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1 STATE OF FLORIDA
CONSTITUTION REVISION COMMISSION
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COMMISSION MEETING
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DATE: December 10, 1997
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TIME: Commenced at 9:00 a.m.
11 Concluded at 2:30 p.m.
12 PLACE: The Senate Chamber
The Capitol
13 Tallahassee, Florida
14 REPORTED BY: KRISTEN L. BENTLEY
JULIE L. DOHERTY, RPR
15 Court Reporters
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 (EXCUSED)
JUDGE THOMAS H. BARKDULL, JR.
5 MARTHA WALTERS BARNETT
ROBERT M. BROCHIN
6 THE HONORABLE ROBERT A. BUTTERWORTH
KEN CONNOR
7 CHRIS CORR
SENATOR ANDER CRENSHAW (EXCUSED UNTIL 11:00)
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 (EXCUSED UNTIL 10:25)
THE HONORABLE GERALD KOGAN
12 DICK LANGLEY
JOHN F. LOWNDES
13 STANLEY MARSHALL
JACINTA MATHIS
14 JON LESTER MILLS
FRANK MORSANI
15 ROBERT LOWRY NABORS
CARLOS PLANAS
16 JUDITH BYRNE RILEY
KATHERINE FERNANDEZ RUNDLE
17 SENATOR JIM SCOTT
H. T. SMITH
18 CHRIS T. SULLIVAN
ALAN C. SUNDBERG
19 JAMES HAROLD THOMPSON
PAUL WEST (ABSENT)
20 JUDGE GERALD T. WETHERINGTON
STEPHEN NEAL ZACK
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PAT BARTON
22 IRA H. LEESFIELD (ABSENT)
LYRA BLIZZARD LOGAN (EXCUSED)
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1 PROCEEDINGS
2 (Quorum taken and recorded electronically.)
3 SECRETARY BLANTON: All commissioners indicate your
4 presence. All commissioners indicate your presence.
5 (Pause.)
6 SECRETARY BLANTON: A quorum is present,
7 Mr. Chairman.
8 CHAIRMAN DOUGLASS: Come to order, please. Well just
9 a moment here. If you'll bear with me just a minute, I
10 have too many papers on my desk. Will the Commissioners
11 and guests in the gallery please rise for the opening
12 prayer given this morning by Reverend Darden Battle,
13 pastor of East Hill Baptist Church in Tallahassee.
14 Reverend Battle.
15 REVEREND BATTLE: Join as we pray. Almighty and
16 everloving God, we call upon you for your wisdom and your
17 understanding. We pray, Father, that you would be with
18 those that deliberate today, that they would seek not to
19 know what is best for them or their concerns, but that
20 they would know what is best under your wisdom and your
21 guidance. That you would give them the leadership to make
22 those decisions that are best for those for whom they
23 represent. Bless them now, Father. In the name of Christ
24 we pray, amen.
25 CHAIRMAN DOUGLASS: Thank you very much, Reverend.
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1 Commissioner Hawkes, please come forward and lead us in
2 the pledge of allegiance.
3 (Pledge of Allegiance.)
4 CHAIRMAN DOUGLASS: Before we start I'd like to
5 remind you that we have pages. And so you have a yellow
6 button on your desk. If you need something done, like
7 delivering a message or getting a coke or whatever, push
8 your button and the page will come to your desk and be at
9 your bidding.
10 Mr. Buzzett, could you introduce our pages? All you
11 pages, as your names are called, please rise, Mr. Buzzett
12 will identify you. They are in the back.
13 MR. BUZZETT: These students are from the Cobb School
14 in Tallahassee: Rachel Sandler, Forrest Underwood, Linh
15 Trang, Sarah Woodberry, Brett Guido, Justin Sorrell, Helen
16 Travis, Laura Deeb, Carolanna Lawson, Angela Pinder. I
17 hope I got everybody.
18 CHAIRMAN DOUGLASS: Did we get everybody? If we
19 didn't we'll get you later. We appreciate you young men
20 and young ladies for doing this and we look forward to
21 working with you. And is it the Cobb Cougars; is that
22 correct? See, I'm not up on it. The Cubs, okay, that's
23 good. That's one of our old junior high schools here,
24 it's now middle school I guess and that's what it is now.
25 We'll now proceed to the daily order of business,
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1 Commissioner Barkdull.
2 COMMISSIONER BARKDULL: Mr. Chairman, members of the
3 commission, you have on your desk the proposed special
4 order calendar for today. And I would at this time move
5 its adoption and I will make some explanations because
6 some of the matters are going to be pulled off and some
7 are going to be temporarily passed.
8 CHAIRMAN DOUGLASS: All right. You're making a
9 motion then to approve the special order and then you're
10 going to --
11 COMMISSIONER BARKDULL: Make some comments about it.
12 CHAIRMAN DOUGLASS: All those in favor of the motion,
13 please say aye; opposed like sign.
14 (Verbal vote taken.)
15 CHAIRMAN DOUGLASS: Motion carries. You may
16 continue.
17 COMMISSIONER BARKDULL: Thank you. I've been
18 informed that the chairman of the committee to consider
19 the cost factor in the Article V has an announcement to
20 make in reference to that committee. Commissioner Mills.
21 CHAIRMAN DOUGLASS: Commissioner Mills, you're
22 recognized.
23 COMMISSIONER MILLS: Mr. Chairman, that matter is
24 postponed to a time certain, 2:00. So I suppose we would
25 need a motion to waive the rules simply to take up that
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1 motion at this time, which will again be simply to
2 postpone it to Friday.
3 Just to report to the commission, that committee has
4 met twice and members of that committee, Commissioner
5 Ford-Coates, Commissioner Butterworth, Commissioner
6 Thompson and Commissioner Planas have been incredibly
7 diligent. We've had two set of long hearings, the staff
8 has worked hard and I think that we will bring to you a
9 clarified issue with a couple of options.
10 Just for background, if you wish to come to a meeting
11 to be briefed on this, tomorrow at 4:00, we'll announce
12 the room, we will have another hearing on this. Also, the
13 legislative, the committee on intergovernmental relations
14 has done a great job on providing figures and I want to
15 commend them and Billy Buzzett as well. And just to tell
16 you that the issues that you are considering are in terms
17 of basic policy to justice issue of what is the state
18 court system. And a lot of what will happen tomorrow is a
19 definition of what particular functions should be funded
20 by the state, what functions should be funded by the local
21 government. As you know, and heard the debate, there is a
22 distinction now.
23 The other issue is how much annually this would cost,
24 if it is shifted to the state. The figures range between
25 250 million and 600 million at this time, but that
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1 obviously depends on which functions you chose to allocate
2 to the state.
3 I think it's important for us to understand these
4 justice functions are being paid for by taxpayers one way
5 or the other. The issue is whether it should be a state
6 function and therefore perhaps more broadly spread or it
7 should be a local function. And the last issue of the
8 cost is when should it be implemented. The current bill,
9 for your information, says the Legislature can begin
10 implementation in 2001, but the actual effective date is
11 2004. So the effect of that is the Legislature may begin
12 in 2001 but must be up to speed as to whatever the
13 definition is by 2004. So those are the issues you'll be
14 dealing with.
15 You may have heard from the clerks' association the
16 issues of whether clerks' functions should be in or out,
17 local or state. Those are the issues you'll be
18 confronting. If you wish to have more information, we
19 will be meeting tomorrow at 4:00. It is one of those
20 25-year issues so I think you'll have an opportunity to
21 address this. And, again, I want to thank the staff.
22 And I guess, Commissioner Sundberg, I need to make a
23 motion to waive the rules. And with Commissioner
24 Sundberg's permission to postpone the time certain
25 consideration, which was 2:00 today, until Friday.
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1 COMMISSIONER SUNDBERG: I've agreed with Commissioner
2 Mills to that postponement to a time certain on Friday to
3 be set on the special order calendar, Mr. Chairman of the
4 rules committee.
5 CHAIRMAN DOUGLASS: I have a question of Commissioner
6 Mills and Commissioner Sundberg. Have you considered
7 passing it until the next meeting in January?
8 COMMISSIONER SUNDBERG: Not for a moment.
9 CHAIRMAN DOUGLASS: The reason I ask is --
10 COMMISSIONER MILLS: Absolutely.
11 (Laughter.)
12 CHAIRMAN DOUGLASS: -- I attended the committee
13 meeting and it appeared to me you all might still be
14 meeting.
15 COMMISSIONER MILLS: Mr. Chairman, Commissioner
16 Sundberg and I occasionally disagree, but not that
17 directly. I think the committee is at a time where it may
18 be able to sharpen the focus, we may not be able to
19 produce a final product. If not, it would be my intention
20 to come to the floor and report that. If we do have a
21 final product, Commissioner Sundberg wants to be able to
22 consider that.
23 CHAIRMAN DOUGLASS: I understand. In other words, if
24 you haven't concluded to the point where the committee
25 feels it's ready to come forward, you'll come back and
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1 make the same motion that you're making today.
2 COMMISSIONER MILLS: Perhaps, Mr. Chairman, it might
3 be fair to say we could present, pass out to the
4 commissioners, the issues they could expect to confront.
5 CHAIRMAN DOUGLASS: Without objection, the motion to
6 pass this until 9:00, special order meeting on Friday, if
7 that will be the case. Is there any objection?
8 Commissioner Langley.
9 COMMISSIONER LANGLEY: At least one. Yes, sir. I --
10 you know, Friday is sometimes a hard day for some of us to
11 be here. To get this just out of committee on Thursday
12 and expect us all to be ready to vote on it Friday those
13 of us, or you all who might be here, what's the hurry on
14 this particular item? It's one of the most complicated
15 and important items that we're going to have before us.
16 And I respectfully request the honorable commissioner,
17 former chief justice, to not rush to judgment on this.
18 CHAIRMAN DOUGLASS: Commissioner Langley, I assume
19 you're going to be here Friday. You never miss meetings
20 unless you're excused.
21 COMMISSIONER LANGLEY: May I be excused?
22 (Laughter.)
23 CHAIRMAN DOUGLASS: No. We need to discuss the
24 attendance problem. We've been trying to address that,
25 Commissioner Langley, but that's another matter.
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1 I happen to agree with you, and the reason I raise
2 the point, it's my understanding that if they have not
3 completed their work, they are going to move to pass it
4 until January and then it would be in our hands by then.
5 That's the reason I raised the point.
6 Now there has been an objection and there is a motion
7 to waive the rules to defer it to a time certain which is
8 nine -- the meeting Friday this month, this week. All
9 those in favor of that motion, please say aye, all
10 opposed.
11 (Verbal vote taken.)
12 COMMISSIONER MILLS: Can I declare a point of order?
13 If you don't vote the motion, you have time certain until
14 2:00 today.
15 CHAIRMAN DOUGLASS: Let's rule on this and then you
16 can make a motion.
17 COMMISSIONER LANGLEY: If I may, Mr. Chairman, I
18 would like to amend the motion to allow them to have the
19 meeting, but to bring this back before us in the first
20 meeting in January. Again, they don't even know what they
21 are going to do or if they are going to do Thursday.
22 CHAIRMAN DOUGLASS: Do you object to that amendment,
23 Commissioner Mills? Do you object to that amendment to
24 your motion?
25 COMMISSIONER MILLS: No, I don't object to that
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1 because I expect that's what's going to happen, but I want
2 to act in good faith with Commissioner Sundberg whose
3 proposal it is. I suspect that Commissioner Sundberg
4 would not oppose a motion on Friday to postpone --
5 CHAIRMAN DOUGLASS: At the moment there has been a
6 motion to amend the motion before we voted and the -- I
7 guess it's a substitute motion maybe.
8 COMMISSIONER LANGLEY: Amendment is fine.
9 CHAIRMAN DOUGLASS: Okay. And we're going to vote on
10 the amendment which is that we will defer this to a time
11 certain which will be at the January session, the first
12 January session. Is that your amendment, Commissioner
13 Langley?
14 COMMISSIONER LANGLEY: Yes, sir, or substitute
15 motion, whichever.
16 CHAIRMAN DOUGLASS: Whichever it happens to be. All
17 in favor of that say, please say aye. Wait a minute,
18 Commissioner Sundberg wants to address --
19 COMMISSIONER SUNDBERG: Is that a nondebatable
20 motion?
21 CHAIRMAN DOUGLASS: No, you can debate it. I'd like
22 to get us off of this procedural hangup and move on.
23 COMMISSIONER SUNDBERG: I'd be delighted to do that,
24 Mr. Chairman. Quite frankly, I was not quite certain the
25 purpose of your referral of this to a select committee at
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1 the last time that this was done. And -- but I would
2 concede that I think some valuable information has been
3 developed during that period of time. I think it's been
4 presented to this select committee.
5 But I do not see any reason to postpone beyond, and I
6 agreed with Mr. Mills to postpone it to a time certain on
7 Friday. I sense that this body is ready to vote on this
8 issue.
9 Now it may not be in the most exquisite form, but it
10 was my understanding that's what style and drafting will
11 do before it comes back to get a final vote before this
12 body. What we need to do at this time, it occurs to me,
13 is to move this matter forward, and if in fact there is
14 tweaking to be done, because I have already agreed with
15 the chairman of the select committee to some amendments to
16 the language. And as I say, I think we need to move this
17 forward. And so I oppose moving this to the January
18 plenary session.
19 CHAIRMAN DOUGLASS: Okay. I don't want to cut off
20 any other debate. Does anybody else want to address the
21 amendment? The amendment is we defer this one until
22 January. The original motion, which it seeks to amend, is
23 we defer it until Friday of this week. So first of all
24 we'll vote on the amendment. If you favor -- Commissioner
25 Langley.
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1 COMMISSIONER LANGLEY: I didn't close on my
2 amendment.
3 CHAIRMAN DOUGLASS: Close.
4 COMMISSIONER LANGLEY: Just briefly. One, there is
5 no hurry to do this and I don't want to embarrass anybody,
6 but everybody who thoroughly understands what you're going
7 to be voting on, raise your hand. Mine is not up. The
8 chief justice understands it, but it takes twenty-two
9 votes to eventually pass it. I just think we ought to
10 have a full understanding, and not knowing the final
11 product but a few hours before it may be taken up on
12 Friday is not good statesmanship for us in our
13 responsibilities in here.
14 This is a big item. This is maybe a half-a-billion
15 dollar item and it should not one that we rush to and not
16 really understand before we do it. Admittedly, from the
17 committee, they don't even have all the facts yet
18 themselves and there are more numbers coming in. So
19 what's the hurry? I mean, we'll be here until May and
20 this is one of the most important things we have to do.
21 And selfishly, I can't be here Friday. Unless you
22 can intervene for me in the circuit at home, Mr. Chairman,
23 I can't be here.
24 CHAIRMAN DOUGLASS: I'll try that if you give me a
25 shot at it.
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1 COMMISSIONER LANGLEY: I don't think that will pass
2 the ethics requirements. But I think there is no hurry on
3 this, it is one of the biggest items we face. And I
4 respectfully ask the body to continue this until January.
5 CHAIRMAN DOUGLASS: Commissioner Langley, as a matter
6 of an aside, you might be tempting some of these people to
7 make sure they bring this up on Friday.
8 COMMISSIONER LANGLEY: I support it in general.
9 CHAIRMAN DOUGLASS: This is a substitute motion. I
10 think that's the correct, what it is. It's a substitute
11 motion that Commissioner Langley has made, which is to
12 defer this until the January meeting and continue with the
13 committee, select committee. Does everybody understand
14 what they are voting on? The motion before you is to
15 defer it until January, Commissioner Langley's substitute
16 motion. All those in favor, say aye, opposed.
17 (Verbal vote taken.)
18 CHAIRMAN DOUGLASS: It carries, the substitute motion
19 carries. It will be deferred until the January meeting.
20 Commissioner Barkdull.
21 COMMISSIONER BARKDULL: Mr. Chairman, going down the
22 daily order of business that's now been ratified, with the
23 exception of the deferral we just made, let me ask you to
24 turn to your Page 3 of your calendar and I'll go through
25 here and give you some, what I have been informed by
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1 various members of the body that I anticipate will happen.
2 It may not, as you see.
3 The first item that we have is the matter of
4 reconsideration which I put on, which was the magistrate
5 court. And I want to ask that that be temporarily passed
6 until we get beyond some other items that are going to be
7 temporarily passed, pending some amendments being
8 prepared.
9 CHAIRMAN DOUGLASS: Without objection, it will be
10 temporarily passed for this meeting. It will be brought
11 up at this meeting.
12 COMMISSIONER BARKDULL: It will be brought up at this
13 meeting.
14 CHAIRMAN DOUGLASS: So done.
15 COMMISSIONER BARKDULL: The next one is the special
16 committee which we just had that's not been deferred until
17 a report of the committee in January.
18 The next items that we come to are committee
19 substitute for Proposal 66, 61 and Proposal 74, which all
20 relate to Article V in elections. It's my understanding
21 amendments are being prepared on that and that either the
22 committee chairman or Commissioner Langley, somebody has
23 indicated they want that continued, temporarily passed but
24 it will be taken up at this meeting.
25 CHAIRMAN DOUGLASS: Without objection --
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1 COMMISSIONER LANGLEY: It's ready?
2 CHAIRMAN DOUGLASS: If it's ready --
3 COMMISSIONER BARKDULL: If it's ready we'll take it
4 up then. Then we come down to proposition 115 by
5 Commissioner Corr that relates to judicial candidates
6 accepting contributions from The Bar. Then the next item
7 is committee substitute for Proposal 45, which is a merger
8 of the Game and Freshwater and I understand that that's
9 going to be referred also to the committee on the
10 judiciary -- legislative, legislative.
11 CHAIRMAN DOUGLASS: It's been referred to the
12 committee on, the legislative committee for consideration
13 by that committee before it comes to --
14 COMMISSIONER BARKDULL: Then that will be removed
15 from the calendar today.
16 CHAIRMAN DOUGLASS: Commissioner Henderson.
17 COMMISSIONER HENDERSON: Just a clarification there.
18 I think we approved the calendar earlier with this on it,
19 and now I understand that you're referring it to the
20 legislative committee; is that right?
21 CHAIRMAN DOUGLASS: That is correct. And I had
22 announced that to the rules committee before the meeting.
23 And I think it is the chairman's prerogative to refer it
24 to another committee. If you want to appeal the rule of
25 the Chair, you can.
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1 COMMISSIONER BARKDULL: I had indicated when I made
2 the motion there would be some comments about the matter.
3 Maybe I didn't make myself clear, but I had spoken to
4 Commissioner Henderson before and indicated it was being
5 referred to the legislative committee. If you want
6 another motion on it or you want to appeal the ruling of
7 the Chair, I guess that's your prerogative.
8 COMMISSIONER HENDERSON: Mr. Chairman, I'm not ready
9 to do that, but I would -- the question is if -- do you
10 think if it's referred to legislative committee that it
11 will be back before this body by the end of the week?
12 CHAIRMAN DOUGLASS: I can't answer that. The
13 committee will meet and there's a good possibility it will
14 be, but I certainly can't predict what the committee will
15 do.
16 COMMISSIONER HENDERSON: It seems that -- the
17 procedure is a little unsure to me, because we had a
18 committee substitute from the executive committee that
19 came to the full body, which considered it. And so it
20 just seems to me another way of doing this would be if
21 there were some specific issues, objections or concerns,
22 that a select committee could be put together in the same
23 manner as Article V funding to work these things out. I
24 just think we're 90 percent close to closure on this
25 issue.
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1 CHAIRMAN DOUGLASS: Well, I have referred it to the
2 legislative committee, and I don't believe, and I hope
3 not, that after the legislative committee has considered
4 it and comes back to the floor that it will be necessary
5 to have a select committee.
6 I do agree with you and the reason that I did decide
7 to refer it to legislative committee is the importance of
8 the issue, number one. And number two, the way I read the
9 committee substitute after it came out was that it does
10 indeed need legislative scrutiny because it seems to me
11 that one of the things that's done in this proposed
12 amendment is to give certain legislative, or could be
13 interpreted that way, to give now-legislative functions
14 over to this commission. And that may be perfectly
15 permissible, but I think the legislative committee should
16 be able to consider it before it comes to the floor.
17 COMMISSIONER HENDERSON: Mr. Chairman, before
18 deciding whether to move to appeal the order, the ruling
19 of the Chair, could I ask -- could I inquire of the
20 legislative committee chairman?
21 CHAIRMAN DOUGLASS: Certainly. I don't have any
22 problem with that. I'm not sure whether -- that's all
23 right, Commissioner Thompson. We're an open group. He's
24 ready.
25 COMMISSIONER HENDERSON: Mr. Thompson -- Commissioner
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1 Thompson, if I were to represent to you that we were very
2 close to closure on this issue, do you think we would we
3 be able to get a hearing before the legislative committee
4 so that this could be back before the floor on Friday?
5 COMISSIONER THOMPSON: The only problem I have with a
6 hearing is time and notice.
7 CHAIRMAN DOUGLASS: Notice we can give today and it
8 would be sufficient notice.
9 COMISSIONER THOMPSON: I don't know what other
10 measures we have there right now. Is Debbie in here?
11 What else do we have in the legislative committee.
12 MS. KEARNEY: Today?
13 COMISSIONER THOMPSON: No, it's tomorrow.
14 CHAIRMAN DOUGLASS: I think to save time let's assume
15 they can't get it done and complete their work. I'm still
16 referring it to that committee, unless I'm overruled by
17 the commission. Because I feel when the committee reads
18 it, they are going to come to the same conclusion I think
19 that I did, that the legislative committee should consider
20 it. And if it requires putting it over until January, we
21 can live with it.
22 I have the same concerns about this issue that
23 Commissioner Langley raised in his prior question, that I
24 don't believe until the legislative committee considers
25 it, it will be ready for floor action. That's why I
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1 referred it.
2 COMISSIONER THOMPSON: We have a pretty full agenda
3 there now. You know, a lot depends on how much debate we
4 have on the various things. I'll be glad to, within the
5 rules, add it and see if we can get to it, certainly. I
6 would imagine though we could get to it as quickly as a
7 select committee could, formed and deliberating.
8 COMMISSIONER HENDERSON: I'm, of course, hoping that
9 the amendments that will be prepared will demonstrate to
10 the legislative committee it's not a legislative issue. I
11 just want to represent to the commission that there has
12 been a lot of work done on this issue over the course of
13 the last three weeks and we are very close to closure on
14 it. And I'm trying to keep parties focused on the need to
15 reach closure to the issue. And that's my only reason for
16 standing here at this time.
17 CHAIRMAN DOUGLASS: Okay. The Chair has ruled it's
18 referred to the legislative committee and it will be
19 noticed for the Friday meeting.
20 COMISSIONER THOMPSON: Mr. Chairman, Thursday
21 meeting.
22 CHAIRMAN DOUGLASS: Excuse me, Thursday meeting.
23 COMMISSIONER BARKDULL: Mr. Chairman, members of the
24 commission, to continue on with the calendar. We did not
25 receive 144 so that will not be up for consideration. All
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1 the remaining matters on the calendar are available for
2 today.
3 CHAIRMAN DOUGLASS: Very well. Are there any further
4 comments?
5 COMMISSIONER BARKDULL: Yes, sir. We have meetings
6 scheduled obviously for the remainder of this week. We
7 have meetings scheduled for January. And at this time we
8 plan to hold the schedule that was distributed to you for
9 January, which was a five-day week and a three-day week.
10 Obviously we're running short on time.
11 These facilities and the Senate staff is not going to
12 be available to us after the end of February. And in all
13 probability, the sooner we can get out of here towards the
14 end of February the happier I think the Senate is going to
15 be, and I don't blame them. They have got to get ready
16 for the legislative session.
17 Yesterday we had six committee meetings scheduled.
18 We had no quorum for three of them. Those of you that
19 have been here, these comments don't apply to you. Those
20 of you who have not been here or are not here today, they
21 do apply to you. We asked to be on this commission and
22 there were many other people that asked to be on this
23 commission. And I think by virtue of accepting
24 appointments on it, we have an obligation to be here, as a
25 responsibility to the citizens of Florida, as a
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1 responsibility to the people that come up here to appear
2 before our committee meetings, and as a courtesy to the
3 other members of this commission.
4 We had committee meetings yesterday with no quorums,
5 where we had the public present, we had people that wanted
6 to testify and we were able to take some of that, but all
7 the commissioners and the committee members were not able
8 to hear it. Now we have known for a long time when these
9 meetings were. And very frankly, it occurs to me if
10 somebody can't discharge the responsibilities that they
11 took to be on this commission, there are a lot of other
12 people out there that would like to take your place. And
13 I wish you'd think about that.
14 CHAIRMAN DOUGLASS: Thank you, sir. For your
15 information, Commissioner Jennings had to be excused today
16 and called and asked to be excused, as did Commissioner
17 Argiz. I think everybody else is here accept maybe one or
18 two that did not request to be excused and they may be
19 here later, I don't know. Commissioner Morsani.
20 COMMMISSIONER MORSANI: Most of us try to make all
21 the meetings, but the problem that some of us are having,
22 we have businesses to run, of substantial size. To be
23 here five days, and especially twice in one month, is very
24 difficult. I try in my own company to, every Monday, do
25 everything I can do on Monday so I can have Tuesday,
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1 Wednesday, Thursday and Friday for this commission or for
2 any other outside activities that I get myself, these
3 high-paying jobs, involved in.
4 And it's very difficult for everybody else to work
5 their schedules around mine in Tampa, Florida, even though
6 they have been pretty good about it, just so I have Monday
7 free. Now I'm only one of 37, and I understand that, but
8 somehow we need -- there are some pressing issues that do
9 happen to us that have hundreds of employees every week
10 that we have to address. And I can't do that and be here
11 two or three Mondays a month, sir. I can't do that.
12 CHAIRMAN DOUGLASS: Well right now the one we're
13 talking about started on Tuesday and I think the other
14 meetings are going to do the same thing.
15 COMMISSIONER MORSANI: That's not what the schedule
16 says.
17 CHAIRMAN DOUGLASS: We'll see about that. I'll take
18 that into consideration when we go further.
19 But the one thing I want to point out I was told by
20 the appointing authorities, all of them, that they
21 informed everybody that was appointed they would have to
22 be here and they could devote probably one-half of their
23 working time to these meetings or more.
24 And I know that was true with the appointing
25 authority from those of you that were appointed by the
24
1 Governor. And I've been told by Commissioner Jennings
2 that that's what she said and also what the Speaker said.
3 And I know the Chief Justice made that clear.
4 So when we took this, as Commissioner Barkdull
5 pointed out, we knew we were going to have some
6 difficulties, but I certainly want to accommodate those
7 people as best we can that can't be here. On the other
8 hand, one person that can't be here will not and should
9 not keep the commission from meeting.
10 I think Commissioner Barkdull's comments were
11 directed to the fact that we had these meetings scheduled
12 and we couldn't get quorums in a committee and I think
13 we'll take care of that in a different fashion. We'll
14 have these meetings first and we'll vote on things. So if
15 you want to miss those, you can miss them. But the
16 committee meetings are extremely important, very
17 important. I think that's what Commissioner Barkdull is
18 talking about.
19 Commissioner Marshall, I see you are standing. You
20 are recognized, sir.
21 COMMISSIONER MARSHALL: Yes, thank you, Mr. Chairman.
22 To go back to the calendar, if I'm in order, Proposal 40,
23 which we temporarily passed in November, I believe
24 requires more attention by the education committee. I
25 think that was the consensus of the members of the
25
1 committee. I wanted to clear that with Commissioner
2 Jennings, but she's not here this morning. I believe it
3 was the intention of the committee to treat that matter
4 further.
5 And with regard to 131, Proposal 131, that was voted
6 down yesterday by the committee on ethics and elections.
7 COMMISSIONER BARKDULL: Page 131?
8 COMMISSIONER MARSHALL: Page 5, Commissioner,
9 Proposal 131.
10 CHAIRMAN DOUGLASS: They are on the calendar right
11 now, they're not on special order, that one isn't. 131 is
12 on the calendar, but hasn't been placed on special order.
13 So that would be considered by the rules committee as to
14 whether it goes on special order on Friday. Am I right,
15 Commissioner Barkdull?
16 COMMISSIONER BARKDULL: Yes, sir.
17 CHAIRMAN DOUGLASS: So 131 is not on special order,
18 Commissioner Marshall, but Proposal 40, which relates to
19 authorizing certain counties to be divided into more than
20 one school district, is on the special order as approved
21 by the committee on education. And as I understand it,
22 what you are suggesting and asking is that it be
23 temporarily passed until the next meeting.
24 COMMISSIONER MARSHALL: The vice chairman of the
25 committee is here and may want to comment on that.
26
1 CHAIRMAN DOUGLASS: Commissioner Riley, you're
2 recognized.
3 COMMISSIONER RILEY: What I understood you to ask was
4 that this be sent back to the committee, which is meeting
5 between now through Friday and perhaps we could come to a
6 conclusion and then bring it back Friday, rather than pass
7 it again until January.
8 CHAIRMAN DOUGLASS: So are you making a motion, one
9 of you, to temporarily pass it until Friday's meeting?
10 COMMISSIONER RILEY: I so move.
11 CHAIRMAN DOUGLASS: All in favor say aye; opposed.
12 (Verbal vote taken.)
13 CHAIRMAN DOUGLASS: It is so done. The Secretary
14 reminds me it's referred back to the committee for
15 consideration on Thursday. So you may want to change your
16 order and take that up early in your meeting to make sure
17 it comes back on Friday. And that is the case. All
18 right, Commissioner Barkdull.
19 COMMISSIONER BARKDULL: I am through with the
20 comments in reference to the calendar and the changes that
21 have been made. I suggest we proceed.
22 CHAIRMAN DOUGLASS: All right. The first proposal
23 for consideration is Proposal No. 61, I believe.
24 Commissioner Wetherington? Commissioner Wetherington, I
25 think you are chairman of the judiciary committee and the
27
1 first proposal to come before the body today is out of the
2 judiciary committee. Would you make the presentation of
3 that, please, sir, or you could yield to someone else to
4 do it if you like.
5 COMMISSIONER WETHERINGTON: Proposal 61, you say?
6 CHAIRMAN DOUGLASS: Sixty-six, excuse me. You have
7 got 66 and then we go to 61.
8 COMMISSIONER WETHERINGTON: Thank you very much.
9 CHAIRMAN DOUGLASS: That's the correct one.
10 COMMISSIONER WETHERINGTON: Thank you, Mr. Chairman.
11 That's why I was looking down at my papers. In terms of
12 the function of judiciary in the state of Florida and our
13 country, there are two important principles; one is the
14 principle of independence of the judiciary, the other is
15 the principle of accountability.
16 The judicial role as defined as far back by Roscoe
17 Pound and Judge Oliver -- Justice Oliver Wendell Holmes
18 requires the judges to apply the law to the cases that
19 come before them in a fair, objective and impartial
20 manner, and to exercise their judgment based upon what
21 they deem to be the law that applies in that particular
22 case and not to be influenced by any other factors, either
23 their personal prejudice, bias or outside influences.
24 Therefore, one of the big factors involved in
25 judicial independence and accountability is the method of
28
1 selecting and retaining judges. No system of selecting
2 and retaining judges, in my opinion, is perfect. There
3 are criticisms that can be made of the merit retention and
4 selection system. And those arguments that have been put
5 forth are that to some extent you are changing one form of
6 politics to another. And you're perhaps allowing special
7 interest groups, maybe the media in some instances to have
8 an undue influence on judiciary. There are a lot of
9 objections to merit retention, some of them are good
10 objections.
11 There are a tremendous number of objections to
12 electing judges, having to do with the independence of the
13 court, and the court's ability to properly perform its
14 function, all kinds of other considerations such as sums
15 of moneys that are raised from attorneys and other
16 unseemly things that happen in judicial elections.
17 And as a consequence, the issue of electing judges or
18 selecting judges by merit retention has been coming up
19 time and again in Florida. As you know, it was voted on
20 in 1978 and narrowly defeated the merit retention
21 proposal. The proposals have been introduced and the
22 question of whether or not we should address the merit
23 retention has been put forth.
24 I think probably on balance the merit retention
25 system is best, although not perfect. But I recognize
29
1 probably in the state of Florida that doesn't reflect the
2 point of view of the great majority of people, it probably
3 doesn't reflect the majority of commissioners.
4 Therefore, in our committee on the judiciary we have
5 a proposal which would work as follows and that is, there
6 would be the ability of the circuit to opt to have merit
7 retention, if it so selected. If it wanted to retain the
8 elected system with respect to trial judges, it could do
9 so. If it wanted to select merit retention, it could do
10 so. So it would be a local option proposition. The
11 option would apply both to circuit judges as well as
12 county judges.
13 It seems to me that circuits that believe that the
14 best method of selecting judges is through a merit
15 selection and retention system should have that
16 opportunity. Those that wish to retain an elected system
17 should have that opportunity. This proposal would permit
18 this type of option. It would provide at least a basis in
19 our Constitution for merit retention in those areas that
20 feel, based upon their local consideration, that merit
21 retention is the best method for them to follow. That's
22 basically what this proposal is. This proposal was also
23 passed favorably by the judiciary committee.
24 CHAIRMAN DOUGLASS: All right. There are three
25 amendments on the table. First of all, I'll ask -- I
30
1 forgot to ask the clerk to read the matter, he reminded me
2 as I looked at him. Would you read Proposal 66?
3 READING CLERK: Committee substitute for Proposal 66,
4 a proposal to revise Article V, Sections 10 and 11,
5 Florida Constitution, providing for circuit court judges
6 and county court judges to run for reelection unless the
7 electors within the circuit or within the county approve a
8 local option whereby the circuit court judges or the
9 county court judges are selected by merit selection and
10 are subject to a vote of retention.
11 CHAIRMAN DOUGLASS: All right. The presentation has
12 been made. There are three amendments on the table.
13 Amendment No. 1 is authored by Commissioner Langley.
14 Commissioner Langley, you're recognized to offer your
15 amendment. He has it and he will read it.
16 READING CLERK: By Commissioner Langley, on Page 2,
17 Line 28, strike 2004 and insert 2000.
18 COMMISSIONER LANGLEY: This was an oversight in
19 drafting, and I think the way the proposal is currently
20 worded, there will be an election in '98. And so it will
21 become effective in 2000 rather than 2004. I think there
22 is no objection to that, no debate.
23 CHAIRMAN DOUGLASS: Is there any debate on the
24 amendment? If not, all those in favor of amendment No. 1,
25 which is on your desk, signify by saying aye; opposed like
31
1 sign.
2 (Verbal vote taken.)
3 CHAIRMAN DOUGLASS: It carries. Now we move to
4 amendment 2. Would you read amendment 2, please.
5 READING CLERK: By Commissioner Langley, on Page 2,
6 Line 31, after the period insert, any future election to
7 exercise the local option to select circuit court judges
8 by merit selection and retention rather than by election
9 shall be invoked by filing with the secretary of state a
10 petition signed by the number of electors equal to at
11 least 10 percent of the votes cast in the circuit in the
12 last preceding election in which presidential electors
13 were chosen. Any future election to exercise the local
14 option to select county court judges by merit selection
15 and retention rather than by election shall be invoked by
16 filing with the secretary of state a petition signed by
17 the number of electors equal to at least 10 percent of the
18 votes cast in the county in the last preceding election in
19 which presidential electors were chosen.
20 CHAIRMAN DOUGLASS: Commissioner Langley.
21 COMMISSIONER LANGLEY: Thank you, Mr. Chairman. This
22 was, you know, after we had worked out the compromise of
23 the opt in/opt out, this was an afterthought. What if a
24 county voted to continue to elect their judge in 19 --
25 pardon me, in the year 2000 but became unhappy with that,
32
1 how would they ever get it back to the people to go to
2 merit selection.
3 And to do this, this amendment says that it would
4 take 10 percent of the electors in that county to ask that
5 it be put back on the ballot so that they could at that
6 time choose to go to merit selection. Now for those of
7 you who may be interested, this does not provide for the
8 reverse of that. It does not say we chose merit selection
9 and now we can get 10 percent and get out and reelect our
10 county judge, it doesn't do that. It is solely an opt in,
11 a belated opt in, it is not a belated opt out. That's
12 another issue.
13 CHAIRMAN DOUGLASS: Commissioner Sundberg -- do you
14 yield -- I guess you yield to the Commissioner.
15 COMMISSIONER SUNDBERG: I have a question.
16 CHAIRMAN DOUGLASS: Commissioner Langley yields.
17 COMMISSIONER SUNDBERG: Commissioner, I'm sympathetic
18 to this amendment and I think it is appropriate. I'm a
19 little concerned about the line, using the term "future."
20 That could not be construed to apply to the first election
21 that is to take place after the adoption. Let's assume
22 that this is adopted in '98. The first, essentially, the
23 election that we've all agreed this will be required after
24 this is adopted will be in the future from the time this
25 is adopted in '98. Am I making any sense to you?
33
1 COMMISSIONER LANGLEY: You always make sense. If I
2 understand what you're saying there may be some language,
3 you know, there about any election after the year 2000.
4 COMMISSIONER SUNDBERG: Right, because future could
5 be construed by somebody to mean, well, this first
6 go-around has to be, you know, you need that. If we may
7 include language like that, I'd like to support this
8 amendment.
9 CHAIRMAN DOUGLASS: Commissioner Smith, do you have a
10 question?
11 COMMISSIONER SMITH: Yes.
12 CHAIRMAN DOUGLASS: Do you yield? Commissioner
13 Langley yields.
14 COMMISSIONER SMITH: Commissioner Langley, I was very
15 pleased to see this amendment. I discussed this matter
16 last night with the chair of the judiciary committee.
17 I want to know, however, what I see is a frustration
18 among the people about how judges are elected. Sometimes
19 what happens is, as Commissioner Wetherington said, you
20 have two bad systems but because people only see one side
21 of the bad system, they want to change. And sometimes
22 when they change, they find out, I jumped out of the
23 frying pan and into the fire and I want to go back. So
24 I'd like to know what the rationale is for allowing
25 individuals to opt back in but not allowing them to opt
34
1 back out.
2 COMMISSIONER LANGLEY: As I stated, Commissioner
3 Smith, I think that's a perfectly debatable option and I
4 would welcome an amendment to do that, if that's what you
5 wish. We've had two instances in my home county where we
6 went to an appointed superintendent, got a bad one and the
7 people voted to go back to elected. Well, also, many of
8 you know we went to nonpartisan school board elections for
9 a couple of times and backed out of that in some counties.
10 So you're right, until they taste the grass on the
11 other side of the fence, it may not be what they think.
12 If you'd like to prepare that and offer it, that's fine.
13 It is not, as I explained, it is not a subject of the
14 amendment I'm offering now and would not be contradictory
15 to the amendment I'm offering now. It would be another
16 alternative.
17 CHAIRMAN DOUGLASS: Commissioner Langley, that raises
18 the question, which I'm going to leave the chair and ask
19 it because I'm not a proponent or opponent of this. But
20 since this is a merit retention proposition, there would
21 be an election every four years to turn the rascals out,
22 would there not, assuming they are rascals?
23 COMMISSIONER LANGLEY: Whatever the merit retention
24 system provided, yes. None of them have ever been turned
25 out.
35
1 CHAIRMAN DOUGLASS: Well, that doesn't mean they will
2 not be --
3 COMMISSIONER LANGLEY: I understand.
4 CHAIRMAN DOUGLASS: -- we hope, because there are
5 some that probably should be from time to time.
6 My question is, this is a different situation, is it
7 not, from a school superintendent where you don't have
8 retention? In other words, everybody that's appointed
9 under this system, if I understand it, and the way it
10 works with the Supreme Court and Appellate Courts at the
11 present, has to stand before the public for retention and
12 then you vote yes or no. If you got one that was
13 sufficiently bad that the public wanted to turn them out,
14 they would have that opportunity; would they not? That is
15 a distinction; isn't it?
16 COMMISSIONER LANGLEY: Yes, sir. As you know, the
17 state of California turned three out at one time on the
18 Supreme Court.
19 CHAIRMAN DOUGLASS: That would be the distinction
20 between this and your school superintendent.
21 COMMISSIONER LANGLEY: Yes, sir.
22 CHAIRMAN DOUGLASS: Commissioner Smith.
23 COMMISSIONER SMITH: I'd just like to make a comment
24 on that. California turned three out because they were
25 highly controversial. The problem is we can have people
36
1 who are incompetent but well-liked and not controversial
2 and so therein lies the difference.
3 In California, you know, they were saying, we're not
4 going to have any death penalty, we're going to change all
5 the laws. And because of that widespread controversy, the
6 populous was informed as to their philosophy and what they
7 were doing and said, we don't like it. But we can have
8 totally incompetent judges that the public doesn't know
9 about because they won't do anything controversial.
10 CHAIRMAN DOUGLASS: Commissioner Smith, I'm not going
11 to rule you out of order, but you're debating the main
12 motion at the moment. I think the issue before us is the
13 amendment.
14 COMMISSIONER SMITH: I tried to respond to the
15 chair's comment. And if I was out of order, I shall sit
16 down.
17 CHAIRMAN DOUGLASS: Mine wasn't meant to be a comment
18 because I may be on your side.
19 Commissioner Sundberg.
20 COMMISSIONER SUNDBERG: Mr. Chairman, I'd like to
21 offer a technical amendment to the amendment to address
22 the issue about the question I put to Commissioner
23 Langley.
24 CHAIRMAN DOUGLASS: Could you place it on the desk
25 please?
37
1 COMMISSIONER SUNDBERG: I can.
2 CHAIRMAN DOUGLASS: Would the clerk please read the
3 amendment to the amendment offered by Commissioner
4 Sundberg?
5 READING CLERK: Amendment to the amendment by
6 Commissioner Sundberg: On Page 1, Line 1 and Page 1, Line
7 5, strike "future election" and insert "election after the
8 year 2000."
9 COMMISSIONER SUNDBERG: Pardon me, there is another
10 line. The amendment should also address the fifth line
11 where it talks about -- oh, you announced both lines. I'm
12 sorry, fine. I offer that amendment.
13 CHAIRMAN DOUGLASS: Does everybody understand the
14 amendment? Commissioner Langley, do you understand his
15 amendment?
16 COMMISSIONER LANGLEY: Yes, sir, it's clarifying. I
17 have no objection.
18 CHAIRMAN DOUGLASS: All those in favor of the
19 amendment to the amendment signify by saying aye; opposed,
20 like sign.
21 (Verbal vote taken.)
22 CHAIRMAN DOUGLASS: The amendment to the amendment is
23 adopted and now we revert to the amendment. The
24 proponent, Commissioner Langley, has spoken.
25 COMMISSIONER BARKDULL: There is an amendment on the
38
1 desk.
2 CHAIRMAN DOUGLASS: There's another amendment on the
3 desk. I think we need to take this one up first. Is it
4 an amendment to this amendment?
5 COMMISSIONER BARKDULL: No, sir, I thought you were
6 going --
7 CHAIRMAN DOUGLASS: No, we haven't voted on this
8 amendment yet. All right. We are on Commissioner
9 Langley's amendment No. 2 as amended by Commissioner
10 Sundberg's amendment to the amendment. And we will now,
11 unless there is -- does anybody want to speak in
12 opposition to the amendment?
13 If not, we will proceed to vote. All those in favor,
14 push your button. And this is on the amendment as
15 amended. It is not on the main motion.
16 (Vote taken and recorded electronically.)
17 CHAIRMAN DOUGLASS: Everybody voted? Announce the
18 vote.
19 READING CLERK: Thirty-one yeas and zero nays,
20 Mr. Chairman.
21 CHAIRMAN DOUGLASS: The amendment has been adopted.
22 There's a third amendment on the desk. Would you read the
23 amendment by Commissioner Barkdull.
24 READING CLERK: By Commissioner Barkdull, schedule of
25 this proposal. If adopted in 1998 then in all circuits
39
1 and counties wherein this proposal received the majority
2 vote of approval there, it shall be a merit retention
3 election for all circuit and county judges in such
4 circuits and counties at all subsequent general elections.
5 CHAIRMAN DOUGLASS: Commissioner Barkdull, on your
6 amendment.
7 COMMISSIONER BARKDULL: Mr. Chairman, members of the
8 commission, to explain the amendment. As the proposal is
9 before us now, there will be a vote in '98 to whether the
10 counties should have the local option to vote in 2000 to
11 have merit retention. In those counties and circuits in
12 which that would pass in 2000, then the people that are up
13 for election in 02 would be the first ones that would be
14 subject to merit retention.
15 There are a number of offices that become vacant in
16 2000. If we're going to adopt this procedure it seems to
17 me that if a circuit or a county -- if the state votes
18 this proposal in by majority vote statewide and there is
19 within a circuit or within a county a vote of a majority
20 of the people that approve it, we have a number of
21 circuits that are one-county circuits in which they would
22 be able to go into, if this amendment was proposed -- as
23 proposed was passed, that they would have the merit
24 retention elections in the year 2000 rather than waiting
25 to the year 2002, and having to have an additional
40
1 election system that we have now.
2 The purpose of it is if a circuit or a county
3 approves by a majority vote in '98, then in the year 2000
4 those judges that came up for election in that year will
5 be subject to merit retention. And they would thereafter,
6 in the circuits or counties in which a vote was not passed
7 by majority in '98, they would continue to vote whether
8 they wanted merit retention for the future of their
9 circuits and counties. I yield for questions.
10 CHAIRMAN DOUGLASS: You yield to Commissioner Hawkes?
11 COMMISSIONER BARKDULL: Yes, sir.
12 COMMISSIONER HAWKES: Well, Mr. Chairman, actually I
13 think I rose to speak against the amendment, but maybe
14 it's a question.
15 CHAIRMAN DOUGLASS: It's a little bit early.
16 COMMISSIONER HAWKES: Let me phrase the question and
17 make sure I understand it then. I thought that the
18 question that would be put before the voters was going to
19 be, do you think that circuits and counties ought to have
20 a right to go to merit selection if they wish to. And I,
21 in my rather rural area of the state, might think that,
22 well, I hear about problems in South Florida and maybe
23 they ought to have a right to do that, but maybe we don't
24 want to do it where we know our county judge and might
25 want to elect him.
41
1 And what this does, I think, and correct me if I'm
2 wrong, is it prevents me from voting to give perhaps Dade
3 or Broward County an option I think they may appreciate
4 without committing myself to doing it in my district and I
5 may not want to do it in my district.
6 COMMISSIONER BARKDULL: No, sir, that's not the
7 purpose of this amendment and I don't think it does what
8 you say. Because if your county votes not to have it in
9 year '98, they will not have it until they vote it in.
10 COMMISSIONER HAWKES: Wonder if a majority of the
11 citizens in my county want to give the option to Dade but
12 they don't necessarily want to elect their county court
13 judge -- I mean, I think that what you're doing is you're
14 preventing people from voting for the amendment if they
15 want to allow a choice without also committing to doing it
16 themselves. I mean, it's one thing to say, give people a
17 choice, it's another step, I think, to make the choice.
18 COMMISSIONER BARKDULL: I understand your point.
19 CHAIRMAN DOUGLASS: All right. Any further questions
20 or any further proponents of the amendment? All right.
21 Opponents? Anybody want to speak in opposition to
22 the amendment? Does everybody understand the amendment or
23 do you want it reread? Read it again, the amendment,
24 please. I'm not sure I understand it.
25 READING CLERK: By Commissioner Barkdull, if adopted
42
1 in 1998 then in all circuits and counties wherein this
2 proposal received the majority vote of approval there it
3 shall be a merit retention election for all circuit and
4 county judges in such circuits and counties at all
5 subsequent elections.
6 CHAIRMAN DOUGLASS: All right. Proponents, any?
7 Commissioner Barkdull.
8 COMMISSIONER BARKDULL: It's been explained and I
9 think in response to Mr. Hawkes' question that certainly
10 is a problem and it's a legitimate concern. And so I
11 think the body ought to understand what Mr. Hawkes'
12 position was. My position is if the majority of people
13 within a county or a circuit think they should have merit
14 retention, then they should not have to go through a
15 second local option provision. There is obviously merit
16 to the other side and I think Commissioner Langley
17 probably is going to speak to it.
18 CHAIRMAN DOUGLASS: All right. Opponents?
19 Commissioner Langley.
20 COMMISSIONER LANGLEY: I think Commissioner Hawkes is
21 imminently correct that in those of you that like merit
22 selection probably don't like this amendment because
23 you're going to force people, like myself who would vote
24 for the people having the choice but not necessarily vote
25 for, especially on a county judges level, not necessarily
43
1 vote for merit selection of a county judge.
2 But I certainly think people in the county ought to
3 have that right to choose. So you're going to lose that
4 middle ground of people who say voting yes now is voting
5 yes then so I'm going to have to vote no now.
6 COMMISSIONER BARKDULL: Do you yield for a question?
7 COMMISSIONER LANGLEY: Certainly. You have a very
8 impish expression your face, but --
9 CHAIRMAN DOUGLASS: That's not unusual.
10 COMMISSIONER BARKDULL: If I took out counties would
11 you support it?
12 COMMISSIONER LANGLEY: Don't box me in.
13 COMMISSIONER BARKDULL: Because I think there is
14 merit in your position and Commissioner Hawkes'. And I
15 would be willing to strike the word "counties" and just
16 leave it to the circuit situation.
17 CHAIRMAN DOUGLASS: Is that a motion to amend your
18 amendment?
19 COMMISSIONER BARKDULL: I'm trying to get more
20 support over here.
21 CHAIRMAN DOUGLASS: Did you get an answer to your
22 question?
23 COMMISSIONER BARKDULL: He doesn't want to be locked
24 in.
25 CHAIRMAN DOUGLASS: That's an answer. Commissioner
44
1 Sundberg.
2 COMMISSIONER SUNDBERG: As unaccustomed as I am to
3 being on the other side from Judge Barkdull, I have to
4 agree with those who oppose this. What you're essentially
5 doing is building in an implied compound question. They
6 are really two different issues.
7 One issue is do you believe it appropriate to have
8 local option, circuit by circuit and county by county with
9 respect to merit retention and selection of judges. The
10 other issue is do you, in fact, in this county want to
11 have merit selection. And I just think that it would
12 be -- it's in fact misleading and I have to agree with you
13 that what it's going to do is make the 1998, or pardon me,
14 the year 2000 election, you're going to anticipate it in
15 '98. And I just think that's bad business. I speak
16 against it.
17 CHAIRMAN DOUGLASS: Any other opponents? Would you
18 like to close, Commissioner Barkdull?
19 COMMISSIONER BARKDULL: Well I'd like to get an
20 amendment up there to strike the word "county" out of it.
21 Can I make oral an amendment?
22 CHAIRMAN DOUGLASS: Go ahead.
23 COMMISSIONER BARKDULL: I move that we strike, for
24 purposes of consideration, any reference to counties and
25 that this proposal only relate to circuits.
45
1 CHAIRMAN DOUGLASS: Now, write it out and bring it up
2 here, please, so we can comply with the rules.
3 Read the amendment to the amendment.
4 READING CLERK: On Page 1, Lines 2 and 6, strike the
5 word "counties".
6 CHAIRMAN DOUGLASS: Does everybody understand the
7 amendment to the amendment? He's going to take out the
8 counties and leave it only as the circuits. That if they
9 pass the amendment by majority vote, then they would
10 proceed to merit retention in '98; is that right?
11 COMMISSIONER BARKDULL: 2000.
12 CHAIRMAN DOUGLASS: 2000, all right. Everybody
13 understand the amendment as amended? All in favor of the
14 amendment say aye; opposed like sign.
15 (Verbal vote taken.)
16 CHAIRMAN DOUGLASS: It fails.
17 COMMISSIONER BARKDULL: I'd like to withdraw
18 amendment three.
19 CHAIRMAN DOUGLASS: It's too late. I'm going to take
20 a vote anyway. We'll let you withdraw it.
21 I understand we have a fourth amendment. Who is
22 offering it? Commissioner Smith is offering amendment
23 No. 4 which is not on the table yet. Do you want to go
24 ahead and tell us what it is while they're getting it
25 here? It won't be before the body until it's in writing.
46
1 COMMISSIONER SMITH: Yes, thank you, Mr. Chairman. I
2 think -- first of all, I really think that we've come a
3 long way with regard to this very, very difficult issue
4 that continues to come up, came up in Article V and just
5 keeps coming up. I really believe in the spirit of what
6 the judicial committee did, and that is to say, look,
7 let's let the people decide. We're not any wiser than the
8 people and we understand this is a diverse state.
9 I would like to make an amendment that would allow
10 people to opt in or opt out. And the language will
11 basically say that people will be allowed, with that
12 10 percent of the electors, to select circuit court judges
13 by merit selection and retention or to select circuit
14 court judges by election. I think by leaving it with only
15 opting for merit selection, we show our, quote, bias, end
16 quote, toward the merit selection system. People should
17 be able to experiment with it.
18 Additionally, for those who really favor merit
19 selection, what you could be doing in a closed vote is
20 making people who are not sure vote against it by saying,
21 I'll be stuck with this forever. So there are people who
22 might say, I'll vote for this and if it doesn't work, we
23 can come back and change it later.
24 So basically it's an opt in or opt out and I think
25 this will really improve the proposal. Thank you.
47
1 CHAIRMAN DOUGLASS: The amendment is not on the
2 table, so we don't know exactly what it says yet. Anybody
3 want to ask any questions while we're waiting?
4 Commissioner Morsani.
5 COMMISSIONER MORSANI: Mr. Chairman, I agree with
6 Mr. Smith at this point as far as at least his
7 explanation. I think one of the purposes that I hope this
8 commission can do is continue to create flexibility in
9 this Constitution. And it seems like this opt in and opt
10 out amendment is where I hope we are in our state because
11 some of the counties that were small counties five years
12 ago are now large counties and so on and so forth.
13 And I would continue we hope to endeavor to have
14 flexibility in what we create in this document. And I
15 would, I realize Commissioner Langley's amendment is, and
16 I agree with Mr. Smith that I think we can't have a bias
17 toward one or the other because it is dynamic. And I
18 would strongly want to support an opt in and opt out
19 provision.
20 CHAIRMAN DOUGLASS: All right. The reading clerk has
21 something there. Can you read what you think you have,
22 sir?
23 READING CLERK: On Page 2, Line 31, after the period
24 insert, "Any election after the year 2000 to exercise a
25 local option to select or elect circuit court judges by
48
1 merit selection and retention or election rather than by
2 election shall be invoked by filing with the secretary of
3 state a petition signed by the number of electors equal to
4 at least 10 percent of the votes cast in the circuit in
5 the last preceding election in which the presidential
6 electors were chosen.
7 "Any election after the year 2000 to exercise the
8 local option to select or elect county court judges by
9 merit selection and retention or election rather than by
10 election shall be invoked by filing with the secretary of
11 state a petition signed by the number of electors equal to
12 at least 10 percent of votes cast in the county in the
13 last preceding election in which presidential electors
14 were chosen."
15 CHAIRMAN DOUGLASS: Commissioner Langley, this is
16 what you left out of yours; wasn't it?
17 COMMISSIONER LANGLEY: I do not claim any authorship
18 of this amendment. I think we're passing the sense of
19 that I certainly -- and we've discussed this with
20 Commissioner Sundberg. This certainly needs to be more
21 artfully drafted and I think the drafting committee can do
22 this. But the sense of it is to allow the counties, if
23 vote in 1990 to go to merit, then they can in '92 or
24 thereafter go back --
25 CHAIRMAN DOUGLASS: Us older people don't recognize
49
1 2000. We're still in 1990.
2 (Laughter.)
3 CHAIRMAN DOUGLASS: It's 2000 and 2002.
4 COMMISSIONER LANGLEY: Right, thank you.
5 CHAIRMAN DOUGLASS: All right. Everybody understand
6 this amendment? This amendment would change it from the
7 original amendment that was made and passed. So I'm not
8 sure how to treat this. This is an amendment to your
9 amendment really, which has already passed.
10 COMMISSIONER LANGLEY: Yes. It is an amendment to
11 the bill as amended is what it would amount to. But
12 basically it's another option is all it is. It doesn't
13 contradict, as I said when I explained the first
14 amendment, it doesn't contradict the first amendment, it
15 adds to it. It says not only can you opt in, you can opt
16 out.
17 CHAIRMAN DOUGLASS: Well, regardless of how we get
18 there, what this amendment does is allow, after they adopt
19 the provision for merit retention, that a county can opt
20 in or out after the year 2000 by getting 10 percent of the
21 people, electorate that voted in the last election on a
22 petition and then it will come up in the next election on
23 that issue. Is that correct, Commissioner Smith?
24 COMMISSIONER SMITH: That is correct. And let me
25 thank staff for trying to assist me with drafting this. I
50
1 was trying to keep up with the debate on the other motions
2 but I will be happy to be more precise in the drafting.
3 CHAIRMAN DOUGLASS: I presume Commissioner Barkdull
4 wants to ask you the same question that he asked
5 Commissioner Langley in which he said he was keeping his
6 options open.
7 COMMISSIONER BARKDULL: I don't have any questions
8 for Commissioner Smith, I think he's doing fine.
9 CHAIRMAN DOUGLASS: Very well. Anybody want to speak
10 in favor? Commissioner Evans.
11 COMMISSIONER EVANS: I have a question. This new
12 language, Commissioner Smith, could that in any way be
13 construed that the people have to take some kind of
14 action? If the people want to maintain the status quo,
15 maintain the current election system, do they have to take
16 some kind of action to opt in? I would like to think the
17 answer to that -- I mean to opt out. I would like to
18 think the answer to that is no, that they can maintain the
19 status quo by doing nothing.
20 COMMISSIONER SMITH: That's correct; that's correct.
21 CHAIRMAN DOUGLASS: Okay. Anybody else want to be
22 heard on this amendment? Commissioner Wetherington.
23 COMMISSIONER WETHERINGTON: I think it's an
24 improvement. I would support it.
25 CHAIRMAN DOUGLASS: Anybody else want to be heard?
51
1 Then we'll proceed to vote. This is to the proposal as
2 amended. Does everybody understand it? We'll go over it
3 again if you don't.
4 Wait a minute. I'm telling you we're on amendment
5 four. I already passed that. All in favor of amendment
6 four, the last one, say aye; opposed, like sign.
7 (Verbal vote taken.)
8 CHAIRMAN DOUGLASS: It carries. Now we'll vote on,
9 as you're already doing, on the motion to adopt the
10 proposal as amended. Anybody that doesn't understand it
11 now, let me hear from you. Commissioner Barkdull.
12 COMMISSIONER BARKDULL: Mr. Chairman, I think there
13 are people that want to debate this. As I understood,
14 Commissioner Wetherington was explaining what the proposal
15 did.
16 CHAIRMAN DOUGLASS: Close the machine. We'll start
17 over. Erase all those green things off and we'll have,
18 whoever wants to speak for this will have an opportunity
19 to do so. For the amendment -- I mean for the motion as
20 amended. Any proponents?
21 Any opponents? Commissioner Connor.
22 COMMISSIONER CONNOR: Yes, sir. Thank you,
23 Mr. Chairman. I appreciate very much the work
24 Commissioner Wetherington and the judicial committee did
25 on this issue. And certainly as far as I'm concerned this
52
1 kind of proposal, as amended, is the most acceptable form
2 in which this could be offered.
3 I rise however, Mr. Chairman, to oppose the proposal
4 because of my opposition to the merit retention system.
5 The effect of this amendment would in effect be to expand
6 the merit retention system for trial judges, both county
7 and circuit judges.
8 The basis for this kind of proposal in part is that
9 it would help depoliticize the process. I would suggest
10 to you for those who believe that merit retention
11 depoliticizes the process, that they are naive and
12 unfamiliar with the process. The effect of the merit
13 retention system, I would suggest to you, is to simply
14 concentrate political power in the hands of fewer people.
15 It has the tendency, rather than keeping the politics
16 above the ground, to drive the politics under the ground.
17 The people in whom political power becomes
18 concentrated, typically, are large law firms, contributors
19 to the Governor and the media. Because frankly the
20 appointing authority is typically more sensitive to the
21 media perspective regarding an appointment than the public
22 is, I would suggest, to an election.
23 The effect of merit retention has been that we have
24 not taken out of office a single judicial officer under
25 the process. I think there are very good reasons for
53
1 that. First of all, without an opponent running against a
2 particular judge, there is no one to sharpen the issues or
3 sharpen the concerns that may be involved with the
4 retention of a particular candidate.
5 Secondly, the voters don't know who will replace that
6 candidate. They simply have no idea who that would be.
7 And I would submit to you the public opts typically then
8 to dance with the devil they know than the one that they
9 don't.
10 So the effect of the merit retention system in our
11 state has been to ensure the perpetuation into office of
12 whomever is the beneficiary of the merit retention
13 process. And I would submit to you that it's not a
14 process that we ought to expand. I am not suggesting that
15 we contract it, I'm suggesting simply that we don't expand
16 it.
17 In closing, I would just make this observation from a
18 column from the St. Pete Times, which was authored by one
19 who is in support of the merit retention process who has
20 indicated the way in which this process can be abused.
21 And I would suggest to you it was abused in its worst form
22 in Palm Beach County.
23 With regard to the nominee from the judicial
24 nomination committee for a circuit judge proceeding, the
25 author made this observation, but Sachs, referring to the
54
1 nominee, but Sachs would be a dubious choice even if she
2 were qualified; she isn't. That's because her husband,
3 Boca Raton lawyer Peter S. Sachs, used his clout as a
4 member of The Florida Bar's Board of Governors to ensure
5 her nomination.
6 "Two of The Bar's three representatives on the
7 nine-member commission were his choices. One of the
8 Governor's three representatives, lawyer Ted Bovin
9 [phonetic], is a former chairman of the county's
10 Democratic party, whose candidates Peter Sachs has often
11 supported.
12 "Still another commission member belongs to a large
13 law firm that helped bankroll Maria Sachs when she ran
14 unsuccessfully for a county judgeship last year. Small
15 wonder then that the commission insisted on nominating
16 Mrs. Sachs even after she had been caught fudging her
17 trial experience."
18 I would submit to you, ladies and gentlemen, very
19 simply that we ought not to expand this process. It does
20 not depoliticize the process and, in fact, rather than
21 fostering a system of accountability, I would submit to
22 you, it provides an unhealthy insularity for judges who
23 ought not to be beyond the removal by the people. Thank
24 you.
25 CHAIRMAN DOUGLASS: Further debate? Commissioner
55
1 Brochin.
2 COMMISSIONER BROCHIN: I rise, too, to oppose this
3 proposal, but for different reasons than those expressed
4 by Commissioner Connor. I think the Constitution has some
5 very fundamental aspects to it. And the way you select
6 your executive branch, your legislative branch and your
7 judicial branch is perhaps the most fundamental purpose of
8 the Constitution.
9 And to write a Constitution that allows counties to
10 opt in and opt out, elect circuits, elect county court
11 judges, is not a uniform system in the state of Florida
12 that should be a part of our Constitution. I'm in favor
13 of merit retention. I think that's a positive thing to
14 do, not because it depoliticizes the system, in fact it
15 does not.
16 What it does do is it produces highly competent
17 judges in an effective way so the judicial branch can
18 perform its function. And it is not a representative body
19 of the people, but it is rather a protector of the
20 Constitution.
21 But nevertheless to write into our Constitution a
22 system that allows you to go to Dade County and appear
23 before an elected judge and then go 30 miles north and
24 appear before a judge that's subject to merit retention,
25 and then continue up the coast and maybe have county or
56
1 circuit court judges opted in or opted out, in my humble
2 estimation is not appropriate for our Constitution. We
3 should either have it done one way because what's good for
4 one county should be good for the other.
5 Trial judges affect the people of the state of
6 Florida. What a trial judge says in Leon County will
7 affect a court perhaps in Volusia County. And our
8 Constitution ought to be uniform in that respect, if
9 nothing else. So for different reasons I'll oppose this
10 and vote against it.
11 (Commissioner Thompson assumes the Chair.)
12 COMISSIONER THOMPSON: Commissioner Zack.
13 COMMISSIONER ZACK: I would like to elect the judges
14 who I appear before in Dade County. That by far would be
15 my choice. However, our concern here today when we look
16 at this question is how do we have the best possible
17 judiciary, whether in Dade County or Broward County or
18 Leon County. How do you have the best possible judge to
19 appear before?
20 And frankly, there are different issues that affect
21 Dade County -- and I'll only express my view regarding
22 Dade County because that's where I primarily practice --
23 and other parts of the state.
24 I don't know how many of you had the opportunity to
25 read a Miami Herald article a number of years ago, and I
57
1 highly recommend it to each of you, called the Jurist
2 Impurist. And I would like to talk to you about that
3 article and what was said in that article.
4 And I personally witnessed everything that appeared
5 in that article. I have had the privilege of serving on
6 the Judicial Nominating Commission in the 11th Circuit,
7 Dade County, which was the bottom up, and being special
8 counsel to Governor Graham, which is, I guess, the top
9 down when you receive the three names. And I can assure
10 you that everything that was discussed in the article is
11 absolutely correct.
12 What you have in Dade County is 100-plus judges who
13 appear on the ballot after numerous other local and state
14 races. There is little or no knowledge whatsoever about
15 who you're voting for. The way to get elected in Dade
16 County is to have a good name. And I don't mean a good
17 name based on your reputation as a fine lawyer or jurist.
18 I once wrote an article that you really don't need
19 any money whatsoever to run as judge in Dade County, you
20 just needed to change your name to Juanita Leavenhand Levy
21 because at that point you were assured to get a majority
22 of all votes in Dade County. Because people vote based on
23 a name that sounds vaguely familiar or that sounds like a
24 name that they grew up with, someone in their family, a
25 certain ethnic group. And this is how people are
58
1 selected. That's not how we should select our judges.
2 We need to select judges based on the quality of
3 their intellect, their ethics, their years of experience.
4 And I agree with Mr. Connor, there is no question that
5 there will be politics whenever three people get together.
6 There is no question in my mind that's the case.
7 However, the issue is where do we get the best
8 judges, in what type of format. And I was practicing in
9 Florida as all of you here, I think we're all that old,
10 when appellate judges were elected. And I look back at
11 the reputation of our appellate courts at the time that
12 all our appellate judges were elected. And I look at the
13 court system, the appellate court system today, and see a
14 vast, vast improvement. I don't think that can be
15 questioned by anybody in this room or outside this room
16 who honestly looks at the system.
17 And I consider the appellate rights that are decided
18 by those appellate judges at least as important, and
19 probably more important because they stand for principles
20 that are applied to all cases, than the decisions that are
21 made by trial judges. As Mr. Brochin discussed that it
22 was okay to continue on, Commissioner Brochin discussed,
23 it was all right to have appellate judges determined by
24 merit selection. Well, the same principles apply.
25 And I readily understand that there may be a
59
1 difference in different communities, counties, circuits
2 around the state where there is a small bar association
3 with one or two judges who, frankly, have to practice
4 together, who understand that their word is their bond,
5 who understand that they are constantly seeing each other,
6 case in and case out, and will for the rest of their
7 professional lives, compared to counties where you have
8 15-, 20,000 lawyers in one county. And you may never ever
9 know most of those lawyers who you come in contact with,
10 and certainly you rarely come in contact with most of them
11 more than one time.
12 In any event, it is not a perfect system. I would
13 prefer not to have to have a merit selection system. I
14 like electing judges. However, it just doesn't work in
15 Dade County. And we ought to have the option of
16 explaining that to the voters of Dade County and letting
17 them decide how to select the best possible judge.
18 COMISSIONER THOMPSON: Further debate; further
19 debate? Commissioner Nabors.
20 COMMISSIONER NABORS: Very quickly. I'd like to give
21 a perspective. I've served in a nominating commission at
22 every level, Supreme Court, circuit and trial. And
23 personally I like the merit retention process. My service
24 was positive, I served with commissioners that tried to do
25 the right thing, without political influence, tried to
60
1 send the right names up.
2 However, I think this is an example, and I hate to
3 disagree with my good friend Mr. Brochin, but I think this
4 is an example, and the other example, you have got to
5 recognize the diversity of this state. And we have got a
6 vastly different state in the Panhandle and various small
7 counties than we do in South Florida. I don't consider it
8 a constitutional compromise to recognize that through this
9 process.
10 What I might feel personally in terms of senatoring
11 the Constitutional merit selection, it doesn't bother me
12 that we allow local areas to make changes that are more
13 suitable to their areas. I don't consider this to be a
14 compromise in terms of any kind of Constitutional
15 structure. There are many times we are going to have to
16 recognize that there is areas of this state that are
17 dramatically diverse. We have an unusual state.
18 I travel the state probably as much as anybody in
19 this room and I see Holmes County, Calhoun County, Dade
20 County, Palm Beach County, Manatee County and I know each
21 area has its own personality. And this is a fundamental
22 choice that I don't see anything constitutionally
23 repugnant about allowing that choice to be made at the
24 local level. So I speak in support of the proposal.
25 COMISSIONER THOMPSON: Commissioner Evans.
61
1 COMMISSIONER EVANS: I speak in opposition to the
2 proposal for reasons that have not been expressed yet as
3 well as to address some of the concerns of Commissioner
4 Zack.
5 He spoke to the concern that in Dade County judges
6 are elected on the basis of name recognition because
7 primarily the people do not know the candidates. There is
8 a proposal that is in front of the commission to allow the
9 people to get to know the candidates; that is, to remove
10 the, in my opinion, unconstitutional gag rule. Our
11 Constitution does provide that every person may speak,
12 write and publish his sentiments on all subjects.
13 It additionally states that no law shall be passed to
14 restrain or abridge the liberty of speech. And the gag
15 rule has certainly indeed abridged the freedom of speech
16 of judicial candidates and it also does prevent the people
17 from having the knowledge.
18 Thomas Jefferson stated that if a nation expects to
19 be ignorant and free in a state of civilization it expects
20 what never was and never will be. He continued, I know of
21 no safe depository of the ultimate powers of the society
22 but the people themselves. And if we think they are not
23 enlightened enough to exercise their control with a
24 wholesome discretion, the remedy is not to take it away
25 from them but to inform their discretion by education.
62
1 This is the true corrective of abuses of Constitutional
2 powers.
3 So again, the answer to our problems with the people
4 not having knowledge is to allow the people to have
5 knowledge. It is not to take away from the people their
6 right to vote because they are not knowledgeable enough to
7 vote.
8 I am also reminded of a presentation to the education
9 committee by Mr. Dubois Ausley. I'm not able to recall
10 right now Mr. Ausley's position. Could you help me,
11 Commissioner Jennings?
12 COMMISSIONER JENNINGS: He was there as a member of
13 the Governor's Commission on Education on the governance
14 committee.
15 COMMISSIONER EVANS: Okay, a member of the Governor's
16 Commission on Education as a member of the governance
17 committee speaking to the education committee for the
18 revision commission.
19 And I can't quote exactly, but when asked why did we
20 need a constitutional amendment requiring the appointment
21 of all school superintendents, since we already have the
22 local option, his answer was that we need to make it
23 mandatory throughout the state because the people are not
24 giving up their right to vote voluntarily. So we have to
25 have people in certain parts of the state to force people
63
1 in other parts of the state to give it up.
2 So I can see the progression of thought. First, take
3 away the people's right to know the candidates by invoking
4 the gag rule. Second step, take away the elective choice
5 because they have a lack of knowledge. The third step
6 then is to make it mandatory in all counties and circuits
7 because the people aren't giving it up voluntarily. And
8 then the fourth step would be to take away all the
9 retention choice because, again, of the lack of knowledge.
10 The people still can't hear the judicial candidates
11 on a retention issue as to what their position is in their
12 private lives which definitely influences their position
13 in their public lives. The people have the right to know.
14 So let's not say that the answer to our problems in
15 Dade County is taking away the right to vote on a
16 county-by-county basis and open the door to future attacks
17 on the people. You have to remember the very first
18 sentence of the very first section of the very first
19 article in the Constitution is, "All political power is
20 inherent in the people." It is sad when the people are
21 not educated enough to exercise their political power, but
22 the option is not taking it away. Thank you.
23 CHAIRMAN DOUGLASS: I'd like to interrupt the debate
24 for just a moment. We have with us and going to be
25 presented to us the newest justice of the Florida Supreme
64
1 Court who was just appointed. And I don't know who it is,
2 I haven't seen her yet, so if you would bring her forward.
3 All right, everybody please rise, Justice Pariente.
4 (Applause.)
5 CHAIRMAN DOUGLASS: In just a moment I'll let her say
6 just a few words. But 20 years ago I don't think we would
7 have had a very attractive lady as our justice. What's
8 happened in the last 20 years has greatly improved our
9 system. And Justice Pariente has served on the Fourth
10 District Court of Appeal since 1993 and she comes to this
11 job extremely well qualified in many respects.
12 Justice Pariente, all of us here as you can see are
13 standing, are very pleased with your nomination and your
14 ascendancy to this office.
15 (Applause.)
16 JUSTICE PARIENTE: Please be seated. This is really
17 overwhelming because I got a call yesterday about quarter
18 of 4:00 from J. Hardin Peterson. And usually, for those
19 that know, when you get a call from J. Hardin Peterson
20 that means, you know, thumbs down because you get the call
21 from the Governor if it's, if you get appointed. And Jay
22 does the dirty work, as I guess Dexter did when he was in
23 that position.
24 But Jay said, no, don't think there is a problem, but
25 we need you up here tomorrow morning at 9:30 and it's not
65
1 for an announcement. So I assume that it's not for an
2 announcement. Then I start thinking, what could it be?
3 So I came up on minute's notice and the Governor
4 about I guess a half hour ago asked me if I would like to
5 serve. And then we went into a press conference. The
6 Governor had all these prepared remarks about the
7 appointment and then it got to the end and it said, Judge
8 Pariente remarks. And my remarks weren't written down.
9 So I got my first taste of what it's like to have a press
10 conference. And it was rather overwhelming.
11 Anyway, it's wonderful to be here and see so many
12 people, friends and colleagues that I know serving on this
13 important position. Justice Kogan, I definitely need to
14 speak with you. And it's very exciting and I thank you
15 for your ovation and I'm sure you have very important work
16 to get back to. Thank you.
17 (Applause.)
18 CHAIRMAN DOUGLASS: We were indeed honored to have us
19 be your first public appearance as justice. And she
20 immediately takes office as soon as Justice Kogan can
21 swear her in, I think is the case.
22 COMMISSIONER KOGAN: Actually when she goes upstairs
23 and signs the oath that's it.
24 CHAIRMAN DOUGLASS: So she will be it as soon as she
25 leaves here, then, I guess, assuming the secretary of
66
1 state is in today.
2 COMMISSIONER KOGAN: I won't touch that one.
3 (Laughter).
4 CHAIRMAN DOUGLASS: I'll relinquish the rostrum to
5 Mr. Thompson.
6 COMISSIONER THOMPSON: Continuing our debate on
7 Proposal No. 66. Commissioner Smith, you're recognized.
8 COMMISSIONER SMITH: Thank you, Mr. Chairman.
9 Believing as I do, Article I, Section 1 of the Florida
10 Constitution, that all rights are in fact reserved to the
11 people, that is the reason why I wholeheartedly support
12 this proposal.
13 If you would look at the minutes of the Article V
14 commission proceedings, I think you would agree no
15 individual and no organization opposed merit selection and
16 retention more than I did as an individual and the
17 National Bar Association did as an organization. But I am
18 not here for the purpose of representing H. T. Smith's
19 views. I'm here to try to make a Constitution better for
20 the people of the Florida over the next 20 years.
21 And I wholeheartedly embrace as a philosophy the
22 statement made by my dear friend, Commissioner Morsani, if
23 we believe the Constitution should be a living document
24 and being a descendent of slaves and knowing that slavery
25 was both a part of the federal Constitution and the
67
1 Florida Constitution, I am proud of the fact that our
2 Constitution is alive and vibrant and has a flexibility to
3 one day say, I'm a slave and the next day say, I'm a free
4 man, with the same words being in the Constitution. That
5 was that I was property. So I believe that we definitely
6 should have flexibility in the Constitution.
7 Secondly, it always gives me pause when I find myself
8 on the other side of a thoughtful, insightful
9 knowledgeable person like Bobby Brochin who is very, very
10 sincere. And he says, and I agree, that we can find
11 ourselves in a situation where, for instance, I'm
12 practicing before an elected judge in Dade County and an
13 appointed judge in Broward County.
14 But I point out to my dear friend that I do that
15 every day now in Dade County. I appear before judges who
16 are appointed by the Governor and that same day I go to
17 another judge who ran for election. So I am not that
18 worried about having that problem inter-county when I
19 already have it intra-county and intra-circuit.
20 Thirdly, I oppose merit selection on behalf of the
21 National Bar Association for many of the reasons expressed
22 by my friend, Mr. Connor. Having been a part of a group
23 that very rarely was in the meeting before the meeting
24 which was really the meeting, I am always a little
25 concerned about these nine-member group meetings.
68
1 But the difference that I come to from my good friend
2 Mr. Connor is I don't think it's my prerogative, in terms
3 of discharging my duty on this commission, to push my idea
4 about what I think is best to the people of Clay County,
5 Hillsborough County, Monroe County.
6 And I find myself agreeing with Commissioner Evans
7 but coming up with a different conclusion. And that is,
8 let the people decide. How -- what more democracy can you
9 have than to say, for your branch of government, the
10 judiciary, that you will decide, you will decide how to
11 select the people who will decide the important judicial
12 issues and the important legal issues that affect your
13 lives. This, I believe, will be one of the most important
14 issues that will go before the voters if we approve it.
15 And those who support merit selection and those who
16 support election of judges can say, I can support this
17 because this gives me, this gives us, the people of
18 Florida, the opportunity to make a decision on what we
19 want, not the 37, quote, eggheads, end quote, not The
20 Florida Bar, not the big law firms, not the people who are
21 in the room, but the people of the state of Florida.
22 I urge you in the strongest possible terms to give
23 this decision to the people of Florida by supporting
24 Proposal 66 as amended.
25 COMISSIONER THOMPSON: Further debate; further
69
1 debate? Commissioner Douglass, you are recognized.
2 CHAIRMAN DOUGLASS: Mr. Chairman, members of the
3 commission, in 1978 I made almost the same speech that
4 Commissioner Connor made, sitting almost in the same seat.
5 And I lost, and it went to the ballot. I wrote articles
6 favoring the election of judges, trial judges in The Bar
7 Journal and anywhere else they would print them because I
8 was convinced at that time that that was the way to go.
9 I must admit I was looking at it from the standpoint
10 of a state of a different makeup, a state of a different
11 population, more from a provincial view of a small-town
12 boy who grew up in Florida, which I think Mr. Connor or
13 Commissioner Connor shares with me. If you have that
14 background you tend to want everybody elected because you
15 remember when everybody knew who the people were that were
16 involved in the election and you voted for them on the
17 basis of personal knowledge.
18 Times have changed in the 68 years that I've lived
19 and the 43 years that I practiced law. They have changed
20 so dramatically in the number of lawyers that now pervade
21 our society. They have changed dramatically in the number
22 of judges that are now on the bench. When I started
23 practicing law, and I hate to refer back to history, in
24 1955 I knew the name of every judge in Florida, circuit
25 judge and county judge, the day I got out of law school.
70
1 And the Supreme Court was the only appellate court
2 and you had a right of appeal in every case from the
3 circuit court directly to the Supreme Court. I made my
4 mark at the law firm, which was a big law firm at the time
5 of five people, Caldwell, Parker, Foster and Wiggington.
6 I was the fifth one who replaced Mallory Horne who was
7 making $160 a month, and I made 250 a month. And Mallory
8 has never forgiven me for that.
9 But in any event, what I'm trying to say to you is
10 that we are now living in a different state, with
11 different people, with a large, huge population. And our
12 system of justice, if it is to survive, has got to be
13 free, free from the whims as described by Commissioner
14 Zack. Free from the influence of lawyers and large firms,
15 small firms and otherwise when you have a partisan
16 election. It so much greater than it is under the merit
17 retention system that you can't imagine it.
18 If you are appearing before a judge or have an
19 opportunity to think you're going to appear before a judge
20 and you're a lawyer and his man calls you up and asks for
21 $250, you send it. And I can assure you in retention
22 elections that's not the case. I can assure you, however,
23 that that creates in the eyes of the public the concept
24 that the lawyers who contributed that money will receive
25 favoritism when they go before that judge. I like to
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1 think they don't, but most people believe otherwise.
2 And I think that it's important that we address this
3 problem on the trial level where it's more important than
4 it is even on the appellate level where we now have it and
5 it has worked so well.
6 I wish to also, Commissioner Connor, tell you that I
7 am probably more familiar with the Palm Beach situation
8 than the fellow who wrote the article. I was involved in
9 it, and I appointed a special committee, at the request of
10 the Governor, headed by the most respected judges and
11 chaired by one of the most respected lawyers in the state
12 to look into that. And what you described is not exactly
13 what happened.
14 And what came out of it, however, was a full public
15 airing of the Judicial Nominating Commission. And it
16 resulted in the next time someone came up for appointment
17 to that commission, there were 50 applicants to serve,
18 when in some circuits we couldn't even get people to apply
19 to serve on the JNC. So it was eliminated. And it
20 resulted in a great improvement in all of the JNCs in
21 South Florida, primarily because it was publicly aired and
22 commented on by the press.
23 The lady that you talked about was not appointed.
24 The lady that you think was created a position for by the
25 JNC didn't make it. She was not the best qualified person
72
1 on the list. One of the people on that list was a
2 Republican who had supported the Governor's opponent, not
3 only vociferously, but with money. And so it was assumed
4 by the press that he would never appoint this man. There
5 is one thing they overlooked about him, he was an
6 outstanding human being and a great lawyer.
7 There was no doubt from day one when we went over
8 that list that he was the person on that list that was
9 best qualified to be a circuit judge. Among other things
10 he was a Hispanic and that was not exactly a household
11 thing to do in Palm Beach County as well. It is now
12 because the Governor selected, as he should have, that
13 person to be the circuit judge. That person probably
14 would have never been a circuit judge under an elected
15 process. He was by far the best qualified person.
16 The reason I give you that is because I didn't want
17 to leave that subject unanswered to tell you what really
18 happened, the rest of the story. What happened in that
19 instance was the selection of a judge that I'm very proud
20 to have been involved with the Governor in considering and
21 making that selection.
22 I sort of agree with Commissioner Brochin's approach
23 to this. I would prefer to have in the Constitution the
24 absolute requirement that all judges are selected in this
25 manner. But I recognize that the Constitution should
73
1 leave the leeway at least for those circuits in small
2 counties that want to opt out to opt out.
3 I have always supported the proposition that in small
4 counties, rural counties, they need a county judge, they
5 need a resident county judge. They need one that comes
6 from there, that sits there, that drinks coffee with them,
7 that goes to the functions in these small towns and
8 counties. It's the one place in America where you really
9 do have the contact with your public officials on a daily
10 basis. And I've always supported that concept. And I
11 think this leaves that available to those small counties
12 to do that, to continue to elect those judges.
13 I can also tell you that we would not, in all
14 probability, have the African-Americans that are serving
15 on the bench on the bench unless we had a merit selection
16 type process. I think all or most all, nearly all of the
17 African-Americans, great distinguished judges in this
18 state, were selected by merit retention that's almost true
19 and it was -- it's not any more but it was originally for
20 women to go to the bench. It took merit retention.
21 The only weakness in this system, if there is one, is
22 the selection of the Judicial Nominating Commissions. And
23 I found, however, that that works pretty well too. You
24 have three from The Bar and you have three from the
25 Governor and then those six select the other three.
74
1 And consequently, you do wind up with a rather
2 diverse group. Part of it is dependent on The Bar and the
3 Governor making appointments of diversity to increase the
4 numbers of minorities that serve on these commissions and
5 that has been done. And as a result, our judiciary has
6 been greatly improved.
7 The idea that you get somebody to run against a
8 sitting judge is very, very tenuous, if it at all is true.
9 A sitting judge never draws an opponent. We had a sitting
10 judge to my knowledge who the JNC found had stolen money,
11 had committed perjury. And the Supreme Court, rather than
12 removing him from the bench said that it occurred so long
13 ago, the theft, that it was not -- he had reformed and was
14 doing okay and that the perjury charge, he was not made
15 aware of it because it was perjury in the proceeding
16 before the JNC and therefore they gave him a reprimand.
17 He had no opponent when he came up for reelection.
18 One of the reasons was that 100 or more members of The Bar
19 signed a petition saying, you know, we like him and he
20 works hard and don't get rid of him. And I think anybody
21 that would have chosen to run, although they probably
22 would have won even though he had the support of the local
23 newspaper, that he would probably still have won.
24 Now that would not have occurred under merit
25 retention. He would have never been on the bench. He was
75
1 elected in the first instance. And the statistics show
2 that of those who have been removed from the bench by the
3 JNC 70 percent or 72 percent first got there by election.
4 And I'm not sure my figures are exactly right, but it is
5 three-fourths approximately. And I think Commissioner
6 Kogan can probably verify that. I've seen that published
7 in several places.
8 My point, and the reason I left the chair, was that I
9 think if we don't do anything else in the judicial system,
10 if we don't offer to the people the right or the ability
11 to vote on this type of a selection process for judges, I
12 fear we will have not met the challenge that we were given
13 when we were appointed to this commission.
14 And therefore I leave the chair to come to ask you,
15 each of you, to search your hearts and try to do something
16 to allow the people to have the opportunity to do what I
17 believe and many others believe would improve and make our
18 judiciary a much, much better and fairer way for people to
19 receive justice. After all, that's all the courts are for
20 is to attempt to, and I say attempt because it's not a
21 pure science always, if they can, to render justice to the
22 citizens, both those that are before them and those that
23 are not.
24 I therefore ask you to avoid the demagoguery that I
25 did in '78. And I made some pretty tough speeches around
76
1 that I'm having to backtrack on after I got older and
2 wiser, but to follow what is the correct course, which is
3 to allow the people to select and make a merit retention
4 system.
5 And I will add that without Commissioner Langley's
6 amendment leaving this opt out and opt in provision, I
7 might have had some difficulty making this call. With it
8 in there, I think it is as perfect a provision as we can
9 send to the public for their vote and I urge you to vote
10 for it.
11 COMISSIONER THOMPSON: Further debate? Further
12 debate, Commissioner Morsani.
13 COMMISSIONER MORSANI: It is certainly enjoyable
14 hearing all my learned colleagues, if I may call you
15 colleagues here this morning, especially you in the
16 judiciary, and I think that Chairman Douglass, all of you
17 have been very eloquent in your positions, both pro and
18 con.
19 As a -- and you all know my position has been pretty
20 clear. But I thought due to the fact that all of you-all
21 of the legal persuasion that I should again speak as a
22 commoner in these halls, and that is that in large
23 counties, if you would, that we don't know who the judges
24 are, who is running for judge.
25 And as Commissioner Zack has said, there are hundreds
77
1 on the ballot. We don't -- no matter how much we want to
2 educate the public, they are not educated, unfortunately,
3 and they do not know who they are voting for for judges.
4 And that's a terrible sin on our part, but it's reality.
5 So if we as a body are to use our vision and our
6 wisdom and I think wisdom, the definition of wisdom, is to
7 be able to see the results of your decisions in the
8 future, that we who are asked to serve on this commission
9 today are supposed to use our vision and wisdom to where
10 we are going for the next 20 years. So I strongly urge
11 your support, I am not on the judiciary committee, but I
12 strongly urge your support for this. I think it is the
13 right thing for our state, I think it's the right thing
14 for the times.
15 And just the other day in Pinellas and Hillsborough
16 County, and maybe some of you saw it and I'm sure there
17 was a state -- when we look at the number of people in
18 Hillsborough County as an example and Pinellas County, in
19 Hillsborough County, less than 50 percent of the people
20 that are residents of Hillsborough County were from
21 Florida. In Pinellas County, less than 75 percent of the
22 people are from Hillsborough -- from Pinellas County or
23 from the state of Florida.
24 This is a trend all over our state. People,
25 unfortunately the breakdown we have in communities because
78
1 of the dynamic growth are creating these differences
2 within our state and within our communities. And we have
3 the responsibility to address them. I strongly urge your
4 support for this change. I think it is positive, and I
5 believe we'd be doing a disservice to our citizenry if we
6 don't enact this. Thank you very much.
7 COMISSIONER THOMPSON: Further debate, Commissioner
8 Barton.
9 COMMISSIONER BARTON: Yes, I rise in opposition to
10 Proposal 66. In this room of two-thirds lawyers, it's
11 probably not the most popular position to have. However,
12 I would like to remind all present that out in the real
13 world, two-thirds of the people are not lawyers.
14 Regarding the election of circuit and county judges,
15 other than in isolated incidences, or only one county I
16 heard of spoken here today, the problems that are
17 mentioned don't seem incumbent in most of the counties in
18 our state and I wonder why we're changing a process that
19 we've had for a long time to accommodate one county or a
20 few urban areas.
21 Also, we entrust to our voters the right to elect at
22 county and district levels a number of people, including
23 state representatives, state senators, county
24 commissioners, school boards, constitutional officers and
25 more. I would raise the question that I believe that most
79
1 voters believe that they are quite capable of doing this
2 job and have done it quite well throughout a number of
3 years. And they are able to elect the judges in their
4 local areas because in most cases they know them or they
5 can learn to know them.
6 I would also mention that we have the ability to
7 reelect or unelect, if you will, every four or six years
8 those judges. And in all deference to our chairman, we
9 just did that in our county a few years ago. I was
10 campaign manager for the judge who was successful in
11 unseating the judge who had been there 20 years.
12 The elective process is quite unique. What it allows
13 is for us to meet the people who will serve us. And I
14 think that's particularly important in cases of judges
15 where they can come down from the bench, if you will, and
16 they can interact with the people, which they don't really
17 get to do in their courtroom. Most of us don't go before
18 the judges who serve in our communities.
19 Finally, I believe that people are angry about losing
20 their rights, about being disenfranchised for the ability
21 to vote, particularly the ability to vote. For it is the
22 most fundamental and basic right that we have. And once
23 you have lost the ability to vote for somebody, you will
24 never, likely, regain that ability. I would not give it
25 up, in any case.
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1 We live in a nation whose founding document begins
2 with the words, We the People. I urge all of you to
3 listen to We the People and allow us to retain the rights
4 that we have been given. Thank you.
5 COMISSIONER THOMPSON: Further debate, Commissioner
6 Evans.
7 COMMISSIONER EVANS: I'd like to respond to the
8 fundraising question that Commissioner Douglass raised.
9 He said if we went to the retention system that we would
10 not have judges approaching lawyers asking for money and
11 with or without the veiled threat that if they do not give
12 it, they will have adverse holdings against their clients.
13 First of all, fundraising problems will not be
14 resolved with retention. A judge will have to have a very
15 well-funded bank account well in advance of his retention.
16 He will have to wage a campaign against organized groups
17 as well as against the media. The media will wage a
18 campaign with unlimited resources, if the sitting judge
19 does not or has not promoted the social agenda of the news
20 media. If I were a judge I would certainly much rather
21 face a definite person in an election campaign than face
22 the media with all of its resources.
23 As far as the statistics on the JQC taking discipline
24 action are concerned, I can't help but wonder how many
25 occasions of misconduct does the JQC choose not to pursue.
81
1 For instance, the gentleman in Miami who said that he was
2 certainly threatened by a sitting judge if he did not give
3 a monetary contribution. I wonder, did the JQC take
4 action? I wonder, did the people ask the Legislature to
5 impeach the judge for this misconduct?
6 I suspect there are a lot of people who do not even
7 know that the Legislature has the impeachment power, but
8 rather they wait for JQC. Did the JQC act on this person?
9 And if not, why not? What must be done to make the JQC
10 act in instances of misconduct, especially if the JQC is a
11 proponent of this judge, rather than an opponent of this
12 judge.
13 Did the JQC, for instance, act against the Supreme
14 Court when it passed the gag rule, unconstitutionally
15 passed the gag rule. I think I know the answer to that
16 one. So I don't know that the statistics are valid. I
17 don't know that we have statistics available on how many
18 times the JQC chooses not to act. We only have the
19 statistics on how many times they choose to act and I
20 wonder if the statistics are skewed.
21 So just keep in mind those other two instances. I
22 think that we have to be fully informed on all the issues
23 in order to make the decision.
24 COMISSIONER THOMPSON: Further debate? Further
25 debate? Commissioner Connor, for what purpose?
82
1 COMMISSIONER CONNOR: I'd like to reply to
2 Commissioner Douglass' remarks, if I may, Mr. Chairman.
3 COMISSIONER THOMPSON: I'm going to let everybody
4 talk all you want to, but I'm afraid you're supposed to
5 debate a measure but one time. Nobody has called a point
6 of order, but --
7 COMMISSIONER CONNOR: I don't want to act in a manner
8 out of order.
9 COMISSIONER THOMPSON: No, go ahead. I think unless
10 somebody raises a point of order, but we need to be
11 cautious about that as we proceed.
12 COMMISSIONER CONNOR: I'll be brief and cautious,
13 Mr. Chairman, if I may.
14 With respect to -- Chairman Douglass has registered a
15 concern, appropriately so, about contributions by lawyers
16 to judicial candidates and the power that that creates in
17 those people. I would suggest to you that you wind up
18 concentrating even more power in the hands of a member who
19 sits on a Judicial Nominating Commission or who can
20 influence the decision of the Judicial Nominating
21 Commission much more so than a lawyer who makes a
22 contribution.
23 However, I would suggest to you that in line with
24 what Ms. Evans has suggested, that to the extent that
25 there are matters that need correction I would suggest
83
1 that changing that gag rule was one and also eliminating
2 contributions by lawyers would be less radical than
3 stripping the public of the right to decide who will sit
4 in judgment over them.
5 And then finally I would simply make the observation
6 that as I understand it there are about eight times the
7 number of judges who sit on the bench who are elected than
8 there are who are appointed. And when one takes into
9 account the number of disciplinary proceedings and
10 compares the number who are elected and who are appointed,
11 I think it is important to keep that ratio in mind because
12 I think perhaps you'll find that the numbers are not
13 skewed as badly as some would have you believe.
14 Thank you, Mr. Chairman.
15 COMISSIONER THOMPSON: Further debate? Commissioner
16 Langley.
17 COMMISSIONER LANGLEY: I'd just like a few minutes to
18 promote this bill, this proposal, and speak in favor of
19 it. And it may seem somewhat inconsistent because I think
20 the next thing on our docket is my proposal that says all
21 judges should be elected.
22 And in a perfect world, if you go back to the Old
23 Testament, the judges, you know, were just anointed and
24 God got out of that business I guess because we don't have
25 that anymore. So we leave it to the fallacies of the
84
1 people to somehow come up with these judges of the people.
2 In a perfect world we wouldn't have these problems.
3 I think that the biggest problems with elected judges is
4 in the financing of the elections. And in my proposal
5 following it says that all the judicial elections would be
6 financed by the people, and not by individuals. But
7 anyway that's another thing.
8 And there's a lot of movement up here for total merit
9 selection, there is a lot of movement up here for total
10 election of judges. I think this is a good compromise
11 because it protects those people who truly believe they
12 should elect their judges, and it gives the people of
13 let's say Dade County, if I may, it gives them a choice of
14 solving what is perceived to be a big problem in the
15 selection or election of their judges.
16 You know, the people of Dade County may say, we like
17 it the way it is. And, frankly, I predict that they will.
18 And that's Dade County and that's their problem. But it
19 still allows Wakulla County and Franklin County and the
20 other counties to keep electing their judges if they want
21 to. I think it's the best we're going to get out of this
22 and I plan to support it, but I also plan to support
23 electing all of them.
24 COMISSIONER THOMPSON: Further debate? Commissioner
25 Wetherington to close.
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1 COMMISSIONER WETHERINGTON: I'll yield to
2 Commissioner Douglass.
3 COMISSIONER THOMPSON: The gentleman yields to
4 Commissioner Douglass.
5 CHAIRMAN DOUGLASS: I think Commissioner Langley just
6 said what I would have said in closing, which is, we're
7 not passing this, Commissioners. What we're doing is
8 giving the people the opportunity to vote on this.
9 Because what we do here, as he's pointed out before, we
10 don't do these things as a commission, we put before them
11 our best effort to have them vote on things that if they
12 do pass we believe will improve the Constitution and will
13 improve our administration of justice in this case.
14 So if the people are in fact concerned enough and
15 they don't want to accept the merit retention system
16 that's being offered, they have the opportunity to opt out
17 on the county level and on the circuit level, but they
18 also have the opportunity to see that their judges are
19 selected in a much more, I think, efficient and proper
20 manner where you get the best people to serve.
21 The fallacy that most judges are elected is a
22 fallacy. Having sat in the Governor's Office, most judges
23 that are sitting were originally appointed when there was
24 a vacancy that occurred. And then an election occurs and
25 very few of them received opposition. When you see 36
86
1 people apply for a county judgeship in Leon County
2 recently, yet when there was an election only four ran,
3 the choice and the wide diversity of the candidates is so
4 much of an advantage to the general public when the
5 selection is finally made that I think we should offer to
6 the public the opportunity to vote on this very important
7 issue in the form in which it has been amended and is now
8 before you. And I urge you to vote yes.
9 COMISSIONER THOMPSON: So the question recurs on
10 passage of Proposal No. 66 as amended. The clerk will
11 unlock the machine and the members will proceed to vote.
12 Have all members voted? All members have voted. The
13 clerk will lock the machine and announce the vote.
14 READING CLERK: 28 yeas and four nays, Mr. Chairman.
15 COMISSIONER THOMPSON: So the measure passes.
16 Mr. Chairman, do you want to -- pardon me? Okay, I
17 announce that Senator Scott's button didn't work. Which
18 way did you vote?
19 COMMISSIONER SCOTT: Yes.
20 COMISSIONER THOMPSON: That makes 29. So the measure
21 passes.
22 CHAIRMAN DOUGLASS: Thank you, Commissioner Thompson.
23 Announcement, the lunch break, we are going to take lunch.
24 We are going to take a 30-minute break at 12:00. The
25 lunch is here, it's in the back, it's not gourmet, but
87
1 it's within your $6 state allowance. So it will be back
2 there. We're going to try to take a 30-minute break at 12
3 and then we'll be back in at 12:30.
4 And we'll proceed now to the next item on the
5 calendar, if I can find it. Now we'll take up Proposal
6 No. 61. Will the clerk please read it?
7 READING CLERK: Proposal 61, proposal to revise
8 Article V, Sections 10 and 11, Florida Constitution,
9 providing for circuit and county judges to be subject to a
10 vote of retention rather than running for reelection.
11 CHAIRMAN DOUGLASS: That's offered by -- well, it's
12 been disapproved by the committee. Commissioner
13 Wetherington, would you want to yield to the person who
14 introduced that to present it or would you like to present
15 it?
16 COMMISSIONER WETHERINGTON: I think I'm the person
17 that presented it, introduced it.
18 CHAIRMAN DOUGLASS: All right, sir.
19 COMMISSIONER WETHERINGTON: In light of the --
20 CHAIRMAN DOUGLASS: Just a minute. Do you have a
21 point of order?
22 COMMISSIONER BROCHIN: I think so.
23 CHAIRMAN DOUGLASS: Point of something.
24 COMMISSIONER BROCHIN: I'll tell you what it is and
25 you can tell me if it's a point of order.
88
1 CHAIRMAN DOUGLASS: Okay.
2 COMMISSIONER BROCHIN: I've asked for an amendment to
3 be prepared for Proposal 61, which they're doing right
4 now. So perhaps I could ask that it be passed just
5 momentarily until the amendment is drafted.
6 CHAIRMAN DOUGLASS: Any objection? Without objection
7 we'll pass it and go to the next one at the moment,
8 Proposal 74. Will the clerk read 74.
9 READING CLERK: Proposal 74, a proposal to revise
10 Article V, Section 10, Florida Constitution, providing for
11 the election of justices of the Supreme Court and judges
12 of the District Court of Appeal; providing for public
13 financing for judicial elections.
14 CHAIRMAN DOUGLASS: Now, Commissioner Wetherington,
15 that's the one you want to yield to Commissioner Langley
16 on. Commissioner Langley, on No. 74 which you've already
17 put us on notice of.
18 COMMISSIONER LANGLEY: I -- thank you, Mr. Chairman.
19 This does what I just talked about imposing on the other
20 bill and this makes all judicial officers elected. But I
21 really would not believe in that unless it also did not
22 have with it the provision about public financing of all
23 judicial elections.
24 What I propose, and it would be left up to the
25 Legislature to make the actual details, laws, rules or
89
1 regulations pertaining to it, but what would be proposed
2 was that there would an equal allocation of public TV
3 time, there would be an equal allocation of editorial type
4 question/answers by the commissions and that nobody would
5 be out there raising tons and tons of money, no lawyers
6 would be contributing to their election and no special
7 interests would be involved in their election. I think
8 this is the way to deal with our judicial problems.
9 And if -- you know, again, who knows until we try it
10 whether or not it is going to be the perfect answer. But
11 I certainly think when you hear about these elections it
12 all boils down to money, and the bad aspects of
13 contributing lawyers and special interests as well as the
14 ungodly sums that are spent. You know, in Dade County I
15 understand up to three-quarters of a million dollars was
16 spent to obtain an office that pays 103 or 105 or
17 something like that.
18 So this is just a -- it may not be the panacea, but
19 it certainly is, I think, an answer to those problems and
20 ought to be available to the people to say, let's do that.
21 CHAIRMAN DOUGLASS: Commissioner Barnett.
22 COMMISSIONER BARNETT: Thank you, Mr. Chairman. I
23 talked briefly with Commissioner Langley. And the part of
24 his proposal that I think we should give more
25 consideration to is indeed what he just talked about and
90
1 that is the public financing of judicial elections.
2 I do not support the other part of his proposal,
3 which is the election of judges. But in light of the
4 action that we've taken on the prior position, I would
5 like to move, and I think with his concurrence, that we
6 amend this proposal to delete all of the language up to
7 paragraph B on Page 2, Line 13. And that would retain
8 within this proposal the provisions relating to public
9 finance so that we can focus on that issue, that issue
10 alone without the discussion that goes with election.
11 CHAIRMAN DOUGLASS: Commissioner Barnett, you may not
12 be aware but there is a proposal dealing with public
13 financing of elections which would be the vehicle I would
14 think this would be attached to or debated when it comes
15 up. And that is not on special order now, but you can
16 certainly, you and Commissioner Langley, can make sure
17 that that's involved. And it may be the only thing that
18 passes out of public financing proposal.
19 The reason I'm aware of that is I introduced it, it's
20 the only one I've introduced. I tried introducing one and
21 it was defeated seven to nothing in committee. So I tried
22 this one.
23 But in any event, I would appreciate it very much if
24 we could reserve that for a more full discussion on public
25 financing. And I think Commissioner Connor is going to
91
1 join me in that proposal.
2 COMMISSIONER BARNETT: Mr. Chairman, if I might for a
3 minute. Perhaps it would be a good idea to go ahead and
4 amend this proposal by deleting the language I referred to
5 and then you may want to defer this proposal to that
6 committee so that the language on public financing of
7 judiciary is actually before the committee.
8 CHAIRMAN DOUGLASS: I accept that, as long as it's
9 going to be referred for consideration with the whole
10 subject, that's correct.
11 COMMISSIONER BARNETT: And I endorse that. I think
12 that this subject deserves a full debate of the issues.
13 CHAIRMAN DOUGLASS: So you've got to put an amendment
14 on the table, I guess. It's being drafted at the moment.
15 Commissioner Langley, do you want to respond to that?
16 COMMISSIONER LANGLEY: If you all are through messing
17 up my proposal.
18 CHAIRMAN DOUGLASS: We tried.
19 COMMISSIONER LANGLEY: I don't want the first without
20 the -- I don't want the first provision; i.e, election,
21 without the financing. So if it's the Chair's decision to
22 put off the issue of financing, then I would move to
23 temporarily pass this.
24 CHAIRMAN DOUGLASS: It's not my decision. There is
25 an amendment made by Commissioner Barnett to delete
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1 everything except the provision for public financing of
2 elections. And that's what's before the house, the body.
3 COMMISSIONER LANGLEY: Mr. Chairman, my only problem
4 with that is I don't want to get this married to bunch of
5 other election financing.
6 CHAIRMAN DOUGLASS: So you rise in opposition to her
7 amendment?
8 COMMISSIONER LANGLEY: No, I just want to remain pure
9 in the judicial financing elections and no others.
10 CHAIRMAN DOUGLASS: So you favor her amendment?
11 COMMISSIONER LANGLEY: I'm thinking. I will not
12 oppose her amendment to my bill, but I don't want my bill
13 married to a bunch of other public office financing.
14 CHAIRMAN DOUGLASS: It wouldn't necessarily be
15 married to it, but the consideration would come in
16 committee, which it has not.
17 COMMISSIONER LANGLEY: May I suggest this, if
18 Commissioner Barnett would agree. I would move so that we
19 temporarily pass this bill and then it will be available
20 later when we take up the vote.
21 CHAIRMAN DOUGLASS: Would you object then if this
22 bill, or this proposal rather in its form that you have it
23 before the body, you withdraw it with the understanding
24 that the whole thing would be assigned to the ethics and
25 elections committee?
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1 COMMISSIONER LANGLEY: I think the motion would be I
2 move the rules be waived and this proposal be referred to
3 ethics and elections committee.
4 CHAIRMAN DOUGLASS: All in favor of Commissioner
5 Langley's proposal say aye; no.
6 (Verbal vote taken.)
7 CHAIRMAN DOUGLASS: Motion carries. Okay. We move
8 to 115, Proposal 115. Read it.
9 READING CLERK: Proposal 115, a proposal to revise
10 Article V, Section 10, Florida Constitution, prohibiting
11 judicial candidates from soliciting and accepting campaign
12 contributions from members of The Florida Bar.
13 CHAIRMAN DOUGLASS: Commissioner Wetherington, this
14 comes out of your committee but it was proposed by
15 Commissioner Corr. Would you like to make your
16 presentation, Commissioner? Commissioner Kogan.
17 COMMISSIONER KOGAN: It came before our elections and
18 ethics committee yesterday and we considered it yesterday
19 and it came out with an unfavorable recommendation. I
20 understand it's also in front of the judiciary committee
21 so I don't know how you want to handle that.
22 CHAIRMAN DOUGLASS: It's on the calendar from the
23 judiciary committee and it comes with an unfavorable --
24 disapproved by the committee on ethics and elections. It
25 comes out of elections and ethics, you're absolutely
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1 right. I'm sorry, but it doesn't go to judiciary.
2 COMMISSIONER KOGAN: They don't have it.
3 CHAIRMAN DOUGLASS: That's correct.
4 COMMISSIONER KOGAN: Okay. All right.
5 CHAIRMAN DOUGLASS: And it's Commissioner Corr's
6 bill. Do you yield to him?
7 COMMISSIONER KOGAN: I yield to him to proceed.
8 CHAIRMAN DOUGLASS: You're telling us that your
9 committee disapproved this bill?
10 COMMISSIONER KOGAN: Right. Commissioner.
11 COMMISSIONER CORR: Thank you, Mr. Chairman. That is
12 correct. The proposal was in front of both committees, it
13 was disapproved by the committee on ethics and elections
14 and then was in front of the judiciary which told me at
15 the time that it was referred there by mistake.
16 Is it in order at this time to go ahead and discuss
17 it? What this does is prohibit judicial candidates from
18 accepting campaign contributions from lawyers that may
19 appear before them. In presenting this yesterday, I was
20 saying that at least 50 percent of the contributions made
21 to judicial candidates came from lawyers. Hearing debate
22 this morning and hearing it yesterday, I realize that that
23 is even higher, maybe 90 percent or more.
24 There is good reason to worry about, we've heard
25 about this all morning, the actuality of appearance of
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1 bias in the courtroom as a result of this. As one judge
2 admitted during our public hearings, where the necessary
3 campaign funds come from is always in the back of my mind.
4 Obviously one of the major initiatives that we just
5 passed will move in the direction of doing away with
6 judicial elections altogether. But this has still a lot
7 of hurdles in front of it when it ultimately goes to the
8 voters. Asking voters to give up a right they already
9 have obviously in 1978 approved, may be something that
10 will never happen. And then the view of voters that an
11 appointed system is just dominated by major law firms or
12 the media as another issue.
13 So in the event that initiative does not pass, going
14 to this election reform potential for judicial candidates,
15 then we may have at least one step in the right direction
16 if we were to pass this proposal. Basically what we end
17 up with is a system that retained elections of judges, but
18 would not have contributions coming from lawyers that may
19 appear before them. It keeps the judges accountable to
20 the electorate, it solves the issue or at least solves
21 some of the issues with the potential for influence or
22 bias in the courtroom and arguably has a better chance of
23 passing and providing the needed reform that we heard
24 during our public hearing process. Thank you,
25 Mr. Chairman.
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1 CHAIRMAN DOUGLASS: First of all, does anybody have
2 any questions? Commissioner Langley. Do you yield,
3 Commissioner Corr? He does.
4 COMMISSIONER LANGLEY: Commissioner Corr, a question.
5 If they don't get it from lawyers, and 90 percent of the
6 campaign contributions are from lawyers, who's going to
7 finance the campaigns? And as a question in conjunction
8 with that, would this not just render the rich able to run
9 for this office?
10 COMMISSIONER CORR: That is a point that was brought
11 up in committee. I think it's a valid one. It may mean
12 that we just have a system where rich people can be
13 elected to office and then I would argue maybe even stupid
14 rich people because they were willing to fund their
15 election in the first place.
16 But, given that, we would still move away from that
17 potential for bias from getting those campaign
18 contributions from lawyers that may appear before judges.
19 I'd argue that a good, vigorous judicial candidate that
20 got out into the county or the circuit that they were
21 running in and met voters has the potential to raise the
22 necessary campaign funds, if they took the initiative to
23 do that, from entities other than lawyers.
24 CHAIRMAN DOUGLASS: Anybody -- first proponents.
25 We're going to go in the right order from now on. The
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1 proponents, if you want to speak for it, speak now or
2 forever hold your peace. All right, opponents.
3 Commissioner Sundberg, you were something because you were
4 trying to get up. Which are you?
5 COMMISSIONER SUNDBERG: I had a question.
6 CHAIRMAN DOUGLASS: Beg you pardon?
7 COMMISSIONER SUNDBERG: I had a question.
8 CHAIRMAN DOUGLASS: Why didn't you say so?
9 Commissioner Corr will yield to your question.
10 COMMISSIONER SUNDBERG: Commissioner Corr, have you
11 considered just technically -- and I will take the
12 opportunity to speak in opposition to it -- but my
13 question is, are you aware that at least ethically now,
14 under the Code of Judicial Conduct, that judges themselves
15 are precluded from soliciting campaign contributions?
16 They must ethically do it through a committee. I'm not
17 sure that your language addresses that. It simply says a
18 judge may not; a judge does not now. And I'm not
19 suggesting that's a cure-all and that lawyers are so
20 stupid that they don't understand who wants the money when
21 it's done through a committee, but I'm not sure you're
22 curing the problem you want to cure.
23 COMMISSIONER LANGLEY: Mr. Chairman.
24 CHAIRMAN DOUGLASS: I don't think you need to respond
25 to that unless you want to. Okay, opposition,
DIVISION OF ADMINISTRATIVE HEARINGS (904) 488-9675
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1 Commissioner Langley.
2 COMMISSIONER LANGLEY: Just a question again of the
3 sponsor and we don't mean to --
4 CHAIRMAN DOUGLASS: Another question.
5 COMMISSIONER LANGLEY: Just knowing the complication
6 of legal minds, I think where you use the word "and" there
7 ought to be "or". Because I think as written I could
8 either solicit or accept, the way it's written, and not
9 violate yours because yours says I have to solicit and
10 accept. So I could have somebody else solicit and I'll
11 accept or I can have somebody else accept and I'll
12 solicit. I don't know, maybe that was in committee too
13 but I don't think you're curing the problem.
14 COMMISSIONER CORR: That's a good point. If it's
15 worth an amendment, if it will make a difference, then
16 I'll take it. But my gut feeling is it probably won't
17 make a difference in the final analysis.
18 CHAIRMAN DOUGLASS: Commissioner Planas was next.
19 COMMISSIONER PLANAS: Yesterday I went ahead and
20 voted against it in the ethics committee and I made a
21 couple or two reasons there. One of them I said was
22 common sense since judges' friends mostly are lawyers. So
23 if you cannot go ahead and take a contribution from a
24 friend, who are you going to take it from? I hate to see
25 that. I hate to see Commissioner Morsani one day run for
99
1 office and he cannot take it from dealers. Those are his
2 friends. That's one of the reasons I do believe I oppose
3 that.
4 Number two, I would hate to see then who would be the
5 contributors to judges. I think that there is a good
6 reason that lawyers could contribute and I stand for that.
7 Thank you.
8 CHAIRMAN DOUGLASS: All right. In opposition,
9 Commissioner Morsani.
10 COMMISSIONER MORSANI: My good friend, Mr. Planas, I
11 agree with him. I think that to make a -- if it makes a
12 statement that attorneys are trying to buy influence
13 because they give to a campaign, I just don't believe
14 that. And I think that -- as he said, if I want to run
15 for office, and I want all my fellow dealers to support
16 me, I would expect them to do so, I would try to make that
17 happen. I'm opposed to it, I don't think it's good public
18 policy, and I hope we would vote it down.
19 CHAIRMAN DOUGLASS: Any other opposition?
20 Commissioner Zack.
21 COMMISSIONER ZACK: I think it's important to note
22 for the record that lawyers can't give more than $500
23 under any circumstances. And that hasn't been said by
24 anybody in here. In judicial campaigns, which are
25 thousands and thousands in Dade County, hundreds and
100
1 thousands of dollars, you can't assume that a $500
2 donation is going to really do anything, frankly. If that
3 is your concern as far as judges being influenced, I just
4 think the practicality is that it just doesn't happen
5 based on the system as it exists today.
6 If in fact you had what this proposal suggests in
7 place I think you also have friends and families of
8 lawyers who are going to ask those lawyers who appear in
9 front of those judges; are they good, are they competent,
10 are they on time, are they just. And you're going to have
11 the same result anyway. So for that and other reasons
12 we've discussed before, I'm opposed to it.
13 CHAIRMAN DOUGLASS: Commissioner Barnett in
14 opposition.
15 COMMISSIONER BARNETT: Thank you, Mr. Chairman. This
16 proposal raises a lot of problems for me, but one of them
17 that has not been discussed is I believe this proposal
18 would be unconstitutional under our U.S. Constitution,
19 First Amendment free speech right. And I just raise that
20 for those of you who may be interested in that.
21 Secondly, I think there is a misperception about why
22 lawyers give contributions to judge. First, I'm with a
23 large law firm. I'm with one of those large law firms
24 that people keep talking about. And I can tell you that
25 we are very, very circumspect about any campaign
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1 contributions to judicial candidates, not because we don't
2 believe it's important for all of us, whether we are
3 lawyers or not, to participate in the whole election
4 process. I think that's part of a citizen's right to
5 contribute to candidates for office if they are good
6 public servants.
7 But it's because of the appearance of impropriety and
8 a concern that there would be an appearance of impropriety
9 if we as a firm collected a lot of money, bundled it and
10 gave it to a candidate or even if we as individual lawyers
11 regularly gave the maximum, which Commissioner Zack said
12 was $500.
13 So in those occasions, and they are frankly rare when
14 you look at the number of lawyers we have and the number
15 of circuits we work in, in those occasions where we do
16 make campaign contributions to judges it's usually a very
17 small amount. And it's because of the recognition that
18 sometimes it does take money to have an election.
19 Some of the financing issues of campaigns, frankly,
20 are why I support -- one of the reasons I strongly support
21 merit retention of all judges, to avoid the impropriety,
22 the appearance of impropriety, and the need. But I just
23 wanted to raise those two points; first the constitutional
24 issue and then second to respond from a member of one of
25 the large law firms.
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1 CHAIRMAN DOUGLASS: All right. This is in
2 opposition. Do you yield to Commissioner Connor?
3 COMMISSIONER BARNETT: Yes.
4 COMMISSIONER CONNOR: I do have an inquiry.
5 Commissioner, why would a prohibition against lawyers
6 contributing to a judicial campaign, in an effort to
7 enhance the public confidence in the administration of
8 justice, be any more violative of a gag rule which would
9 prevent a judicial candidate from speaking to issues, any
10 more violative of the First Amendment?
11 COMMISSIONER BARNETT: I don't know that the, quote,
12 gag rule -- which I reject that characterization, frankly,
13 of that proposal -- I don't think they are the same issue
14 at all. But when we get to the gag rule, we can talk
15 about the cases that have addressed the First Amendment
16 issues related to the types of issues that judges or
17 candidates for judicial offices can comment on.
18 The question with regard to campaign contributions
19 and limiting individuals' rights or prohibiting
20 individuals' rights to make campaign contributions is an
21 entirely different issue I think under the U.S.
22 Constitution and certainly raises First Amendment
23 questions.
24 CHAIRMAN DOUGLASS: All right. Any other opposition?
25 Commissioner Sundberg.
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1 COMMISSIONER SUNDBERG: In opposition, Mr. Chairman.
2 Commissioner Corr, I have seen this movie, I ran in the
3 last popular election for the Supreme Court of Florida,
4 the statewide election. And it's a long way from
5 Pensacola to Key West. It is very difficult to fund a
6 judicial race.
7 If you preclude lawyers from contributing, what
8 you're doing is saying those people presumably who are
9 most qualified to assess the qualifications of the judge,
10 and his or her ability to serve or to continue to serve,
11 are precluded. So where does then a judicial candidate
12 go?
13 Well, if I were running, I guess, a campaign -- and,
14 of course, these are all the evils that are inherent in
15 the popular election of judges because judges do not and
16 should not have a constituency.
17 Let me tell you, since talking anecdotally about
18 large law firms control who gets appointed, anecdotally at
19 the time I was appointed to the court I practiced in a
20 firm of three lawyers. I never gave and never have given
21 a dime to the Governor who appointed me. Insofar as media
22 support, they didn't have the slightest idea who I was
23 much less for them to support my candidacy for the court.
24 But I tell you, where do you go for those
25 contributions? You say, Don't go to lawyers. And if you
104
1 get out and hustle, you can raise these funds elsewhere.
2 Well at the time I had to run in 1976, one of the
3 most critical issues before the court at that time had to
4 do with recreation leases and the validity of those
5 leases. And there were associations of condominium owners
6 who were violently opposed to the validity of those leases
7 because they were an annuity to a developer.
8 On the other hand, you had associations of developers
9 who were totally in favor of them. That was an issue
10 before the court. So a pretty logical place for me to go
11 raise funds would have been to the condominium owners and
12 the developers, wouldn't it, because they had a stake in
13 the action. They would have had an interest. I'm not
14 sure that it's a very wholesome interest they would have
15 in that judicial election. Hence -- and this goes to the
16 gag rule. And, I'm sorry, because you keep mixing that
17 in, too. And I, like Commissioner Barnett, reject that
18 characterization.
19 It is very difficult, very difficult to say it is
20 appropriate for a judicial candidate to go out and take
21 positions. If I want to develop a constituency to raise
22 money and for support, I go after all the labor unions and
23 I say, Look, I am pro labor and I want you to understand
24 I'm pro labor, hence, you are to contribute to my
25 campaign. So what happens when an issue comes to the
105
1 court involving a labor management issue? Aren't I
2 obliged to go ahead and vote in favor of the labor unions
3 on that issue? This is all in the same ball of wax.
4 It all stems from electing judges, and as long as the
5 people, and they have the right to choose to elect their
6 judges, I think that's a wrong decision. But as long as
7 they exercise that decision, then you have to take what
8 comes with it. And what comes with it is the necessity to
9 raise money to mount a campaign to either seek that office
10 or to remain in that office once elected. So I speak in
11 opposition to your proposal.
12 CHAIRMAN DOUGLASS: Any other opponents? Do you want
13 to close, Commissioner Corr?
14 COMMISSIONER CORR: Thank you, Mr. Chairman. I just
15 close by thanking those like Commissioner Sundberg and
16 others that have more experience in this than I do for
17 your comments. I think we've probably heard enough on
18 this. The intent is to get at some reform in the judicial
19 election process, given the potential for merit retention
20 and selection not to be passed on the ballot. And I'll
21 just ask for your favorable consideration here. Thanks.
22 CHAIRMAN DOUGLASS: All right, let's vote.
23 (Vote taken and recorded electronically.)
24 CHAIRMAN DOUGLASS: Has everybody voted? Okay.
25 Announce the vote.
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1 READING CLERK: Seven yeas and 27 nays, Mr. Chairman.
2 CHAIRMAN DOUGLASS: Well I understand that Proposal
3 61, the amendment has been prepared, Commissioner Brochin.
4 Before we break for lunch, do you want to bring that up
5 and then we'll revert to that on the special order. Is
6 that agreeable, Commissioner Barkdull?
7 COMMISSIONER BARKDULL: Yes, sir.
8 CHAIRMAN DOUGLASS: Incidentally, after this, we're
9 going to have a couple of introductions and the
10 opportunity for anybody that didn't vote on the -- was out
11 of the chamber. I understand one or two people were out
12 of the chamber when we voted on the proposal on merit
13 retention. They will have the opportunity either then or
14 after lunch to record their vote with the unanimous
15 permission of the group. So we'll do that.
16 But first we'll go to Commissioner Brochin's
17 proposal. Commissioner Brochin. This is Proposal 61 in
18 your packet.
19 COMMISSIONER BROCHIN: Proposal 61, as I understand
20 it, is the proposal for merit retention for both circuit
21 and county court judges. The amendment that I've prepared
22 and placed on the desk, I believe, offers that to only
23 allow for merit retention for the circuit court judges,
24 but not merit retention for the county court judges.
25 And I did it for two reasons. And one is to offer
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1 another alternative to the merit retention issue in the
2 form of a compromise. The opt in provisions, opt out
3 provisions, county/circuit court provisions we just
4 passed, fairly convincingly, was a compromise, as I
5 understand it, to those who both favor merit retention and
6 oppose merit retention. And the compromise was offered as
7 a way of letting the people decide. I found that to be an
8 unacceptable compromise for the Constitution.
9 This, I would submit to you, is a compromise of
10 sorts, but it is a compromise that I believe is acceptable
11 for placement in the Constitution because it still
12 maintains the fundamental consistency throughout the state
13 of how we select our judges. And that is, we would select
14 our judges by merit retention for the circuit, the
15 appellate and Supreme Court judges, and leave for the
16 county courts to be elected.
17 There is also the second point would be, I believe,
18 there's a reason for that. Much of what I have heard as
19 to why we should elect judges deals with the closeness to
20 the people and the ability to respond.
21 First of all, I don't think the judicial branch of
22 government is a representative body. I don't think its
23 function is to respond to the majority will of the people.
24 That is a very, very fundamental concept that we either
25 need to accept or reject, but it all stems from that.
108
1 Because if you believe the judicial branch of
2 government is a representative body that should respond to
3 the people's will, then election of judges may be the
4 proper way to go.
5 If you don't believe it's a representative body and
6 its purpose as the judicial branch of government is to
7 protect the Constitution and to give each and every
8 individual the fair and equal chance that they have before
9 the law, then the question isn't whether it's a
10 representative body; the question is how can we put the
11 best people to perform that function in the judicial
12 branch of government? Not to depoliticize it, but what
13 system do we have, in light of the amendments dealing with
14 freedom of speech, freedom of association, campaign
15 financing, what system can we come up with that will place
16 people in the judicial branch that will properly fulfill
17 that function.
18 The distinction between a circuit court judge and a
19 county court judge at least begins to make that
20 distinction by saying that county courts, jurisdictionally
21 wise, deals with some issues that people appear for them
22 often without lawyers, often on issues that are very
23 personal to them, as most issues are, but county court has
24 jurisdiction on matters under I think it's $15,000. It
25 has jurisdiction of landlord/tenant matters, traffic court
109
1 matters, matters where people appear before the courts, as
2 I mentioned, often without counsel.
3 So although I think and still believe merit retention
4 is the appropriate way to go uniformly, this at least
5 gives us the opportunity for a compromise of sorts which
6 hopefully yields the best result without doing violence in
7 my mind to the way you select your judicial branch judges.
8 We often say, Let the people decide. And it's a cry
9 that I'm going to try to avoid because it's an easy one in
10 my opinion. Everything we are doing ultimately we can
11 always say, Let the people decide, because that is exactly
12 what is going to happen. So whether you're taking away
13 the election of judges or whether you're maintaining it, I
14 don't think the issue is whether the people should decide
15 because ultimately they will. This is their Constitution.
16 Our purpose is to propose one that's better in our minds.
17 And to me, this area needs attention in the state, it
18 needs amendment in the state, it needs improvement. And
19 to argue that it's just a matter of whether the people
20 decide or not in some ways shirks our responsibility.
21 So I offer this amendment to the pure merit retention
22 selection system that Proposal 61 is as a way to hopefully
23 convince some of you that maybe this is a proper
24 compromise to let the people decide on a better way for
25 our Constitution to function. Thanks.
110
1 CHAIRMAN DOUGLASS: All right. The amendment, would
2 you read the amendment?
3 READING CLERK: By Commissioner Brochin, on Page 1
4 Line 16 through Page 3 Line 4, delete those lines and
5 insert lengthy amendment.
6 CHAIRMAN DOUGLASS: Everybody understand the
7 amendment? Anybody want to speak as a proponent? Any
8 questions of the proposer? Anybody want to speak as an
9 opponent?
10 I have a question. If you should adopt -- if the
11 commission should adopt this, how would you propose
12 putting it on the ballot; vote for one or the other but
13 not both?
14 COMMISSIONER BROCHIN: No, the amendment as prepared
15 is actually fairly simple. It just adds circuit court
16 judges to the current merit retention system.
17 CHAIRMAN DOUGLASS: Okay.
18 COMMISSIONER BROCHIN: In other words, now we have
19 the Supreme Court, the appellate court, this would just
20 add the circuit court.
21 CHAIRMAN DOUGLASS: If the people pass the other
22 proposal, then it would still be opt in/opt out.
23 COMMISSIONER BROCHIN: Well, I'm assuming at some
24 point in time we will look at this whole thing in a
25 holistic way and the inconsistencies that we're passing
111
1 out, not just today but prior to today, will be rectified
2 before we --
3 CHAIRMAN DOUGLASS: We will do that when we have our
4 style and drafting. All right. If you're ready to vote
5 on this, we will. Commissioner Morsani, you rise.
6 COMMISSIONER MORSANI: Maybe I'm confused; I hope
7 nobody else is. The one we already passed, Amendment 66,
8 if 66 flies --
9 CHAIRMAN DOUGLASS: Let me try.
10 COMMISSIONER MORSANI: -- then this isn't applicable.
11 But we're going to pass this or, pardon me, your
12 recommendation is that you pass this not in lieu of 66, or
13 whatever the number was, and then you're suggesting then
14 that drafting take all this and put it in the same --
15 obviously I'm confused.
16 COMMISSIONER BROCHIN: And the process we're going
17 through merits your confusion.
18 CHAIRMAN DOUGLASS: Let me save a little time.
19 COMMISSIONER BROCHIN: Proposal 66 that we passed is
20 inconsistent with this proposal. We could not have both
21 proposals presented to the people because they would be
22 inconsistent and hopelessly everyone would be confused.
23 But as I understand the process of what we're going
24 through now is by majority vote we are sending certain
25 proposals to style and drafting that will ultimately all
112
1 come back to us for a second, and I hope third and fourth,
2 look at a constitutional document that we will ultimately
3 submit to the people.
4 We have already passed inconsistent proposals and
5 sent them out by majority because, quite frankly, it will
6 depend on the makeup of this commission from day to day.
7 And a majority can be gathered differently depending on
8 who's here and the thought process of the commission. But
9 ultimately, as I understand it, we're going to have to
10 weed out those that are inconsistent and vote on the
11 entire document at some point in time.
12 CHAIRMAN DOUGLASS: All right. I'm going to rule
13 that this particular proposal as amended is out of order
14 in view of the fact that we just passed another proposal
15 that's on the same subject. On the other hand, I would
16 like to entertain a motion to leave it pending for further
17 consideration. Commissioner Brochin.
18 COMMISSIONER BROCHIN: I think it's inconsistent; I
19 agree with the premise. What I don't understand is why on
20 this one you decided it's inconsistent, hence it should be
21 pending when we have passed inconsistent --
22 CHAIRMAN DOUGLASS: Okay. We will vote on it.
23 That's the best way to handle that so I won't rule. I'll
24 withdraw my ruling, and if you're ready to vote, we'll
25 vote. This is on the amendment first. Everybody that's
113
1 in favor of the amendment say aye; no, no.
2 (Verbal vote taken.)
3 CHAIRMAN DOUGLASS: It is amended. Now on the
4 proposal as amended, we will now vote. Clear the
5 machine -- no, we don't have to clear the machine.
6 Everybody vote. Has everybody voted?
7 (Vote taken and recorded electronically.)
8 READING CLERK: Eleven yeas and 22 nays,
9 Mr. Chairman.
10 CHAIRMAN DOUGLASS: Let me suggest I have entertained
11 a motion to allow the votes of Commissioner Hawkes and
12 Commissioner Thompson to be recorded on Proposal 61, merit
13 retention, they were out of the room. And Commissioner
14 Hawkes votes yes and Commissioner Thompson votes no. I'd
15 like unanimous approval to allow that to be recorded in
16 the vote. Without objection it will be so recorded.
17 All right. Now there are a couple of other things I
18 wanted to do before we break for lunch. Number one, I
19 want to introduce two fine lawyers that are now on our
20 staff, if you'll give me just a second, sir. Deborah
21 Ben-David who is here. She comes to us from Justice
22 Grimes where she was his clerk and assistant. And she is
23 working as assistant or deputy general counsel. There she
24 is over here. And the other lawyer that is now with us
25 comes to us from the Attorney General's Office where she
114
1 received great training from Commissioner Butterworth,
2 Chris Martinez, who is now with us part-time as counsel.
3 We're going to invite the pages to have lunch today
4 and a separate facility will be provided for your lunch,
5 pages. And someone from the staff will take care of that.
6 Now without -- I'll entertain a motion that we adjourn for
7 lunch and we'll reassemble at 12:30.
8 COMMISSIONER BARKDULL: I'd so move, Mr. Chairman.
9 And I'd like to put the commission on notice, right after
10 lunch I'll call up the motion to reconsider 87.
11 CHAIRMAN DOUGLASS: Very well. We will then adjourn,
12 lunch is in the back, and we will reassemble at 12:30,
13 reconvene.
14 (Lunch recess from 11:50 a.m. to 12:30 p.m.)
15 SECRETARY BLANTON: All commissioners indicate your
16 presence; all commissioners indicate your presence.
17 (Quorum taken and recorded electronically.)
18 SECRETARY BLANTON: A quorum is present,
19 Mr. Chairman.
20 CHAIRMAN DOUGLASS: All right, if you'd come to
21 order, please. Commissioner Barkdull, you announced you
22 wanted to bring up the motion to reconsider that you
23 filed.
24 COMMISSIONER BARKDULL: It's proposition 87 which
25 creates a magistrates court. I'd like to move it be
115
1 reconsidered at this time.
2 CHAIRMAN DOUGLASS: All right. The motion to
3 reconsider is not debatable and if you want to reconsider
4 it and it is voted to reconsider, then you revert to the
5 motion and then it can be debated, amended or whatever.
6 So understand that this is on the motion to reconsider.
7 And all those in favor of reconsidering Proposal 87,
8 please signify by voting yes; and those opposed, no.
9 Now this is a motion to reconsider. If you want to
10 reconsider, you vote yes. We're reconsidering Proposal 87
11 which was to create magistrates courts. Be sure, if you
12 want to reconsider -- then there will be debate on the
13 motion.
14 (Vote taken and recorded electronically.)
15 CHAIRMAN DOUGLASS: All right. Close the machine.
16 READING CLERK: Fifteen yeas and 12 nays,
17 Mr. Chairman.
18 CHAIRMAN DOUGLASS: All right. We revert to the
19 motion, the motion to reconsider Proposal No. 87,
20 Commissioner Barkdull.
21 COMMISSIONER BARKDULL: Mr. Chairman, members of the
22 commission, this is a proposal that was offered by
23 Commissioner Wetherington that in effect creates an
24 additional trial court in Florida. I voted in the
25 affirmative when I saw what was going to happen with it in
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1 order that we could put it on reconsideration and some of
2 us could have a little time to think about it.
3 After thinking about it, I've come to the conclusion
4 that all this does is add another trial court which we
5 don't need. We spent 30 years trying to get rid of 27
6 different types of trial courts in the state. We've given
7 the Legislature absolute flexibility as to where they can
8 put jurisdiction. All the jurisdiction is laid in the
9 circuit court unless the Legislature puts it in the county
10 court.
11 The Legislature has, over the years, changed the
12 jurisdiction of the county courts in a number of
13 instances. They have raised the monetary amount to
14 15,000; they have given the county courts the authority to
15 handle certain types of equity matters and matrimonial
16 matters. And there is nothing that prevents the
17 Legislature from creating a division either in the county
18 court or in the circuit court to do what I understand
19 Commissioner Wetherington has pointed out is a problem as
20 to how they handle certain matrimonial or domestic matters
21 to be in conformity with some federal legislation.
22 I don't know how creating an additional court is
23 going to add anything to the authority that the
24 Legislature already has to adjust jurisdiction between
25 either the county court or the circuit court. And if they
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1 want to name a special division, a division of
2 magistrates, to consider domestic matters, I don't think
3 it amounts to a hill of beans as far as what the title is
4 concerned.
5 The problem is who's got the power. And the power
6 will either be in a circuit judge or in a county judge.
7 This can be accomplished by legislation; it does not need
8 to be an entirely separate Constitutional court which we
9 would have to organize and staff. And I urge you to
10 defeat this proposal.
11 CHAIRMAN DOUGLASS: I guess we should have the clerk
12 read the proposal again so we know where we are.
13 READING CLERK: Proposal 87, a proposal to revise
14 Article V, Section 1, Florida Constitution, allowing the
15 Legislature to establish by general law a system of family
16 magistrates.
17 CHAIRMAN DOUGLASS: All right. We're just as if
18 we're on it brand new. So the proponents will be heard
19 from first. Commissioner Wetherington.
20 COMMISSIONER WETHERINGTON: Let me first address a
21 major concern of Commissioner Barkdull and take a slight
22 disagreement on the law with Commissioner Barkdull.
23 If it were true that the Legislature could establish
24 what we now call general masters and child enforcement
25 hearing officers and solve the problem, obviously, I
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1 wouldn't have submitted the proposal. We won't want to
2 put something in the Constitution that the Legislature can
3 do by themselves.
4 The problem is this, legally, based on decisions of
5 the Supreme Court of Florida, it's been specifically held
6 that with respect to masters, and the same would apply to
7 hearing officers, family court hearing officers, matters
8 such as visitation, matters such as child support or maybe
9 past due child support that comes up post-judgment, all
10 matters of any kind, no matter how small or how large,
11 cannot be referred to a master without the consent of the
12 parties. That means without the affirmative consent of
13 the parties, you can't refer any of these matters out.
14 Now that causes a problem in the following sense.
15 Number one, we are under pressure from the federal court
16 to provide expedited hearings on these matters. And the
17 number of pro se litigants that are coming up and raising
18 these matters is increasing constantly. So there isn't
19 any question that the courts need some help. That's why
20 in 16 of the counties we have the general master system
21 that we have and there were like 7,600 hearings heard last
22 year.
23 So the problem is simply this, unless -- and it's not
24 a separate court. This is simply an adjunct to the
25 circuit court, which presently exists, which we have now.
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1 Unless there is some constitutional status, Article V
2 status, to these judicial assistants -- we can call them
3 magistrates, we can call them hearing officers -- then
4 these emergency referrals that come out, which can include
5 domestic violation, they can include visitation, they can
6 include post-decretal child enforcement, none of these
7 matters technically can be referred out without going
8 through a consent system that's, frankly, extremely
9 burdensome and capable of dramatically impairing the
10 effectiveness of these judicial, quasi-judicial officers.
11 So the idea is very simple. As we did, although it's
12 a different problem with the traffic court hearing
13 officers, there is a provision allowing the Legislature to
14 give jurisdiction and authority to traffic court hearing
15 officers. This is not another court; this is simply an
16 adjunct to the circuit court.
17 Allowing the Legislature to do this would simply
18 allow them to establish procedures and qualifications and
19 decide what matters can be referred without consent, if
20 necessary, to comply with federal regulations or to assist
21 the court on small matters, and what matters can be
22 referred with consent and in order to help the courts of
23 our state, not only now but in the future, with respect to
24 an area in the law that's continuing to expand and
25 particularly with the impact of the pro se litigants
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1 continuing to become more problematic.
2 This is an area where we have to have speedy justice,
3 like we have to do in the criminal law. We can't have
4 interminable delays on these important decisions, which
5 can occur because we're not going to get a tremendous
6 number of increases in judges in the future, if the past
7 foretells the future. We're not going to get all the
8 judges that we need to do all this work without the
9 assistance of other professionals.
10 I agree, I'm in favor of Article V, and I'm not
11 interested in creating other courts. I would be against
12 creating other courts. I would be against putting this in
13 the Constitution if it could be done by the Legislature.
14 I would never suggest that. But because there are these
15 Florida Supreme Court holdings, which I think are sound,
16 and this goes way back to the history of the master, which
17 goes back into the 14th Century, masters have been there
18 helping the court of equity since the 14th Century, it's a
19 well-established part of our system.
20 And the only reason why there has to be anything in
21 the Constitution is because of these decisions that have
22 been rendered, correctly, by the Florida Supreme Court in
23 this area.
24 The sole purpose of this proposition is to provide a
25 basis in the future for our family courts to be able to
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1 handle this increasing volume of difficult problems under
2 the supervision and regulation, because in every instance
3 there is the right of review that can be established, and
4 I would expect would be established by the Legislature,
5 for any of these decisions.
6 There's a right to vacate any decision in ten days.
7 But you could initially refer these emergency matters out
8 without the consent of the parties. You could comply with
9 the federal regulations, you're not creating an additional
10 court system, in my humble opinion. And you can't do it
11 without some recognition in the Constitution.
12 So that's the purpose of it and in my view,
13 respectfully, Judge Barkdull, that's the legal basis upon
14 which I'm proceeding. And if I didn't feel that that
15 basis was needed, there is no way in the world I would put
16 something like this on the table.
17 CHAIRMAN DOUGLASS: I might point out that this was
18 amended and we didn't state that at the outset it was
19 amended and what was deleted was the proposal,
20 Commissioner Wetherington's original proposal had, or the
21 Supreme Court may establish these magistrates. And that's
22 been deleted from the proposal at the previous meeting.
23 Now, do you have questions first? Commissioner
24 Morsani.
25 COMMISSIONER MORSANI: I would like very much to hear
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1 from the Chief Justice Kogan and Attorney General
2 Butterworth, the two leading people in the judiciary of
3 our state, on their opinions, please.
4 CHAIRMAN DOUGLASS: Well I think now that you
5 buttered them up pretty good, by virtue of their titles
6 they are entitled to that respect, I would think.
7 Commissioner Kogan.
8 COMMISSIONER KOGAN: Let me say this, I agree
9 completely with Commissioner Wetherington on this
10 particular point. I have had constant communication from
11 the larger urban areas that say these are a necessity,
12 especially from Dade County that has a tremendous caseload
13 and really need something like this to help the system
14 function more efficiently. So that's the best I can say,
15 Frank, to your inquiry.
16 CHAIRMAN DOUGLASS: That's Commissioner Morsani,
17 Commissioner Kogan. I mean, I realize he was nice to you.
18 (Laughter.)
19 COMMISSIONER KOGAN: Commissioner Morsani.
20 CHAIRMAN DOUGLASS: Now Commissioner Butterworth.
21 COMMISSIONER BUTTERWORTH: Since the Chief Justice
22 already spoke, I will agree with his comments.
23 CHAIRMAN DOUGLASS: That's unusual. Are you sure you
24 don't want to reconsider?
25 COMMISSIONER BUTTERWORTH: Mr. Chairman, I do believe
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1 this is something that is needed, definitely in the areas
2 such as Dade County. I think it's a very good program.
3 If in fact it can be done right now, I think the
4 Legislature should do it. I come down on the side I
5 believe it can be done now, but the Chief Justice is
6 saying that it cannot be; obviously my opinion is just one
7 lowly opinion.
8 CHAIRMAN DOUGLASS: I don't want to preclude this,
9 but since you are up, I want to ask you one question on
10 this. Couldn't you create this same situation by using
11 the county judges, the existing judges, by designating a
12 division of the county court and having those judges
13 fulfill these functions under existing law?
14 COMMISSIONER BUTTERWORTH: I would assume the Supreme
15 Court would have the authority to make them acting circuit
16 judges in order that this work get done. They're already
17 authorized to do it now.
18 The issue is one which is of utmost importance. My
19 office does a lot of child support enforcement and also in
20 the area of dependency. And really there is no greater
21 need in the court system than additional personnel to
22 handle these matters. If in fact the only way to do it is
23 through a constitutional amendment, I would be in favor of
24 it, but I do believe it could be done now. But the chief
25 justice is saying no.
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1 I know full well that if it goes before the court, we
2 can save a lot of time I guess by -- I don't know. But
3 thank you very much for the nice comments.
4 CHAIRMAN DOUGLASS: Commissioner Barkdull.
5 COMMISSIONER BARKDULL: Mr. Chairman, members of the
6 commission, what Commissioner Wetherington pointed out --
7 CHAIRMAN DOUGLASS: Wait a minute, I have got to have
8 the proponents first, I think. Are there other
9 proponents?
10 COMMISSIONER ZACK: Yes.
11 CHAIRMAN DOUGLASS: Commissioner Zack.
12 COMMISSIONER ZACK: I have a question for
13 Commissioner Wetherington. Would these magistrates also
14 be assigned the rank and file divorce type cases or are
15 these just -- I'm not clear in my mind exactly what would
16 be the responsibility, when the parties would have their
17 opportunity to object and therefore insist on a circuit
18 judge, which counties it would apply to as a local option
19 type decision where it's needed. I'm unclear about how
20 this would actually go into effect.
21 I'm very much opposed to any additional layering of
22 the courts. But by the same token if there is a need that
23 can't be met, I'm concerned about that. So if you could
24 respond to some of those questions, I'd appreciate it.
25 COMMISSIONER WETHERINGTON: Of course. It can be
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1 anything the Legislature -- I'll start by saying it can be
2 anything the Legislature ultimately elects it to be, but
3 what I would envision would probably be something like
4 this.
5 On emergency matters, on visitation matters, for
6 example, maybe temporary child support matters, on
7 post-judgment child support enforcement matters or
8 visitation matters that come up. Now these matters could
9 be referred to magistrates without the consent of the
10 parties but subject ultimately to review by a circuit
11 judge. This gets you a quick hearing, this satisfies the
12 requirements insofar as the federal government is
13 concerned concerning expedited hearing on child support
14 and visitation matters with respect to any other matters
15 in law along the line.
16 For example, the parties might want to stipulate to a
17 magistrate doing the final hearing, which they do
18 frequently with masters, with general masters. In those
19 matters, then the consent of the parties would be
20 considered. In other words, for anything dispositive, and
21 significant, determinative decisions, that would be
22 subject to the consent of the parties.
23 But on emergency matters, on routine matters, on
24 visitation, on enforcement of child support or maybe
25 domestic violence where frequently we need a quick
126
1 hearing, these matters would simply be able to be referred
2 to the magistrates, they could hear them, enter a
3 decision. The decision is subject to review.
4 But we found, for example, that our exception rate in
5 Dade County from the masters' decisions is only about
6 2 percent. So only about 2 percent of the time are we
7 getting exceptions. So basically it's the more routine
8 things, the emergency matters, the child support matters
9 that can be referred out. Anything other than that would
10 require the consent of the parties. That's basically the
11 way I think the system should be worked.
12 Ultimately this would all have to be determined by
13 the Legislature. They would decide what the magistrates
14 could hear and what they couldn't hear and that would be
15 based upon their evaluation of the considerations of when
16 consent in other matters should be needed and when consent
17 should be dispensed with in order either to meet the
18 federal guidelines or to help the court expedite the
19 caseload.
20 Did I answer all the -- was there anything else that
21 I missed?
22 CHAIRMAN DOUGLASS: Commissioner Thompson.
23 COMISSIONER THOMPSON: I had a question, if he will
24 yield.
25 COMMISSIONER WETHERINGTON: Yield.
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1 COMISSIONER THOMPSON: Thank you. I'm not clear as
2 to how these magistrates would be selected.
3 COMMISSIONER WETHERINGTON: The method of
4 selection -- the method of selection, the qualifications
5 and all that would be established by the Legislature.
6 COMISSIONER THOMPSON: The reason I asked that is we
7 spent the better part of the morning talking about it on
8 judicial officers that we've all been familiar with for
9 years and so I thought it might be relevant and still
10 think it is because I think, if I understand this, my next
11 question is you can't do this now other than in an
12 advisory capacity; is that correct?
13 In other words, these magistrate or special masters'
14 reports now have to come to someone who is selected,
15 pursuant to the Constitution, by the voters or under the
16 merit selection process before there is some binding
17 decision on the litigants; is that correct?
18 COMMISSIONER WETHERINGTON: The way it works is this,
19 if the court wants to refer a matter out, whether it is a
20 small matter or large matter, to a master, the court has
21 to get the affirmative consent of the parties. If the
22 parties give their affirmative consent, the master could
23 hear the matter and the master's finding of fact has the
24 same weight that a jury verdict has. The master's
25 recommendations of law are not in any way binding.
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1 If the parties disagree with the finding of the
2 master, they have ten days in which to file exceptions to
3 the trial judge. The circuit judge will then hear those
4 exceptions and will either overrule those exceptions or
5 sustain those exceptions. That's the way the system works
6 now.
7 Nothing can be referred out, regardless of whether
8 it's child support, child support enforcement, visitation,
9 either before they enter the final judgment or after they
10 enter the final judgment, without going through the
11 consent process.
12 What you could do under the new system that you can't
13 do constitutionally now, is the Legislature could decide
14 that maybe matters of visitation, maybe matters of
15 temporary child support, maybe matters of collecting child
16 support after judgment could be referred to magistrates,
17 subject to the ability to go back to the judge -- it would
18 be a binding decision subject to being able to go back to
19 the judge in ten days and ask to vacate that particular
20 judgment, which you would not have to have the pre-consent
21 procedure to go through. That's constitutionally what you
22 could do under the new system that you can't do under the
23 present system.
24 CHAIRMAN DOUGLASS: You have the floor, Commissioner
25 Thompson.
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1 COMISSIONER THOMPSON: Thank you. I don't understand
2 all you just told me about it, but what I'm concerned
3 about, let me express my concern because I don't even have
4 this measure in front of me.
5 You referred to ten days where somebody who was
6 selected with some remote connection to the voting public
7 would have some say-so over whether or not this decision
8 was binding on these parties because right now they have
9 to consent before they get into that process. We're going
10 to allow, by legislative creation, them to be exposed to
11 that process without their consent --
12 COMMISSIONER WETHERINGTON: That's correct.
13 COMISSIONER THOMPSON: -- and what you're saying is
14 then when the decision is made by somebody that is
15 selected by somebody, we don't know exactly how at this
16 point, but somebody is going to set up these folks and
17 designate who's hearing all this, they are going to make
18 these decisions, and then they're going to come back and
19 just -- we're going to have an appeal in ten days from the
20 date that the master makes their report on just the facts
21 or just the law or both or -- am I following you in any
22 way?
23 COMMISSIONER WETHERINGTON: Yeah, up to a certain
24 point you are. But the answer is this: The magistrates,
25 for example in Dade County, to take an example, have been
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1 selected by the court, their rating on The Bar polls, they
2 have an average rating of 87 percent. They are extremely
3 well-qualified professionals, they have the full
4 confidence of the family bar in Dade County.
5 They are lawyers, all of them that have greater than
6 ten years' experience and most of them are experts in
7 family law. They have the qualifications of any circuit
8 judge basically selected in the state of Florida now, but
9 they are selected by the judges of the court.
10 A matter of visitation is referred over to them and
11 they listen to the evidence on the matter of visitation.
12 If the parties agree, the matter of visitation is referred
13 over to them. They hear the evidence on visitation and
14 they decide that it's every other weekend for the
15 noncustodial parent, based on what they hear.
16 If either side objects, they file exceptions to that.
17 Under the procedures that presently govern masters, they
18 file those objections within ten days after the decision.
19 It then goes to the circuit judge. The circuit judge
20 listens to the objection, see if there was a basis for the
21 decision. If the circuit judge decides there was a basis
22 for the decision, the circuit judge affirms the decision
23 of the master. If the judge decides there is no basis for
24 the decision, the judge would reverse the decision of the
25 master.
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1 We get objections in Dade County in about 2 percent
2 of the cases. The masters, for example, heard over 7,000
3 hearings last year. Out of those 7,000 hearings, there
4 were 2 percent objections. So it's not just,
5 Commissioner, these people, who are they? They are
6 well-established, well-recognized professionals. They are
7 experts in family law that have the confidence of the
8 family bar, they have the confidence of the court and they
9 have the qualifications of circuit judges in the state of
10 Florida. We're doing that right now.
11 The only difference is it will expedite matters,
12 particularly in the child support area where we're under a
13 federal guideline constraint, and perhaps in emergency
14 cases, particularly with a lot of pro se people, for the
15 court to be able to refer a matter out initially to be
16 heard by one of the magistrates, and let the magistrate
17 take the evidence, realizing that probably about
18 95 percent of the time the parties are going to find it
19 acceptable. If they don't find it acceptable, they will
20 still have a right to come back to the constitutional
21 officer and make their particular objections.
22 There isn't any -- the huge difference on it is that
23 you can refer out a lot of these matters that require
24 emergency treatment or require federal guideline
25 consideration without having to go through the initial
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1 consent process. That's really the main constitutional
2 difference in all this. We have this system right now in
3 16 out of 20 counties. This isn't something foreign or
4 something new. This is something that's well established.
5 We wouldn't need to put it in the Constitution if we
6 had the right, constitutionally, to make the initial
7 referral without going through a consent process. We
8 don't have that right; that's why it's being suggested.
9 COMISSIONER THOMPSON: The copy of Proposal 87 I'm
10 looking at, none of the safeguards that you have just been
11 through are listed in there. It looks like a very simple
12 amendment that allows the Legislature, and I guess this
13 language about the Supreme Court may establish by rule --
14 COMMISSIONER WETHERINGTON: That's out.
15 COMISSIONER THOMPSON: -- has been stricken.
16 A family court magistrate system to hear family law
17 matters. One of the first things you said is that now
18 people have to do this voluntarily.
19 COMMISSIONER WETHERINGTON: Right.
20 COMISSIONER THOMPSON: This would allow the
21 Legislature to change that. And so these magistrates
22 would have authority over people who didn't want them to
23 have authority over them. That's one of the concerns that
24 I have heard expressed.
25 Another concern I have heard expressed is what about
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1 the qualification. I understand what you are doing in
2 Dade County and I think that's fine. But how do we know
3 what the Legislature will do? For example, will these
4 magistrates have to be lawyers?
5 COMMISSIONER WETHERINGTON: I trust the Legislature
6 is -- I trust the Legislature. And I trust what they're
7 going to do is they're going to take a look at what
8 everybody else is doing and they're going to see that
9 everybody has lawyers doing it. They are going to listen
10 to the family law people, they're going to listen to
11 people and they're going to do what they do in any case
12 and they're going to decide, here is the best way we do
13 it. We want lawyers, we don't want lawyers.
14 I don't distrust the Legislature, I have a lot of
15 confidence in the Legislature. I'm willing to give them
16 this authority because they set the jurisdiction, for
17 example, already with respect to some extent to circuit
18 judges and county judges. I'm willing to trust them. I
19 don't think they're going to do something real wild in
20 this area. So, yeah, it will give the Legislature some
21 prerogative. But so what? What's wrong with that?
22 COMISSIONER THOMPSON: And the kind of thing that I
23 mentioned would be possible then, that you could have
24 nonlawyers in these capacities and others and that these
25 people would be bound in their family matters by these
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1 individuals.
2 COMMISSIONER WETHERINGTON: If the Legislature
3 decided they wanted to take people that didn't know
4 anything about the law or family law and put them in,
5 yeah, that would be possible. I wouldn't bet the farm
6 that that's what they are going to do, but, yeah, the
7 Legislature does -- they could do anything crazy I guess
8 they want to, but I guess they can do that now. But I
9 don't expect they're going to do something crazy. Are
10 they?
11 COMISSIONER THOMPSON: Are you asking me?
12 (Laughter.)
13 (Commissioner Scott assumes the Chair.)
14 COMMISSIONER SCOTT: Further questions? Okay. Well,
15 I have the rules chairman and the chairman. Judge
16 Barkdull, you are recognized, Commissioner Barkdull.
17 COMMISSIONER BARKDULL: Mr. -- Commissioner
18 Wetherington, I'm reading -- they handed me now Proposal
19 87 and I just wanted to ask you a question. Just before
20 the underlined sentence, the last sentence which we're
21 talking about, it provides, The Legislature may establish
22 by general law a civil traffic hearing officer system for
23 the purpose of hearing civil traffic infractions.
24 Now I understand the Legislature has done that. And
25 now we come to the language you want to add. The
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1 Legislature may establish by general law a family court
2 magistrate system to hear family law matters. If
3 established, the family court magistrate system shall be
4 funded by the state.
5 And I've got a query. Is that making the funding of
6 these family court magistrates different than the funding
7 of the civil traffic hearing officers?
8 COMMISSIONER WETHERINGTON: Yes. The counties, as I
9 understand it, certainly in Dade, the counties pay for the
10 traffic hearing officers.
11 COMMISSIONER BARKDULL: That's what I thought.
12 COMMISSIONER WETHERINGTON: They do. But there are a
13 lot of people around that think that on some of these
14 Article V officers, that really probably the state ought
15 to pay their salaries.
16 COMMISSIONER BARKDULL: I understand that comment and
17 I generally agree with you, but I don't know to what
18 extent a family court magistrate system is. And if this
19 should be approved, we are then mandating that the state
20 fund a system that I'm not aware of what it is.
21 COMMISSIONER WETHERINGTON: The Legislature doesn't
22 have to establish it in the first place.
23 COMMISSIONER BARKDULL: It says, if established.
24 COMMISSIONER WETHERINGTON: Well they don't have to
25 establish it. But when they establish it --
136
1 COMMISSIONER BARKDULL: We don't need it.
2 COMMISSIONER WETHERINGTON: Well, maybe they will
3 decide that we don't need it. If they decide that we do
4 need it, they have got to figure out what they're willing
5 to fund and what -- just like they do in every -- is the
6 Legislature incapable of making this decision? I mean,
7 don't they make decisions like this everyday? I think
8 they do.
9 COMMISSIONER SCOTT: Okay, Commissioners, let's get
10 back to your questions. Commissioner Douglass is
11 recognized.
12 CHAIRMAN DOUGLASS: I recall a discussion of this
13 before that one of the thorny questions that went
14 unanswered is what is a family court?
15 COMMISSIONER WETHERINGTON: Family law matters --
16 CHAIRMAN DOUGLASS: Now you ought to have been able
17 to answer that quicker than that.
18 COMMISSIONER SCOTT: Commissioner Wetherington.
19 COMMISSIONER WETHERINGTON: Yeah, I can answer that.
20 There's two parts to it. What I'm talking about now in
21 terms of the magistrate system I'm talking basically about
22 the divorce area; the child support, domestic violence,
23 that particular area of the court. I'm not really at this
24 time including the juvenile division because the juvenile
25 division deals with the criminal component, at least a
137
1 good part of it, and then it deals with the HRS component.
2 I'm talking about the divorce court that handles the
3 civil domestic violence, jurisdiction, the divorce, the
4 child support, paternity and all that kind of stuff.
5 That's what we refer to when we talk about family law.
6 CHAIRMAN DOUGLASS: So they would do jury trials?
7 COMMISSIONER WETHERINGTON: No, they would not do
8 jury trials.
9 CHAIRMAN DOUGLASS: We have jury trials in paternity
10 cases. Don't they require a jury trial if they demand it?
11 COMMISSIONER WETHERINGTON: They may. I don't think
12 anybody is going to give the magistrate the jury trials.
13 CHAIRMAN DOUGLASS: All right. Then it doesn't
14 include paternity cases.
15 COMMISSIONER WETHERINGTON: If there is a demand for
16 a jury trial, the answer to that question would be it
17 would not. If there is not a demand for a jury trial,
18 that may be one of the matters where the Legislature would
19 say, We want paternity to be heard by magistrates only on
20 the consent of the parties. They may say they want the
21 consent of the parties for that, like they could with
22 anything else. I don't know what view they would take on
23 it.
24 CHAIRMAN DOUGLASS: Now, my next question is based on
25 what was said the other time is if I have a client who
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1 wants a temporary injunction without notice --
2 COMMISSIONER WETHERINGTON: Correct.
3 CHAIRMAN DOUGLASS: -- I can go to one of these
4 magistrates, who may or may not be lawyers, they are
5 certainly not elected judges, I guess they are judges, and
6 I can say, I want a temporary retraining order and I can
7 get it from that magistrate. That's a family law matter;
8 isn't it?
9 COMMISSIONER WETHERINGTON: Absolutely not. The only
10 way a matter can get to a magistrate is if it's referred
11 by the court.
12 CHAIRMAN DOUGLASS: All right, it's been referred,
13 the case is pending, it's Wetherington versus
14 Wetherington. Mrs. Wetherington is my client and she
15 tells me --
16 COMMISSIONER WETHERINGTON: You're getting awfully
17 close to home here.
18 CHAIRMAN DOUGLASS: It's certainly not you, it's
19 another Wetherington.
20 COMMISSIONER WETHERINGTON: Oh, okay.
21 COMMISSIONER SCOTT: Let's stick to questions and
22 answers here.
23 CHAIRMAN DOUGLASS: Anyway, Mrs. Scott, I'm
24 representing her. And I go and I say, you know, I'm
25 already there. We have got a family matter proceeding in
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1 the court, and it's been referred to this judge, and he's
2 not a magistrate, he's a judge if he's in the court
3 because we run through that with workers comp judges.
4 They are not judges, but we call them judges.
5 So we come in there then and I say, you know,
6 Mr. Scott has just been a terrible guy and I need a
7 temporary injunction without notice. And I make a great
8 case and this nonlawyer judge as it might be says, Gee, I
9 like you, and he grants the temporary injunction, and then
10 Mr. Scott violates it. This same judge can lock him up;
11 can he not?
12 COMMISSIONER WETHERINGTON: No.
13 CHAIRMAN DOUGLASS: Why not? You referred the case
14 to him.
15 COMMISSIONER WETHERINGTON: The first thing that
16 would happen in that instance is that Mr. Scott, under
17 this situation, assuming someone would grant something
18 without notice, but assuming that could be, and assuming
19 it's properly referred by the judge, Mr. Scott would come
20 back in, if he didn't like that, he would either ask for a
21 hearing in front of the magistrate or he would go to the
22 judge who was in charge of that particular section and
23 particular case and he would say, This is in error. And
24 if the judge agreed, the judge would set it aside, just
25 like he would do any other matter.
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1 CHAIRMAN DOUGLASS: That doesn't always happen in
2 temporary injunctions; does it? As a matter of fact, they
3 violate them and they can be hauled into court; isn't that
4 true?
5 COMMISSIONER WETHERINGTON: If you violate a
6 temporary injunction and it's otherwise properly issued by
7 the court, and you violate it and you know about it, it's
8 been served on you, yes, you can be held in contempt of
9 court.
10 Now it may very well be in that particular matter
11 that the contempt of the court part of the thing may or
12 may not be something that the court is going to refer out.
13 It may decide on contempt matters that I'm not going to
14 refer contempt matters out, or it may decide, I am going
15 to refer contempt matters out, subject to the same review
16 by the circuit judge. There is no magic in any of this.
17 This happens all the time.
18 CHAIRMAN DOUGLASS: Don't you believe that most
19 people that were analyzing this that aren't as
20 sophisticated as some of the judges that speak to this
21 would view this as the creation of another court called a
22 family court matters court.
23 COMMISSIONER WETHERINGTON: Well right now we have
24 got eight magistrates --
25 CHAIRMAN DOUGLASS: No, my question is, wouldn't most
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1 people think it's a family court?
2 COMMISSIONER WETHERINGTON: No, they wouldn't because
3 I have never heard that said about our general master
4 system in Dade County or any of the other 16 counties. I
5 have never heard one person in the state of Florida with
6 7,000 hearings in Dade County ever come up and say,
7 There's another court up here; there's a general master
8 court. I've never heard one human being ever say that.
9 What they have said is, I have got Judge X. Judge X
10 has referred this to the magistrate for determination,
11 subject to the supervision of Judge X, and if I don't like
12 what goes on down there, I'm going back to the judge. I
13 never heard anybody suggest, until I came here today, that
14 this is some other kind of special court, not a single
15 human being. It hasn't been written, it hasn't been put
16 in a smoke stack or anywhere else. The first time I ever
17 heard it is here.
18 CHAIRMAN DOUGLASS: Well this is the first time I
19 ever heard of a court -- a special master all of a sudden
20 is a court.
21 COMMISSIONER WETHERINGTON: I didn't say it was a
22 court.
23 CHAIRMAN DOUGLASS: Well you said you never heard of
24 it now because it doesn't exist; does it?
25 COMMISSIONER WETHERINGTON: Yeah, it does.
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1 CHAIRMAN DOUGLASS: No, no, no, no. If it exists, we
2 don't need this constitutional provision.
3 COMMISSIONER WETHERINGTON: I'm trying to tell you
4 that functionally a tremendous amount of what would occur
5 under a magistrate system is now and has been for many,
6 many years going on. And that's why we have been able to
7 survive in Dade County, and probably a number of other
8 circuits, with this tremendous volume of family cases and
9 provide expeditious justice.
10 We have been able to do it because last year if we
11 didn't have those eight, in effect, people performing what
12 judges would otherwise have to hear, I don't know what we
13 would do. They had 7,000-plus hearings last year with a
14 2 percent exception rate. And these masters rated
15 87 percent on the average on the Bar with all the lawyers
16 voting on them. That's better than the judges did. And
17 they're all people of superb experience and background and
18 qualifications. They're rated by the lawyers on The Bar
19 poll. Everybody is ecstatic with them.
20 And I've never heard anybody come in and say, Isn't
21 it a terrible thing that this lawyer over here is a
22 20-year practitioner in family law, like Betty Kessler or
23 some of the outstanding people, gee, they heard my case
24 and I didn't have one of those judges hear my temporary
25 support case. I have never heard that.
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1 CHAIRMAN DOUGLASS: Judge, I'm afraid to ask you any
2 more questions because I don't think we've got time.
3 We're going to adjourn at 2:00.
4 But my question still reverts, we're not talking
5 about masters, are we? We're talking about a
6 constitutional class of new judges called magistrates, and
7 there is no qualification for membership in The Bar such
8 as for county judges; there is no qualification for five
9 years membership, there are no qualifications.
10 And what we're asking ourselves to do here is to
11 recommend to the people that they create this new class of
12 courts, not these special masters which everybody loves,
13 and the reason they love them is they can't lock them up,
14 is one of the reasons, isn't it? They can't do anything
15 on their own, it has to go back to the circuit judge
16 before they enforce whatever the case is, don't they? Now
17 answer --
18 COMMISSIONER WETHERINGTON: If anybody objects --
19 first of all, the answer is it goes back to, the report
20 goes back to the judge and the judge signs the report.
21 But the answer is I don't think I'm going to convince you
22 on this, Mr. Chairman.
23 CHAIRMAN DOUGLASS: No, no, I'm not trying to be --
24 COMMISSIONER WETHERINGTON: I'm not going to convince
25 you.
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1 CHAIRMAN DOUGLASS: -- I'm just trying to get an
2 answer which I don't think I'm going to get. And I
3 relinquish the chair to the next question.
4 COMMISSIONER SCOTT: Further questions? And, by the
5 way, we'll let the record show that there are many, many
6 Mr. and Mrs. Scotts, Mr. and Mrs. Wetheringtons in this
7 state. Commissioner Mills is recognized.
8 COMMISSIONER MILLS: Mr. Chairman, I detect some
9 sentiment, it's perhaps confusion. I don't think anybody
10 knows more about the court system than Judge Wetherington,
11 and a lot of us know less. There is some question about
12 the ability of the Legislature to do this, there is some
13 question about the use of the term "court", there is some
14 question about, I mean, now that I've become so concerned
15 about Article V costs, there appears to be a mandate that
16 that be funded by the state, I don't know what that costs.
17 So, I would offer to the Chair, either the current
18 chair on the chair chair, the option to -- that I would
19 offer a motion to refer to committee to allow some of
20 these things to be worked out.
21 If that is not the sense of the body and the body
22 wants to vote on it now, they could vote against that
23 motion. I would offer to the Chair the motion to re-refer
24 to committee to answer -- both to answer some of these
25 questions, if possible, and to elevate the level of
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1 understanding of some of the members, including myself.
2 COMMISSIONER SCOTT: Okay. Before we take that
3 motion, our status here is that we have reconsidered a
4 motion, a proposal that previously received a favorable
5 recommendation. The proposal is back before us for
6 whatever action the body might take, including voting it
7 or temporarily passing it or some other action,
8 re-referring it. So before we take that motion, Judge
9 Wetherington, do you have any comments?
10 COMMISSIONER WETHERINGTON: I think it's time -- we
11 had a vote on this before. We have had a full discussion.
12 I don't think we should keep deferring everything. If I
13 haven't been able to make myself clear on it, then I feel
14 very badly about it. But we have been over it now, we've
15 debated it twice and the problem is, do we want to keep
16 postponing everything? I feel we ought to vote it up or
17 down.
18 COMMISSIONER SCOTT: Commissioner Nabors, you rise
19 for what purpose?
20 COMMISSIONER NABORS: I'd like to ask this quick
21 question.
22 COMMISSIONER SCOTT: He'll yield.
23 COMMISSIONER NABORS: As I understand this issue, the
24 reason we need the constitutional amendment is really to
25 allow the system to work, without the requirement of the
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1 consent of the parties.
2 COMMISSIONER WETHERINGTON: That's correct, in
3 certain specified cases, yes.
4 COMMISSIONER NABORS: I think there is perhaps
5 sympathy for the idea, but trouble with the language. It
6 may be that some kind of a temporary -- I'm one that likes
7 to vote on things and move them, but I think some of the
8 language and the use of "court", maybe with a little time
9 we might be able to achieve that objective with language
10 that gives some comfort to some of the people that have
11 problems with it.
12 COMMISSIONER WETHERINGTON: That's probably a good
13 suggestion.
14 COMMISSIONER SCOTT: Okay. The Chair will now
15 entertain motions in the order of request. Commissioner
16 Mills.
17 COMMISSIONER MILLS: If it was the sense of
18 Commissioner Nabors' motion to temporarily pass this, I'd
19 be glad to make that motion.
20 COMMISSIONER NABORS: If that's the place you were
21 trying to drive us to by the question, it could be to
22 temporarily pass or refer it to committee, whatever we
23 need to do to buy a little time maybe until next month.
24 COMMISSIONER MILLS: If the motion would be to
25 re-refer to committee with the understanding -- I mean, I
DIVISION OF ADMINISTRATIVE HEARINGS (904) 488-9675
147
1 understand the reluctance of some to re-refer to committee
2 and I would actually defer to Judge Wetherington's wishes
3 one way or the other. A move to temporarily pass puts it
4 off today. And if you would prefer to have it in
5 committee to redraft, that's fine. If you prefer to
6 temporarily pass, that gives you an opportunity to work
7 with other individuals.
8 COMMISSIONER WETHERINGTON: Well, I don't want -- if
9 everybody feels like we ought to defer this one and they
10 don't understand it -- is that right? People don't
11 understand it?
12 COMMISSIONER MILLS: Well, we'll find out.
13 COMMISSIONER SCOTT: Okay. Commissioner who moves
14 to --
15 COMMISSIONER MILLS: I move to temporarily pass.
16 COMMISSIONER SCOTT: Commissioner Mills moves to
17 temporarily pass Proposal 87. Is there further
18 discussion? All in favor say aye; opposed.
19 (Verbal vote taken.)
20 COMMISSIONER SCOTT: Unlock the machine and proceed
21 to vote. A vote yes is to defer, a vote no is to not
22 temporarily pass this matter. Have all commissioners
23 voted?
24 (Vote taken and recorded electronically.)
25 COMMISSIONER SCOTT: Lock the machine and record the
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1 vote.
2 READING CLERK: Twelve yeas and 20 nays,
3 Mr. Chairman.
4 COMMISSIONER SCOTT: So the matter is not temporarily
5 passed. Is there further discussion on the proposal?
6 CHAIRMAN DOUGLASS: I'd like to make a motion to
7 refer this to another committee to have it considered, and
8 particularly I would suggest because of the implications
9 of the Article V costs, that it be referred to the select
10 committee on Article V.
11 COMMISSIONER SCOTT: Without objection, first of all,
12 we will show Commissioner Hawkes voting in the negative on
13 the last matter. We keep locking out different
14 commissioners on the front row there. I was locked out on
15 the prior vote earlier today.
16 Now, motion by Commissioner Douglass to refer this
17 matter to -- would you restate the motion?
18 CHAIRMAN DOUGLASS: Select committee on Article V
19 costs.
20 COMMISSIONER SCOTT: Select committee on Article V
21 costs. Discussion on that motion? All in favor of that
22 motion say aye; opposed?
23 (Verbal vote taken.)
24 COMMISSIONER SCOTT: The motion fails. Okay. We're
25 now still on the matter. Further discussion on
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1 Proposal 87?
2 Commissioner Butterworth.
3 COMMISSIONER BUTTERWORTH: The way you looked at me I
4 don't think you want me to take too long so I won't.
5 COMMISSIONER SCOTT: Actually, no, don't interpret
6 that. Which side are you on first?
7 (Laughter.)
8 COMMISSIONER BUTTERWORTH: I'm very much in favor of
9 getting accomplished what Commissioner Wetherington wants
10 done. I personally believe that what we're talking about
11 is really, to some extent, Article V costs because the
12 county is picking up funding that if in fact the
13 Legislature had provided the county with a sufficient
14 number of judges, it would not be necessary to do just
15 what he's doing.
16 I believe that this could be done with retired
17 judges, under the present system, with the adequate
18 funding. And for that reason, I feel opposed to this
19 because there is a very easy way of accomplishing what
20 should be accomplished and the state should pay for it.
21 COMMISSIONER SCOTT: Further discussion?
22 Commissioner Smith.
23 COMMISSIONER SMITH: Mr. Chairman, if in fact this
24 matter is voted upon favorably, this proposal, and the
25 matter goes to style and drafting, can the concerns with
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1 regard to the language, as expressed by Commissioner
2 Nabors, be dealt with there, or is that so substantive
3 that it can't be dealt with in style and drafting?
4 Because that would have a big factor on how I vote, the
5 answer to that question.
6 COMMISSIONER SCOTT: Let me make a stab at it here.
7 I would say that probably not because the expression would
8 be from the commission, this is what we want to do, it
9 would be that one sentence that's before you. It would be
10 my impression that we, in general, substantive questions
11 like this would have to be dealt with. The question of
12 how we would word it or what we might add and so forth
13 would be more of a style and drafting. But I don't want
14 to set a precedent that that's -- this may come up time
15 and again.
16 I think what we're trying to do is to get these
17 questions of policy resolved by amendments, by whatever,
18 and acted on before it goes in.
19 Further discussion? Okay, Commissioner Wetherington,
20 do you wish to close?
21 COMMISSIONER WETHERINGTON: I think this is something
22 that we're going to need in the state of Florida in this
23 very critical area of family law in the future. I wish we
24 had all the retired county judges that could come and take
25 over this work, but we don't have them. The
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1 Legislature -- I don't think that's the solution.
2 And besides that, we're dealing with people that are
3 specialists. The people that serve here are specialists;
4 they are specially trained in their field and their
5 specialty is family law. It's an area of enormous
6 importance to our people. We're able to get these
7 wonderful professionals, and actually, if you take a look
8 at the total benefit package that they're paid and the
9 salary, for substantially less in terms of expense than
10 providing a new judge.
11 We know in the future that we're not going to get an
12 unlimited number of new judges because the past has told
13 us that. These professionals are there now. We have a
14 basis to increase their effectiveness, to increase our
15 ability to handle in a fair and expeditious manner this
16 heartrending area of family law in our state. And the
17 only way we can do it is to give some constitutional
18 recognition to these magistrates so that they can most
19 effectively help the court.
20 Based on the strong support of the family law
21 section, the family lawyers, other people who have studied
22 this, I think this is something we ought to do.
23 COMMISSIONER SCOTT: Okay. On Proposal 87, unlock
24 the machine and commissioners prepare to vote. Have all
25 commissioners voted? Have all commissioners voted?
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1 (Vote taken and recorded electronically.)
2 COMMISSIONER SCOTT: Lock the machine and record the
3 vote.
4 READING CLERK: Fifteen yeas and 19 nays,
5 Mr. Chairman.
6 COMMISSIONER SCOTT: And so the proposal fails of
7 adoption. Okay. (Pause.) Read the next proposal.
8 READING CLERK: Committee substitute for Proposal 13,
9 proposal to revise Article I, Section 22, Florida
10 Constitution, providing that a defendant charged with a
11 capital offense may not be sentenced to death unless such
12 sentence is recommended by nine members of a jury of 12
13 persons.
14 COMMISSIONER SCOTT: Commissioner Brochin, this is
15 your proposal.
16 COMMISSIONER BROCHIN: I would ask that this proposal
17 be passed until the January calendar. I need to obtain
18 some further data before I'm prepared to go forward and
19 there's another provision before declaration of rights we
20 want to look at.
21 COMMISSIONER SCOTT: Commissioner Brochin moves to
22 temporarily pass this matter. Is there any objection to
23 the matter being temporarily passed? Without objection,
24 show it temporarily passed to the meeting in January,
25 subject to the rules committee's action.
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1 The next proposal, what's the next proposal?
2 Proposal 1 which is -- for what purpose, Commissioner
3 Smith?
4 COMMISSIONER SMITH: Thank you, Mr. Chairman. As
5 chairman of the declaration of rights, I respectfully
6 request, because Commissioner Sundberg had to leave, that
7 we go to Proposal 24. Our proposal has been acted upon
8 and we have the proponent of that proposal, Commissioner
9 Rundle, here, if that's okay.
10 COMMISSIONER SCOTT: Without objection we'll
11 temporarily pass that matter and may or may not -- we'll
12 get back to it whenever, since the sponsor is out of the
13 room. Read the next proposal.
14 READING CLERK: Proposal 24, a proposal to revise
15 Article IV, Section 8, Florida Constitution, requiring
16 that a state prisoner serve at least 85 percent of his or
17 her term of imprisonment unless granted pardon or
18 clemency.
19 COMMISSIONER SCOTT: Commissioner Rundle is
20 recognized.
21 COMMISSIONER RUNDLE: Thank you, Mr. Chairman. We
22 actually are somewhat working on an amendment to this. So
23 I would like to do what Commissioner Brochin did and ask
24 that this be reset. We may be able to do this by Friday,
25 if that's the pleasure of the general commission.
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1 COMMISSIONER SCOTT: Without objection, we show the
2 proposal temporarily passed and consult with the rules
3 committee for scheduling of the special order regarding
4 the matter.
5 What have we got next? Read Proposal 85.
6 READING CLERK: Proposal 85, a proposal to revise
7 Article I, Section 24; Article III, Sections 1, 2, 3, 4,
8 5, 7, 8, 9, 11 --
9 COMMISSIONER SCOTT: Is this Commissioner Sundberg's
10 proposal? Is this Commissioner Sundberg's also? Let's
11 temporarily pass it for the moment. Also I am recognizing
12 we have about 15 minutes before committee meetings. What
13 do we have next?
14 READING CLERK: 70.
15 COMMISSIONER SCOTT: Read the next proposal.
16 READING CLERK: Committee substitute for Proposal 70,
17 a proposal to revise Article X, Section 4, Florida
18 Constitution, providing a value limitation on the
19 homestead exemption; authorizing the Legislature to change
20 the amount of the value limitation; providing that the
21 homestead exemption does not apply to certain property.
22 COMMISSIONER SCOTT: Commissioner Mills.
23 COMMISSIONER MILLS: Mr. Chairman, I think we may
24 have an amendment pending, but just to remind the
25 commission, this is the establishment of a ceiling for the
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1 exemption from homestead exemption for debtors. And this
2 basically protects honest, hard-working citizens who
3 should be entitled to collect their debts.
4 What we have done is set a ceiling of 200,000 which
5 still makes us the highest in the country, along with
6 Minnesota, where previously we had no ceiling whatsoever,
7 which meant that people could avoid legitimate debts
8 through buying very expensive homesteads.
9 There are a couple of questions raised, and with the
10 amendments on the desk we might be able to handle those.
11 One of the questions was, what would happen in the future
12 since $200,000 in 1997 is probably not going to be
13 $200,000 in the year 2010. There is an amendment to
14 accord to the Legislature the absolute discretion to
15 increase this number. So that might actually handle a
16 couple of other issues that have been raised.
17 But I think Commissioner Planas might have an
18 amendment order on the desk at this point; I'm not sure
19 the order in which those amendments had been presented.
20 COMMISSIONER PLANAS: Commissioner Mills, yes. Last
21 time we were here in session we introduced an amendment
22 raising from 200,000 to 500,000, plus also requiring a
23 five-year residence before you could get this amount.
24 COMMISSIONER MILLS: That was my recollection as
25 well. That amendment may be pending.
156
1 COMMISSIONER PLANAS: Commissioner Alfonso introduced
2 that for me and I thought it passed.
3 COMMISSIONER MILLS: He introduced it for you, but we
4 didn't pass it. We temporarily passed it at the time. We
5 took up the amendment and it was introduced. So I don't
6 know what the status of that amendment is.
7 (Chairman Douglass resumes the Chair.)
8 CHAIRMAN DOUGLASS: She says the amendment was read
9 and the proposal was temporarily passed with that
10 amendment pending. It hasn't been adopted or defeated.
11 COMMISSIONER MILLS: Right.
12 CHAIRMAN DOUGLASS: Commissioner Barkdull, question.
13 COMMISSIONER BARKDULL: Can we get the amendment
14 read?
15 CHAIRMAN DOUGLASS: Read the amendment.
16 READING CLERK: By Commissioner Planas, on Page 1,
17 Line 23, delete that line and insert: "One, a homestead
18 of a person who has been a resident of the state for at
19 least five years to the extent of 500,000."
20 CHAIRMAN DOUGLASS: Where are we in the debate? Or
21 are we in the debate? Did we temporarily pass it?
22 COMMISSIONER MILLS: Mr. Chairman, we temporarily
23 passed it with this amendment pending. So we're on
24 Commissioner Planas' amendment.
25 CHAIRMAN DOUGLASS: This same amendment?
157
1 COMMISSIONER MILLS: Yes, that's where we're at.
2 CHAIRMAN DOUGLASS: Okay. So we're back now on the
3 motion and the amendment is before the body and the debate
4 will be on the amendment. A proponent of the amendment,
5 Commissioner Planas.
6 COMMISSIONER PLANAS: Ladies and gentlemen,
7 Commissioners, the reason why I put this amendment is that
8 almost everybody has been complaining about people from
9 other states coming to the state of Florida and this and
10 going to this very liberal law that we have got here. And
11 all of a sudden, as soon as they get to the state of
12 Florida, they declare bankruptcy. I have established that
13 for -- a five years residence limit before you can declare
14 bankruptcy in the state of Florida.
15 In addition to that, the 200,000 that Commissioner
16 Mills had put in, I had raised it to $500,000. The reason
17 for that, I do not believe that the cost of a home is the
18 same type of cost in Dade County as it is in Calhoun
19 County. So I thought that I was going to give the benefit
20 of the doubt to people living in the areas that are more
21 expensive. Thank you, Mr. Chairman.
22 CHAIRMAN DOUGLASS: All right. This is on the
23 amendment. On the amendment, Commissioner Barkdull.
24 COMMISSIONER BARKDULL: I have a question of
25 Commissioner Planas, please. Do I understand the purpose
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1 of the amendment is that if a person has lived here seven
2 years, that they can then protect a homestead up to
3 500,000?
4 COMMISSIONER PLANAS: Five years.
5 COMMISSIONER BARKDULL: I said a person that's lived
6 here seven years.
7 COMMISSIONER PLANAS: Right, correct.
8 COMMISSIONER BARKDULL: They could protect a
9 homestead up to 500,000.
10 COMMISSIONER PLANAS: Correct, sir.
11 COMMISSIONER BARKDULL: A person that's only lived
12 here four years cannot protect anything in homestead.
13 COMMISSIONER PLANAS: Correct.
14 CHAIRMAN DOUGLASS: All right, Commissioner Brochin
15 was up first and then Commissioner Scott is next.
16 COMMISSIONER BROCHIN: I just had a question about
17 the amendment. Does the amendment do both, raise the
18 limit to 500,000 and it also requires a five year
19 residency before you can avail yourself to any exemption?
20 It requires both, your amendment?
21 COMMISSIONER PLANAS: It requires both. And I do
22 understand what Commissioner Barkdull was telling us. I
23 do understand that it's very important for us to adopt a
24 residence limitation because we do not want for people
25 from other states coming down and making a mockery out of
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1 this law. That is the most important thing, and I do
2 understand it. I will entertain any ideas, but let's make
3 it a residence factor there also.
4 CHAIRMAN DOUGLASS: Commissioner Scott.
5 COMMISSIONER SCOTT: I have an inquiry of the Chair
6 or whoever. There are several of us that don't have the
7 amendment.
8 CHAIRMAN DOUGLASS: It's being distributed. I was
9 told that it was being distributed. I had a handwritten
10 copy of it. It says, a homestead of a person that has
11 been a resident of the state for at least five years to
12 the extent of $500,000, he's inserting on Page 1 at Line
13 23. He's deleting that line and inserting what I just
14 read. I understand that there's another amendment, two
15 more that are being passed out as well.
16 The pending one is being passed out, Commissioner
17 Scott, then there are two others. Do you have anything
18 while we're waiting?
19 COMMISSIONER SCOTT: Yes, Mr. Chairman, I had thought
20 his amendment was simply raising the limit here to get at
21 some of the newspaper and other stories about high-valued
22 homes versus, in a lot of our areas on the coast, an
23 average home might be 3 or $400,000. But now I see that
24 it also puts a residency. So in view of the time here and
25 so forth, I would like a chance to propose an amendment to
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1 his amendment or at least get this all collected up so we
2 can see where we are.
3 CHAIRMAN DOUGLASS: All right. We'll take a short
4 standing here while everybody gets these amendments out so
5 you can have them, because there are two more that are
6 being offered as well.
7 It's my understanding that your amendment,
8 Commissioner Planas, removes the homestead exemption of
9 any kind for anybody that hasn't lived here five years; is
10 that correct? In other words, you wouldn't get your
11 $25,000 exemption or any kind? That's what his amendment
12 says.
13 (Off-the-record comment.)
14 CHAIRMAN DOUGLASS: I asked him and the answer was,
15 yeah, that's what he wants to do. Do you want to do that,
16 Commissioner Brochin? Is that what you want to do?
17 COMMISSIONER BROCHIN: No. I think this amendment
18 deals with the right to execute on somebody who has a
19 homestead, not the right to claim.
20 CHAIRMAN DOUGLASS: So anybody that hasn't lived here
21 five years, they can levy on his homestead.
22 COMMISSIONER BROCHIN: This amendment, I think, says
23 anyone who hasn't lived here five years, that home is
24 subject to execution for a judgment, no matter what the
25 value of it is.
161
1 CHAIRMAN DOUGLASS: Whether it's homestead or not.
2 COMMISSIONER BROCHIN: Well if it's not homestead it
3 would be subjected to --
4 CHAIRMAN DOUGLASS: That's true. But what you're
5 doing is removing the homestead exemption from forced sale
6 from people that have little-bitty houses.
7 COMMISSIONER BROCHIN: Right, but not removing it
8 from a tax exemption for the first $25,000.
9 CHAIRMAN DOUGLASS: I got you. We'll probably get to
10 that later. All right. Where are we on the amendment?
11 Somebody tell me where we are. Commissioner Mills, you
12 had the floor at some point. Commissioner Mills.
13 COMMISSIONER MILLS: Mr. Chairman, this is what I
14 would propose to do to set us up so we can vote on what
15 everybody wants to do. Commissioner Planas has an
16 amendment which suggests $500,000 as a limit and this
17 five-year time span.
18 An amendment is being passed out with my name on it
19 that I would like to offer as a substitute amendment to
20 Commissioner Planas' amendment which simply wipes out the
21 second part of the paragraph which limits legislative
22 discretion. What this will do is so the Legislature can
23 decide what the limit is, by general law. So that means
24 if the Legislature decides to move to 300,000, it can. If
25 they decide to move to 400,000, they can. And this gives
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1 ultimate discretion for future consideration of inflation.
2 So there are two other pending amendments by
3 Commissioner Hawkes which are -- I have looked at, they
4 make sense, and I will be glad to accept those as
5 amendments to my substitute.
6 So to sort of line the amendments up, if you approve
7 of the $200,000 level with legislative discretion, you
8 would vote for my substitute. And Commissioner Hawkes has
9 offered his amendments to the substitute, I would accept
10 those as amendments to the substitute. If you don't want
11 that approach and you want to vote for Commissioner
12 Planas' approach, you would vote against my substitute and
13 then vote for his amendment.
14 At the appropriate time, I would like to close on my
15 amendment and explain why it's better.
16 CHAIRMAN DOUGLASS: Now you have made a substitute
17 motion to all pending motions.
18 COMMISSIONER MILLS: No, there is only one pending.
19 Commissioner Planas' amendment is pending. I'm offering a
20 substitute for that. I was informing the body that
21 Commissioner Hawkes has two amendments.
22 CHAIRMAN DOUGLASS: So you accept those as part of
23 your substitute motion?
24 COMMISSIONER MILLS: Yes, but I think formally he may
25 have to offer them. I agree --
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1 CHAIRMAN DOUGLASS: I'll recognize Commissioner
2 Hawkes to offer as an amendment to your substitute motion
3 his amendments. Commissioner Hawkes. Let's read the
4 substitute first and then you might want to know what
5 we're doing.
6 READING CLERK: Substitute amendment by Commissioner
7 Mills, on Page 2, Lines 16 and 17, delete those lines and
8 insert Paragraph A, Section 1 for purposes of this
9 section.
10 CHAIRMAN DOUGLASS: Now Commissioner Hawkes wants to
11 offer two amendments, one at a time, to the substitute
12 motion. Commissioners, I wonder if everybody might come
13 to order a little bit. If you all are as confused as I
14 am, we are going to need to get straightened out. Right
15 now Commissioner Hawkes has the floor. Commissioner
16 Hawkes is going to offer amendments to the substitute
17 motion proposed by Commissioner Mills, which we just read.
18 Commissioner Hawkes. You have the floor, Commissioner
19 Hawkes.
20 COMMISSIONER HAWKES: Thank you, Mr. Chairman. I
21 guess the first amendment I'll take up would be the one
22 that's on the full sheet lines. It says, on Page 2, Line
23 14, delete "change" and insert "raise". This is the issue
24 that there was broad consensus of approval last time we
25 met. It basically gives the Legislature authority to
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1 raise the exemption. It doesn't give the Legislature
2 authority to lower the exemption.
3 And I don't think that there should be any confusion
4 as to what that does. It just clarifies the way the
5 amendment was explained to us originally. The second
6 amendment, Mr. Chairman, if you want me to proceed with
7 that one --
8 CHAIRMAN DOUGLASS: Go ahead.
9 COMMISSIONER HAWKES: -- it says on Page 2, Line 23,
10 delete the words "hinder, delay or." And the reason for
11 this is that if you are having financial difficulties, you
12 are probably going to make your home mortgage payment
13 before you pay your Visa payment. If you do that, you
14 have hindered or delayed Visa in collecting their payment
15 and therefore your homestead would not be exempt to the
16 extent that you paid your homestead mortgage payment
17 before you paid your other payments.
18 Obviously one of the reasons that you get the
19 favorable interest rates on your mortgage that you do is
20 because bankers know that that's one of the very first
21 bills you're going to pay. And the reason that they
22 charge you such a high interest rate on unsecured credit
23 cards is because that's one of the last bills you're going
24 to pay.
25 And hinder and delay don't have any defined case law
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1 meaning that I'm aware of. And so I left the word
2 "defraud" so if you are outright defrauding creditors,
3 they could go after your homestead, but not on the case
4 where you're just making choices. And I would be happy to
5 answer any questions, Mr. Chairman.
6 CHAIRMAN DOUGLASS: All right. Now we have -- would
7 you like to make those in the form of one motion to amend
8 or would that be too -- or do you want to do them
9 separately?
10 COMMISSIONER HAWKES: I can do them together.
11 CHAIRMAN DOUGLASS: All right. We'll do the first
12 motion to amend the Constitution. Would you read the
13 first motion to amend by Commissioner Hawkes? We're on
14 the substitute motion. We will not get back to the
15 amendment of Commissioner Planas until we complete this
16 substitute. All right. Read the first amendment we're
17 voting on.
18 READING CLERK: Amendment to the substitute
19 amendment, on Page 2, Line 14, delete "change" and insert
20 "raise".
21 CHAIRMAN DOUGLASS: All right. Does everybody
22 understand that proposed amendment to the substitute?
23 Commissioner Barnett.
24 COMMISSIONER BARNETT: By inserting the word "raise",
25 therein you limit the authority of the Legislature because
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1 they otherwise, if the word is "change", they could have
2 lowered it. Is that the intent?
3 COMMISSIONER HAWKES: That's my intent, yes.
4 CHAIRMAN DOUGLASS: Commissioner Barkdull.
5 COMMISSIONER BARKDULL: I move that the time for
6 recess be extended until the conclusion of the debate on
7 70 and announcements.
8 CHAIRMAN DOUGLASS: All in favor say aye; opposed,
9 like sign.
10 (Verbal vote taken.)
11 CHAIRMAN DOUGLASS: So we'll go forward and conclude
12 everything on this particular pending matter, and then we
13 will have announcements, and then we will go to committee
14 meetings.
15 Any questions to Commissioner Hawkes on his first
16 amendment? Commissioner Scott.
17 COMMISSIONER SCOTT: Commissioner, does this mean
18 that the Legislature could raise this to some other figure
19 regardless of the amount?
20 COMMISSIONER HAWKES: The Legislature could, if they
21 chose, and especially the way that this amendment --
22 before it was tied to the increase in the median prices of
23 homes. Now it is not tied to that under this. The
24 Legislature could choose, for whatever reason, in the
25 legislative discretion they decided were important, they
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1 could raise the homestead exemption to whatever amount
2 they decided was appropriate. They could go any number,
3 higher or over 200,000.
4 CHAIRMAN DOUGLASS: But they couldn't lower it; is
5 that right?
6 COMMISSIONER HAWKES: That was taken out in
7 Commissioner Mills' amendment on Lines 16 and 17,
8 paragraph A1. He ends it right there.
9 CHAIRMAN DOUGLASS: So what it would be if they adopt
10 your amendment then, if I understand you, is that they
11 couldn't lower it, but they could raise it, if the
12 amendment is adopted. And that's the intent that you
13 have; is that correct?
14 COMMISSIONER HAWKES: Yes.
15 CHAIRMAN DOUGLASS: Does everybody understand that?
16 On the first amendment to the substitute amendment, this
17 amendment offered by Commissioner Hawkes. All in favor
18 say aye; opposed.
19 (Verbal vote taken.)
20 CHAIRMAN DOUGLASS: Carries. Now Amendment No. 2
21 offered by Commissioner Hawkes to the substitute
22 amendment. Commissioner Hawkes.
23 COMMISSIONER HAWKES: This is where I struck the
24 words "hinder or delay". In other words, your homestead
25 is exempt up to 200,000 and this paragraph provides some
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1 exceptions to the 200,000. Those exceptions, as currently
2 drafted, are if you did something that hindered a
3 creditor, or if you did something that delayed a creditor,
4 or if you did something that defrauded a creditor.
5 Well obviously the word "defraud" has some meaning in
6 the case law and the courts have defined defraud and we
7 all understand that intuitively. Hinder and delay are
8 different concepts and I would submit that any time anyone
9 comes into any kind of financial difficulty at all, they
10 are going to make choices as to which bills to pay in
11 priority basis.
12 And lenders know that when they're making the loans.
13 And they give you a lower interest rate on your home
14 mortgage compared to perhaps your business office because
15 they know that you'll pay your home mortgage first. And
16 all this says is that if you pay your home mortgage first,
17 even though that may be found to hinder a creditor or may
18 delay that creditor from collecting his money, it does not
19 disrupt or provide an exemption or exception to your
20 homestead exemption.
21 CHAIRMAN DOUGLASS: All right. Are there any
22 questions on the second amendment offered by Commissioner
23 Hawkes? Commissioner Planas.
24 COMMISSIONER PLANAS: Yes, it's not a question. May
25 I be an opponent to this?
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1 CHAIRMAN DOUGLASS: Not yet. Questions?
2 Commissioner Brochin has a question.
3 COMMISSIONER BROCHIN: Commissioner Hawkes, currently
4 under Florida law can a creditor execute, if there was an
5 intent to defraud? Is this necessary in the Constitution?
6 COMMISSIONER HAWKES: My understanding is that there
7 was a bankruptcy law case where the judge refused to go
8 beyond the homestead. He said once there is homestead, he
9 is not going to go beyond that to determine if there was
10 fraud in acquiring the homestead. And the allegation was
11 that there was fraud. And I think that the reason that
12 this provision is before you is because of that case.
13 But what they have added to that was that was an
14 allegation of fraud, which is a whole lot different than
15 hinder or delay. And so to address that concern from that
16 case, but striking the hinder and delay.
17 CHAIRMAN DOUGLASS: I've been told, maybe this will
18 help, Commissioner Brochin, that we haven't read this. We
19 haven't had the clerk read this second amendment. So I'm
20 going to ask him to do so. And then if you have
21 additional questions, you still have the floor. Would you
22 read the second amendment, Hawkes amendment.
23 READING CLERK: By Commissioner Hawkes, amendment to
24 the substitute amendment, on Page 2, Line 23, delete the
25 words "hinder, delay or".
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1 CHAIRMAN DOUGLASS: Any questions, further questions?
2 Commissioner Brochin, did he answer them? Any questions
3 directed to the second amendment of Commissioner Hawkes?
4 If not, all in favor of this amendment to the
5 substitute motion, signify by saying aye; opposed,no.
6 (Verbal vote taken.)
7 CHAIRMAN DOUGLASS: It carries, it is adopted. Now
8 there is a third amendment on the desk by Senator --
9 excuse me, Commissioner Scott, and would you read that,
10 please? This is to the substitute amendment still.
11 READING CLERK: By Commissioner Scott, amendment to
12 the substitute amendment, on Page 1, Line 23, delete the
13 word "two" and insert "four".
14 CHAIRMAN DOUGLASS: All right. Commissioner Scott,
15 you're recognized on the amendment.
16 COMMISSIONER SCOTT: Mr. Chairman, I want to refresh
17 the commissioners what we're talking about here. We're
18 talking about a situation where you, your wife, your child
19 is driving a car, has a terrible accident, maybe people
20 killed. Now we're talking about execution, if there is a
21 judgment against them, on your home or your parents' home
22 or whatever. And I have some tremendous concerns about
23 that in the first place, particularly in the area of tort
24 matters, such as an automobile accident.
25 I mean, if someone goes -- we've seen these cases on
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1 TV and 60 Minutes and wherever about the health care or
2 other executives that have multimillion dollar homes that
3 are bankrupt basically but yet they still have this home;
4 that's fine. If we want to address that, then this
5 amendment would at least put it in a range of where you
6 would pick up many, many thousands -- I can't find the
7 sheet that people were distributing regarding this -- but
8 you pick up at least the high end.
9 I don't think that this proposal is such a great
10 idea, but I do have sympathy and I recognize the concerns
11 of the business community about people who borrow money
12 and run up big bills and then don't pay and then they
13 still live in fancy homes.
14 Just like on the other issues that we have debated
15 such as the Article V issues, what is a nice home in
16 Holmes County or Taylor County or wherever is one thing,
17 and what it costs. And maybe 200,000 might be all right
18 for that. In the areas that I'm familiar with and where I
19 live and a lot of the people that I represent in public
20 life, the average home may well be, because of the cost of
21 living in the area, well up close to the 200,000 that's
22 provided in here.
23 So what this amendment does is just say that
24 basically for all purposes of this proposal that 400,000
25 which picks up again, I think, tens of thousands of homes
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1 that might be the big offenders. But it at least gives
2 some recognition to the concern of people who live on the
3 coastal areas of Florida perhaps that they, you know, that
4 they at least are able to maintain their home, they don't
5 lose it.
6 I know one of the things that's also -- elderly
7 people have often paid off their mortgages. This basic
8 proposal, if you have a $250,000 home but you have a
9 $200,000 mortgage, then you would be protected because the
10 50,000 would be less. But in many cases our parents or
11 elderly people have paid off. So they happen to have a
12 home and maybe that's what they have. And they have an
13 accident going to the grocery store and they end up losing
14 it. So I would like to adopt this amendment to raise the
15 overall limit of this proposal to 400,000. That's what
16 the amendment does.
17 CHAIRMAN DOUGLASS: My understanding on the table is
18 a substitute for Commissioner Scott's amendment to the
19 substitute amendment. And I think maybe it's a very
20 simple one, Commissioner Planas, if I read it right, just
21 raising the price from 400,000 to 500,000.
22 COMMISSIONER PLANAS: That's correct.
23 CHAIRMAN DOUGLASS: Now we're on the -- somebody tell
24 me where we are.
25 COMISSIONER THOMPSON: I think you can amend the
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1 substitute. You can't substitute for a substitute, I
2 think.
3 (Off-the-record comment.)
4 CHAIRMAN DOUGLASS: I think you're overruled by the
5 secretary.
6 COMISSIONER THOMPSON: That's all right, I'm
7 overruled by Mills, he's speaking Latin back here.
8 CHAIRMAN DOUGLASS: Where we are, if you're for the
9 $500,000 limit as opposed to the $400,000 limit that's in
10 Commissioner Scott's proposal, vote aye.
11 COMMISSIONER MILLS: May I speak against it?
12 CHAIRMAN DOUGLASS: It didn't get any votes, don't
13 speak against it. All opposed say no.
14 (Verbal vote taken.)
15 CHAIRMAN DOUGLASS: It fails.
16 We revert to the substitute motion of Commissioner
17 Mills as amended by the three -- we've got to do
18 Commissioner Scott's now. Now you can vote. Commissioner
19 Scott, you have made a motion to amend the substitute
20 motion, which is on the table, that you have explained.
21 Is there any discussion on Commissioner Scott's amendment?
22 (Off-the record comment.)
23 CHAIRMAN DOUGLASS: Before we do that Commissioner
24 Planas has a substitute motion to amend or to --
25 substitute motion changing from 400,000 to 500,000 the
174
1 limit set in Commissioner Scott's proposal and we will now
2 take debate or -- on that issue between the 500,000 and
3 the 400,000. Commissioner Planas as a proponent.
4 COMMISSIONER PLANAS: Commissioner Scott gave a very
5 good argument in the sense that he said there is a lot of
6 elderly people that went out and paid for their houses.
7 Those houses that were paid for during a long time and all
8 of a sudden something could happen and everybody would
9 have lost all their money.
10 There is also a saying here that a lot of banks and
11 financial institutions would be out of money for things
12 that are owed to them. We must remember also that every
13 one of you guys, every Commissioner in here gets probably,
14 if they do the same as I do, probably ten letters a week
15 about opening a credit card, about getting a bank account.
16 All of those financial institutions are going out
17 there and soliciting every day from all types of people,
18 either from the poor to the rich, to open an account.
19 They are going out and trying to solicit for us to spend
20 money and spend money all the time. So they are also
21 proponents of us spending money without regard, without
22 regard of the type of money that we have.
23 Mr. Commissioner -- Mr. Chairman, if I may have order
24 here, please.
25 CHAIRMAN DOUGLASS: Now you may have peace and quiet
175
1 for the moment.
2 COMMISSIONER PLANAS: Thank you. Now, I do
3 understand that there's a need, a tremendous need. I'm a
4 businessman. I'm just a poor mechanic like Mr. Morsani
5 is.
6 (Laughter.)
7 COMMISSIONER PLANAS: The other day I was hit by two
8 businesses that had an account with us and they declared
9 bankruptcy. They owe me each one approximately six to
10 $10,000. So I could not cover them. Now, if we go and
11 check the records, the people that go ahead and declare
12 bankruptcy in the state of Florida, it's a very minor
13 percentage, very minor percentage.
14 However, those people that go ahead and declare
15 bankruptcy are also a very small amount of money when they
16 declare whatever they owe. We're talking also here now
17 about people that have a house in Dade County, in Broward
18 County, West Palm Beach, Sarasota area, where the cost of
19 living is a little higher than all the other counties.
20 And if you go and check those records, those people that
21 live in those areas, they will not declare bankruptcy for
22 500,000 when they have as much money as they have to
23 declare bankruptcy -- I got lost in here.
24 What I was saying is that people with higher income
25 don't declare bankruptcy as much as say people with lower
176
1 income. That's why we have the 100,000 limitation or the
2 200,000 limitation. We need to protect also some
3 businessmen out there that spend a lot of money for their
4 houses, they spend a lot of money for their children and
5 so forth. And all of a sudden if they declare bankruptcy,
6 which hardly occurs, which hardly occurs, we need to have
7 protection for them. Thank you.
8 CHAIRMAN DOUGLASS: All right. This is in favor,
9 proponents, Commissioner Zack.
10 COMMISSIONER ZACK: I'm in favor of the substitute
11 for several reasons.
12 CHAIRMAN DOUGLASS: What we're debating is the Planas
13 substitute for Commissioner Scott's -- Commissioner Scott
14 was 400,000 and Commissioner Planas is 500,000, and that's
15 what the issue is. And if you're a proponent of 500,000,
16 it's your turn to speak. And Commissioner Zack has the
17 floor to do that.
18 COMMISSIONER ZACK: Thank you, Mr. Chairman.
19 I have the same concerns Senator Scott, Commissioner
20 Scott expressed earlier about the whole issue here. But
21 the one thing that's for certain is that it is not likely
22 to pass the voters in any regard. And I think that the
23 higher the number that we use, and that's why I used 500,
24 you could use a million, frankly. I'd be inclined to
25 raise it to a million, I'm not willing to put that forward
177
1 at this time.
2 But I think, you know, how can anybody say a million
3 dollars isn't enough? I don't think anybody can say that.
4 And I think you have a much better chance of having it
5 passed by the voters, which is the ultimate result here
6 that we're trying to achieve, not just getting some
7 substitute to a substitute to an amendment passed today.
8 We really have to look at what our long-term goal is,
9 and that is to present something that will be accepted by
10 the voters. And I think 500,000 has a lot better
11 likelihood of being accepted by the voters than the 400.
12 And I'm not sure that a higher number shouldn't be used
13 ultimately as well. But for the time being, I'm speaking
14 in favor of Commissioner Planas' motion.
15 CHAIRMAN DOUGLASS: All right, in favor.
16 Commissioner Wetherington.
17 COMMISSIONER WETHERINGTON: I think we ought to treat
18 people fairly if they don't have any money, but I think we
19 should also treat people fairly if they have accumulated
20 some money. I don't think we should just take the
21 attitude that we only protect people that don't have any
22 money. People like Mr. Planas and others that have worked
23 hard, maybe they have to have a home for different
24 reasons. Maybe sometimes it's connected to their
25 business, maybe they employ 100 people. I don't think
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1 they should be discriminated against simply because they
2 have that lifestyle.
3 Florida, for better or worse, the whole history of
4 Florida has been that we have attracted people from other
5 states. And one way we have done it, frankly, is to give
6 incentives to people to come to this state and to live
7 here and to invest in this state. So there's a special
8 reason for homestead exemption in Florida. It's been part
9 of our success.
10 There have been abuses. I think a good case can be
11 made that those abuses should be eliminated. But $500,000
12 would seem to me to be the minimum amount if you're going
13 to abolish it at all. I think a good case can be made to
14 leave it alone, but if you're going to change it, I
15 certainly think that we should -- 500,000 is about as low
16 as we ought to go.
17 CHAIRMAN DOUGLASS: And we will, when we revert to
18 finally getting to the motion and have the opportunity to
19 debate whether we ought to have it at all. This is on the
20 $500,000 proponents. Commissioner Mills.
21 COMMISSIONER MILLS: In opposition.
22 CHAIRMAN DOUGLASS: Are there any other proponents?
23 All right, Commissioner Mills as an opponent.
24 COMMISSIONER MILLS: If we intend to do this at all,
25 we need to do this rationally. And to put us sort of in
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1 touch with rationality in ourselves, what would you guess
2 the number, the percentage of the number of homes over
3 $500,000 in the state of Florida would be?
4 So let's assume that all of those people will vote in
5 their self-interest, four-tenths of 1 percent. That's how
6 much in touch we are with the value of homes.
7 CHAIRMAN DOUGLASS: How many people does that
8 represent?
9 COMMISSIONER MILLS: Well, 2.3 children -- I don't
10 know. Whatever 2.3 times four-tenths of 1 percent is, not
11 a lot of people; 60,000, you have an ironclad number.
12 The point is, I am, of all folks, in favor of
13 protecting individual rights. The other rights that are
14 entitled to be protected are those of the hardworking
15 people who play by the rules, pay their bills and are
16 entitled to be paid. If someone goes bankrupt, if the
17 message that we want to send is you're entitled to live in
18 a $500,000 home and go bankrupt and not pay your mechanic,
19 then vote for this amendment. Right now we have no limit
20 whatsoever; 500,000 is the moral equivalent of no limit
21 whatsoever.
22 Let me make the second point, having said that. If
23 this state, through its representatives, believes that
24 200,000 is not enough, the amendment you're about to vote
25 on says they can change it to 400,000, to 500,000, to
DIVISION OF ADMINISTRATIVE HEARINGS (904) 488-9675
180
1 anything they want. And I am very comfortable that
2 Senator Scott has --
3 CHAIRMAN DOUGLASS: Commissioner Scott.
4 COMMISSIONER MILLS: -- Commissioner Scott and
5 Senator Scott has influence in the Senate. If they wish
6 to raise the limit, they can do that. If they wish to put
7 formulas in, they can do that. This sets a $200,000
8 ceiling, this allows us to get ourselves off the list as
9 the debtor's haven of the country. And $500,000 is
10 essentially the equivalent of not having a cap at all.
11 CHAIRMAN DOUGLASS: We're either going to have to
12 shut down or we're going to have to bring this thing to a
13 vote because we have got committee meetings set that are
14 at a time certain, to end at 4:00 which I'm going to get
15 to later. But I think we have debated this enough. With
16 your permission, we'll start voting first on the
17 substitute of Commissioner Planas, which is to make the
18 change from 400,000 to 500,000, and Commissioner Scott's
19 amendment. Now all of those in favor of the substitute
20 say aye; all those opposed say no.
21 (Verbal vote taken.)
22 CHAIRMAN DOUGLASS: The substitute is adopted. Now
23 on the next matter, we revert to -- we have another
24 amendment? I'm going to ask the rules chairman to just
25 move that we adjourn if we're going to keep this up. We
181
1 have got to have these committee meetings. We cannot
2 debate this matter indefinitely. It's not that difficult
3 an issue. When we get to it, we may defeat it anyway.
4 Commissioner Thompson.
5 COMISSIONER THOMPSON: Is this amendment another
6 substitute amendment?
7 SECRETARY BLANTON: No, it's to the proposal.
8 COMISSIONER THOMPSON: To the proposal itself?
9 SECRETARY BLANTON: Yes.
10 CHAIRMAN DOUGLASS: Commissioner Barkdull.
11 COMMISSIONER BARKDULL: In light of the observation
12 of the Chair, I am going to move that this matter be
13 temporarily passed, to be rescheduled by the rules
14 committee.
15 CHAIRMAN DOUGLASS: All right. All those in favor of
16 that, say aye; all opposed say no.
17 (Verbal vote taken.)
18 CHAIRMAN DOUGLASS: It's temporarily passed. What's
19 left pending is the substitute amendment, and we'll take
20 that up when it's brought back again. Now, Commissioner
21 Barkdull, I would entertain a motion to extend the time
22 for the committee meetings past 4:00 to 4:30 and to extend
23 the time for the beginning of the next committee meetings
24 to 4:30.
25 COMMISSIONER BARKDULL: All right, Mr. Chairman.
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1 First I'll move that the committee meeting times be
2 extended from 2:00 to 2:30.
3 CHAIRMAN DOUGLASS: All right. It's been moved that
4 we extend the time from 2:00 to 2:30 for the committee
5 meetings. All in favor, say aye; opposed no.
6 (Verbal vote taken.)
7 CHAIRMAN DOUGLASS: That is the case; it passes.
8 COMMISSIONER BARKDULL: Now the second set of
9 committee meetings that are scheduled for 4:00, I move
10 that they commence at 4:30.
11 CHAIRMAN DOUGLASS: All right. It is moved that the
12 second set of committee meetings begin at 4:30. All in
13 favor, say aye; opposed no.
14 (Verbal vote taken.)
15 COMMISSIONER BARKDULL: Mr. Chairman, the rules
16 committee is scheduled to meet at 5:00. I suggest that we
17 move that time to 5:30.
18 CHAIRMAN DOUGLASS: The rules committee meeting is to
19 be set at 5:30. All in favor, say aye; all opposed.
20 (Verbal vote taken.)
21 CHAIRMAN DOUGLASS: It carries.
22 COMMISSIONER BARKDULL: All right. Now,
23 Mr. Chairman, for the benefit of those on the judicial and
24 the general provisions committees, the calendar for those
25 two committees is the same calendar that was available
183
1 yesterday when there was no quorum present to consider the
2 matters. So they will be the matters that will be taken
3 up, plus any additions that may have been assigned to
4 those committees overnight.
5 CHAIRMAN DOUGLASS: Before that, I think --
6 Commissioner Barnett, do you have something that
7 intervenes over his announcements?
8 COMMISSIONER BARNETT: No.
9 CHAIRMAN DOUGLASS: Go ahead, Commissioner Barkdull.
10 COMMISSIONER BARKDULL: The special order calendar
11 that I'll recommend to the committee for your information
12 will be those items on today that we temporarily passed,
13 except where we specifically referred them over to January
14 or to a select committee, the items on the general
15 calendar which we did not reach, and the proposals that
16 may be voted out or action taken on in any committee
17 today.
18 I want to call the attention of the cochairs that the
19 time for your consideration of proposals is running short.
20 If you want to make any motions in that regard, tomorrow
21 or Friday. I also want to call the attention to members,
22 some of you have indicated to staff that you want to
23 withdraw some proposals. So be prepared tomorrow or
24 Friday to announce those that you want to withdraw.
25 I had some discussions about Friday's meeting, and I
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1 want to throw out something for you to think about; we'll
2 take a consensus of the group tomorrow. And that is, on
3 Friday come in 8:30 in the morning, plan on adjourning at
4 1:30 or 2:00, with no break for lunch, but have available
5 during the morning snacks or fruit in the refreshment room
6 behind the podium. That is all the announcements I have,
7 Mr. Chairman.
8 CHAIRMAN DOUGLASS: Commissioner Barnett.
9 COMMISSIONER BARNETT: I wanted to withdraw two items
10 if I could.
11 CHAIRMAN DOUGLASS: Proceed quickly.
12 COMMISSIONER BARNETT: I wanted to withdraw proposal
13 No. 145 and Proposal No. 146. Proposal 145 --
14 CHAIRMAN DOUGLASS: We'll take them up one at a time.
15 Proposal 145 she moves to withdraw. What is 145?
16 COMMISSIONER BARNETT: It deals with extending full
17 financial disclosure to all elected officials as opposed
18 to constitutional officers.
19 CHAIRMAN DOUGLASS: Does everybody understand the
20 motion? Commissioner Barnett has moved to withdraw her
21 Proposal No. 145, which is to extend financial reporting
22 to all --
23 COMMISSIONER BARNETT: Full financial.
24 CHAIRMAN DOUGLASS: -- full financial disclosure to
25 all elected officials.
185
1 COMMISSIONER BARNETT: As opposed to now it is just
2 constitutional officers.
3 CHAIRMAN DOUGLASS: Correct. Now you move to
4 withdraw that? All in favor of allowing her to withdraw
5 that, say aye; all opposed.
6 (Verbal vote taken.)
7 CHAIRMAN DOUGLASS: It unanimously is withdrawn. Now
8 you have one more.
9 COMMISSIONER BARNETT: One more, Proposal No. 146.
10 Both of these were public proposals which I endorsed, but
11 we have had discussion of them which is why I am now
12 withdrawing them; 146 deals with single-member districts
13 as opposed to multi-member legislative districts.
14 CHAIRMAN DOUGLASS: All right. She moves to withdraw
15 Proposal 146 which provides for multi-member districts
16 instead of single-member districts. All those in favor of
17 allowing her to withdraw that, say aye; opposed, like
18 sign.
19 (Verbal vote taken.)
20 CHAIRMAN DOUGLASS: It is withdrawn. Commissioner
21 Rundle.
22 COMMISSIONER RUNDLE: Mr. Chairman, I likewise would
23 like to withdraw a proposal. It was a public proposal, it
24 was entertained in committee. We had TPd it earlier and
25 I've been informed that the head of the ethics commission
186
1 does not really desire to have this particular proposal
2 passed. So based on that, I would like to withdraw
3 Proposal No. 63 dealing with the ethics commission.
4 CHAIRMAN DOUGLASS: Commissioner Rundle moves to
5 withdraw Proposal 63. All in favor, say aye; opposed,
6 like sign.
7 (Verbal vote taken.)
8 CHAIRMAN DOUGLASS: It is withdrawn. We're not going
9 to take up any more because we've got the 2:30 meetings.
10 Commissioner Barkdull.
11 COMMISSIONER BARKDULL: I move we recess until the
12 hour of 9:00 tomorrow morning.
13 CHAIRMAN DOUGLASS: All right. Before we recess,
14 before we recess, I want to tell you that we're going to
15 have to try to make it move a little quicker and I haven't
16 been helping that too much, but if we would all be a
17 little more orderly in the chamber I think we can move
18 quicker. We got -- later in the day we got a little bit
19 lax, but that will not happen in the morning.
20 So on the motion to adjourn, without objection we'll
21 adjourn until tomorrow morning at 9:00.
22 (Session recessed at 2:30 p.m, to be continued on
23 December 11, 1997 at 9:00 a.m.)
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1 CERTIFICATE
2 STATE OF FLORIDA:
3 COUNTY OF LEON:
4
WE, JULIE L. DOHERTY, KRISTEN L. BENTLEY and
5 MONA L. WHIDDON, Court Reporters, certify that we were
authorized to and did stenographically report the foregoing
6 proceedings and that the transcript is a true and complete
record of our stenographic notes.
7
8 DATED this ______ day of ____________, 1997.
9
10
_________________________________
11 JULIE L. DOHERTY, RPR
12
13 _________________________________
KRISTEN L. BENTLEY
14
15
_________________________________
16 MONA L. WHIDDON
COURT REPORTERS
17 DIVISION OF ADMINISTRATIVE HEARINGS
1230 APALACHEE PARKWAY
18 TALLAHASSEE, FLORIDA 32399-3060
(904) 488-9675
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DIVISION OF ADMINISTRATIVE HEARINGS (904) 488-9675
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