proposal as some people are interpreting
19 it to be because we have 75 percent of this going on right
20 now. This isn't totally new court, it's simply -- it
21 would allow to improve the efficiency of what we're doing
22 to allow these quasi judicial officers to be of greater
23 assistance to the courts with a mushroom caseload with the
24 increase in the pro se cases that we're dealing with.
25 It appears to me that since you have a right of
81
1 review with a trial judge you're not giving up judicial
2 control, and it's just an effort to try to do something to
3 help make us more effective and move efficient in the
4 field of family law anticipating what's happening in
5 family law now. Can we live without it? Yes, we can live
6 without it. Would we probably have a more effective and
7 more efficient family law handling of all these cases
8 including domestic violence and the child support and the
9 terrible things that are happening? I think we would and
10 that's why I proposed it.
11 CHAIRMAN DOUGLASS: All right. Commissioner
12 Sundberg. Incidentally, the air conditioner is back on if
13 you want to put your coats back on.
14 COMMISSIONER SUNDBERG: Commissioner Wetherington,
15 would you yield for a couple of questions? Commissioner
16 Langley said, you know, they aren't creating a court here
17 but in fact doesn't this create a court? Doesn't it
18 create an Article V court?
19 COMMISSIONER WETHERINGTON: Yes.
20 COMMISSIONER SUNDBERG: Then next, and I support this
21 in principle, I'm just not sure -- the more I look at it,
22 I'm not sure we thought it completely through. Are you
23 troubled at all by the fact the jurisdiction of a circuit
24 court is defined -- first of all, are you troubled at all
25 by the fact that this would be the only court in which its
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1 jurisdiction is defined by the Legislature as opposed by
2 the people in the Constitution?
3 COMMISSIONER WETHERINGTON: Am I troubled by that?
4 COMMISSIONER SUNDBERG: Yes, sir.
5 COMMISSIONER WETHERINGTON: No, not in this instance
6 I'm not.
7 COMMISSIONER SUNDBERG: But, in fact, that is true,
8 the jurisdiction of every other court, Article V court, is
9 defined in the Constitution; is it not?
10 COMMISSIONER WETHERINGTON: That's correct except for
11 the traffic hearing officers.
12 COMMISSIONER SUNDBERG: Yes, but which is a court.
13 But the jurisdiction of the circuit court is provided by
14 Section V and it says, "The circuit court shall have
15 original jurisdiction not vested in the county courts and
16 jurisdiction of appeals not vested elsewhere."
17 Does that not need some amendment to say, "not vested
18 in the county courts or in any magistrate court system
19 that's established"?
20 COMMISSIONER WETHERINGTON: That's a good point.
21 COMMISSIONER SUNDBERG: Okay. Thank you.
22 COMMISSIONER WETHERINGTON: In other words, these are
23 all good points. Do I think with respect to this that it
24 could be handled by the Legislature and the Court? And
25 the answer is I think it could. Am I proposing an
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1 entire --
2 CHAIRMAN DOUGLASS: We have to break for just a
3 second. We have to change the paper. (Pause.) Okay.
4 You may proceed.
5 COMMISSIONER SUNDBERG: Just so I'm clear, are you
6 suggesting that the Legislature could deal with the issue
7 of -- that's raised by Section V, subsection (b) that says
8 a circuit court shall have original jurisdiction not
9 vested in the county courts?
10 COMMISSIONER WETHERINGTON: Yes.
11 COMMISSIONER SUNDBERG: That the Legislature could
12 say notwithstanding the provisions of Section 5(b) of
13 Article V that the circuit courts would then have
14 jurisdiction not vested in the county courts or in these
15 magistrate courts?
16 COMMISSIONER WETHERINGTON: These are family law
17 matters. The circuit court has jurisdiction of family law
18 matters. That's the only court that has jurisdiction of
19 family law matters now. Subject matter is not obscure.
20 We're talking about family law cases so we know it's
21 subject matter. And the only question is we talk about
22 what can be referred and any limitations on referral and
23 what are the qualifications of the officers and we put in
24 a few things like that and that would have to be filled
25 in, yes.
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1 COMMISSIONER SUNDBERG: Okay.
2 COMMISSIONER WETHERINGTON: In other words, I'm not
3 proposing a whole system for you today with all the
4 details, I wouldn't presume to do that. I'm just trying
5 to put forth a concept so it might be of some help. It's
6 not -- going to require some thinking and the Legislature
7 in conjunction with the Court having to sit down and put
8 it together and come up with like they did with sentencing
9 guidelines for example when you were there and many other
10 projects which are joint legislative judicial decision
11 where jurisdiction involves the legislative prerogative as
12 well as this judicial prerogative, this would be involved.
13 CHAIRMAN DOUGLASS: Commissioners, it's been
14 suggested to me by several commissioners that we probably
15 are in a position where we could vote on this unless there
16 is really some matter that you feel you have to raise.
17 Commissioner Barkdull.
18 COMMISSIONER BARKDULL: Mr. Chairman, I make an
19 observation and a question to Commissioner Wetherington
20 because my understanding when this thing first started out
21 is, in the explanation of what you wanted to do, that this
22 was an aid to the circuit court when they were determining
23 a family matter. Now you indicate to a response, I
24 understood, to a question by justice -- Commissioner
25 Sundberg, that this was a new court. And if it's a new
85
1 court, then what is the remedy of a person that's
2 aggrieved? Do they have an appeal to the circuit court or
3 do they have an appeal to the DCA?
4 COMMISSIONER WETHERINGTON: The way it works is
5 exactly like it works right now, it's a referral to the
6 magistrate. The magistrate makes the decision. That
7 decision can be sent back for review by the trial judge.
8 The trial judge will make the decision. If they're
9 offended by the trial judge's decision, it will go out to
10 your court just like it does right now.
11 COMMISSIONER BARKDULL: Then it's not a new court.
12 This is an adjunct -- help to the existing -- to the
13 existing system?
14 COMMISSIONER WETHERINGTON: Well, yeah, I didn't want
15 to fight with him because he's saying if you put it in the
16 Constitution is it now -- you want to call it a new court,
17 you can call it a new court.
18 COMMISSIONER BARKDULL: I don't want to call it a new
19 court.
20 COMMISSIONER WETHERINGTON: Well, you don't have to.
21 But from his perspective it's not -- I don't have any
22 disagreement if you want to call it a new court or not.
23 COMMISSIONER BARKDULL: Then my only other
24 observation is if you're going to equate this to
25 sentencing guidelines I might be against it.
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1 (Laughter.)
2 COMMISSIONER WETHERINGTON: Well, I'm not. I'm going
3 to take that back because --
4 CHAIRMAN DOUGLASS: All right. Is everybody ready to
5 vote? All right. Let's vote.
6 (Vote taken and recorded electronically.)
7 CHAIRMAN DOUGLASS: Have all commissioners voted
8 except me? Lock the machine.
9 READING CLERK: Nineteen yeas and 12 nays,
10 Mr. Chairman.
11 CHAIRMAN DOUGLASS: I'll announce that I voted yes so
12 I can move to reconsider. I just announced it. I'll have
13 to leave the chair to do that.
14 All right. We'll move to the next special order.
15 Proposal 29 by Commissioner Riley. Would you read
16 Proposal 29?
17 READING CLERK: Proposal 29, Proposal to create
18 Article I, Section 26, Florida Constitution, allowing the
19 lawful possession, use, and prescribing of marijuana for
20 medicinal purposes.
21 CHAIRMAN DOUGLASS: All right. The chairman of the
22 Declaration of Rights Committee. Commissioner Smith --
23 COMMISSIONER SMITH: Thank you very much.
24 CHAIRMAN DOUGLASS: -- would you like to yield this
25 to Commissioner Riley for her to present since it's her
87
1 proposal?
2 COMMISSIONER SMITH: Sure, if you'd like to, of
3 course.
4 COMMISSIONER RILEY: Thank you, Mr. Chairman. I
5 would like to speak --
6 CHAIRMAN DOUGLASS: First of all, I didn't allow him
7 to say that this was disapproved by the committee vote
8 which I should have, is that not correct, Commissioner
9 Smith, as Chairman? The committee voted to disapprove --
10 COMMISSIONER RILEY: Except for one.
11 CHAIRMAN DOUGLASS: Except for one. Okay. That was
12 you.
13 COMMISSIONER RILEY: It was. And I understand and I
14 will explain first the reasons why the committee did that
15 and I don't disagree with the committee. The committee
16 said that in fact they did not feel this was a
17 constitutional issue but they felt that it was a
18 legislative issue. And I agree with that. I voted in
19 favor of it because I have carried this water so to speak.
20 But also, we have heard around the state the reasons why
21 this needs to be made an issue and I think it needs to
22 have some airing out. I think it needs to come to the
23 table. And I think this proposal has done that.
24 I am concerned, as are other commissioners, that an
25 issue such as this which has been voted out, disapproved,
88
1 not necessarily because the committee itself disapproves
2 of the idea but because that it is, as they understand it,
3 a legislative and not a constitutional issue.
4 And I would like us to consider at this time some
5 process that this commission or its committees initially
6 can look at that would allow issues that are legislative
7 and not constitutional issues to have some process as we
8 go through our deliberations and on through May that will
9 allow us to take issues such as this to the Legislature
10 with some sort of recommendation that they either look at
11 it, approve it, or at least give it some awareness in the
12 Legislature and that these issues such as medical
13 marijuana not be simply dropped into oblivion. So with
14 that, I understand this is not going to pass. I still
15 recommend it but I am looking for a solution.
16 CHAIRMAN DOUGLASS: We haven't voted yet.
17 Commissioner Barton, you were up.
18 COMMISSIONER BARTON: Yes, sir. I just wanted to say
19 that there may have been some other reasons for the
20 negative vote on this proposition. One is that there are
21 virtually no medical associations either in the state or
22 nationally where representatives from any medical
23 disciplines who support this proposition such as
24 oncologists, ophthalmologists. I might also add that
25 there is some legal concern in that it took -- Attorney
89
1 General Janet Reno, United States Attorney General,
2 declared illegal the propositions that were passed in
3 California and Arizona because marijuana is a scheduled
4 one drug and therefore elicit drug.
5 Further, there was a real complication and concern
6 about the words "medical practitioner" in terms of who
7 might prescribe such a drug to potential patients. So I'd
8 just like to mention those other concerns. Thank you.
9 CHAIRMAN DOUGLASS: Commissioner Smith.
10 COMMISSIONER SMITH: Thank you very much. I'd just
11 like to report out that obviously this issue received a
12 tremendous amount of input to the committee. We heard
13 from the head of the Florida Department of Law
14 Enforcement, representative of the organization Drug Free
15 America. We heard from licensed physicians who are
16 proponents and opponents, and obviously we heard from many
17 of the people afflicted by cancer, HIV, AIDS, glaucoma and
18 other serious illnesses. We heard from a patient, one of
19 the eight patients who is currently receiving a
20 prescription from the government to smoke marijuana
21 cigarettes.
22 I can tell you in addition to the things that were
23 already said, there were some serious concerns about the
24 wording of the proposal, one of which Commissioner Barton
25 has stated.
90
1 Another problem, if you'll look at Proposal No. 29,
2 it says, A person whose use of marijuana is certified as
3 necessary. That doesn't provide for a prescription, it
4 doesn't provide that a certification can be in writing or
5 verbal. And with regard to the medical practitioners, we
6 heard testimony with regard to other jurisdictions,
7 podiatrists, midwives and others were allegedly considered
8 as medical practitioners.
9 For all the reasons stated, specifically with regard
10 to overbreadth and with regard to the issue stated both by
11 Commissioner Barton and Commissioner Riley, we voted this
12 out unfavorably as a constitutional issue.
13 Thank you, Mr. Chairman.
14 CHAIRMAN DOUGLASS: Any further discussion? If not,
15 we'll proceed to vote.
16 (Vote taken and recorded electronically.)
17 CHAIRMAN DOUGLASS: We're voting on Proposal 29.
18 Well, has everybody voted?
19 READING CLERK: One aye and 30 nays, Mr. Chairman.
20 CHAIRMAN DOUGLASS: All right. Maybe this would be a
21 good time, Commissioner Riley, to recognize the presence
22 of your mother who's sitting up there in the audience.
23 We're delighted to have her here. Ms. Ray Williams of
24 Valparaiso.
25 COMMISSIONER RILEY: Mr. Chairman, if I just may
91
1 comment, perhaps it's from her that I got the ability to
2 stand up one against thirty plus.
3 CHAIRMAN DOUGLASS: Well, I know your mother and you
4 took after your mother. She'd stand up against 100 if it
5 was necessary I think. So it's genetically there. Our
6 next proposal is No. 57 by Commissioner Zack who isn't
7 here. And, Commissioner Smith, would you present that,
8 please.
9 COMMISSIONER SMITH: Thank you. And since my dear
10 friend, Commissioner Riley's mother, is here, in the moral
11 universe one is the majority if you're right. So take
12 some solace in that.
13 CHAIRMAN DOUGLASS: The secretary just reminded me
14 that as usual, I forgot to have the clerk read the
15 proposal.
16 READING CLERK: Proposal 57, a proposal to revise
17 Article I, Section 23, Florida Constitution, prohibiting
18 the sale from a database of information that relates to a
19 natural person, unless the person gives written consent.
20 COMMISSIONER SMITH: Thank you very much. Just in
21 case some of you looked at the special order calendar and
22 wondered what was the Declaration of Rights committee
23 doing so it would get to the other proposals, we were
24 reading between 100 to 200 faxes and letters. We were
25 being pigeonholed by just about every business entity with
92
1 regard to this issue. This issue has received more
2 attention, discussion, debate, and concern than I guess
3 all the other issues that we've taken up thus far. And it
4 has come forward from the declaration of rights committee
5 with an unfavorable recommendation.
6 We listened to Commissioner Zack. Justice Overton
7 who basically spoke to us about his position and concern
8 on this issue which was consistent with his statements
9 when he spoke to us at the beginning of our sections.
10 And his concern and the concerns we heard from most
11 people about privacy of sale of information from a
12 database and he has put it succinctly as the KC test, that
13 is, that people want to know where private information
14 about them and public information about them is going.
15 But secondly and most importantly, people want to have the
16 right to correct, an opportunity to correct erroneous
17 information in these databases.
18 We also heard from a multitude of opponents,
19 telemarketers, private investigators, nonprofits including
20 American Cancer Society, that gets this database
21 information for fund-raising, et cetera. We heard from
22 banking institutions and I could just go on and on and on.
23 Specifically with regard to the Zack proposal, one of
24 the big stumbling blocks was that his proposal, unlike the
25 recommendation of Justice Overton, which is not yet a
93
1 proposal, requires prior written consent of the person
2 before you could sell that database information. This
3 would be looked at very, very favorably by people in the
4 criminal underworld.
5 If you had -- if you were trying to conduct some type
6 of investigation of a chop shop or insurance fraud and you
7 are gathering information about false insurance claims and
8 these funny-looking accidents and you had to get the
9 written consent of the target of the investigation before
10 you could get this data, obviously that would be a big,
11 big concern. That was one of the problems with
12 overbreadth and a problem of the concern of commerce. The
13 effect that this would have a commerce clause, the effect
14 that it would have on real commerce in the state of
15 Florida.
16 And for those basic reasons and some others, the
17 Declaration of Rights committee voted to unfavorably
18 recommend proposal No. 57, the Zack proposal.
19 And I'm prepared to answer any questions.
20 CHAIRMAN DOUGLASS: All right. Anybody have any
21 questions of Commissioner Smith? Anybody want to speak as
22 a proponent? Commissioner Mills?
23 COMMISSIONER MILLS: I will speak in favor of the
24 committee's report, which was seven zip. And for
25 Mr. Zack's benefit and the benefit of those who are
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1 concerned about this issue, I think that Justice Overton's
2 proposal had received some larger general support from the
3 committee. I expect it probably will be introduced. The
4 way -- Commissioner Zack deserves credit for introducing
5 this because it rooted out every possible individual that
6 could be opposed to this kind of thing and I think that
7 the committee was the beneficiary of learning an enormous
8 amount about the problems with this sort of right.
9 Justice Overton's language is much broader
10 constitutionally but much narrower probably in terms of
11 impact. I think what some members of that committee might
12 do is take another look at that language while
13 understanding that this particular proposal is not viable
14 for a number of reasons but understanding that any future
15 proposal would have to avoid the kinds of conflicts that
16 this proposal brought to light. But for those that were
17 concerned with the issue, which there are quite a few,
18 that the issue itself still has some life. And I think
19 the committee will still try to consider something.
20 CHAIRMAN DOUGLASS: Anything further? Commissioner
21 Barkdull is rules chairman. Since Commissioner Zack isn't
22 here, I know that's not a reason to do this, but since
23 they have announced that this is really part of a subject
24 matter that's going to be reported out, would it be
25 appropriate to leave this one pending or just go ahead and
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1 vote on it?
2 COMMISSIONER BARKDULL: I think we ought to go ahead
3 and vote on it and I'm getting indications that this
4 should not be carried over by members of the committee.
5 CHAIRMAN DOUGLASS: All right. Everybody ready to
6 vote? Then vote.
7 (Vote taken and recorded electronically.)
8 CHAIRMAN DOUGLASS: Commissioner Riley, you did
9 better.
10 (Laughter.)
11 CHAIRMAN DOUGLASS: All right. Lock the machine.
12 READING CLERK: Zero yeas and 31 nays, Mr. Chairman.
13 CHAIRMAN DOUGLASS: Is that it? Okay. The next
14 proposal is Proposal 53. Would you read the proposal,
15 please?
16 READING CLERK: Proposal 53, a proposal to revise
17 Article VI, Section V, Florida Constitution, providing
18 that general elections shall be held on the first Saturday
19 and Sunday after the first Monday in November of each
20 even-numbered year.
21 CHAIRMAN DOUGLASS: All right. Commissioner Anthony,
22 that's your proposal. Who's the chairman here?
23 COMMISSIONER FREIDIN: Commissioner Kogan is the
24 Chair and I am the Vice Chair, Mr. Chairman. This
25 proposal was considered at our first committee meeting and
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1 also at our committee meeting yesterday. It was voted out
2 unfavorably by the committee. There were many objections
3 raised to the suggestion of Saturday and Sunday voting. I
4 think that the reasoning of the committee, and I invite
5 the committee members to correct me if I am misstating
6 this, but I think that the reasoning of the committee was
7 multifold.
8 First of all, there are religions objections to
9 having voting on either a Saturday or a Sunday which would
10 then require voting on both days which therefore increased
11 the cost. And it wasn't only the double days of voting
12 that increased the cost, it was in addition to that
13 additional costs because of weekend voting, having to pay
14 time and half for voting time, having difficulty getting
15 polling places, et cetera. But we did hear from the
16 supervisor of elections who advised us that their
17 organization opposes such a proposal.
18 And finally, we had the benefit of the experience of
19 two states that have tried this where voter turnout really
20 hasn't increased significantly enough for us to consider
21 it and therefore the committee voted to oppose it. That's
22 the committee's report.
23 CHAIRMAN DOUGLASS: Okay. Commissioner Anthony, you
24 were the sponsor of this proposal, I would recognize you
25 as a proponent.
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1 COMMISSIONER ANTHONY: Yes, thank you very much,
2 Mr. Chairman. In an effort to increase opportunity for
3 voting in the state of Florida and our citizenry, I think
4 it's important that we consider every way possible to
5 provide those citizens that our time that we provide now
6 may not have an opportunity to get to the polls. This
7 provides them the opportunity to get to the polls.
8 It may seem inconvenient to the workers, the
9 supervisor of elections, but I will say to you from
10 experience of working in the voting business for at least
11 a couple of decades, that -- especially in rural
12 communities, our citizens find it very difficult, even
13 though Tuesdays from seven to seven seems like a lot of
14 time to many of us who have the opportunity to get off at
15 lunchtime and run to vote or prior to going to our
16 meetings in the morning. But I'll say that a lot of our
17 citizens in the state of Florida find it difficult when
18 they have families to take care of, children to drop off
19 and pick up, single mothers, and I can go on and on in
20 examples of people who want to be able to participate in
21 the American system.
22 Right now, we may think that we provide that
23 opportunity, but I know from my experience of people
24 walking up to me and citizens in this state walking up to
25 me saying that, I wish I could have voted but I just did
98
1 not have the time and is there any way that we can in the
2 state provide more than one day and perhaps the weekend
3 for us voting.
4 Louisiana and Hawaii are two states that have tried
5 the Saturday and the weekend voting. What is being
6 reported now, that they have not increased significantly.
7 But there has been a difference in the voting patterns in
8 those states. And that's why I think Florida through our
9 Constitution should provide that opportunity in
10 consideration of those citizens who really want to
11 participate in our American system.
12 We now are using the motor voter process. That's a
13 way we've used to try to increase the number of people
14 registering to vote. And I think this is another option
15 that we should consider and, Mr. Chair, I request a
16 consideration of the Revision Commission of this proposal.
17 CHAIRMAN DOUGLASS: All right, Commissioner Barton.
18 COMMISSIONER BARTON: Yes, I'd just like to say --
19 CHAIRMAN DOUGLASS: He asked to yield for a question,
20 do you yield? Commissioner Barton, we'll get back to you.
21 COMMISSIONER BARTON: Oh, I beg your pardon.
22 COMMISSIONER BARKDULL: Commissioner Anthony, this is
23 the only place in the Constitution where it fixes a date
24 for an election; is that correct?
25 COMMISSIONER ANTHONY: Yes, that is correct.
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1 COMMISSIONER BARKDULL: And that's the general
2 election in November?
3 COMMISSIONER ANTHONY: Yes.
4 COMMISSIONER BARKDULL: That puts us, with the
5 exception of Louisiana and Hawaii, in conformity with the
6 other 48 states, correct? Everybody votes for president
7 on the same day except for those two states you
8 identified; is that correct?
9 COMMISSIONER ANTHONY: Those two states also vote for
10 the president on the Tuesday that's set by federal law.
11 COMMISSIONER BARKDULL: Then your concern is with the
12 primaries, is that correct, and not the general election?
13 COMMISSIONER ANTHONY: That is correct.
14 COMMISSIONER BARKDULL: That could be remedied by the
15 statute under the present Constitution, can it not,
16 because Article I -- Article -- Section 1 says the control
17 of political parties should be by general law or something
18 to that effect. The only thing that is fixed in the
19 Constitution datewise is the general election. Everything
20 else is done by statute.
21 COMMISSIONER ANTHONY: I think and someone may be
22 able to help me on that. But I think state and county
23 elections are set out in the Constitution.
24 COMMISSIONER BARKDULL: No, sir, I don't think so.
25 If you look at Article VI, Section 1, the political party
100
1 sections are to be regulated by law and they are done by
2 the statutes or by the city charter and are not in the
3 Constitution.
4 COMMISSIONER ANTHONY: But I think Article VI,
5 Section 5, of the Constitution requires that those
6 elections elect state and county elections on the first
7 Tuesday after the first Monday.
8 COMMISSIONER BARKDULL: That's the general
9 election --
10 COMMISSIONER ANTHONY: Yes.
11 COMMISSIONER BARKDULL: -- provided for in November.
12 And what you're proposing is the general election be
13 changed?
14 COMMISSIONER ANTHONY: Yes.
15 COMMISSIONER BARKDULL: Thank you.
16 CHAIRMAN DOUGLASS: All right. Now, I took age
17 before beauty, Commissioner Barton.
18 COMMISSIONER BARTON: Thank you. I just wanted to
19 point out, speaking in opposition to the proposal, that
20 the Supervisor's Association said the motor voter issue,
21 while increasing the number of people who are registered
22 to vote significantly, did not however increase the number
23 of voter participation. Also, barriers to elections have
24 been pretty adequately removed in the state of Florida
25 through the absentee ballot process which now allows you
101
1 to vote absentee regardless of the reason. Anybody can
2 vote absentee.
3 COMMISSIONER ANTHONY: Mr. Chairman.
4 CHAIRMAN DOUGLASS: Commissioner.
5 COMMISSIONER ANTHONY: I appreciate that and I agree
6 that every attempt we should make in the state of Florida
7 is to continue to provide that the perspective of not
8 breaking down barriers but creating opportunities is
9 something we should continue to look at. I'm not very
10 secure with the absentee ballot process especially with
11 the issues that are going on now in south Florida in
12 regards to some of the ballot challenges that Commissioner
13 Rundle was dealing with now. But in any case, I do
14 appreciate -- I do appreciate your comments and I may feel
15 better about the absentee ballot in a couple of months.
16 CHAIRMAN DOUGLASS: Commissioner, would you believe
17 they have problems with absentee ballots in small
18 counties?
19 COMMISSIONER ANTHONY: I do. I've had a number of --
20 I've heard that a number of people in South Dade have
21 voted that are not still alive but I'm not sure that's
22 true.
23 CHAIRMAN DOUGLASS: So you're not suggesting that
24 there is anything unique in Dade County.
25 COMMISSIONER ANTHONY: I'm not suggesting that, sir.
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1 CHAIRMAN DOUGLASS: I just wanted to know that
2 Commissioner Rundle is doing her job even though she's up
3 here. Commissioner Riley.
4 COMMISSIONER RILEY: Mr. Chairman, I'd like to speak
5 in favor of this motion. I, as Commissioner Anthony, am
6 very concerned with the percentage of our populous and our
7 citizens who not only don't register, but even more
8 importantly once registered, don't vote. I would remind
9 everyone that the supervisors of elections as their
10 organization, has been, as I remember, against absentee
11 balloting in terms of its quantity. They have been
12 against motor voter which, while it may have not at this
13 point increased the voting that much, has certainly
14 increased the registration of voters and you have to do
15 that first.
16 So I wouldn't be put off by that and I would strongly
17 recommend that we support this in the hopes that we will
18 have more participation. And I think that's the goal
19 here.
20 CHAIRMAN DOUGLASS: Commissioner Barnett.
21 COMMISSIONER BARNETT: To ask a question of
22 Mr. Anthony.
23 CHAIRMAN DOUGLASS: Commissioner Anthony, do you
24 yield?
25 COMMISSIONER ANTHONY: I do.
103
1 COMMISSIONER BARNETT: I was thinking, however, as we
2 were talking about Dade County. I went to school in
3 Louisiana and there was a story there about the famous
4 Governor Huey Long that when he was on his deathbed, as
5 hard as it was for him to believe that he was actually
6 going to die, he gathered all of his friends and family
7 around him and made them promise that if he died and when
8 he did that they would bury him in south Louisiana because
9 even though he hated the thought of dying, even more so he
10 did not want to give up his right to vote.
11 (Laughter.)
12 But the question I would ask Mr. Anthony is, as I
13 understand this proposal, we change the general election
14 date only as it regards state and county officers. And
15 that we would continue to have a general election for all
16 other officers, federal elections. So that, in effect, we
17 are creating an additional day or two of voting as opposed
18 to consolidated opportunity for people. And as hard as it
19 is to get there on one day, you're really creating two
20 times people have to go out and vote as opposed to one.
21 And I wonder if that doesn't really create a disincentive
22 for people to vote or vote selectively and that it could
23 have an impact on our general elections.
24 COMMISSIONER ANTHONY: In creating this proposal I
25 considered that and I agree that that is something that is
104
1 of concern. I think that voters are going to select
2 clearly which election that they are going to participate
3 in, even if they have to go twice. Some people will feel
4 as if the presidential election -- or the congressional
5 elections are more important and therefore they will vote
6 on that Tuesday. Others will vote on that Saturday and
7 Sunday.
8 But I feel as if the opportunity to participate and
9 also the potential increase in participation in the
10 electorate process is my ultimate goal in presenting this
11 proposal. But the answer is, yes, I think that would be a
12 hard decision and it may, in fact, decrease on certain
13 days in certain elections.
14 CHAIRMAN DOUGLASS: Commissioner Butterworth, I
15 believe you were up first.
16 COMMISSIONER BUTTERWORTH: Mr. Chairman, if
17 Commissioner Anthony will yield for a couple of questions.
18 COMMISSIONER ANTHONY: I will.
19 COMMISSIONER BUTTERWORTH: Commissioner Anthony,
20 would the supervisor of elections today have the authority
21 to open up their offices for voting for people who would
22 not be in their precincts on election day in order to vote
23 early, not by absentee, but to vote in person?
24 COMMISSIONER ANTHONY: Yes.
25 COMMISSIONER BUTTERWORTH: Are a number of the
105
1 supervisors of elections doing that now to the best of
2 your knowledge?
3 COMMISSIONER ANTHONY: I don't know of any. I can't
4 respond to that.
5 COMMISSIONER BUTTERWORTH: I know that in my county
6 of Broward, my home county of Broward, I believe the last
7 11 years I've probably only been in the county on election
8 day maybe three times when I was on the ballot. In the
9 other times, I'd be in Tallahassee but I'd be able to vote
10 days beforehand by just walking into one of the many
11 offices the supervisor has and state that I would not be
12 in my precinct or the jurisdiction on election day so they
13 allowed me to do it.
14 So for that reason, I believe, perhaps maybe this is
15 not the best place to put it in the Constitution but to
16 encourage the supervisors to use the authority they
17 already have and that some of them are already using.
18 Thank you, Commissioner.
19 CHAIRMAN DOUGLASS: All right. I think Commissioner
20 Marshall was next.
21 COMMISSIONER MARSHALL: Thank you, Mr. Chairman. The
22 question for Commissioner Anthony. In your attempt to
23 find ways to make it easier for people to get to the
24 polls, did you consider the possibility of extending the
25 voting hours without changing the days?
106
1 COMMISSIONER ANTHONY: I did consider that as an
2 option. But again, based upon the input that I received,
3 the weekend voting opportunity was a more flexible
4 opportunity for people to get to the polls because of the
5 working hours and the time.
6 And, again, you know, you create proposals based on
7 your experience and my experience is in the rural
8 community where my family and my citizens get up at 5:00
9 in the morning and they go to work. And then they come in
10 at 6:00 or 7:00 at night on buses. And, you know, again,
11 I created the proposal because of an experience that I
12 had. Generally, in the state of Florida for some of us
13 this may not be a challenge and therefore it's hard to
14 sometimes explain it.
15 CHAIRMAN DOUGLASS: Commissioner Smith.
16 COMMISSIONER SMITH: Thank you, Mr. Chairman. First
17 of all, one of the important issues that I want to deal
18 with and being privileged to serve on this commission was
19 to increase voter participation in our system of
20 government. And so I commend you for trying to find a way
21 to do that.
22 I was privileged to be in south Africa during the
23 first election after Apartheid where the voting was over
24 three days. The first day was for people who were
25 physically disabled, people who were in hospitals and
107
1 prisoners, by the way. And the second day and third day
2 were for everybody else. I see a lot of situations,
3 especially in Miami, which is a commuter transit,
4 transit-oriented working class, where people get up at
5 6:00 in the morning, get their kids ready for school, drop
6 their kids off at 7:30 and go to work. By the time they
7 get back home, it's 7:00, the polls are closed.
8 I think we're going to have to do this much more
9 incrementally. There is no doubt about it if we even
10 thought about Saturday and Sunday, the religions community
11 would just, not just the heads of the churches and the
12 synagogues, but the congregations, there would just be too
13 much of a headwind.
14 Secondly, the business community paying overtime,
15 doubletime or whatever, you see how hard it is just to get
16 the minimum wage to a decent living wage. So I think that
17 we need to consider proposals incrementally like maybe
18 extending the hours down to 8:00 or, you know, something
19 of that matter and let's move forward. Plus we have some
20 other ballot access issues that are coming up that
21 hopefully provide a wider choice which may be able to
22 do -- get more people interested.
23 So while I have to oppose this proposal, I think we
24 can work together hopefully over the course of our term to
25 make some incremental steps in the direction you're trying
108
1 to leading us. Thank you.
2 CHAIRMAN DOUGLASS: Any further discussion? If not,
3 we'll proceed to vote. All right. Okay. Has everybody
4 voted?
5 (Vote taken and recorded electronically.)
6 CHAIRMAN DOUGLASS: Okay. Lock it.
7 READING CLERK: Six yeas and 23 nays, Mr. Chairman.
8 CHAIRMAN DOUGLASS: All right. It fails. We're
9 going to -- I've had some people that have to be somewhere
10 by 12:00. So we're going to break for lunch now. And I
11 would suggest that we come back at what, 1:15? Is that
12 agreeable, Commissioner Scott? Is 1:15 -- I think 1:15
13 would be more appropriate. We're going to have to eat in
14 the building. We didn't get the caterer to come in today
15 so I would suggest -- and our director is trying to set up
16 a special line down there, but it probably won't happen.
17 Anyway, that's where we're going to have to meet.
18 Commissioner Barkdull.
19 COMMISSIONER BARKDULL: I move we recess until 1:15.
20 CHAIRMAN DOUGLASS: Without objection.
21 (Lunch recess.)
22 SECRETARY BLANTON: Quorum call. Quorum call. All
23 commissioners indicate your presence. All commissioners
24 indicate your presence. Quorum call, quorum call. All
25 commissioners indicate your presence.
109
1 CHAIRMAN DOUGLASS: If you haven't registered your
2 presence, please push your button. Okay. Come to order
3 please. Commissioner Barkdull for informational.
4 COMMISSIONER BARKDULL: Thank you, Mr. Chairman and
5 members of the commission. The rules committee had an
6 informal meeting a few minutes ago and has gone over a
7 proposed addendum to the special order that you have on
8 your desk which will be presented to you, it's in the
9 printer's office right now and will be out within the next
10 15 or 20 minutes and will be given to your desk. This
11 will add onto the special order we've got today. And the
12 suggestion of the rules committee is going to be that we
13 convene at nine in the morning and we end at 1:00 tomorrow
14 or we end when we finish the special order, whichever
15 comes first. And we'll definitely be here no later than
16 1:00 tomorrow.
17 The addendum to the special order will be handed to
18 you as soon as the director receives it and it will be
19 given -- on everybody's desk and that will be the program
20 we will follow. There will be no rules committee meeting
21 at 5:00 this afternoon. But there still will be the
22 Declaration of Rights committee at 4:00.
23 CHAIRMAN DOUGLASS: All right. We'll proceed. The
24 next proposal is 18. The secretary reminds me that they
25 will post that in the rotunda for anyone that's interested
110
1 and it will also be distributed to the press and others
2 that are interested. All right. Proposal 18. Would you
3 read Proposal 18, please.
4 READING CLERK: Proposal 18, a proposal to revise
5 Article VI, Section 5 Florida Constitution, providing for
6 elections to be held on Saturday and Sunday and
7 prohibiting second primaries.
8 CHAIRMAN DOUGLASS: Commissioner Freidin, Chairman of
9 the -- vice chairman acting as chairman of the committee.
10 This is Commissioner Riley's proposal. Do you want to
11 yield to her for her to present it?
12 COMMISSIONER FREIDIN: I would be happy to do that.
13 CHAIRMAN DOUGLASS: And there's an amendment on the
14 desk.
15 COMMISSIONER RILEY: Actually, Mr. Chairman, as maker
16 of this proposal, I would like to withdraw it at this
17 time.
18 CHAIRMAN DOUGLASS: All right. We have the same
19 thing applying to this as we did to other public
20 proposals.
21 COMMISSIONER RILEY: Not that there's not an issue
22 here, but I'd like to work on the wording --
23 CHAIRMAN DOUGLASS: Do you want to temporarily pass
24 it? You could withdraw it or you can temporarily pass it.
25 You can't withdraw it if somebody objects.
111
1 COMMISSIONER RILEY: I withdraw it.
2 CHAIRMAN DOUGLASS: Okay. Without objection, it will
3 be withdrawn. Are there objections, Commissioner
4 Marshall?
5 COMMISSIONER MARSHALL: I'm not sure, Mr. Chairman.
6 It seems to me it would be proposals. One has to do with
7 weekend voting and the other one has to do with
8 eliminating the second primary. Aren't they separate
9 issues?
10 COMMISSIONER RILEY: They are separate issues. In
11 fact, at the committee level I thought they had been
12 split. But my understanding is neither have passed at the
13 committee level anyway. And my amendment was going to be
14 to pull out the weekend voting part. But I think at this
15 time -- and perhaps, Mr. Chairman, that would be the
16 better thing to do is to temporarily pass it and to not
17 act on it today.
18 CHAIRMAN DOUGLASS: If you want to temporarily pass
19 it, I think without objection we'll temporarily pass it.
20 But I agree with Commissioner Marshall and thank you for
21 pointing that out, Commissioner Marshall, these are really
22 two issues and the weekend voting we discussed and did not
23 approve, but the issue of prohibiting second primaries is
24 an entirely different issue which historically has been
25 done in Florida as a matter of fact.
112
1 COMMISSIONER MARSHALL: Yes, Mr. Chairman, and I
2 think an important one. I would be very much interested
3 in that.
4 CHAIRMAN DOUGLASS: So it's my understanding that
5 Commissioner Riley is going to redraft that and present it
6 as a substitute?
7 COMMISSIONER RILEY: Yes, Mr. Chairman.
8 CHAIRMAN DOUGLASS: Then you can do that at any time.
9 COMMISSIONER RILEY: Thank you.
10 CHAIRMAN DOUGLASS: Without objection, then we'll
11 allow that to be the case. And now we'll move to Proposal
12 10. Would you read that, please?
13 READING CLERK: Proposal 10, proposal to revise
14 Article VI, Section 4, Florida Constitution. Deleting
15 term limits for offices of state senator or
16 representative, lieutenant governor, Cabinet member, U.S.
17 representative, and U.S. senator.
18 CHAIRMAN DOUGLASS: Commissioner Freidin, do you want
19 Commissioner Sundberg to present that since it's his
20 proposal? Commissioner Sundberg, you have the floor.
21 COMMISSIONER SUNDBERG: Thank you, Mr. Chairman.
22 Fully recognizing that this is an issue that was
23 considered by the voters in November of 1992 and that the
24 imposition of term limits passed by significant majority,
25 I do not intend to beat this horse, at least, to death. I
113
1 have other horses that I am sure I will beat to death.
2 But, apart from that, I simply suggest to you that
3 term limits are not a limitation on public officials so
4 much as they are a limitation on the electorate. If the
5 electorate wants to limit any public official's term they
6 have the ability to do that at the ballot. But to impose
7 on them a limitation as to the length of time their
8 elected public officials can serve does not make sense to
9 me and it seems to me that we lose the advantage of the
10 continuity and the maturity that comes with service.
11 I frankly do not recall what the debate was
12 surrounding this issue or to what extent it was. It was
13 put forward, as I recall, as an initiative petition. I
14 think it is entitled to an opportunity after the people
15 have had several years to consider it to reconsider this
16 issue and I do that with full comprehension that it has
17 recently been considered by the people. Thank you,
18 Mr. Chairman.
19 CHAIRMAN DOUGLASS: All right. Is there any further
20 discussion on this debate? Any proponents wish to be
21 heard? Any opponents wish to be heard? All right. If
22 not, we'll proceed to vote. In a minute we'll proceed to
23 vote. Now we'll vote.
24 (Vote taken and recorded electronically.)
25 CHAIRMAN DOUGLASS: All commissioners voted? Okay.
114
1 Lock the machine.
2 READING CLERK: Five yeas and 19 nays, Mr. Chairman.
3 CHAIRMAN DOUGLASS: All right. Let's move to
4 Proposal No. 78. Would the clerk please read it?
5 READING CLERK: Proposal 78, a proposal to revise
6 Article VI, Section 4, Florida Constitution, deleting
7 provisions that establish term limits for Florida
8 delegates to Congress.
9 CHAIRMAN DOUGLASS: Commissioner Freidin, would you
10 yield to Commissioner Ford-Coates?
11 COMMISSIONER FREIDIN: Yes.
12 CHAIRMAN DOUGLASS: Commissioner Ford-Coates, you're
13 recognized.
14 COMMISSIONER FORD-COATES: Mr. Chairman, at this time
15 I'd like to temporarily pass this proposal until our next
16 meeting.
17 CHAIRMAN DOUGLASS: Without objection, it will be
18 temporarily passed until the next meeting. Now, that's
19 tomorrow morning.
20 COMMISSIONER FORD-COATES: I'd like to do it until
21 our December meeting.
22 CHAIRMAN DOUGLASS: Okay. Without objection, it will
23 be passed until the December meeting. And that was
24 approved by the committee as I understand it. Okay.
25 Proposal 71 by Commissioner Mills. Would you please
115
1 read the proposal?
2 READING CLERK: Proposal 71, a proposal to revise
3 Article VI, Section 5, Florida Constitution, providing for
4 open primary elections.
5 CHAIRMAN DOUGLASS: Commissioner Freidin, do you
6 yield to Commissioner Mills?
7 COMMISSIONER FREIDIN: Yes.
8 CHAIRMAN DOUGLASS: Commissioner Mills.
9 COMMISSIONER MILLS: Mr. Chairman, having experienced
10 several committee hearings in front of the ethics and
11 elections committee, and having been flagellated enough, I
12 would like to move to withdraw this with the knowledge and
13 assurance that Commissioner Ford-Coates and I are looking
14 at some other methods to deal with this issue. I thinks
15 it's -- in the ethics and elections area, we've heard a
16 lot of testimony about people being concerned about
17 access, about voters wanting to increase the number of
18 people who would participate in elections. The goal of
19 the open primary is to do that.
20 The goal of a number of other things we discussed is
21 to do that. We probably just need to fine-tune it. So I
22 would move -- ask unanimous consent to remove this
23 proposal and tell you that I will work with Commissioner
24 Ford-Coates to present something that is analogous to this
25 to increase voting participation.
116
1 CHAIRMAN DOUGLASS: All right. Without objection,
2 Commissioner Mills will withdraw from further
3 consideration Proposal 71. That's the open primary. If
4 anybody wants to keep this on, all you have to do is
5 object.
6 (No response.)
7 Without objection, then it is removed and withdrawn
8 with the understanding now on November the 25th this can
9 be introduced by any member. And I take it somebody is
10 going to do that; is that correct?
11 Okay. Proposal 35 by Commissioner Freidin. Would
12 you read it, please?
13 READING CLERK: Proposal 35, a proposal to revise
14 Article II, Section 8, Florida Constitution, relating to
15 ethics in the government.
16 CHAIRMAN DOUGLASS: Read the rest of it there a
17 little bit.
18 READING CLERK: Including in that section the
19 requirement set out in the Article III, Section 18,
20 Florida Constitution which requires creation of a code of
21 ethics; repealing Article III, Section 18, Florida
22 Constitution as a distinct section.
23 CHAIRMAN DOUGLASS: All right. Commissioner Freidin
24 as chairman of the committee and as sponsor of this
25 proposal.
117
1 COMMISSIONER FREIDIN: Mr. Chairman, this proposal
2 simply is a housekeeping matter. It does not make a
3 substantive change. Currently the Constitution provisions
4 regarding ethics are located in Article II, Section 8,
5 except for the requirement that the Legislature adopt a
6 code of ethics for state employees and nonjudicial
7 officers. That provision currently is found in Article
8 III, Section 18. The purpose of this proposal is simply
9 to put both provisions together where they belong in
10 Article II, Section 8.
11 CHAIRMAN DOUGLASS: All right.
12 COMMISSIONER FREIDIN: It passed unanimously out of
13 the committee with a favorable recommendation.
14 CHAIRMAN DOUGLASS: If you would, I think it might be
15 helpful, I'm not sure everybody is awake yet, including
16 me. If you would again explain what we're changing with
17 this.
18 COMMISSIONER FREIDIN: There is no substantive
19 change. It simply is moving a provision with regard to --
20 that directs the Legislature to adopt a code of ethics for
21 state employees and nonjudicial officers and put it in the
22 other section where ethics is dealt with so that it's not
23 buried in a separate section.
24 CHAIRMAN DOUGLASS: So this would, in effect, be part
25 of the ultimate glitch bill or the bill we've discussed
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1 earlier when Commissioner Wetherington was up that this
2 would be something that would be a technical change that
3 there should not be any controversy about?
4 THE WITNESS: I would think so.
5 CHAIRMAN DOUGLASS: All right. With that
6 explanation, are you ready to vote? All in favor, go
7 ahead and vote. That's Proposal 35.
8 (Vote taken and recorded electronically.)
9 CHAIRMAN DOUGLASS: Has everybody voted? All right.
10 Count the votes.
11 READING CLERK: Twenty-six yeas and zero nays,
12 Mr. Chairman.
13 CHAIRMAN DOUGLASS: Proposal No. 32 by Commission
14 Ford-Coates. Would the clerk please read?
15 READING CLERK: Proposal 32, a proposal to revise
16 Article VI, Section 2, Florida Constitution reducing the
17 voting age to age 18.
18 CHAIRMAN DOUGLASS: Commissioner Ford-Coates.
19 COMMISSIONER FORD-COATES: This is a technical
20 proposal, part of housekeeping. The Constitution
21 currently states that one has to be a resident for a
22 certain amount of time and has to be 21 years of age.
23 Both those provisions were struck down and we need to
24 clean it up and make the Constitution accurate.
25 CHAIRMAN DOUGLASS: The Chair had an inquiry. Is the
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1 next one, Proposal 34, the same thing? Commissioner
2 Barnett, the next one, are they identical or are they
3 different?
4 COMMISSIONER BARNETT: They must be different or they
5 wouldn't have put them there but they look identical to
6 me. The substance is identical.
7 CHAIRMAN DOUGLASS: Commissioner Ford-Coates, do you
8 know what the actual difference is?
9 COMMISSIONER FORD-COATES: I don't see a difference
10 either, Martha, do you?
11 COMMISSIONER BARNETT: I will withdraw 34 when the
12 time comes.
13 CHAIRMAN DOUGLASS: Okay. That's what I wanted to
14 know. Do we need to take that one up too or we can do it
15 all at once? Anybody that has any problems with this,
16 raise it. We'll vote. Okay. The secretary informed me
17 that one of these does not require a length of residency
18 and the other one does. That's why I was asking if there
19 is any difference in these two proposals. Which is which?
20 Well, I guess the change we're discussing, on one of
21 them it says "is a permanent resident" instead of "has
22 been," "of the state" instead of saying "for one year and
23 six months in the county" is struck. Then the provision
24 in the end, "provisions may be made by law for other bona
25 fide residents," that's struck. Then on the other one, it
120
1 appears to be --
2 COMMISSIONER BARNETT: Mr. Chairman, I believe they
3 are identical in language. So --
4 CHAIRMAN DOUGLASS: We'll just combine them and vote
5 on them as --
6 COMMISSIONER BARNETT: Either that or I'll withdraw
7 the second one.
8 CHAIRMAN DOUGLASS: That's okay. We'll vote on them
9 both at the same time. Commissioner Evans-Jones.
10 COMMISSIONER EVANS-JONES: I have a question of the
11 sponsor, either one, both of them. Currently, you don't
12 have to live here for a year prior to voting, do you?
13 COMMISSIONER FORD-COATES: You're correct, you do not
14 because that provision was struck down.
15 COMMISSIONER EVANS-JONES: But are you saying here
16 that you do?
17 COMMISSIONER FORD-COATES: No, it's been -- what
18 we're doing is deleting both the provision for residency,
19 length of residency, and the age of 21.
20 COMMISSIONER EVANS-JONES: Okay.
21 COMMISSIONER FORD-COATES: We're correcting it to the
22 way it is under the U.S. Constitution.
23 CHAIRMAN DOUGLASS: Both of them say exactly the same
24 thing and they are to make the Constitution comply with
25 the U.S. requirements for voting. And that's what I
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1 understand is the case. And we'll vote on the first one
2 and Commissioner Barnett will withdraw, without objection,
3 the second one. Commissioner Riley.
4 COMMISSIONER RILEY: I had a question for the
5 proposer. My question is, is there a definition for a
6 permanent resident?
7 COMMISSIONER FORD-COATES: As a understand it, a
8 permanent resident is defined by law. In other words,
9 you're registered to vote, you filed a declaration of
10 domicile, whatever is required to register under the
11 general law of the state. The reason that -- I believe
12 that terminology is in there was the initial provision
13 whereby you had to live within a county for a certain
14 amount of the time. That requirement was struck down by
15 the courts. By the courts, correct, the residency
16 portion, but the age was changed by an amendment to the
17 Constitution.
18 CHAIRMAN DOUGLASS: All right. Any further questions
19 or statements? If not, we'll proceed to vote on Proposal
20 No. 32. Go ahead and vote.
21 (Vote taken and recorded electronically.)
22 CHAIRMAN DOUGLASS: Have all commissioners voted?
23 Okay. Lock the machine.
24 READING CLERK: Twenty-eight yeas and zero nays,
25 Mr. Chairman.
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1 CHAIRMAN DOUGLASS: All right. Commissioner Barnett,
2 without objection, moves to withdraw Proposal No. 34. Is
3 there any objection? If not, it's withdrawn.
4 Now we'll move to legislative and Proposal No. 65 --
5 85 by Commissioner Sundberg. The legislative committee is
6 chaired by?
7 COMMISSIONER SUNDBERG: James Earl Thompson.
8 CHAIRMAN DOUGLASS: Do you yield --
9 COMMISSIONER SUNDBERG: Mr. Chairman, may I please
10 yield --
11 CHAIRMAN DOUGLASS: Wait a minute, we better read the
12 title. I remembered it this time. You see, I'm getting
13 better. Read us what it is.
14 READING CLERK: Proposal 85, a proposal to revise
15 Article I, Section 24; Article III, Sections 1, 2, 3, 4,
16 5, 7, 8, 9, 11, 15, 16, 17, 19; Article IV, Sections 6, 7,
17 9, 13; Article V, Sections 2, 9, 11, 12, 20; Article VII,
18 Sections 1, 5, 18; Article VIII, Section 6; Article X,
19 Sections 2 and 12; Article XI, Sections 1, 2, 5, and 6;
20 Article 12, Sections 11, 12, 14, Florida Constitution and
21 to create Article III, Sections 20 and 21; Article XII,
22 Section 22, Florida Constitution, providing for a
23 unicameral Legislature.
24 CHAIRMAN DOUGLASS: Well, I think -- are you ready to
25 vote?
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1 (Laughter.)
2 CHAIRMAN DOUGLASS: No, I was only kidding. With
3 that many changes, I feel that maybe we don't have enough
4 time to really discuss all of them. But basically is this
5 a unicameral Legislature proposal where you get rid of the
6 Senate and the House and put them all into one,
7 Commissioner Sundberg?
8 COMMISSIONER SUNDBERG: I sense that there are
9 commissioners here, one sitting in front of me and even
10 the Chair who are making light of this proposal --
11 CHAIRMAN DOUGLASS: No, the Chair isn't. What I was
12 making clear was to considering that all of these
13 articles, provisions, have to be revised and deleted and
14 it's a very difficult thing to consider. But basically
15 when you strip it down, it's proposing a unicameral
16 legislature; is it not?
17 COMMISSIONER SUNDBERG: Yes, Mr. Chairman, if you
18 choose to characterize it that way.
19 (Laughter.)
20 CHAIRMAN DOUGLASS: Well, is that a wrong
21 characterization whether I chose to or not?
22 COMMISSIONER SUNDBERG: It may not be totally
23 accurate, but I wouldn't say it's wrong.
24 CHAIRMAN DOUGLASS: Okay. I want you then to proceed
25 and we will be enlightened.
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1 COMMISSIONER SUNDBERG: Actually, with your
2 permission, Mr. Chairman, I would like to defer to the
3 cosponsor of this proposal, Commissioner Evans-Jones, to
4 handle this technical amendment.
5 CHAIRMAN DOUGLASS: Commissioner Evans-Jones, it took
6 him a long and took me a long time to get to that.
7 COMMISSIONER EVANS-JONES: Thank you, Mr. Chairman,
8 thank you, commissioners. Now, listen up, this is
9 something that's really important and I want y'all to
10 recognize that.
11 We've been talking about this thing and that thing,
12 it really isn't very important in the big picture. The
13 public has never had an opportunity and will never have
14 another one in all probability to be able to vote for a
15 unicameral Legislature. I happened to have served in the
16 Legislature for ten years here and, believe me, I know the
17 system and I can tell you that it's a lousy system. The
18 people who have served in the system are terrific but they
19 are bound by a system that is absolutely not managed
20 properly. And let me try to tell you why. For instance,
21 it is very costly to have two houses and let me give you
22 some figures on that.
23 The Senate this past year had spent $27,893,476. The
24 House has spent 50,162,204. And the Joint Legislative
25 Committee, which obviously you would not need at all, has
125
1 spent 20,722,124. So you're talking about a lot of money.
2 You have heard and I have heard that people would love to
3 cut the cost of government. They would like for it to be
4 more efficient and this certainly would accomplish that
5 purpose. I think $48,615,604 is a significant saving and
6 I think we could use it for a lot of very worthwhile
7 purposes. Now this money is being used to pay very
8 talented staff in the House and in the Senate who are
9 doing identical functions. And let me tell you, it's not
10 at all necessary to have all of these people doing the
11 same thing.
12 When we had the Supreme Court decision one man, one
13 vote, we really no longer needed it because the members of
14 the House and the members of the Senate are in fact carbon
15 copies representing the same constituency. So I want you
16 to think about that. Nobody can say that this is not a
17 cost-saving factor, it certainly is an efficient factor as
18 well.
19 If you've ever been up here during the Legislature,
20 you and I both know that the bills are batted back and
21 forth between the House and the Senate and of course then
22 you have the third house out there who is really running
23 the show in a lot of cases anyway. And if you had a
24 one-house Legislature, people would know who their
25 legislators are. Right now people don't know who
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1 represents them. A lot of us have been elected. People
2 will come and say, Oh, yeah, we voted for you. And we
3 know they don't live in our districts. You could really
4 put the spotlight on people and they would know really how
5 you voted.
6 Right now we have wonderful excuses of, Well, you
7 know, they killed it in the House but I would have
8 supported it. Or they killed it in the Senate or
9 whatever. So I think that you need to think about that.
10 The League of Women Voters has taken a stand on this a
11 long time ago and they have not revoked the stand that
12 they think it's a wonderful idea and so do I.
13 Another thing, the economy and the efficiency is
14 there. And you talk about checks and balances. You don't
15 need checks and balances within a branch of government,
16 you need checks and balances between the branches of
17 government. If you had a one-house Legislature, you would
18 still have the governor's power to veto, you would still
19 have judicial review and certainly you would need that.
20 When they first set up the two houses, we didn't have
21 gubinatorial veto and we had the landed gentry and then we
22 had the masses. And now we simply don't need that
23 anymore. You really right now have a unicameral
24 Legislature anyway and you know what you call it, the
25 conference committee.
127
1 So really and truly there are about six people who
2 are running the show on every important issue. The
3 Speaker of the House appoints two or three people, the
4 president of the Senate appoints two or three people, and
5 they have a meeting and come back with their
6 recommendation to the rest of the members. The rest of
7 the members have to take it or leave it. So it's not
8 really as much of a democracy as it would be if you had
9 all of the members in a unicameral Legislature voting on
10 all the proposals.
11 Also, there would be a lot less chaos. Right now
12 many, many times most of the members don't know what they
13 are voting for. You could have proposals on their desk at
14 least three days prior to voting and you would know what
15 you're voting for. Also the press would be able to report
16 it and your constituents would know what you were voting
17 for. Wouldn't that be nice for a change? It's -- Senator
18 Scott, did you want to say something?
19 COMMISSIONER SCOTT: No, I was just saying I would
20 like to announce that I know everything that I voted
21 for --
22 COMMISSIONER EVANS-JONES: Well, you're an exception.
23 CHAIRMAN DOUGLASS: All right. I would appreciate it
24 if we could have order in the chamber because this is a
25 very well done presentation and is worthy of our complete
128
1 attention. And I'm going to ask those of you that feel
2 constrained to walk around the chamber to wait until she
3 finishes this presentation and then walk around when
4 someone else is talking.
5 Proceed, Commissioner Evans-Jones.
6 COMMISSIONER EVANS-JONES: Thank you, Mr. Chairman.
7 (Off-the-record comment.)
8 CHAIRMAN DOUGLASS: It's Rule 13.4 that says sit up
9 and shut down.
10 COMMISSIONER EVANS-JONES: Thank you, Mr. Chairman.
11 I appreciate the courtesy of my fellow members. Well, I
12 think basically there are many people here who don't want
13 this, particularly people who are lobbyists because it's
14 much easier now to control the process the way it is
15 because it is so confusing and so chaotic. The
16 Legislature obviously will never put this venture forward.
17 But we have one state, Nebraska, and you wonder why
18 other states don't have this. And the reason for that is
19 because the Legislature controls it and they would never
20 put it on the ballot. You're talking about jobs, you're
21 talking about money, you're talking about people actually
22 understanding what's going on.
23 You could have -- you could take some power away from
24 the president or the speaker or whoever they decide to
25 call this person. And you could have committees elect
129
1 their own chairman. And wouldn't that be nice? And then
2 you wouldn't have the threat of, Well, if you don't do
3 this, I'm going to remove you as chairman of that
4 committee. And I think that power does corrupt. I think
5 it would be a much healthier system this way.
6 I introduced this many years ago knowing full well it
7 would never get out of committee but it did give me the
8 opportunity to speak to a lot of people in the general
9 public. And let me tell you something, if you put this on
10 and allow the people to have the opportunity for the first
11 time to be able to -- to actually vote on something that
12 is important, that is cost saving, that is efficient, you
13 will have done something important for the state of
14 Florida, probably the most significant thing that you
15 could ever do. So I would be happy to answer any
16 questions.
17 CHAIRMAN DOUGLASS: Thank you very much. And that
18 was a very -- one of the better presentations we've had.
19 And, Commissioner Sundberg, do you rise in support?
20 COMMISSIONER SUNDBERG: I do and I would just like to
21 add two very brief comments to that very eloquent
22 presentation of the position. And one is that any of you
23 who've had the opportunity, and it's on television now
24 where you can see the English parliamentary system in
25 action, I think it is clear that the majority party is
130
1 simply required to be more responsive in that system
2 because it must, through its prime minister, stand up and
3 defend its positions. At the same time, I think it
4 diminishes the power of special interest. As the
5 commissioner has said, you can't hide the ball nearly as
6 well in a unicameral system as you can in a bicameral
7 system.
8 And lastly, just some anecdotal information. In the
9 legislative committee yesterday, which voted unfavorably
10 on this proposition, we had a presentation for purposes of
11 presenting essentially a revisor's bill on 17 issues upon
12 which the House and the Senate had come to different
13 conclusions on. In this last session, this special
14 session that just past, in fact, the House and the Senate
15 could not agree on whether or not they had to take veto
16 messages at that special session or it would be lost and
17 has to be taken up at a subsequent session. That is not
18 constructive, it doesn't advance the people's business and
19 I think it's a perfect example of why a unicameral
20 Legislature would be more efficient and I think more
21 responsive. Thank you very much, Mr. Chairman.
22 CHAIRMAN DOUGLASS: Commissioner Wetherington.
23 COMMISSIONER WETHERINGTON: Can I say something
24 against it?
25 CHAIRMAN DOUGLASS: Yes. First, are there any other
131
1 proponents that want to rise? Commissioner Alfonso.
2 COMMISSIONER ALFONSO: Well, I was just -- very
3 briefly I'd like to go through some of the things I was
4 writing down as Commissioner Evans-Jones was talking. And
5 I just wrote down some factors that I look for in
6 government and when I look at accountability, that's a
7 positive, when I looked at cost savings, that's a
8 positive, when I looked at representation of the people,
9 that's a positive.
10 When I looked at campaign spending, I think we could
11 probably have clear lines and maybe a few less candidates
12 to give too. Lines of authority, that's a positive.
13 Special interest influence, that's a positive. And the
14 simplification of the whole overall system, that's a
15 positive. So those are some things that are important to
16 me in the way the government runs.
17 The only negative I can think of is the architecture
18 of this building.
19 (Laughter.)
20 CHAIRMAN DOUGLASS: Commissioner Thompson, do you
21 have a question or do you rise for --
22 COMISSIONER THOMPSON: I'll speak --
23 CHAIRMAN DOUGLASS: -- when it becomes time for the
24 opponents? Are you a proponent, Mr. Morsani?
25 COMMISSIONER MORSANI: A question.
132
1 CHAIRMAN DOUGLASS: Question directed to the sponsor?
2 COMMISSIONER MORSANI: Yes, sir.
3 CHAIRMAN DOUGLASS: Do you yield, Commissioner
4 Evans-Jones, to rise to the question, please?
5 COMMISSIONER EVANS-JONES: Certainly.
6 COMMISSIONER MORSANI: Have you had any -- has there
7 ever been any polling done on this issue of the public?
8 And there's a little bit of a difference in our states
9 between Nebraska and Florida especially with 14 million
10 people and we all talk about access to our Legislatures.
11 But have we had any polling pro or con on this issue in
12 this state? And if there are any surveys and what are the
13 results of those?
14 COMMISSIONER EVANS-JONES: Thank you, Commissioner
15 Morsani. The way to have the most accurate polling on
16 this is for us to put it on ballot and give the people an
17 opportunity to say yes, whether it's a good idea or
18 whether it isn't. And then I think you can go to
19 editorial boards who would give you a great deal of
20 information. Right now, we have said in there no more
21 than 120 members in a unicameral Legislature. You could
22 obviously change it later. I know that a lot of people
23 have laughed and joked but this is a serious situation.
24 CHAIRMAN DOUGLASS: All right. Are there any other
25 questions of the -- Commissioner Brochin.
133
1 COMMISSIONER BROCHIN: Yeah, I just had a question.
2 Is this proposal only limited to creating a unicameral
3 legislature?
4 COMMISSIONER EVANS-JONES: Yes --
5 COMMISSIONER BROCHIN: That's all that's in this?
6 COMMISSIONER EVANS-JONES: That's all that's in
7 there.
8 COMMISSIONER BROCHIN: Does it talk about the length
9 of terms and the districts upon which they would come?
10 COMMISSIONER EVANS-JONES: It has. I think in there
11 it talks about an independent commission who would set the
12 districts, it would be done. What does it say, Alan?
13 He's looking for it.
14 CHAIRMAN DOUGLASS: Does this address the number of
15 Legislatures?
16 COMMISSIONER EVANS-JONES: I'm not sure. That's what
17 Alan is looking for -- I mean Commissioner Sundberg. I
18 think that it says that there will be no more than 120
19 members of the unicameral Legislature and then you could
20 change it later if you needed more. Of course right now
21 the senators are pretty well representing the districts
22 that you would be talking about now. You probably
23 wouldn't need many more than what you have in the Senate
24 at the present time. The Legislature could set the
25 number.
134
1 COMMISSIONER BROCHIN: I don't know if this is a
2 question or a comment or point of order. It seems to be a
3 fairly significant proposal worthy of some consideration.
4 I happen to think it's a terrific idea, I just don't feel
5 comfortable in the position to vote one way or the other
6 without an opportunity to read through this more
7 thoroughly. I mean, the debate is good because it helps
8 flush out the issues. But to ask us to pass a vote on
9 this, I think is going to be very difficult because I
10 think it is a terrific idea I just haven't had the
11 opportunity to really study its implications and how it
12 fits in with the rest of the proposal.
13 COMMISSIONER EVANS-JONES: I appreciate that comment
14 and the only thing that I would say too is that if it were
15 to get the number of votes today to move it forward, it
16 obviously will have to come back. All you have to have is
17 a majority today. And then it's going to come back if it
18 gets the majority vote and we would be to -- you know,
19 there are a lot of places in the Constitution that we're
20 talking about. And we could delineate exactly before you
21 voted for it again. But I think it's worth you-all really
22 moving it forward, giving it an opportunity to be studied.
23 Believe me, it would be one of the most historic things
24 you could do here in Florida.
25 CHAIRMAN DOUGLASS: Commissioner Sullivan.
135
1 COMMISSIONER SULLIVAN: Mr. Chairman, I think that
2 Commissioner Brochin has a good idea with this. I don't
3 think a lot of us had a chance to seriously look at this
4 especially point by point by point. The private sector
5 has gone through major reengineering for organizations and
6 this might be an opportunity for us to take a more serious
7 look at it and I would support time to further evaluate
8 it.
9 CHAIRMAN DOUGLASS: Am I interpreting this as a
10 request for select committee?
11 COMMISSIONER EVANS-JONES: I guess you're asking him
12 to temporarily pass it until December, I personally have
13 no objections, do you, Commissioner Sundberg?
14 CHAIRMAN DOUGLASS: I think some people wanted to
15 speak in opposition and now we're only on the proponents.
16 So if some of the opponents wish to speak, Commissioner
17 Wetherington has risen on two occasions. I know he wants
18 to speak and you may proceed, sir, unless there is
19 somebody else who is a proponent. Proceed to hear from
20 the opponents.
21 COMMISSIONER WETHERINGTON: A representative
22 government is not necessarily the most efficient
23 government and I think we all recognize that. Democracy
24 is not the most efficient representative government, it's
25 not necessarily the most efficient although efficiency is
136
1 important in government. It seems to me that there is
2 time after time where there are significant differences of
3 opinions that emerge on important issues from the House
4 and Senate and they have to be worked out and talked
5 about.
6 I've got to believe that this process is a beneficial
7 process on balance, I've got to believe it contributes to
8 a better quality of law that we have in the state.
9 Sometimes there may be dynamics that take over in a given
10 group. We've seen this time and again, particularly at
11 the federal level between the Senate and the House.
12 Things will come and you will see dramatic differences
13 between the Senate and House on different things.
14 Passions can sometimes come into play, lots of things
15 could come into play when people are forced however to
16 reflect upon them because there is a difference that has
17 to be ironed out. I think what happens is in many
18 instances major mistakes are avoided. And it appears to
19 me that that's one of the reasons, and I recognize the
20 idea that the Legislature is generally not going to want
21 to voluntarily eliminate jobs and go to a unicameral kind
22 of system.
23 But we have this long-standing history in the country
24 that to some extent suggests -- it reflects as Edmond
25 Burke said, maybe the wisdom of the ages in some respect.
137
1 And that in this process we have, although it may be not
2 as efficient and theoretically efficient and economical as
3 simply one group, I believe that experience has shown that
4 it's produced probably a better quality of deliberation
5 and a better quality of law.
6 And therefore, although it's not the most efficient,
7 it does have a tremendous amount of experience behind it.
8 It's an institution that's accepted in 49 other states and
9 the question is, what is the evidence that it's not
10 working, what's the evidence that we require radical
11 surgery? I know there is criticism, but it seems to me
12 that there is, that when Monosceau (phonetic) talked about
13 the separation of powers there may be a role for
14 separation of powers even within the legislative and we
15 are concerned about the impact of the laws. The laws
16 become enormously significant in our lives and on balance,
17 even though it's less efficient, it appears to me that we
18 ought to keep the institution.
19 CHAIRMAN DOUGLASS: Any additional opponents?
20 Commissioner Thompson.
21 COMISSIONER THOMPSON: If she's going to pass it to
22 the next time, I may be wiser then.
23 CHAIRMAN DOUGLASS: I think it requires a motion,
24 doesn't it?
25 COMISSIONER THOMPSON: Well, there is no such thing
138
1 as a motion for temporarily passing it that I know of. I
2 think it's just that if a member wants to take the bill up
3 next time and there's no objection we can do that.
4 CHAIRMAN DOUGLASS: Is that right, Commissioner
5 Barkdull?
6 COMMISSIONER BARKDULL: Yes, sir, that's the way I
7 understand it.
8 CHAIRMAN DOUGLASS: Okay. So if she wants to
9 temporarily pass it, then if she says -- requests that
10 until a time certain.
11 COMMISSIONER BARKDULL: She can either do it until a
12 time certain or to --
13 CHAIRMAN DOUGLASS: She's requested to pass it until
14 the December meeting.
15 COMMISSIONER BARKDULL: Well, I think she can do that
16 if it's the will of the body to accept it.
17 COMISSIONER THOMPSON: Well that is a motion to -- a
18 motion to postpone to a time certain is --
19 CHAIRMAN DOUGLASS: I think that's my question.
20 That's what she's really asking them to do and it would
21 require a motion to postpone until the December meeting;
22 is that not correct?
23 COMMISSIONER BARKDULL: Yes, sir.
24 CHAIRMAN DOUGLASS: Is that what you --
25 COMMISSIONER EVANS-JONES: That would be fine,
139
1 Mr. Chairman.
2 CHAIRMAN DOUGLASS: So, Commissioner Brochin, you
3 were involved in this too.
4 COMMISSIONER BROCHIN: I would so move but I would
5 like to hear from Commissioner Thompson the reasons why he
6 opposes it. I mean I'd like to hear the debate but I'd
7 like to then postpone it until December so we can consider
8 the pros and cons of it and then move forward. That was
9 about the essence of my comments before. I don't know if
10 that's in the rules anywhere.
11 CHAIRMAN DOUGLASS: I could probably answer that for
12 Commissioner Thompson. He's an old hunter and he doesn't
13 fire until it's time to shoot. So he probably doesn't
14 want to make his arguments until it's there for final
15 consideration. Am I right, Commissioner Thompson?
16 COMISSIONER THOMPSON: I do whatever -- I mean, I'm
17 ready to load it right now if she wants me to. No,
18 whatever -- I don't know what the body wants to do or the
19 sponsor wants to do. Do you want to debate it a little
20 bit today or do you want to just postpone it indefinitely?
21 It's your decision.
22 COMMISSIONER EVANS-JONES: Well, thank you. I would
23 prefer to take it up in December and just stop the debate
24 today. I think there are some answers that we do need to
25 give. There may be some amendments that we really need to
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1 address too.
2 COMISSIONER THOMPSON: One thing I would -- I mean,
3 there's a reapportionment provision in here, there is a
4 lot in here. We are, for everybody's information, in our
5 legislative committee which Commissioner Evans-Jones is
6 on, we are really working hard on some kind of
7 recommendation to you about an apportionment commission,
8 not that you want to accept that eventually. But we've
9 considered some of the aspects of this one but I don't
10 think we've settled enough to recommend this one to you.
11 So there's a lot more involved than just waving a wand and
12 saying we're going to have 80 people represent us now.
13 CHAIRMAN DOUGLASS: All right. There is a motion
14 then to postpone this until time certain which is the
15 December meeting. So all in favor, say aye. Oppose like
16 sign.
17 (Verbal vote taken.)
18 CHAIRMAN DOUGLASS: Then it is postponed.
19 All right. Proposal 8. Commissioner -- well, I
20 believe the chairman of that executive committee, do you
21 want to yield to Commissioner Barkdull who introduced this
22 or do you want to present it?
23 COMMISSIONER ALFONSO: No, I'm glad to yield to
24 Commissioner Barkdull since he is the proposer.
25 COMMISSIONER BARKDULL: Mr. Chairman, members of the
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1 commission, what this proposal does is to give the
2 governor additional time to consider vetoes of
3 legislation. At the present time he has seven and 15
4 days, seven if the Legislature is in session and if he
5 receives a bill towards the conclusion, he has 15 days.
6 The great bulk of the bills that the governor receives
7 come at the end of the session and there is a jam-up.
8 What this would do is give him 14 days during the session
9 and 30 days after the session.
10 CHAIRMAN DOUGLASS: Read the proposal now.
11 READING CLERK: Proposal 8, a proposal to revise
12 Article III, Section 8, Florida Constitution, increasing
13 the length of time within which the governor may veto
14 legislation.
15 CHAIRMAN DOUGLASS: All right. Are there any
16 proponents or questions that anybody has of Commissioner
17 Barkdull? Commissioner Smith.
18 COMMISSIONER SMITH: Thank you, Mr. Chairman. What
19 is the recommendation of the committee?
20 CHAIRMAN DOUGLASS: It was approved according to my
21 notes by the executive committee; is that correct?
22 COMMISSIONER BARKDULL: That's correct.
23 CHAIRMAN DOUGLASS: Are there any proponents of this?
24 This is a fairly significant change, is it not,
25 Commissioner Barkdull?
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1 COMMISSIONER BARKDULL: Well, it's giving him
2 additional time. You've been in the office and you know
3 what it does. It's going to give him a little more time
4 to look at the bills. Okay. Commissioner Langley, I
5 thought that might get you to the floor.
6 COMMISSIONER LANGLEY: It's going to give him a
7 little more time to procrastinate until the end of the
8 session when the Legislature can't do anything about it,
9 that's what it's going to do. There, you know, it's
10 overused. But if it ain't broke, don't fix it. And I
11 haven't heard any great clamor from anybody saying this
12 really has got to be fixed. The Legislature needs to have
13 these while they're in session as soon as they can if he's
14 going to veto it. Often it's just a technical thing that
15 they can cure and get out before the session ends. Often
16 that's the way it is. So you, you know, there is a deluge
17 of bills at the end of the session but he's well staffed
18 and has great legal advice at times.
19 CHAIRMAN DOUGLASS: Not anymore.
20 COMMISSIONER LANGLEY: I said at times. Mr. Petersen
21 might object.
22 CHAIRMAN DOUGLASS: I think he left.
23 COMMISSIONER BARKDULL: But anyway -- I'd like to
24 respond to that and Commissioner Langley would on the
25 additional time at the end of the session. You have the
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1 same objection to that?
2 COMMISSIONER LANGLEY: Not as loud.
3 COMMISSIONER BARKDULL: Not as loud, okay.
4 CHAIRMAN DOUGLASS: What was the answer?
5 COMMISSIONER BARKDULL: I asked Commissioner Langley
6 what was his reaction to the extension after the
7 conclusion of the session. He indicated it wasn't as
8 loud. Commissioner Scott has got a --
9 CHAIRMAN DOUGLASS: Commissioner Scott.
10 COMMISSIONER SCOTT: I would agree with the idea of
11 not extending the time during the session or -- unless we
12 make a change in the length of the sessions and so forth.
13 Because you're now talking 14 days, that's 25 percent of
14 the session. So the time during the session, I think
15 seven days is plenty. Afterwards, they actually don't
16 always get them until a week or two after the session
17 anyway by the time the president and the Speaker signs
18 them, that might be all right.
19 But as far as during the session, I would urge us to
20 only allow seven days which gives us the chance if we have
21 a problem to send it and we can then react before the end
22 of the session.
23 COMMISSIONER BARKDULL: Let me, Mr. Chairman, ask to
24 temporarily pass this in order to get an amendment ready
25 to strike those days --
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1 CHAIRMAN DOUGLASS: We'll temporarily pass it while
2 he's preparing an amendment. I might comment and I think
3 that Ms. Kearney did this for several years in studying
4 for veto messages in the governor's office. And it seemed
5 to me the biggest problem we had was after the session
6 when what you mentioned occurred.
7 The Legislature would send 50 at the end of one week
8 then maybe we didn't get all of them until two months
9 after the session, some of them. It would always be one
10 major -- or two major bills there that we didn't get. And
11 I never felt, and she can correct me if I'm wrong, that we
12 had a great problem with anything other than the sheer
13 number that was delivered after the session. I don't
14 remember when I was there getting many during the session,
15 very few bills came while you were in session or that
16 required us to act within seven days. If it was that
17 controversial, usually it didn't come up until the end.
18 Before we go further though while we temporarily pass this
19 for an amendment, are you ready on the amendment?
20 COMMISSIONER BARKDULL: It's being drawn, it's being
21 printed up to be delivered to each of the members of the
22 body.
23 CHAIRMAN DOUGLASS: Okay. Well, we'll just sit at
24 ease for a minute until he gets his amendment. We'll take
25 a short two minute -- is it ready -- it's ready. Okay.
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1 Everybody take your seat, we're ready to go.
2 Did you need to speak, Commissioner Thompson, to this
3 matter?
4 COMISSIONER THOMPSON: Not to this matter. I want to
5 take up another matter when you finish.
6 CHAIRMAN DOUGLASS: Commissioner Barkdull, you have
7 an amendment.
8 COMMISSIONER BARKDULL: Amendment is on the desk.
9 CHAIRMAN DOUGLASS: Read the amendment.
10 READING CLERK: By Commissioner Barkdull on Page 1,
11 Line 17, delete "15" and insert "7."
12 COMMISSIONER BARKDULL: What the amendment does is,
13 as far as the time, it will be identical when the
14 Legislature is in session. It will be extended after the
15 session. I urge the passage of the proposal as amended.
16 CHAIRMAN DOUGLASS: Commissioner Scott.
17 COMMISSIONER SCOTT: Adopt the amendment.
18 CHAIRMAN DOUGLASS: All right. On the adoption of
19 the amendment we're on at the moment, all in favor of
20 approving the amendment or voting for the amendment please
21 say aye. Opposed like sign.
22 (Verbal vote taken.)
23 It carries. It is amended and now we'll revert to
24 the proposal as amended. Commissioner Bardull.
25 COMMISSIONER BARKDULL: I move the adoption of the
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1 proposal. I think the members of the commission
2 understand what it does. It extends the period of time
3 for the governor to consider a veto after the conclusion
4 of the Legislature.
5 CHAIRMAN DOUGLASS: Commissioner Scott.
6 COMMISSIONER SCOTT: It's noticed here that --
7 President Jennings has noticed that the section that
8 raises this veto question is addressed in this item. And
9 I don't know if there is a separate proposal in that or
10 not but --
11 (Off-the-record comment.)
12 COMMISSIONER SCOTT: The point is we have an issue
13 here which we discussed briefly in the legislative meeting
14 yesterday which is the question of when you take up a
15 governor's veto message. We just had a special session
16 last week. The House took the position that they didn't
17 have to take up the veto messages, that they were
18 available at the next regular session; whereas, the Senate
19 has always and continues to take the position that you
20 have to take it up at the next special or regular session
21 being the first available opportunity or it's lost. And
22 the question is when it will be lost.
23 And we discussed -- I'm not sure what they're
24 drafting, that's why we made it a point that we discussed
25 the question of whether it would be lost or not and really
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1 either/or is what the committee said yesterday, and we
2 didn't vote, but we were thinking you could take it up at
3 a special session but you didn't have to until the end of
4 the next regular session and then after that it would then
5 be lost.
6 What happens now is the secretary and the clerk, up
7 until recently, would send them back after a special
8 session like last week and they would all be sort of sent
9 back to the Secretary of State and then they're not
10 available anymore. And the only thing I would -- while
11 I'm talking, I might as well make a point -- is that we
12 discuss the question of what happens if one house takes it
13 up and one house doesn't take it up and so forth. And I'm
14 not sure of the total answer to that and maybe we'll talk
15 about that a little bit. It is something that needs to
16 be --
17 CHAIRMAN DOUGLASS: Commissioner Scott, the governor
18 agrees with the Senate.
19 COMMISSIONER SCOTT: That's two out of three.
20 CHAIRMAN DOUGLASS: Well, actually, we dealt with
21 this on occasion before. I think you're right though to
22 raise this point but it's been traditionally understood
23 that it's the next session, special or otherwise.
24 Commissioner Butterworth.
25 COMMISSIONER BUTTERWORTH: I think it's two to two,
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1 Mr. Chairman. The attorney general sides with the House.
2 (Laughter.)
3 CHAIRMAN DOUGLASS: Then I guess we're going to have
4 to ask -- wait until Commissioner Kogan is here to give
5 the definitive answer because I think there may be some
6 attorney general's opinions that don't agree with that
7 that preceded you. Commissioner Barkdull.
8 COMMISSIONER BARKDULL: Mr. Chairman, on the main
9 issue, it that what Senator Scott -- Commissioner Scott
10 and Commissioner Jennings are interested in can be
11 corrected but I don't think that what we do up or down on
12 this is going to impact what they want to do.
13 CHAIRMAN DOUGLASS: Well, I think they have an
14 amendment on the table here.
15 COMMISSIONER BARKDULL: I think they can amend it at
16 this point if they wanted to.
17 CHAIRMAN DOUGLASS: There is an amendment on the
18 table and that is Senator -- it's Commissioner Jennings.
19 COMMISSIONER JENNINGS: Mr. Chairman and
20 commissioners, I think because of the complexity of the
21 issue we don't want to involve everybody in this at the
22 moment. I just, in my legislative career, have always
23 looked for convenient ways to do things. And since I
24 noticed this was addressing the same section I thought
25 this would be a handy way. But especially since the
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1 attorney general has a differing opinion, the last opinion
2 we had was from the attorney general but that was in '76.
3 So we didn't know this one agreed.
4 CHAIRMAN DOUGLASS: He hadn't researched it lately.
5 COMMISSIONER JENNINGS: Perhaps what we need to do,
6 because there just needs to be some clarification. We may
7 have it before the Supreme Court if something happens
8 during this session. It may be -- whatever is overridded
9 may be challenged and be there. But I think since we have
10 an opportunity to clarify it, we should at least clarify
11 it because there does seem to be some -- and it sort of
12 doesn't matter to me at this point.
13 I have what I believe is the traditional Senate
14 opinion of when it's taken up. But the Constitution is
15 pretty ambiguous. It says the next regular or special
16 session and it doesn't indicate that it has to be the
17 first of either of those, that has just always been the
18 Senate position that it is the next opportunity and if not
19 then taken, that you lose the opportunity to take up the
20 veto. But the Constitution is pretty unclear about the
21 issue and it would just probably help the Legislature a
22 lot if we could clear it up for them.
23 CHAIRMAN DOUGLASS: Well, I think you have an
24 amendment that would do that on the table; do you not?
25 COMMISSIONER JENNINGS: Yes, sir, but --
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1 CHAIRMAN DOUGLASS: I don't mind taking it up.
2 COMMISSIONER JENNINGS: Well, I will withdraw it at
3 this time because it may need to sit as a separate
4 proposal that could go in the housekeeping issues. It
5 probably needs to be aired so that people can come and I'd
6 like to hear from the attorney general and perhaps the
7 House. I wouldn't want the House to think I was trying to
8 making an end run on them. It was just one of those
9 opportunities that I saw it and since we had just been
10 discussing the issue, I thought it might be an appropriate
11 time to bring it up. And now at least all the
12 commissioners are aware as well. So we'll give them more
13 information about it.
14 CHAIRMAN DOUGLASS: Very well. I agree that that has
15 become an issue but one of the reasons I was familiar with
16 it is we were always concerned having a special session an
17 attempt to override the veto on the tobacco matter. And
18 actually it didn't come up until the regular session so we
19 never got a chance to attest to that. Commissioner
20 Barkdull, you're now on the amended version of your
21 proposal.
22 COMMISSIONER BARKDULL: Yes, sir, and I urge the
23 adoption of it. It think the members of the commission
24 understand what it does.
25 CHAIRMAN DOUGLASS: Is everybody ready to vote?
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1 Commissioner Marshall.
2 COMMISSIONER MARSHALL: Thank you, Mr. Chairman. I
3 rise to speak in opposition to it, to the measure, for the
4 following reason. I think there may be occasions,
5 perhaps, rarely when any delay in signing the bill could
6 inconvenience the voters and would in effect defeat it as
7 partly the purpose of the Legislature in passing the
8 legislation.
9 For example, the Legislature in late May 1996 passed
10 the charter school bill. It provided for the
11 establishment of charter schools and in order to have
12 those open in the fall of 1996 they had to be in operation
13 in the 17th or 18th of August. The measure was passed as
14 I think I said in late May. The governor did not sign it
15 until the expiration, as I recall, of the allowable
16 period. And it meant that some of those who were planning
17 to start charter schools had to provide space, hire staff
18 and all of those things, it had a difficult time doing it.
19 I think it's true that at least one organization that
20 wanted a charter school to start a charter school was
21 unable to do so because they lacked the time and that
22 difference of a few days, that period of a few days made a
23 difference.
24 So I think there might be an occasion when it would
25 be to the benefit of the people and the Legislature's
152
1 intent for the governor to be required to sign the measure
2 or to veto it or to let it pass without his signature in
3 the shortest reasonable period of time.
4 CHAIRMAN DOUGLASS: Any further discussion?
5 Commissioner Barkdull?
6 COMMISSIONER BARKDULL: Well, I think you can get a
7 parade of horribles about any proposed range. I think
8 what this does is give more opportunity for the governor,
9 to the office, to be completely familiar with the bills
10 that are presented to him and I think he should be
11 accorded that opportunity.
12 CHAIRMAN DOUGLASS: Commissioner Barnett.
13 COMMISSIONER BARNETT: I want to just respond to an
14 almost unanswered question that Commissioner Marshall
15 raised in his comments about the timing of the governor
16 signing legislation.
17 It's been my experience in legislation that I've
18 watched and have been active in that really the governor's
19 office acts fairly expeditiously once the bill is
20 presented to the governor's office. There is a time
21 period within which the governor must act once that bill
22 is presented. And this proposal simply gives the governor
23 a little bit longer, 15 more days, to consider the bill.
24 Oftentimes they may have several hundred that come at one
25 time.
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1 The problem and the reason that there is a delay
2 often in legislation actually being signed, vetoed, or
3 allow to become law without the governor's signature is
4 when it's presented to the governor. The presentment is a
5 constitutional concept and that can only be done by the
6 House and Senate actually signing off on the bill and then
7 formally presenting it to the governor.
8 That process, I'm sure for the same reason because of
9 the deluge of legislation that is passed during the last
10 several days of session, that presentment process
11 sometimes takes several weeks. I don't know the longest
12 it's taken but it can take a long time. There's no time
13 period that I'm aware of on when the Legislature has to
14 actually present the bill to the governor. The governor
15 is the entity who does have a time period. And I think
16 extending it some is a very rational thing to do. Your
17 problem may be better solved by looking at the presentment
18 issue.
19 CHAIRMAN DOUGLASS: Thank you. All right.
20 Commissioner -- any other commissioners have any other
21 comment on this or statements they want to make? Is
22 everybody ready to vote? All right. We will vote.
23 (Vote taken and recorded electronically.)
24 CHAIRMAN DOUGLASS: Okay. Has everybody voted? Have
25 all members voted? All right. Lock the machines and
154
1 tally the votes.
2 READING CLERK: Eighteen yeas and nine nays,
3 Mr. Chairman.
4 CHAIRMAN DOUGLASS: All right. It carries as
5 amended. Now we'll go to -- back to No. 67 which we
6 passed until later in this session. Commissioner
7 Thompson, I think we passed it on your motion or request
8 and therefore -- and you have an amendment on the desk?
9 All right. Read the amendment.
10 READING CLERK: By Commissioner Thompson on Page 2,
11 Line 7, delete "40,000" and insert "50,000."
12 COMISSIONER THOMPSON: Okay. This is the proposal
13 that extends the time that a person has to be a member of
14 the Bar to be a circuit or county judge to ten years
15 rather than five years proposed by Commissioner
16 Wetherington. I wanted to change existing language in the
17 Constitution that said the Legislature can make decisions
18 otherwise for counties under 40,000. I want to raise that
19 cap to 50,000.
20 Commissioner Scott and others are interested in some
21 kind of a schedule but what we pretty well agreed to is we
22 don't have that before us today, so, let's go ahead and do
23 this, send it into style and drafting and we'll try to
24 come up with something in that committee.
25 CHAIRMAN DOUGLASS: All right. Are there any
155
1 questions? Do we need -- anybody need to have the sponsor
2 of this proposal refresh their memory on what it did?
3 This is the proposal that required an increase.
4 COMISSIONER THOMPSON: Yes, sir. While you were
5 chatting with them, I explained it. It extends from five
6 to ten years the required time to be a member of the
7 Florida Bar before you can run for or be appointed to
8 county court or circuit court.
9 CHAIRMAN DOUGLASS: And then it put 50,000 --
10 COMISSIONER THOMPSON: A county under 40,000 would be
11 existing language that the Legislature can require
12 otherwise. My amendment raises it to 50,000.
13 CHAIRMAN DOUGLASS: All right. Is everybody ready to
14 vote on this or do we need additional discussion?
15 Commissioner Freidin.
16 COMMISSIONER FREIDIN: The question that comes to my
17 mind when we're raising --
18 CHAIRMAN DOUGLASS: We're on the amendment. All in
19 favor of the amendment say aye.
20 (Verbal vote taken.)
21 CHAIRMAN DOUGLASS: The amendment is adopted. Now
22 we'll revert to the proposal as amended. Now,
23 Commissioner Freidin, do you rise to question or take a
24 position for or against it?
25 COMMISSIONER FREIDIN: I wanted to ask -- well, I
156
1 guess it's a --
2 CHAIRMAN DOUGLASS: You wanted to ask a question?
3 COMMISSIONER FREIDIN: I guess I want to ask a
4 question.
5 CHAIRMAN DOUGLASS: Who do you want to ask?
6 COMMISSIONER FREIDIN: I'm not sure. I want to ask
7 Commissioner Wetherington.
8 CHAIRMAN DOUGLASS: Well, he was the sponsor of this
9 so he's the proper one.
10 COMMISSIONER FREIDIN: The question I have is, I was
11 wondering if there was any discussion -- let me start out
12 by saying that I favor raising the level of experience
13 required to become a judge whether it be county court or
14 circuit court. The thing that I'm concerned about and I'm
15 not sure if this was discussed in the committee or not,
16 was the requirement of being a member of the Florida Bar
17 for ten years because if somebody were to move into the
18 state it presents a significant impediment if they wanted
19 to become a judge.
20 So I was wondering if there had been any discussion
21 about being a member of the Bar versus being a member of
22 the Florida Bar, what was the intent of your proposal and
23 also within the committee.
24 COMMISSIONER WETHERINGTON: Well, the intent of --
25 that specific issue wasn't discussed. It was -- the full
157
1 issue was aired with the Article V commission which
2 recommended this. And the reason why I think that that
3 would be important to be a member of the Florida Bar is
4 because the judges will be applying Florida law and
5 knowledgeability in Florida law -- I can be knowledgeable
6 in the law of Nevada but there's huge differences,
7 depending on the state and the law, it takes quite a bit
8 of time as we know because of the complication in the law
9 to hone in and get expertise in the law of any particular
10 state. One of the things as we all know the judge has to
11 do is to apply the law. And therefore, experience in
12 Florida law is more relevant than experience in the law of
13 other jurisdictions.
14 The law is tough enough anyway even in Florida law if
15 you've studied it for 25 or 30 years. If you looked at
16 the panoply of law particularly in the civil jurisdiction
17 of the Court, as we know, the law has gotten to be
18 extraordinarily complicated and difficult. We've got some
19 very complicated heavy cases out there requiring an awful
20 lot of sophistication and knowledgeability in the law and
21 therefore it would seem logical to me that the legal
22 experience that you would be primarily focusing on would
23 be the law in the state in which you would be applying
24 that law.
25 Not that somebody else would not have general good
158
1 instincts and ability to analyze, but you can have a case
2 come in, for example, the door, you can have 15 people in
3 front of you and they've all got claims talking about
4 indemnity and contribution under Florida law or they may
5 have sovereign immunity questions under the Florida law.
6 Now, the time it takes to understand the Florida
7 indemnity rule and contribution rule, joint and several
8 liability rule, sovereign immunity rule, it takes an awful
9 lot of time to get a handle on that kind of stuff just in
10 Florida. It seems to me therefore that the Florida
11 experience would be the relevant experience.
12 CHAIRMAN DOUGLASS: Commissioner Scott.
13 COMMISSIONER SCOTT: Well, this is a luxury that I
14 don't ever exercise in the Legislature. But let me just
15 say something to you, I really personally wonder about
16 this whole idea because for starters let me point out that
17 five years after I took the Florida Bar I probably knew
18 more than I did ten years after.
19 And the second thing is that in my case for example I
20 started out with a law firm -- I tried major lawsuits,
21 argued appeals and a number of other things in the first
22 five years and was into trial work versus someone who
23 might have been sitting in a title company doing real
24 estate deals for ten years.
25 So I just -- and I think we still do have, at least
159
1 at the moment, elected trial judges on the county level
2 and I think the energy, you know, we have a top limit of
3 age 70. Somebody was in the service, for example, before
4 they go to law school they might be 29 or 30 before they
5 even get to be a lawyer. And then now you're going to say
6 they've got to be 40 before they can be a county judge,
7 which then they like to always move up to circuit and so
8 on. I just wonder about the whole idea. I've been
9 sitting here thinking about this since it first came up,
10 whether we want to do this or not.
11 So I guess when you talk about -- that's another good
12 example, experience in another state. I mean, people that
13 might even have been a judge in another state could come
14 down and say they've got to be ten years before they can
15 even be in the county court. I understand these days
16 county judges do more and more and I know that argument.
17 But these are serious questions. So I thought I'd like to
18 make some points and I've got some concerns about it.
19 CHAIRMAN DOUGLASS: All right. Commissioner
20 Sundberg.
21 COMMISSIONER SUNDBERG: I was just asking if that was
22 a motion to reconsider my proposal to eliminate --
23 CHAIRMAN DOUGLASS: Use the microphone, please, I
24 still haven't heard you.
25 COMMISSIONER SUNDBERG: It wasn't that important,
160
1 sir.
2 CHAIRMAN DOUGLASS: Commissioner Smith, yours is that
3 important; is it not?
4 COMMISSIONER SMITH: Thank you, Mr. Chairman. When
5 this proposal came before the Article V Commission I was
6 serving as president of a National Lawyers' Organization,
7 the National Bar Association at that time. We opposed
8 this position because we felt at that time that it might
9 have a negative impact on lawyers of color who were just
10 beginning to be allowed to go to law school and get out
11 and for those that wanted to be on the Bench. In 1970 I
12 was in the first class of lawyers of black students at the
13 University of Miami.
14 However, I have not gotten any input with regard to
15 this issue at this juncture nor do I have the statistics
16 or data that I had at the time this matter came before the
17 Article V Commission. So at this time, I am prepared to
18 let this matter go forward, personally vote in favor of
19 it. However, after getting the statistics and data and
20 talking to the people who were advising me on this issue
21 in the past, I might wind up eventually voting against it
22 if it moves forward the date.
23 So I just want to state that on the record because
24 once this is reported out what we do today, I'm sure I'm
25 going to get a lot of telephone calls from around the
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1 state about my vote on this issue.
2 CHAIRMAN DOUGLASS: All right. Anybody else want to
3 get a lot of telephone calls? Commissioner Evans.
4 COMMISSIONER EVANS: Well, some of the language
5 written in here on the analysis says specifically it was
6 suggested that 5-year membership in the Bar of Florida was
7 not sufficient for an attorney to gain the necessary legal
8 experience and an understanding of the human condition to
9 become a judge. I submit that perhaps that there are
10 lawyers that have been a member of the Florida Bar and
11 their legal experience still does not give them an
12 understanding of the human condition. I think that there
13 are --
14 CHAIRMAN DOUGLASS: Some of us old ones.
15 COMMISSIONER EVANS: There are many people who have
16 been in other walks of life prior to going to law school
17 who get a much greater understanding of the human
18 condition, for instance an officer in the military who
19 perhaps is judge, advocate general or, you know, any of
20 the military services in a leadership position. And I
21 don't see that an additional five years' membership in the
22 Florida Bar would give -- necessarily give that
23 understanding.
24 CHAIRMAN DOUGLASS: All right. So you oppose this
25 amendment -- I mean this proposal?
162
1 COMMISSIONER EVANS: I oppose.
2 CHAIRMAN DOUGLASS: Any other debate or -- pro or
3 con, Commissioner Morsani?
4 COMMISSIONER MORSANI: I would like to, I guess, ask
5 a question as well.
6 CHAIRMAN DOUGLASS: You want to ask Commissioner
7 Wetherington who is the proposer?
8 COMMISSIONER MORSANI: Especially at the time of five
9 years versus ten years and some of the things -- I just
10 happen to know a number of women who raised a family, they
11 have now gone back, they are lawyers. They certainly are
12 astute. They're women in their early 40s, mid 40s, who I
13 happen to think would make very good judges. And to have
14 to serve on the Bar for ten years before they're eligible,
15 I happen to think there's -- and I don't know, but maybe
16 you have some statistics at the University of Florida,
17 FSU, Stetson, Miami, how many people are doing that today.
18 But I think it's more than maybe we know, because I
19 don't know the statistics, and I wondered if we're not
20 borrow -- yes, I can't say it, barring some very capable
21 people that may certainly serve us well in the judicial
22 process. And I have -- I think that restriction of ten
23 years is too long even though I understand we all want to
24 have people with wisdom and vision and so on and so forth,
25 but I'm wondering if we aren't making a mistake.
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1 CHAIRMAN DOUGLASS: All right. I don't think that
2 requires an answer. Commissioner --
3 COMMISSIONER WETHERINGTON: I close.
4 CHAIRMAN DOUGLASS: Well, Commissioner Freidin has a
5 question.
6 COMMISSIONER FREIDIN: I just want -- in response to
7 what Commissioner Morsani was saying, I think that that's
8 a genuine concern. I think that the reason that I would
9 vote for this proposal is that I see, at least in my
10 circuit, many young lawyers who are coming in and applying
11 with the JNC to be judges who have barely practiced five
12 years, who have not established themselves as members of
13 the community, who maybe don't, you know -- haven't even
14 reached the age of 30. And at the ripe old age I'm at,
15 that seems awful young.
16 And it seems like even to be on the county court
17 bench or especially to be on the county court bench you
18 need more life experience and law experience to do that.
19 I recognize, however, that the way this is structured now
20 requiring ten years membership in the Florida Bar might
21 eliminate some people who do have a lot of life experience
22 and also who have a lot of law experience.
23 I think that we might want -- I favor the concept.
24 My only question is, is there another way to structure
25 this. So I don't know -- I'm not really sure how else it
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1 could be done because I don't think I favor an age
2 limitation either. And I do think that it is important
3 that people who are making important decisions for the
4 citizens of our state do have that kind of life and law
5 experience. So I think on balance I will vote for it.
6 But I understand your concern.
7 CHAIRMAN DOUGLASS: Commissioner Scott and then
8 Commissioner Mathis will be next.
9 COMMISSIONER SCOTT: I could do this as a question.
10 But correct me if I'm wrong when I say this. I don't
11 think maybe all the members are aware that today, am I
12 right, ten years is required for the circuit court today
13 is that -- it's not? All of it is five years?
14 COMMISSIONER WETHERINGTON: Five.
15 COMMISSIONER SCOTT: It seems to me that -- I guess
16 that didn't pass. That's the Article V we didn't get into
17 the Constitution. But you've two courts here and five
18 years for the county, ten years for the circuit to me
19 might be a better option here because then you at least,
20 you know, you have the young people with some energy that
21 have spent five years and it is true you're always going
22 to maybe have some and that's why we have, when it's an
23 appointment, the judicial nominating commission and the
24 governor to look at it. And otherwise, the people would
25 get to vote for them.
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1 But to deny a chance for someone with five years'
2 practice just to get started into the judiciary so that
3 they do have a chance if they are super judges to be able
4 to get to the Supreme Court or whatever at a reasonable
5 early age, I think might be another option here and make
6 it five for the county and ten for the circuit court.
7 CHAIRMAN DOUGLASS: Are you offering an amendment?
8 (No response.)
9 CHAIRMAN DOUGLASS: Are you offering an amendment to
10 that effect to this proposal?
11 COMMISSIONER SCOTT: Can we just interlineate --
12 CHAIRMAN DOUGLASS: I think so. It has to be in
13 writing. What your amendment is, as I understand it, is
14 to make the requirement ten years to be a circuit judge,
15 member of the Bar for ten years, and five years to be a
16 county judge and then ten years of course for any other
17 judge above the circuit. Does everybody understand that
18 amendment that he's proposed?
19 COMMISSIONER LANGLEY: Why don't we make it 30 years
20 for Supreme Court judges and lower the retirement age and
21 then we can get rid of all of them?
22 (Laughter.)
23 CHAIRMAN DOUGLASS: Commissioner Langley moves that
24 we get rid of all the Supreme Court judges. Commissioner
25 Wetherington, would you report that to Commissioner Kogan
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1 since he isn't here? I trust you were being funny.
2 Commissioner's Scott's motion to amend would require that
3 to become a circuit judge you'd have to be a member of
4 Florida Bar for ten years. To be a county judge, you
5 would have to be a member of the Florida Bar for five
6 years before you would eligible; is that correct? Okay.
7 All in favor of the amendment, please so signify by
8 voting on the machine. We'll open the machine and we'll
9 vote.
10 COMMISSIONER BUTTERWORTH: Is there any discussion on
11 the amendment?
12 CHAIRMAN DOUGLASS: Commissioner Butterworth.
13 COMMISSIONER BUTTERWORTH: Mr. Chairman, is there any
14 discussion as to the amendment?
15 CHAIRMAN DOUGLASS: Oh, yeah. If you want to discuss
16 it, go right ahead. I thought we were through. I asked
17 for further discussion.
18 COMMISSIONER BUTTERWORTH: I'm sorry, because I'd
19 like to vote in favor of the amendment by Commissioner
20 Scott. I myself, having been elected to the county bench
21 before I had five years in the Florida Bar and having been
22 appointed and elected to the circuit bench before I had
23 ten years in the Florida Bar, I think I may have turned
24 out all right, hopefully?
25 But I think what we're doing is if we had ten years
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1 for the county bench, I think we're at a point in time
2 when many young attorneys who were already in the public
3 life and public defenders, city attorneys, state
4 attorney's offices, would like to perhaps stay in public
5 life and at that point in time I think could offer
6 themself as judges either through an election or through
7 the appointment process. And at that point in time it
8 could be a career change and may very well wish to keep
9 some of these dedicated people in the judiciary. So I
10 would urge the favorable adoption of Commissioner Scott's
11 amendment.
12 CHAIRMAN DOUGLASS: Commissioner Smith.
13 COMMISSIONER SMITH: I too rise to support the
14 amendment. I think this provides a real opportunity for
15 people who historically have been locked out to have an
16 opportunity to show at an early age that they have the
17 ability and that they have the commitment to serve in the
18 judiciary. And hopefully if they desire to move up, this
19 is a very Henry Clay-like amendment and I appreciate it.
20 CHAIRMAN DOUGLASS: Commissioner Mathis, we're going
21 to get to you, it's your turn on the amendment.
22 MS. MATHIS: I rise in opposition to the amendment
23 for the same reasons that I opposed the original proposal.
24 Having been one of those people who are over 40 and went
25 back to law school late in life, not because I was raising
168
1 children, but because I couldn't afford to go to law
2 school directly out of undergraduate school. So I think
3 that to raise the Bar the number of years to be eligible
4 for the Bench eliminates not just those who are using law
5 as a second career, but eliminates those who may not have
6 had the financial opportunity to be able to afford law
7 school early in life.
8 So I would rise in opposition to the amendment
9 because I think my life experiences have prepared me
10 better than someone coming directly out of school who went
11 to law school and then went into a law firm and then
12 worked.
13 And I oppose the amendment for the limitation on the
14 county court bench because being a civil practitioner who
15 didn't come from the state attorney's office or public
16 defender's office I would think that my experience and
17 others like me is more in the civil trial practice and we
18 could better serve the state of Florida on the circuit
19 court bench.
20 CHAIRMAN DOUGLASS: Commissioner Scott.
21 COMMISSIONER SCOTT: I was going to ask her -- let me
22 just -- first of all --
23 CHAIRMAN DOUGLASS: The amendment is now on the desk.
24 I'll ask him to read it. That might help this. Would you
25 read the amendment, please?
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1 READING CLERK: By Commissioner Scott on Page 2, Line
2 3 delete "10" and insert "5."
3 COMMISSIONER SCOTT: Commissioner Mathis let me just
4 point out to you. The proposal here is for 10 years for
5 both the county and the circuit. My amendment makes it 5
6 for the county which I believe is what it is now, am I
7 correct in that, Judge?
8 So it makes it better at least. So I guess I would
9 urge everybody to adopt the amendment. I might still have
10 some of the concerns you had but the amendment just adds 5
11 instead of -- makes 10 5 for the county court which is the
12 current law.
13 CHAIRMAN DOUGLASS: Commissioner Mathis, we couldn't
14 hear you.
15 COMMISSIONER MATHIS: Oh, I'm sorry. I think what I
16 was proposing is there would be 5 years in both courts.
17 CHAIRMAN DOUGLASS: Okay. Well, this amendment is
18 what we were voting on. He's reduced the time for county
19 judges to 5 from the present proposal and that's what the
20 amendment seeks to do. So we're going to vote on the
21 amendment now, not the proposal. Commissioner Sundberg,
22 on the amendment.
23 COMMISSIONER SUNDBERG: On the amendment,
24 Mr. Chairman, I want to speak against the amendment. Most
25 if not all the discussion that I've heard here today seems
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1 to be directed at what the effects of the amendment will
2 be on the individual. I think we need to focus on what
3 this proposal in its original permutation will do for the
4 public.
5 And I think it's been perceived by the Article V
6 commission and by many others that in order for the public
7 to be well served that it is appropriate that someone have
8 legal experience, I'm not so sure about life experience, I
9 subscribe to the fact that that comes along with legal
10 experience.
11 But to have that maturity to bring to the dispute
12 resolution process, which is what our system is all about,
13 and it's serving the public in the resolution of their
14 dispute that that maturity well serves the individual.
15 And I think we need to look at it from the public's
16 viewpoint. For that reason, I speak against the
17 amendment.
18 CHAIRMAN DOUGLASS: Commissioner Scott.
19 COMMISSIONER SCOTT: I'm ready to close.
20 CHAIRMAN DOUGLASS: This will be the close.
21 COMMISSIONER SCOTT: Okay. From the public point of
22 view, and of course Justice Sundberg is right, that is a
23 concern. But I spent a lot of years in the courtroom
24 representing people even back when we had actual contested
25 divorces, of whether you could even get a divorce. And I
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1 think it's good to have some energy and youth and you can
2 have maturity, as has been pinpointed out here by several
3 people, regardless of how many years you serve on the
4 Florida Bar.
5 And the other point is you really don't have to --
6 and I know people could debate this -- but you don't have
7 to have a judge that knows everything about every law.
8 What you want them to have is the ability to ferret out
9 things that they may not know anything about never having
10 studied it. And I would urge the adoption of the
11 amendment in the public interest as well as in the
12 interest -- and it is in the public interest to attract
13 competent people with only five years' experience at least
14 to the county court.
15 CHAIRMAN DOUGLASS: All right. We'll proceed to vote
16 on the amendment. All in favor of the amendment say aye.
17 All opposed say nay.
18 (Verbal vote taken.)
19 CHAIRMAN DOUGLASS: Open it up and we'll vote.
20 (Vote taken and recorded electronically.)
21 CHAIRMAN DOUGLASS: Has everybody voted? Lock the
22 machine.
23 READING CLERK: Eighteen yeas and ten nays,
24 Mr. Chairman.
25 CHAIRMAN DOUGLASS: All right. We will go now to the
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1 proposal which as amended sets the time of membership in
2 the Florida Bar at 5 years to be county judge and 10 years
3 to be a circuit judge. To close on the proposal,
4 Commissioner Wetherington.
5 COMMISSIONER WETHERINGTON: Apart from the question
6 of 5 or 10 years, just as a general matter, there is
7 always something that's out there that's a matter that's
8 been a great concern to me on the law. If you went down
9 to get an operation or you wanted a doctor or a surgeon,
10 you're going to want somebody that has knowledgeability in
11 that field, I think, I mean, most people do. If you
12 wanted an electrician, if you wanted an engineer, if you
13 wanted an architect, and the reason you do, because you
14 feel that their knowledge in that particular area has
15 value in terms of what they're doing.
16 Now there is, unfortunately, kind of almost a
17 widespread feeling around that you don't really have to
18 know anything to be a judge. What's all this law stuff,
19 you don't really have to know anything.
20 But as a consequence of that, when you get
21 complicated and difficult cases you know what happens?
22 The court system backs up, cases have to be retried, huge
23 major matters get fouled up. It happens all the time.
24 Anybody that goes down to courts and complains, as you
25 hear the lawyers complain a lot of times about things,
173
1 will know that.
2 My simple point apart from this, don't think that you
3 don't have to know a lot of law and a lot of very
4 difficult law both procedural and substantive if you're
5 going to do that very difficult job the right way because
6 you really do. So it's well enough that -- you know, come
7 and say, Well, you don't really have to know the law,
8 that's not true. You really do have to know some law to
9 be a judge. There is no guarantee that between 5 and 10
10 it's going to make a magic difference but at least it's
11 going to add some additional years of experience as a
12 lawyer having to deal with the law, having to take the
13 annual legal education that you're required to do after
14 law school and it is going to add to your knowledge and
15 the experience as a lawyer. And it seems to me for that
16 reason that that's an important consideration.
17 CHAIRMAN DOUGLASS: All right. Commissioner
18 Thompson, would you take the rostrum? I would like to
19 take the floor to oppose this proposal.
20 COMISSIONER THOMPSON: Mr. Douglass, you're
21 recognized.
22 CHAIRMAN DOUGLASS: Mr. Chairman, I don't know that I
23 feel strongly enough about this to really be quite as
24 dramatic as I had to be to come down to make these
25 remarks, but I have had the experience of 2½ years of
174
1 sitting in the governor's office selecting people for the
2 governor and recommending to him people to appoint as
3 county judges and as circuit judges. And there is one
4 thing I want to start out with to tell you that there is
5 no formula for knowing who is going to be a good judge.
6 There is none. You do not know until they assume the
7 office and if they get there by election or by appointment
8 there is no way to find out until they are there.
9 So you make your best effort when you are selecting
10 judges, the governor does, to select the person who best
11 fits the needs of that particular court at that particular
12 time. And the biggest criteria is not whether he's been a
13 judge and he's moving from county judge to circuit judge
14 or up. In fact, in many instances this makes people
15 bureaucratic and you don't want them to be moving up
16 because they tend to be non-risk takers, they tend to be
17 the middle people in the road. They don't do things with
18 courage on occasion because they're seeking to move to the
19 next level.
20 So you watch when you have a list and you look for
21 people that have life experience and that is a major
22 consideration because the one thing that most intellectual
23 people tend to on occasion not have is a sound common
24 sense based on a wide life experience. So you're very
25 careful to make sure when you select for these various
175
1 positions that you do have all the combinations.
2 So any criteria you set which is arbitrary, such as
3 this is, tends to limit to some extent the thinking of the
4 judicial nominating commissions as to who they might send.
5 I agree wholeheartedly and have observed this that there
6 are women who have become lawyers at the age of 40 or so
7 or 35 that in a short time would have made and have made
8 terrific judges. I saw one that was turned down for a
9 county judge appointment because of that fact, she had
10 only been a lawyer a short time and one of the people
11 making the selection pointed out that she only made
12 $25,000, that's how much income she had. And, you know,
13 somebody that only made $25,000 couldn't be qualified to
14 move up to a $95,000 job.
15 This is the way people think. And I think that --
16 and I really believe this sincerely is wrong. And
17 therefore I really, as a person who's engaged in the
18 process, don't believe in arbitrarily excluding people
19 from the judiciary. I think -- I don't like to use the
20 term, but we tend to be elitist, particularly lawyers. We
21 tend to think in terms of, Well, he was number one in the
22 class therefore he'd be a terrific judge. Some of the
23 number ones in the class I know are in the penitentiary.
24 You really and truly have to go beyond these arbitrary
25 measures. I was not number one in the class. I might be
176
1 there some day.
2 Anyway, my point is that I think it would be wrong
3 and I sincerely agree with those that feel this way, and I
4 think Commissioner Butterworth and Commissioner Mathis
5 particularly stated pretty much the way I feel, that we
6 should not further raise the Bar because I think that we
7 should be open for appointment and if we go to an
8 appointed process on all judges, a lot of these objections
9 will be met. But if we go for an appointment process
10 which increases the choice and the type of choices, number
11 of choices, rather than decreasing them. And the fact
12 that you're a member of the Bar for any arbitrated period
13 of time doesn't give you wisdom, it doesn't give you
14 brains and it doesn't give you the experience you
15 necessarily need to be any kind of a judge. And
16 therefore, I urge that we not approve this particular
17 proposal for putting it on the ballot.
18 COMISSIONER THOMPSON: Questions or further debate?
19 Further debate? Commissioner Wetherington, have you
20 closed?
21 COMMISSIONER WETHERINGTON: I have closed.
22 COMISSIONER THOMPSON: Okay. The question recurs on
23 the adoption of resolution No. 67. The clerk will unlock
24 the machine and the members will proceed to vote. All
25 members.
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1 (Vote taken and recorded electronically.)
2 READING CLERK: Eleven nays, 16 yeas, Mr. Chairman.
3 COMISSIONER THOMPSON: And so the resolution is not
4 adopted. I think that was the last one. Is there --
5 clerk read the next resolution. There's not another one?
6 CHAIRMAN DOUGLASS: We had two more but I think I've
7 been informed that they will be carried over until
8 tomorrow. And for your information, I'm going to, with
9 the permission of Commissioner Barkdull, read the items
10 that are on special order tomorrow so you can spend the
11 night preparing on them because I don't want anybody
12 coming in here saying they hadn't had a chance to read
13 these because we've been dealing with them in public
14 hearings and everywhere. Beg your pardon.
15 Commissioner Morsani.
16 COMMISSIONER MORSANI: Is there any way we can work
17 late tonight and wrap these things up? I mean, it's only
18 3:00. I mean, the day is only half over.
19 CHAIRMAN DOUGLASS: I understand that. I've tried
20 that. We're going to adjourn anyway at 4:00 because we
21 have a committee meeting at 4:00 --
22 COMMISSIONER MORSANI: Those on that committee, they
23 can stay tonight and meet in the morning.
24 CHAIRMAN DOUGLASS: Well, we've got notice
25 requirements, Commissioner Morsani. I tried this but we
178
1 have notice requirements in the rules or the press for the
2 public and for our members and we have to meet that. So
3 the special order was prepared today for notice for
4 tomorrow and that's all we can do. We really anticipated
5 we'd go much longer on some of these than we went. For
6 example, we expected a couple that were passed to go
7 longer.
8 The unicameral legislature, we expected a longer
9 debate than some of the others and we may still have them.
10 But let me read you the ones we have for tomorrow
11 because -- and if I'm wrong, correct me.
12 On the committee on judicial Article V, Costs, which
13 are Proposals 31 and 55, will be on the special order.
14 Committee on the executive, the unification amendment will
15 be on the special order. And move the PSC to the
16 executive will be on the special order. On the committee
17 on education, the elected appointed commissioner of
18 education, Proposal 69, will be on the special order. The
19 first two years of college free will be on the special
20 order. The divided school districts, is that on the
21 order?
22 COMMISSIONER BARKDULL: You skipped over one,
23 Mr. Chairman, I believe.
24 CHAIRMAN DOUGLASS: It says it's temporarily passed
25 on the Lottery funds.
179
1 COMMISSIONER BARKDULL: No, sir. Before --
2 underneath elected commissioner of education, I'm led to
3 believe it's Proposal No. 28 for appointed superintendent
4 of schools.
5 CHAIRMAN DOUGLASS: That's correct. Proposal 28 is
6 also on the special order.
7 COMMISSIONER BARKDULL: Okay. That's the one you
8 skipped over.
9 CHAIRMAN DOUGLASS: I did. I didn't intend to. Let
10 me see, okay. On Proposal 70.
11 COMMISSIONER BARKDULL: I have noted divided school
12 district, Proposal 40.
13 CHAIRMAN DOUGLASS: That was the one I was fixing to
14 read when you stopped me. Proposal 40, divided school
15 districts is on the special order. Commissioner Mills'
16 proposal on homestead, limiting the amount that can be
17 claimed, Proposal 70 is on. Initiatives affecting
18 municipalities, Proposal 47. The ethics commission
19 investigation, Proposal 7, strengthen ethics commission.
20 Proposal 63, the -- we temporarily passed that one. Okay.
21 Residency requirement for candidates, Proposal 43, is
22 marked on mine.
23 COMMISSIONER BARKDULL: I've got Proposal 15, code of
24 ethics to the Legislature.
25 CHAIRMAN DOUGLASS: It was temporarily passed,
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1 according to my information.
2 COMMISSIONER BARKDULL: All right.
3 CHAIRMAN DOUGLASS: The next one I have is Proposal
4 43, the residency requirements to candidates. And then
5 ballot language Proposal 82 listing candidates on the
6 ballot. And then mandate Proposal 48, local government
7 not bound by mandates. And that is the ones that I have
8 on the special order.
9 Commissioner Barkdull, is that the special order?
10 COMMISSIONER BARKDULL: That's the special order and
11 at this time I would move that would be the special order
12 for tomorrow.
13 CHAIRMAN DOUGLASS: And it has been distributed and
14 posted?
15 COMMISSIONER BARKDULL: It's been distributed to all
16 members and been posted in the lobby and been distributed
17 to the press.
18 CHAIRMAN DOUGLASS: All right. Commissioner Scott.
19 COMMISSIONER SCOTT: It would take some kind of
20 motion probably to either waive the rules and set that as
21 a special order and that's --
22 COMMISSIONER BARKDULL: I just made that.
23 CHAIRMAN DOUGLASS: He made the motion to set that as
24 special order. All in favor aye. Opposed like sign.
25 (Verbal vote taken.)
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1 CHAIRMAN DOUGLASS: Motion carries, special order is
2 set tomorrow morning. We'll begin at 9:00 a.m.
3 Now, Commissioner Sundberg, I don't want to cut
4 anybody off that's got anything to say here.
5 COMMISSIONER SUNDBERG: Mr. Chairman, this is just an
6 inquiry. The Proposals 31 and 55 on Article V, Costs, has
7 there been prepared an appropriate proposal? We were
8 working from just a draft on a piece of paper at the
9 committee yesterday. Perhaps this should be directed to
10 Mr. Buzzett.
11 CHAIRMAN DOUGLASS: As far as I know the committee
12 substitute is coming out of bill drafting this afternoon.
13 COMMISSIONER SUNDBERG: My point is, I think in
14 fairness to the members of the commission they ought to
15 see a copy of it in writing before they have to consider
16 it tomorrow.
17 CHAIRMAN DOUGLASS: Well, tomorrow if it's not -- if
18 you feel that way, move to temporarily pass it.
19 COMMISSIONER SUNDBERG: I'd rather see a copy of it
20 and deal with it.
21 CHAIRMAN DOUGLASS: Well, if you will, after we
22 adjourn, you can take this up tomorrow, but if you see the
23 executive director you can get a copy. Or if there is not
24 one, then you can be prepared to move to temporarily pass
25 it. Commissioner Scott.
182
1 COMMISSIONER SCOTT: Mr. Chairman, several members of
2 the commission have expressed to me the concern about the
3 Article V issue and we know that it's complex. We know
4 it's a lot of money. And I guess I just wanted to
5 reexpress that and it may be --
6 CHAIRMAN DOUGLASS: Move to temporarily pass it now,
7 I'll vote on it.
8 COMMISSIONER SCOTT: No, I'm not saying that. But
9 it's my understanding that perhaps we may not conclude
10 that matter tomorrow.
11 CHAIRMAN DOUGLASS: I think there's a very good
12 chance we won't. I agree with both of you that Article V,
13 Costs, if we take it up tomorrow, I don't believe we would
14 complete the subject matter without temporarily carrying
15 it over even if we debate it and discuss it and get
16 something on the floor. I think because of the complexity
17 of it, I am in complete accord with Commissioner Scott
18 that we will probably be dealing with that again in
19 December. On the other hand, by placing it on the special
20 order does not mean we have to go to final vote on it.
21 Commissioner Smith.
22 COMMISSIONER SMITH: Mr. Chairman, Declaration of
23 Rights is scheduled to meet at 4:00. However, we'd like
24 to commence at 3:30 to take up housekeeping matters and
25 not vote on any issue until 4:00, and we just want to make
183
1 sure that that's okay.
2 CHAIRMAN DOUGLASS: Is that all right under the rules
3 and under the --
4 COMMISSIONER SMITH: That's the official announcement
5 as well.
6 CHAIRMAN DOUGLASS: Official announcement is that
7 you're going to have a housekeeping meeting at 3:30. You
8 will not begin official business to vote on things until
9 4:00. Okay. And that meeting has been scheduled and
10 Commissioner Smith is the chairman. We'll try to begin in
11 the morning promptly at 9:00 and I hope we'll be out of
12 here by noon.
13 Commissioner Barnett.
14 COMMISSIONER BARNETT: For those of us who are not on
15 some of the committees that have proposals that will come
16 before the body tomorrow, it would be enormously helpful
17 if we could get the background information, the staff
18 analysis on these today so we could have the evening to
19 review them.
20 CHAIRMAN DOUGLASS: Well, I think they are available,
21 is that not correct, right now. And we hope to have them
22 by 4:00 and it's not 4:00 yet but we will have that packet
23 that has the information that goes with the proposals
24 available this afternoon and that's one reason I wanted to
25 read these. Some of these are very significant proposals
184
1 and I know you're going to want to think about it and
2 discuss it among yourselves and otherwise and read. So
3 that's why we did that.
4 It will be available from the distribution center on
5 the third floor of the capitol. Will we also have some in
6 the CRC office? So members, you can get them over at the
7 office in the basement of the capitol.
8 Commissioner Nabors.
9 COMMISSIONER NABORS: I'd like -- I just talked to
10 Commissioner Anthony on Proposal 47, which is on the
11 special order, we had an amendment that would
12 substantially change the language on that. I think a lot
13 of people would like to look at that. I'd like to have
14 that. I think he agrees to temporarily pass that until
15 the December meeting --
16 CHAIRMAN DOUGLASS: What we'll do is go ahead and
17 you're going to have the information on it in the
18 distribution center and everybody can look at that if you
19 want to temporarily pass it tomorrow, you can move to do
20 so.
21 Commissioner Scott.
22 COMMISSIONER SCOTT: Mr. Chairman, motions to
23 reconsider any of these matters are available tomorrow
24 since we are meeting tomorrow; am I right about that? And
25 then if they're made tomorrow, they would carry over to
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1 December?
2 CHAIRMAN DOUGLASS: That is correct. And I assume
3 we'll have one or two of those. Now does anybody have any
4 other matters that they want to bring up at all before
5 tomorrow morning?
6 Judge Barkdull.
7 COMMISSIONER BARKDULL: Well, this is a matter I just
8 want the commission to think about. We discussed
9 shortening the times that we would meet to one week here
10 in November or a part of this week and what I understood
11 was a week in December and two weeks in January and two
12 weeks in February. In examining the calendar and in
13 examining the journal, we are only scheduled to sit four
14 days in December. Instead of commencing on Monday, we
15 commence on Tuesday. I'm just calling that to your
16 attention because tomorrow we will have to make a decision
17 whether we're going to stay with that calendar or whether
18 we will add Monday or a half of Monday into it. But I
19 raise that to your attention now so you can be thinking
20 about it. We may present that as a schedule change
21 tomorrow.
22 CHAIRMAN DOUGLASS: Okay. I think this sounds rather
23 Draconian in a way. But if we don't do it in December we
24 will pay for it in January and February. We have to
25 pretty much complete the work by the end of March. We
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1 don't have to complete it obviously, but the Legislature
2 will be coming in session and we don't want to overlap
3 very much with that because of our members and also our
4 quarters.
5 So I think it's -- we're beginning to get a flavor
6 that we are going to have to have and we haven't really
7 had any really tough debates yet but we will. And as more
8 publicity is focussed on what we're doing, you're going to
9 find it's more difficult to deal with it without more
10 extensive debate I think. So let's be giving that thought
11 and we obviously will be guided by the majority's views on
12 this.
13 COMMISSIONER BARKDULL: Okay. Mr. Chairman, I move
14 that we recess until the hour of nine tomorrow morning.
15 CHAIRMAN DOUGLASS: All in favor say aye. Without
16 objection, we're adjourned.
17 (Session adjourned at 3:30 p.m.)
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1 CERTIFICATE
2
3 STATE OF FLORIDA:
4 COUNTY OF LEON:
5
WE, JULIE L. DOHERTY, KRISTEN L. BENTLEY
6 and Court Reporters, certify that we were authorized to
and did stenographically report the foregoing proceedings
7 and that the transcript is a true and complete
record of our stenographic notes.
8
9 DATED this ______ day of ____________, 1997.
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_________________________________
12 JULIE L. DOHERTY, RPR
13
14 _________________________________
KRISTEN L. BENTLEY
15 COURT REPORTERS
DIVISION OF ADMINISTRATIVE HEARINGS
16 1230 APALACHEE PARKWAY
TALLAHASSEE, FLORIDA 32399-3060
17 (850) 488-9675
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