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1 STATE OF FLORIDA
CONSTITUTION REVISION COMMISSION
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COMMISSION MEETING
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DATE: December 12, 1997
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TIME: Commenced at 8:30 a.m.
11 Concluded at 1:35 p.m.
12 PLACE: The Senate Chamber
The Capitol
13 Tallahassee, Florida
14 REPORTED BY: MONA L. WHIDDON
JULIE L. DOHERTY
15 KRISTEN L. BENTLEY
Court Reporters
16 Division of Administrative Hearings
The DeSoto Building
17 1230 Apalachee Parkway
Tallahassee, Florida
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1 APPEARANCES
2 W. DEXTER DOUGLASS, CHAIRMAN
3 CARLOS ALFONSO
CLARENCE E. ANTHONY (EXCUSED)
4 ANTONIO L. ARGIZ (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 (ABSENT)
8 VALERIE EVANS
MARILYN EVANS-JONES
9 BARBARA WILLIAMS FORD-COATES
ELLEN CATSMAN FREIDIN
10 PAUL HAWKES
WILLIAM CLAY HENDERSON
11 THE HONORABLE TONI JENNINGS
THE HONORABLE GERALD KOGAN
12 DICK LANGLEY (EXCUSED)
JOHN F. LOWNDES
13 STANLEY MARSHALL
JACINTA MATHIS
14 JON LESTER MILLS
FRANK MORSANI
15 ROBERT LOWRY NABORS
CARLOS PLANAS (EXCUSED)
16 JUDITH BYRNE RILEY
KATHERINE FERNANDEZ RUNDLE
17 SENATOR JIM SCOTT (EXCUSED)
H. T. SMITH
18 CHRIS T. SULLIVAN (EXCUSED)
ALAN C. SUNDBERG
19 JAMES HAROLD THOMPSON (EXCUSED)
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: Quorum call, quorum call. All
4 commissioners indicate your presence. All commissioners
5 indicate your presence. Quorum present, Mr. Chairman.
6 CHAIRMAN DOUGLASS: Would everyone have their seats.
7 Okay. Will you come to order, please. This -- would you
8 all rise and we'll call on Reverend David Horton, senior
9 pastor of Trinity United Methodist Church in Tallahassee,
10 one of our oldest and most important churches. And we are
11 delighted to have him this morning. May we pray.
12 REVEREND HORTON: Creator God, we pause before you
13 before beginning these proceedings to seek your blessing
14 and your guidance upon these who have gathered to revise
15 the Constitution of the State of Florida. We turn to you
16 because we think of you as a source of wisdom and truth,
17 as a source of inspiration and insight, we regard you as
18 the motivation for equity and justice. We always need
19 your encouragement as we work with those who come from
20 different perspectives. Help all to work toward a
21 government that serves the people of Florida with
22 efficiency in economy. In the name of all that is holy
23 and worthy we pray, Amen.
24 CHAIRMAN DOUGLASS: Commissioner Alfonso, please come
25 lead the allegiance to the flag.
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1 (Pledge of Allegiance.)
2 CHAIRMAN DOUGLASS: All right. Chairman of rules,
3 Commissioner Barkdull.
4 COMMISSIONER BARKDULL: Mr. Chairman, members of the
5 commission, you have on your desk a proposed special order
6 which picks up what we did not consider yesterday, it
7 picks up the matters that were on the calendar that we did
8 not reach.
9 CHAIRMAN DOUGLASS: We need some order, please.
10 COMMISSIONER BARKDULL: It added some of the items
11 that came out of some committees. Some of you have
12 inquired about why matters that did not reach the calendar
13 that were in your committees and voted out, those that had
14 amendments to them, had to go back to bill drafting, and
15 many of them did not get to the office in time to be on
16 the calendar, and therefore, they're going to obviously
17 have to go over to January. I move, sir, that we do
18 ratify the order as suggested by the rules committee.
19 CHAIRMAN DOUGLASS: Already it's been moved that we
20 adopt the special order recommended by the rules
21 committee. Without objection, it is adopted.
22 COMMISSIONER BARKDULL: Mr. Chairman, at this time,
23 I'd like to the call on Commissioner Mills for a report
24 for the special committee on Article V, Costs.
25 CHAIRMAN DOUGLASS: Commissioner Mills, you are
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1 recognized.
2 COMMISSIONER MILLS: Mr. Chairman, your committee on
3 Article V, Costs, met yesterday. As I reported to you
4 before, we were examining the issues of what should be
5 included in the definition of the court system. We have a
6 preliminary redraft, which I will ask the staff to
7 distribute to all of you before we come back next time.
8 The remaining issues are which items which are
9 currently in local judicial budgets should be included in
10 Article V, Costs, if, in fact, we determine that we are
11 going to acquire those costs to the State, such issues as
12 regarding ad litem, such issues as translators. And just
13 for background information, the committee at this time I
14 think has the thinking that if it's constitutionally
15 required, it should be probably part of those things that
16 we assume the obligation for.
17 And there is a whole second issue which the committee
18 will consider next time dealing with the treatment of the
19 clerks under Article V, their costs and their fees, fines
20 and forfeitures. So we will meet again next time and I
21 think we will have at that point a draft to bring back to
22 the floor. Thank you, Mr. Chairman.
23 CHAIRMAN DOUGLASS: Thank you, Commissioner Mills.
24 We'll move to the special order. Go ahead, excuse me,
25 Commissioner Barkdull.
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1 COMMISSIONER BARKDULL: I just have a couple more
2 comments. The -- as yesterday -- as we approach the
3 adjournment today, I want to give you time to withdraw any
4 matters that you might want to withdraw so that the staff
5 will know what they are before we come back in January.
6 At the present time we are scheduled to come back Monday
7 the 9th of January. The rules committee does not
8 contemplate changing those dates that are set. We hope
9 that everybody will be here.
10 The -- during the progress of the morning, I
11 understand, in the next hour, hour and a half, the snacks
12 will be in the back room and I hope we can proceed as far
13 as we can go today. Obviously, from looking around the
14 chamber, we are going to have to -- have a problem with
15 attendance, we will have to see how far we can go.
16 CHAIRMAN DOUGLASS: We presently have, I believe, 25
17 present, 26. And that's getting pretty sparse. You
18 know -- go ahead.
19 COMMISSIONER BARKDULL: Excuse me, I've been
20 corrected. It is Monday the 12th that we come back up
21 here. I am in the wrong month.
22 CHAIRMAN DOUGLASS: And the wrong date. Those of you
23 that are here, you know, we all appreciate your being
24 here. We are having trouble with attendance and it's
25 pretty obvious that Friday people decide that we won't
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1 miss them and they proceed to go to other pursuits. And I
2 don't want to single anybody out, but we are going to have
3 to have better attendance and we are going to have to have
4 people stay. Because what will happen if we don't have
5 enough people here when we consider these matters, we'll
6 been doing it all over again.
7 And I think we are getting to the point where we have
8 got to start moving. And we can't keep putting off a lot
9 of these difficult issues, we are going to have to get to
10 it and get them refined and passed or defeated. And I'd
11 ask all of you to please try to plan your schedule for
12 these January meetings so you don't have to leave on
13 Friday. And you can get here when the meeting starts and
14 you can be present during the course of the meetings.
15 Certainly, for constant absentees, the appointing
16 authorities can take some action in relation to that. And
17 I know that they certainly don't want to, but I also know
18 that when people were appointed they were told that this
19 was going to be a very time-consuming process. And
20 everybody came with their eyes wide open.
21 I do realize that some things come up that you cannot
22 take care of. Commissioner Sullivan had to go have some
23 medical things today that could not be put off. And he is
24 one that came to me early and told me that that was
25 happening to him. I don't think that it's anything
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1 serious, I think it's more in the area of testing-type
2 medical procedures. But those types of things are going
3 to happen. But I do know that some people say, Well, I've
4 got to go do something for a big client today.
5 Certainly, all of us that have been in the law
6 practice know that you can usually get around that and set
7 it at another time or do it on Saturday and Sunday or
8 whatever if it's a big enough client. I think, again,
9 please pass that word to those members that seem to leave
10 on the last day, they are really hamstringing the work for
11 the commission.
12 The debate yesterday for the unicameral legislature,
13 for your information, I think was one of the -- for
14 whatever it's worth -- I think a lot of people agreed with
15 me, was one of the best debates on a constitutional issue
16 that's been held. It was in '78, I was on that one. I
17 don't think anything approached the presentations. There
18 was not any repetition, which Commissioner Jennings and I
19 discussed is very, very unusual. Every person that spoke
20 had a point of view, they said it and there was no
21 personal involvement as occurs in most bodies and I want
22 to compliment this group on what I think will be a
23 classical inquiry into the legislative branch.
24 And the television of that, the video is taped and
25 certainly will probably wind up being used in a lot of
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1 classrooms around the state as an example of a discussion
2 that really gets to the issues on this. Commissioner
3 Evans-Jones, I still voted no, but you just did a great
4 job. And in spite of your double close and having
5 Commissioner Sundberg speak, you did great. And
6 Commissioner Sundberg, I'm teasing you, of course, because
7 your presentation was equally impressive.
8 COMMISSIONER EVANS-JONES: A bicameral close.
9 CHAIRMAN DOUGLASS: Beg your pardon?
10 COMMISSIONER EVANS-JONES: Bicameral close.
11 CHAIRMAN DOUGLASS: A bicameral close, all right.
12 See, what did I tell you. Now we can start it on the
13 special order -- yes, Commissioner Evans?
14 COMMISSIONER EVANS: I for one, and I know there are
15 some other people who did not get the change of calendar
16 neither by fax or mail nor any other way. I have on my
17 calendar that we are meeting in January, the 5th, 6th, and
18 7th, starting at 1:00 on the 5th. Possible meeting, I
19 haven't heard whether possible has become actual, 14th
20 15th and 16th. And then another meeting, definite, 21st,
21 22nd, 23rd. So I need the amended calendar. Granted this
22 is not much notice for me, but I still need it.
23 CHAIRMAN DOUGLASS: If you haven't gotten it, it's
24 because for some reason there was a glitch, because
25 everybody has had it for some time.
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1 COMMISSIONER EVANS: Everybody has not.
2 CHAIRMAN DOUGLASS: Is there a motion to fire
3 Mr. Buzzett? You are granted a reprieve.
4 (Laughter.)
5 CHAIRMAN DOUGLASS: Commissioner Barkdull?
6 COMMISSIONER BARKDULL: Mr. Chairman, they were
7 supposed to be stapled to the back of this matter. It
8 will be distributed this morning. It is the week of the
9 12th and three days of the week of the 26th. There will
10 be a copy of it distributed.
11 CHAIRMAN DOUGLASS: I think the 12th is Monday.
12 COMMISSIONER BARKDULL: 1:00 on Monday the 12th and
13 conclude at 1:00 that Friday on that week. The week of
14 the 26th is scheduled to start, I believe, at 9:00 in the
15 morning on Monday and conclude on Wednesday afternoon.
16 Those will be three full days. The chamber is not
17 available on Thursday, and we are not scheduled to meet on
18 Friday.
19 CHAIRMAN DOUGLASS: All right. Now, if you have
20 problems with that, don't bring them up on the floor, go
21 bring them up with the rules committee and then we'll talk
22 about it. Commissioner Freidin?
23 COMMISSIONER FREIDIN: Do you know the schedule for
24 February also?
25 CHAIRMAN DOUGLASS: Commissioner Barkdull?
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1 COMMISSIONER BARKDULL: We will have a tentative -- I
2 think it's been distributed, but it'll be redistributed
3 this morning.
4 CHAIRMAN DOUGLASS: All right. February schedule
5 will be redistributed this morning. Commissioner Zack?
6 COMMISSIONER ZACK: Mr. Chairman, for those going to
7 south Florida, there is a 12:10 flight and then another
8 one that leaves at 3:45. And I'm wondering if it's
9 possible and there's been some discussion among a number
10 of people including yourself, about the possibility of
11 working evenings. Particularly when we get into January,
12 because people just go back to the room and have dinner
13 and go to sleep, we're really here to work and get out and
14 do whatever we have to do. If that's a possibility, I
15 know you need to think about it and reflect on the
16 schedule and so forth. But to the extent that that's
17 possible, I thought that it might be an idea to consider.
18 CHAIRMAN DOUGLASS: We have discussed this, it's
19 under consideration. On the days when you start at
20 1:00, that's a distinct possibility. On the other days,
21 if you go a full day, you need to go home because anything
22 that's done after 6:00 or 7:00 becomes rather
23 nonproductive in this setting. So we're considering that
24 and I think that we will address it if we have to. And
25 it's been considered and will continue to be considered.
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1 COMMISSIONER ZACK: The only thing I would ask is
2 that if it's possible to make the five-day meeting into a
3 four-day meeting by using Monday evening as opposed to
4 Friday morning, it might be of some assistance.
5 CHAIRMAN DOUGLASS: I think if we don't get started,
6 it's pretty obvious, we are going to need a six-day
7 meeting every night on the first week in January to get to
8 these issues. We're not going to make that determination
9 at this point. We are considering what we're going to do
10 but I think you can rest assured -- and don't make plans
11 to leave here early on Friday like everybody, not
12 everybody but a lot of people seem to do, because in
13 January you're going to find we've got a lot of these
14 things and we're going to have to take them up and we need
15 to do it in an orderly manner. And now if we don't get
16 started, we are going to be here and get nothing done
17 today.
18 Now unless it's very important -- all right.
19 Commissioner Riley.
20 COMMISSIONER RILEY: I would like to suggest that
21 instead of the 1:00 beginning in January, that we start as
22 we have been at the 9:00 a.m. Would that not give us a
23 little bit more time and perhaps --
24 CHAIRMAN DOUGLASS: Commissioner Riley, I'm referring
25 your very important suggestion to the rules committee
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1 where it should be addressed. They set these things and
2 they're not to be done from the floor. And I'm not
3 recognizing any more discussion on this because the place
4 to do it is in the rules committee and that's why we have
5 them. Everybody can get up and tell their individual
6 problems and we could go all day.
7 I'm going to call the first -- if that's all from the
8 rules chairman, we'll proceed to the special order. And
9 the first item is committee substitute for Proposal 47
10 which you will please read.
11 READING CLERK: Committee substitute for Proposal 47,
12 a proposal to create Article VIII, Section VII, Florida
13 Constitution, and revise Article XI, Section III, Florida
14 Constitution, providing that the power of self-government
15 of a county or municipality may not be diminished except
16 by general law, county charter, or special act approved by
17 the electors of the county or municipality; providing that
18 a constitutional initiative that limits the powers of
19 municipalities or limits the ability of municipalities to
20 raise revenue must be approved by the electors of a
21 municipality in order to take effect within a
22 municipality.
23 CHAIRMAN DOUGLASS: All right. We have two
24 amendments on the table. I would like, however, for the
25 proponent of this to present the proposal first and then
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1 we'll go to the amendments. Commissioner Nabors, you are
2 recognized to discuss, as a proponent, to the proposal. I
3 understand also that you have an amendment on the table.
4 If you will tell us first the proposal and then address
5 your amendment.
6 COMMISSIONER NABORS: I don't know whether
7 Mr. Anthony's schedule is going to permit him to be here
8 or not. This is his proposal although he and I -- I
9 believe he's in agreement with the amendment. Do you want
10 to the TP it?
11 CHAIRMAN DOUGLASS: First, tell us what the proposal
12 is then offer your amendment.
13 COMMISSIONER NABORS: The proposal and the amendment
14 are the same, it's a matter of language. One of the
15 geniuses of the '68 constitution is a concept of
16 home-rule, within your charter counties, non-charter or
17 municipality. And the proposal basically recognizes the
18 fact that you could have a statewide initiative, whether
19 it's constitutional or the legislative on the issue of
20 local concern, and that that could be a flaming political
21 issue, for example, in Broward and Dade and could pass and
22 could diminish the home-rule power within other areas of
23 the state.
24 It's not intended to deal with anything like the net
25 ban, which is a matter of statewide importance. But the
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1 language, and I'll go over the language in detail, the
2 language, when you're dealing with matters of local
3 concern, the proposal basically says that the home-rule
4 power of counties and cities will not be diminished by any
5 initiative, except by general law, charter amendment or
6 special act approved by the voters. The reason is, if you
7 have a local problem, then there generally is a mechanism
8 to deal with that.
9 If you are a charter government, almost every charter
10 has an initiative procedure in that. If you are a
11 non-charter county, you can -- special act is a solution
12 or you could have a citizen initiative to create a
13 charter. I don't envision that this would ever be a
14 freestanding proposal. The concept is, is that if we have
15 a proposal dealing with legislative initiative that this
16 would be something that if it passes with a majority
17 today, and I hope it does, could be considered by style
18 and drafting to be incorporated into the document.
19 We've just got to recognize the diversity of this
20 state. And you've got to recognize the population
21 realities. And you could have, as I say again, a
22 statewide initiative to deal with the problem in south
23 Florida, and the votes would be there to take away local
24 home-rule prerogatives in Orange County, in Okaloosa
25 County, and Escambia County.
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1 So what is intended to get, it's intended to be
2 surgical in a sense. It only would deal with those
3 matters of local concern and not matters of statewide
4 import.
5 CHAIRMAN DOUGLASS: All right. Commissioner Nabors
6 moves the adoption of committee substitute of Proposal 47
7 and he has an amendment on the table which he introduces
8 as well. Would you read the amendment, please.
9 READING CLERK: By Commissioner Nabors. Delete
10 everything after the proposing clause and insert lengthy
11 amendment.
12 CHAIRMAN DOUGLASS: Explain your amendment, please.
13 COMMISSIONER NABORS: This is the language -- the
14 original proposal had the language in the amendment plus
15 other language in there. It was intended to be amended in
16 committee, but the proposal that was in the jacket really
17 is inartfully drafted and the substance gets to the heart
18 of the matter.
19 CHAIRMAN DOUGLASS: So your amendment is just a
20 redraft of the proposal, no substantive change in what it
21 does.
22 COMMISSIONER NABORS: Not intended to be,
23 Mr. Chairman.
24 CHAIRMAN DOUGLASS: All right. I think we will --
25 Commissioner Barkdull.
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1 COMMISSIONER BARKDULL: Do you want a debate on this?
2 CHAIRMAN DOUGLASS: Yes, I was deciding whether we
3 should just move the adoption of the amendment and proceed
4 with the debate. He's moved the adoption of the
5 amendment. All of those in favor of the amendment, say
6 aye. Opposed, like sign.
7 All right. We're now on the amended proposal -- do
8 you rise to speak to the proposal?
9 COMMISSIONER BARKDULL: I rise to ask the gentlemen a
10 question, I'm an opponent of the proposal.
11 CHAIRMAN DOUGLASS: All right. Questions are
12 appropriate. Commissioner Barkdull.
13 COMMISSIONER BARKDULL: Commissioner Nabors, as I
14 understand this, if there's an initiative referendum in
15 the state that we will, say, raise cigarette taxes 5 cents
16 and if this doesn't pass in a particular municipality or
17 unincorporated area, then that tax would not be levied
18 even though it might receive statewide support; am I
19 correct/
20 COMMISSIONER NABORS: No, I don't believe so.
21 COMMISSIONER BARKDULL: Well, it says that, the last
22 part of it, indicates if you attempt to raise revenue it
23 must be approved by the electors of the municipality --
24 COMMISSIONER NABORS: Well, the substitute language
25 doesn't have that in there. Have you got on your table
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1 the committee substitute? What we tried to do, in the
2 substitute, the language appears on the first page, it
3 should be on your desk.
4 COMMISSIONER BARKDULL: All right. I've got it on my
5 desk and I'm looking at it. The first thing --
6 COMMISSIONER NABORS: Let me tell you why I don't
7 think that your question would have the result that you
8 suggest, because a statewide increase in cigarette tax
9 would not be a matter of local concern, that would be a
10 statewide issue just like net ban is a statewide issue.
11 On the other hand, if there was an initiative to limit the
12 ability of local governments to say that transportation
13 impact fees would be abolished, that would be a matter of
14 local concern, it wouldn't be a statewide issue. And that
15 would go to the local power of counties and cities.
16 The concern is, and this is a legitimate concern, is
17 you can have an issue that's a burning political issue in
18 Broward and Dade County and other areas of the state and
19 citizens can do an initiative process, it can pass in
20 those areas and it takes away powers of local concern in
21 other areas of the state when there are other vehicles
22 available for them to accomplish the same purpose.
23 We don't envision -- I don't envision and Mr. Anthony
24 doesn't vision this would be a freestanding proposal. But
25 in the event that we prove out of this commission a
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1 concept of a legislative route of voter initiative, this
2 would be something they would ask -- the style and
3 drafting would take into consideration to attempt to
4 recognize there are certain matters of local concern that
5 should not be subject to the statewide vote and that power
6 taken away from those cities and counties.
7 COMMISSIONER BARKDULL: Well, what I'm looking at is,
8 we have a statewide amendment to the Constitution, by a
9 constitutional initiative, citizens initiative, and what
10 we can end up with is a hodgepodge of it being effective
11 in some jurisdictions and not effective in others.
12 COMMISSIONER NABORS: I can respond to that, is that
13 the genius of home-rule is that we do, in regulatory
14 areas, have a hodgepodge of laws because it recognizes the
15 unique situations of any state. What we are saying is, we
16 want to preserve that uniqueness in Florida and not have
17 the initiative procedure override that by a vote in one
18 area of the state.
19 COMMISSIONER BARKDULL: Excuse me, sir, but isn't one
20 of the differences that in the home-rule charters that is
21 something that's done under general law at the local
22 option of the people, whereas an amendment of the
23 constitution is a statewide statement?
24 COMMISSIONER NABORS: Well, I'll debate that and say
25 that's true. And what this is to get at is if those local
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1 people have a charter which gives them home-rule, then
2 they would be the ones to vote to diminish that home-rule
3 and not have imposed by them someone out of their area.
4 CHAIRMAN DOUGLASS: Commissioner Wetherington?
5 COMMISSIONER WETHERINGTON: Commissioner Nabors, I
6 know a little bit about the local and general thing being
7 from Dade County. I'm having some difficulty
8 understanding how something that would be called pure
9 local concern, which has got to be very unique and of a
10 limited nature to the specific locality could really be
11 impacted by this. I mean, what would be a matter of pure
12 local concern, which usually means something that's unique
13 to that area that could possibly be the subject matter of
14 a statewide initiative. I'm trying to think of any kinds
15 of things that could fall into that that would meet the
16 test that you are suggesting.
17 COMMISSIONER NABORS: We heard testimony in Broward
18 County on special assessments. Let's say there was a
19 controversy in Broward County and Dade County on a special
20 assessment program, which is purely a local home-rule
21 non-tax initiative for utilities. So, there was a
22 movement in Dade County to have a statewide initiative
23 require voter approval of all special assessments of
24 utility operations.
25 COMMISSIONER WETHERINGTON: Wouldn't that affect
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1 every area that engages in special assessments throughout
2 the state?
3 COMMISSIONER NABORS: That's right. And that is that
4 essential home-rule prerogative of special assessments.
5 In fact, each jurisdiction, as a matter of local concern,
6 and you have a vote in Dade and Broward County could take
7 that away from powers of Orange County, Okaloosa County,
8 and Calhoun County. I would contrast that to something
9 like the net ban which doesn't really recognize -- it's
10 not really a local concern, it is a concern of statewide
11 implication.
12 Now, maybe the language can be tightened up in style
13 and drafting, but the concept is that there are certain
14 matters that are essentially home-rule issues and that
15 those should be up to those people to vote on that as to
16 whether or not it's going to be diminished or not.
17 COMMISSIONER WETHERINGTON: I can't think of any,
18 that's the problem.
19 COMMISSIONER NABORS: Well, the one I gave you is a
20 classic example of that.
21 COMMISSIONER WETHERINGTON: On the special
22 assessments, it can be a statewide problem. One area may
23 be more interested in a special assessment or may have
24 more problems, but everybody has got special assessments.
25 So, why is that a matter of -- in other words, what I'm
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1 saying is, there's going to be an enormous definitional
2 problem here if this thing passes to try to figure out
3 what qualifies and what doesn't and is it worth it, that's
4 the question I'm asking.
5 COMMISSIONER NABORS: Let me give you another
6 example. Let's say that there is a provision in Sarasota
7 County, for example, within their charter that the people
8 voted on that says that any bond issue in excess of
9 $10 million has to be voted upon. That's the restriction.
10 It doesn't apply in any county in this state. Is it an
11 initiative within Sarasota County. Let's say that there's
12 an issue about financing in the city of Miami and it got
13 to be a major issue to Dade County. Dade County could do
14 a charter amendment to the Miami charter to limit their
15 ability to bond -- as long as it's not inconsistent with
16 general law -- but it may not go that way, it maybe is a
17 statewide initiative and I would argue that's a matter of
18 local concern. It's not a -- within each county, that
19 should be a choice within that county.
20 COMMISSIONER WETHERINGTON: Well, the question would
21 be, whether if you have a bond issue over $12 million you
22 should have voter approval. Isn't that issue something
23 that would be an issue in every county in the state? One
24 county may like it and one may not but how is that a
25 matter of pure local concern, that's what I'm trying --
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1 COMMISSIONER NABORS: Well, the reason it is, because
2 those counties -- 60 of the counties out of the 67 do not
3 like it, you could steal that part, it could be taken away
4 because of the vote in the other seven counties.
5 COMMISSIONER WETHERINGTON: But that can happen in
6 any instance, can't it? If the number of votes from south
7 Florida come in, it can defeat -- although most of north
8 Florida doesn't like it, it can be defeated by south
9 Florida's votes whether it's a matter of local concern or
10 however we categorize it.
11 COMMISSIONER NABORS: Absolutely. What we're saying
12 is if it's a matter of local concern dealing with
13 home-rule power, then that shouldn't be possible.
14 CHAIRMAN DOUGLASS: Commissioner Sundberg?
15 COMMISSIONER SUNDBERG: Mr. Chairman, would the
16 gentleman yield for questions?
17 COMMISSIONER NABORS: Yes.
18 COMMISSIONER SUNDBERG: To see how this operates,
19 Commissioner Nabors, let me give you a hypothetical.
20 Let's assume that there was a constitutional initiative
21 petition that provided that ad valorem taxes in the state
22 of Florida would be capped at 4 percent or 4 mills, I'm
23 sorry, 4 mills.
24 And do I understand that under this proposal, that if
25 in fact a municipality had a larger cap for taxation, that
24
1 that would not apply in that particular municipality; is
2 that correct?
3 COMMISSIONER NABORS: That's correct.
4 COMMISSIONER SUNDBERG: All right. Let me ask you
5 another hypothetical. What if the -- and let's assume
6 that that constitutional initiative passed by a 90 percent
7 vote across the state, let's take another hypothetical.
8 The state legislature in regular session passes a cap, an
9 identical kind of cap on municipal taxing power by a
10 simple majority of one, do I understand under your
11 proposal, that would be binding on each of those local
12 governments?
13 COMMISSIONER NABORS: Absolutely. Let me explain
14 that response. This does not -- in that instance, if this
15 was to pass, where there was an initiative dealing with
16 putting a cap on property taxes, what this would mean is
17 that would not go to the ballot because it would be a
18 matter of local concern. Now if I was in -- because it
19 basically says that the only way you can accomplish that
20 would be through general law, as you said, or through
21 charter member, the special act approval of voters. There
22 would be a limitation of those that go to the ballot.
23 It's not a situation where you look and see it passed
24 here and didn't pass here. It could be crafted that way,
25 but that's not the intent of this language. It would be a
25
1 limitation just like similar subject matters and
2 limitation. If it's a matter of local concern, it
3 couldn't be subject to a statewide initiative to be -- let
4 me make sure I'm responsive to your question.
5 CHAIRMAN DOUGLASS: Commissioner Mills?
6 COMMISSIONER MILLS: Does the gentleman yield for a
7 question?
8 CHAIRMAN DOUGLASS: He yields.
9 COMMISSIONER MILLS: What sort of troubles me is
10 trying to understand that this dealing with the powers of
11 municipalities, that's all municipalities.
12 COMMISSIONER NABORS: No, it's county and municipal
13 power.
14 COMMISSIONER MILLS: Do I have the wrong language?
15 Is there any such initiative that limits the powers --
16 that makes it even worse? I'm sorry. I mean, that limits
17 the power of counties and municipalities; is that what it
18 says now?
19 COMMISSIONER NABORS: With respect to matters of
20 local concern.
21 COMMISSIONER MILLS: Well, I think I'm with Judge
22 Wetherington, either it would be litigated each time and
23 even after they were passed or this creates a special
24 exception where the people of the state can by initiative
25 limit the power of any part of this state, I mean of the
26
1 state. And it sort of suggests that counties and
2 municipalities are not part of the state. The initiative
3 process, which is the people's -- one of the ways people
4 can limit, by Constitution, the authority of any part of
5 its state government. This is -- you are cutting out an
6 exclusion for local government, for local purpose and I
7 find that at least confusing because there are -- it's
8 hard for me to think of a circumstance that doesn't affect
9 more than one municipality or couldn't. I have -- and
10 also, it's clear that this is only limiting the power
11 that -- I suppose if you had an initiative that augmented
12 the power it would be okay.
13 COMMISSIONER NABORS: It's hard to imagine one that
14 would augment the power under our constitutional concept.
15 COMMISSIONER MILLS: I still don't understand. I
16 understand the examples that you have given, but have
17 there been any initiatives, in any of the hundred
18 initiatives or so that have been --
19 COMMISSIONER NABORS: Yes, I mean, there was an
20 amendment that should be voter approval of all new taxes
21 which was stricken on the single subject matter, that
22 would require a voter approval of any new tax, including a
23 change in a rate of a tax or removal of an exemption. Had
24 that passed statewide, and it could have passed because of
25 Miami and Dade, that meant any time the property taxes
27
1 were increased in any other county requiring voter
2 approval, I would argue that that type of a restriction
3 should be voted for by the people in that county and not
4 statewide.
5 COMMISSIONER MILLS: But it did apply uniformly to
6 every county.
7 COMMISSIONER NABORS: Well that's because -- that's
8 right. The point -- the fundamental point here is that
9 there are ways to restrict those powers currently through
10 local elections. And our concern is that if we are not
11 creating -- we are creating special groups in the cities
12 and counties only in the area dealing with their power of
13 local self-government on matters of local concern. And
14 the difficulty we're going to face is, without something
15 like this, you have a voter initiative that is a big issue
16 in a small area of the county, it's going to take away
17 that power of local government in other areas unaffected.
18 Whereas the solution to that is those powers can be
19 restricted at the local level but not be restricted on a
20 statewide basis. But it's not intended to deal with
21 issues that are beyond local concern. Issues such as net
22 bans, or issues that go beyond local issues, beyond the
23 power of local self-government.
24 CHAIRMAN DOUGLASS: Anybody else? Ready to vote?
25 Vote on the machine. Open the machine.
28
1 (Vote taken and recorded electronically.)
2 CHAIRMAN DOUGLASS: Lock the machine. Announce the
3 vote.
4 READING CLERK: Five yeas and 21 nays, Mr. Chairman.
5 CHAIRMAN DOUGLASS: It fails. Proposal No. 18 by
6 Commissioner Riley, would you please read it.
7 READING CLERK: Proposal 18, a proposal to revise
8 Article VI, Section V, Florida Constitution; providing for
9 elections to be held on Saturday and Sunday and
10 prohibiting second primaries.
11 CHAIRMAN DOUGLASS: Commissioner Riley, do you move
12 this?
13 COMMISSIONER RILEY: I did. And yesterday, I passed
14 out an amendment to this, which was in effect, to take out
15 the Saturday and Sunday and put back in the Tuesday.
16 Since I understand both by committee and by talking to the
17 commissioners that I don't think that would have gone
18 anyway, so I propose --
19 CHAIRMAN DOUGLASS: That now provides -- the change
20 would be it prohibits second primaries?
21 COMMISSIONER RILEY: Correct.
22 CHAIRMAN DOUGLASS: And that's the sole issue that
23 you have entered it at this point?
24 COMMISSIONER RILEY: Correct. That is the issue that
25 I would like to speak to.
29
1 CHAIRMAN DOUGLASS: Is that amendment on the table?
2 COMMISSIONER RILEY: It was on the table yesterday.
3 CHAIRMAN DOUGLASS: And we adopted it?
4 COMMISSIONER RILEY: No. It was passed out
5 yesterday.
6 CHAIRMAN DOUGLASS: Read the amendment, please.
7 READING CLERK: By Commissioner Riley on Page 1,
8 Lines 14 and 15, delete the words "Saturday and Sunday"
9 and insert "Tuesday".
10 CHAIRMAN DOUGLASS: All right. Commissioner Riley.
11 COMMISSIONER RILEY: Commissioners, I have looked in
12 this process for ways and areas that, through our
13 Constitution, we might be able to find ways to increase
14 participation in voting and I had hoped that weekend
15 voting might do that. I have pulled that out because of
16 religious problems and time constraints. However, the
17 remaining portion, which is the second primary issue, I
18 think may well also do that. And I have looked at the
19 numbers as I'm sure many of us have.
20 We have eligible voters in the county, not all of the
21 eligible voters register. Of those that are registered,
22 probably 60 percent, 65 percent, more in a national
23 election, but in a state election, that's about the number
24 that actually votes in the first primary. That number
25 goes down substantially in the second primary and I would
30
1 hope that if one primary is the only one that we have, we
2 would have higher voter participation, we would end up
3 with more people going to the polls. And I would ask you
4 to consider this proposal as a way to do that.
5 CHAIRMAN DOUGLASS: All right. Commissioner
6 Barkdull?
7 COMMISSIONER BARKDULL: Mr. Chairman, note me as an
8 opponent.
9 CHAIRMAN DOUGLASS: You're an opponent, go ahead.
10 COMMISSIONER BARKDULL: I want to speak against this.
11 This is putting into the Constitution the primary dates,
12 the primary systems, which is now a system that's
13 established by law. I don't think it belongs in the
14 Constitution. It's something that the Legislature can do
15 if they want to. I don't want to lock it in.
16 Number two, I don't think it, in this form, is really
17 the best form to the present something to the people,
18 where if you've got five people in a race it would be
19 possible for somebody to read it with 21 percent of the
20 vote. If you were going to do anything --
21 CHAIRMAN DOUGLASS: I forgot to adopt the amendment.
22 And you are speaking to the proposal.
23 COMMISSIONER BARKDULL: Yes, sir.
24 CHAIRMAN DOUGLASS: So, without objection, the
25 amendment is adopted and proceed with your debate.
31
1 COMMISSIONER BARKDULL: We've had a two-primary
2 system in this state since the early '30s. Prior to that
3 time, we had another system when we put in the primary
4 system about the turn of the century. And that was that
5 you had a second choice. And if there were more than
6 three or four people in the race, you voted your first
7 choice and your second choice and then the people that
8 were all below the second level, they picked up the second
9 choice votes on those that were eliminated. That's not
10 the best system in the world, but I think it's a better
11 system than a completely opened primary. So for both of
12 those reasons, I would oppose this. I don't think it,
13 number one, belongs in the Constitution. It can be
14 straightened out by the Legislature, anytime they want to.
15 And, number two, if we were going to go that way, we
16 ought to have the second preference rather than to just
17 give it to the person that secures the plurality.
18 CHAIRMAN DOUGLASS: All right. Commissioner Morsani?
19 COMMISSIONER MORSANI: I rise as a proponent of this.
20 It's obvious that it has come up many times in the
21 Legislature and they do not and I do not see them changing
22 this on behalf of the citizenry. It, invariably --
23 invariably it's an incumbency issue. When these have been
24 examined over time, it's been the incumbents that have
25 benefited by it because of what Ms. Riley has said,
32
1 primarily because the voter turnout is so low on the
2 second primary. I don't -- I recognize that it could be
3 done by statute and the Legislature. But invariably,
4 that's not going to happen. I strongly urge that we take
5 this action. I reluctantly say so. I wish it wasn't
6 necessary to do in the Constitution. But I -- in dealing
7 with the matter on the local level, many, many of the
8 people in our community, I know, have said the same thing.
9 I would urge you to vote for this proposal. I think we do
10 need this change in our state.
11 CHAIRMAN DOUGLASS: Commissioner Nabors?
12 COMMISSIONER NABORS: Commissioner Riley, as I read
13 this proposal, it deals not only with the issue of the
14 Saturday and Sunday, but also the fact that there can be
15 only one primary.
16 CHAIRMAN DOUGLASS: Saturday and Sunday has been
17 eliminated by the amendment. It's only the issue of the
18 second primary that's before the body.
19 COMMISSIONER RILEY: Question, Commissioner --
20 COMMISSIONER NABORS: I'll ask you a question. Do
21 you realize that had this been in effect, that Rubin Askew
22 and Bob Graham would not be governor?
23 COMMISSIONER RILEY: Well, it's easy to look back at
24 history and to say what might have been, and I suggest
25 that's sort of an exercise in futility. Who knows who may
33
1 have been had we not had the second primary and what other
2 outcomes may have been that didn't come. So it's a moot
3 point I would suggest and I don't think that's a reason to
4 not vote for it.
5 CHAIRMAN DOUGLASS: Some people might agree that's a
6 good reason, you know. Commissioner Smith?
7 COMMISSIONER SMITH: And had there not been a
8 monarchy, Solomon would have never been king, but we are
9 not in favor of a monarchy. I'm positive, notwithstanding
10 the debate of yesterday, that unintentionally stated that
11 dictatorship was an efficient form of government.
12 (Laughter.)
13 CHAIRMAN DOUGLASS: As long as it was Solomon.
14 COMMISSIONER SMITH: As long as it was Solomon,
15 that's correct. And I think that some of those who say
16 that the second primary is a good idea because their
17 candidate won, the candidate they favored. I mean, if
18 their candidate had not won, they may have been joining us
19 saying this is a bad system. I am very sensitive to
20 Commissioner Barkdull's concern as to whether or not this
21 should be a matter that's placed in the Constitution, but
22 I share Commissioner Morsani's view that this is something
23 that will be difficult to have the political leaders of
24 today, except maybe a few brave ones, one of whom may
25 already be on the way to Chattahoochee to deal with an
34
1 issue like this.
2 But I think it's important to note that while we have
3 this debate, that while Florida didn't officially adopt
4 the second primary until the 1930s, the second primary
5 idea came about at the time that slaves were freed as a
6 specific, articulated strategy to prevent newly freed
7 slaves from being able to seek office. Anyone who has
8 read and studied history knows that during reconstruction,
9 second primaries poll taxes and literacy tests were the
10 strategy that emanated from the south, starting in North
11 Carolina as a strategy for that purpose.
12 And because of that reason, whether or not the
13 Constitution or statutes are the proper way to deal with
14 it, I'm proud to rise with Commissioner Riley today to try
15 to, 110 years later, set the record straight and to try to
16 correct what I think is a strategy that not just now
17 affects the population it was intended to, but I think it
18 affects minor parties as well. And I think that that is
19 unfair. I think that it is a basis for which we find
20 voter apathy.
21 We look at the dropoff and runoffs, runoff elections,
22 and I think, one, I commend to those of you who have not
23 focused in on that history, it is a very, very sad
24 chapter. I had an opportunity to share some of that with
25 my friend Commissioner Connor as this matter came up in
DIVISION OF ADMINISTRATIVE HEARINGS (904) 488-9675
35
1 discussions before. And so I intend to proudly vote yes
2 to eliminate second primaries which had a very, very bad
3 basis for being formulated and implemented and have no
4 legitimate basis, in my judgment, to continue today except
5 to maintain the status quo. And with the type of the
6 apathy we have around this country, the worst thing we
7 could possibly do is just maintain the status quo. Thank
8 you.
9 CHAIRMAN DOUGLASS: Commissioner Ford-Coates?
10 COMMISSIONER FORD-COATES: I would like to ask a
11 question of the proposal -- proposer.
12 CHAIRMAN DOUGLASS: She rises to answer, Commissioner
13 Riley.
14 COMMISSIONER FORD-COATES: Thank you. Commissioner
15 Riley, Commissioner Barkdull spoke about the provision
16 whereby in a primary, a vote could be cast for first and
17 second choice.
18 COMMISSIONER RILEY: Preferential balloting.
19 COMMISSIONER FORD-COATES: Is there, as I read your
20 proposal, it allows the Legislature to provide for this
21 primary system in any way -- I mean, there's no provision
22 preventing them from doing that, is there -- they could --
23 could the Legislature not institute a one primary system
24 in any method that they deemed appropriate?
25 COMMISSIONER RILEY: If Commissioner Barkdull is
36
1 right and this isn't the place for this, which I disagree
2 with him on that, I suppose he would probably be the
3 better person to ask that. If your question concerns
4 preferential balloting, I'm familiar with that and I had
5 thought about that but I find the public to be fairly if
6 not very confused and chose not to put a preferential
7 balloting proposal before this body.
8 COMMISSIONER FORD-COATES: But that's not precluded
9 by. It only says there shall be a one primary, correct?
10 COMMISSIONER RILEY: Correct.
11 COMMISSIONER FORD-COATES: Okay. So if the
12 Legislature felt there was a problem with that, casting
13 only one vote, they could come up with another method.
14 COMMISSIONER RILEY: Again, there are better minds
15 and people who could answer that question than I.
16 CHAIRMAN DOUGLASS: Anybody else? Commissioner
17 Freidin?
18 COMMISSIONER FREIDIN: I rise with hesitation because
19 there are a couple of things about this proposal that
20 concern me. I am certainly in favor of doing whatever we
21 can to increase voter participation. And I believe,
22 Commissioner Riley, that is the reason that you advanced
23 this proposal. I'm not sure that I fully understand how
24 cutting off one election really increases voter
25 participation, that's number one.
37
1 But more importantly, I have a concern -- and this is
2 where my hesitation really comes in, because I understand
3 and feel with deep passion what Commissioner Smith talked
4 about and how -- and the history of the second primary and
5 why it was instituted. But on a parallel level, there is,
6 I think, a counterveiling concern, and that is that if we
7 went to a one primary system, that that would allow a very
8 small extremist candidate -- a very -- a candidate with a
9 very small extremist group of supporters to prevail. And
10 that is something that I think we need to be careful of in
11 this day and age when there are groups of people that hate
12 deeply other segments of our society. And for that
13 reason, I am confident that the second primary would help
14 to weed out extremist candidates. And for that reason, I
15 will vote no on this proposal, although I do favor
16 anything else that we can do to increase voter interest
17 and voter turnout.
18 CHAIRMAN DOUGLASS: Commissioner Barton?
19 COMMISSIONER BARTON: I am in favor of the proposal.
20 This issue has come before the Legislature frequently and
21 it has not been taken up for whatever reason. The second
22 primary, and if Commissioner Barkdull indeed is concerned
23 about low numbers, 21 percent electing on a field of five,
24 the numbers are frequently, almost always, lower in terms
25 of the voter turnout for the second primaries, thereby
38
1 having the candidate, sometimes, elected by as few as
2 single digit numbers.
3 I also know that the supervisors of elections who
4 represent both parties in the state of Florida are
5 unanimously opposed to the second primary, would like to
6 see it removed for a variety of reasons, the mechanics of
7 running another election at the same price as the first
8 primary as with such low turnout. And I strongly urge us
9 to do what the Legislature has not done.
10 CHAIRMAN DOUGLASS: Commissioner Connor, you haven't
11 spoke.
12 COMMISSIONER CONNOR: Mr. Chairman, I rise in support
13 of the proposal and will tell you that frankly, before we
14 begin these proceedings, before we convened, I was of the
15 mind that I would not support such a proposal.
16 Commissioner Smith did furnish me with some very, very
17 interesting material which I thought was profoundly
18 helpful in understanding this issue from a historical
19 perspective. And I think if one examines the historical
20 record, one can only fairly conclude that at least from a
21 historical standpoint the second primary was used as a
22 vehicle for disenfranchising minority groups.
23 By the same token I will tell you that, as one who
24 has voted in the minority most of the time I think during
25 the concurrency of these proceedings, that I have liked
39
1 the second primary, having supported candidates who may
2 not have been able to make the cut in the first round, but
3 who, because of an effective grassroots of basic
4 organization, were able to win the runoff.
5 So from a pragmatic political standpoint, I'm not
6 certain that the second primary cannot inure to the
7 benefit of groups that find themselves often in the
8 minority. So I will vote for this proposal with some
9 reservations. But I think when one examines the
10 historical record, that speaks to the origin of the
11 current system, that it is a vestige of the past that we
12 would be better off without.
13 CHAIRMAN DOUGLASS: Commissioner Connor, you've read
14 the historical perspective. If my recollection is
15 correct, this has never been in any Constitution, it's
16 always been statutory regulation of the parties as opposed
17 to being an election.
18 COMMISSIONER CONNOR: I have hesitation and
19 reservation about the inclusion of this in the
20 Constitution, because my view is that we typically are not
21 to serve as a super Legislature. But where the
22 Legislature has consistently advocated its responsibility
23 and where we do have a provision in our Constitution to
24 allow the people that have representatives in this kind of
25 process, I move forward with it. I will also be
40
1 supportive of other proposals that are designed to afford
2 greater ballot access wherein I think the Legislature has
3 unfairly and wrongly restricted the access of minor
4 parties to the ballot and have perpetuated the monopoly
5 that major parties have.
6 CHAIRMAN DOUGLASS: I want one more question just to
7 make sure I understand from a historical perspective. You
8 would then be, in effect, in favor of a statutory
9 initiative which this would in effect be?
10 COMMISSIONER CONNOR: I am going to support a
11 statutory initiative, yes, sir.
12 CHAIRMAN DOUGLASS: And that is coming up for later
13 consideration?
14 COMMISSIONER CONNOR: Yes, sir.
15 CHAIRMAN DOUGLASS: Commissioner Brochin?
16 COMMISSIONER BROCHIN: I have a question of
17 Commissioner Smith. Could you articulate for us, if you
18 believe, say since 1968, the second primary has had any
19 effect of disenfranchisement of African-Americans or other
20 minorities or is your concern, basically, from the
21 historical origins of it?
22 COMMISSIONER SMITH: Would you repeat the question,
23 please?
24 COMMISSIONER BROCHIN: Yeah. Do you have concern or
25 thoughts as to whether a second primary in recent history,
41
1 say since 1968, has had the affect of disenfranchisement
2 of minorities or is it more a concern out of the
3 historical origins of the second primary?
4 COMMISSIONER SMITH: Yes, this is more than theory.
5 Not only has it had an adverse affect in terms of
6 candidates who run, but worst of all, it has an intended
7 affect of what it was started, and that is to prevent the
8 chilling affect of having individuals run with an
9 understanding that you run, you get in the primary, the
10 other candidates get together against you and you can't
11 finally prevail in the end and that is that was the
12 purpose of it, that's why it came about.
13 So, yes, that has happened. And I think with regard
14 to that, I think that if you would like -- I hadn't been
15 prepared to cite some specific examples of cases where
16 individuals ran, but I'm sure I will be able to -- as I
17 sit here right now, I haven't thought about specific
18 races, but I'll be able to tell you in just a moment.
19 CHAIRMAN DOUGLASS: Commissioner Kogan?
20 COMMISSIONER KOGAN: All right. Let me tell you what
21 my concern is about this. My concern is very simply that
22 a proposal such as this absolutely favors an incumbent.
23 Remember now that an incumbent in any election has a
24 certain base vote. They are going to get that percentage
25 regardless of who the opposition is going to be. It's
42
1 very, very easy for an incumbent to go ahead and have
2 other persons join in that particular race, knowing they
3 are no threat to the incumbent, but rather they can gather
4 sufficient votes away from all of the other candidates
5 that are in the race, to allow the incumbent -- say, we
6 use Commissioner Barkdull's example, we have five
7 candidates in the race -- any incumbent, no matter how bad
8 they have been in office, is certainly going to be able to
9 get 21 percent of the vote. And if you can get a couple
10 of folks out there that you can induce to get into that
11 race, then certainly you are going to win every time.
12 And without the second primary, which will allow
13 basically the majority of people who didn't want the
14 incumbent to gather together and back one of the
15 candidates who finished second in that primary, this is
16 basically an incumbence relief act. You will never ever
17 get an incumbent out of office if that incumbent is
18 politically shrewd and knows how to manipulate the system.
19 Because they will start with a base which will allow them
20 to always come up with most of the votes in that first
21 primary.
22 So I agree with everything that Commissioner Smith
23 has had to say and most of the other people that are
24 supporting this, but this is what my fear is. And
25 therefore, I feel that I'm going to have to vote against
43
1 this particular proposal.
2 CHAIRMAN DOUGLASS: Question from Commissioner Smith.
3 COMMISSIONER SMITH: Commissioner Kogan, I think that
4 is a very legitimate concern that you have, and as always,
5 well expressed. Would you not agree, however, that most
6 states in the north do not have a second primary?
7 COMMISSIONER KOGAN: I don't know.
8 COMMISSIONER SMITH: Well, let's take, for instance,
9 New York as an example, which has, I know, bad mendicants
10 (phonetic), won and lost so that incumbent was out and
11 they don't have a second primary in New York. So I'm
12 saying, in other words, it's not like this is a
13 revolutionary idea that has never been tried in the United
14 States. Most states do not have a second primary.
15 COMMISSIONER KOGAN: That may very well be so, but
16 that doesn't mean that their system is operating properly
17 or the way it should be.
18 COMMISSIONER SMITH: Oh, I'm sorry, I apologize. My
19 question was that most other states, isn't it true --
20 COMMISSIONER KOGAN: I don't know what most other
21 states do, but I'll take your word for it.
22 COMMISSIONER SMITH: Wait a minute. I've got to ask
23 it like Commissioner Langley taught me yesterday. Would
24 you believe --
25 (Laughter.)
44
1 CHAIRMAN DOUGLASS: That is a House of
2 Representatives phrase I was informed. I've been
3 appropriated by them.
4 COMMISSIONER SMITH: Would you believe that most
5 states do not have a second primary? And in those states,
6 all incumbents do not always win?
7 COMMISSIONER KOGAN: Oh, I can believe that's true
8 because there are always exceptions to the rule, but I'm
9 talking now what I think generally would happen if you
10 eliminated the second primary.
11 CHAIRMAN DOUGLASS: Commissioner Barkdull?
12 COMMISSIONER BARKDULL: Does Commissioner Smith take
13 the floor and yield for a question?
14 COMMISSIONER SMITH: Yes, sir.
15 COMMISSIONER BARKDULL: Would you believe me, sir, if
16 I told you that in the most recent mayor's race in New
17 York that one candidate, the one that won, was a nominee
18 of the Republican Party and he ran against a lady that was
19 a nominee of the Democratic Party and she escaped to the
20 second primary with, I believe, a gentleman by the name of
21 Sharkdon (phonetic), because she was able to get a
22 sufficient vote in the first primary?
23 COMMISSIONER SMITH: That's absolutely correct, but
24 it was not required to be a majority vote, 40 percent
25 vote.
45
1 COMMISSIONER BARKDULL: But that's not what this
2 does.
3 CHAIRMAN DOUGLASS: All right. Ready to vote. Do
4 you want to try again, Commissioner Riley?
5 COMMISSIONER RILEY: I don't consider it trying it
6 again, Mr. Chairman. I would like closing arguments.
7 CHAIRMAN DOUGLASS: I meant speak again, pardon me.
8 COMMISSIONER RILEY: To speak to some of the issues
9 that have been brought up. What is the history? And I
10 would suggest that while Commissioner Barkdull has given
11 us some history that we should instead look to the more
12 compelling history that Commissioner Smith has given us.
13 In addition to that, I ask us to look at the costs. We
14 spoke a little bit about the cost to the county, but we
15 didn't talk about the cost to the candidate. And all of
16 us have candidates, I guarantee you, that we have
17 supported, that had funds to go through the first primary
18 but were very scarcely funded in the second primary. And
19 it's very difficult, especially with minority candidates
20 and women candidates, to raise money. This I think will
21 solve a lot of that problem.
22 As far as participation in that, you end up with a
23 small number of people electing your representatives. I
24 present to you that that's exactly what we have now. And
25 that the idea of this is to help alleviate that. You have
46
1 now, if you look at the number of eligible registered
2 voters, eligible but not registered, registered that vote,
3 registered that vote in the second primary, you end up
4 with a very, very small percentage of people that are
5 electing your representatives. And I guarantee you this
6 would change that to a higher number. So I would ask for
7 your support.
8 CHAIRMAN DOUGLASS: All right. Unlock the machine.
9 Please enter your votes. Lock the machine and announce
10 the vote.
11 (Vote taken and recorded electronically.)
12 READING CLERK: 11 yeas and 16 nays, Mr. Chairman.
13 HEARING OFFICER: Fails. We move to the next
14 proposal. Beg your pardon? Committee substitute for
15 Proposal 79 by the committee on ethics and elections by
16 Commissioner Riley. Commissioner Riley, you have the
17 floor and you move the adoption of this? It is moved.
18 COMMISSIONER RILEY: I do, Mr. Chairman.
19 CHAIRMAN DOUGLASS: Wait a minute. Would you read
20 it, please.
21 READING CLERK: Committee substitute for Proposal 79,
22 a proposal to revise Article VI, Section 1, Florida
23 Constitution, providing that requirements for placing the
24 name of a candidate with no party affiliation or minor
25 party candidate on an election ballot must not be greater
47
1 than the requirements for major party candidates.
2 CHAIRMAN DOUGLASS: Now, Commissioner Riley, you have
3 the floor.
4 COMMISSIONER RILEY: Commissioners, we heard about
5 this all around the state. And I would like to read you
6 some information this morning and I would like to thank
7 Speaker Webster who delivered this to my desk this
8 morning. This speaks to the requirements of a minor party
9 candidate, an independent party candidate, who would like
10 to get on the ballot but finds that the requirements to
11 get on the ballot are double what a major party
12 candidate's access to that ballot is.
13 And when you look at the numbers, what it boils down
14 to is, that it's easier to qualify for President of the
15 United States in the New Hampshire primaries than it is to
16 qualify for the Seminole County Commission and to get on
17 that ballot. I would suggest that that is a little
18 backwards. That's a little unfair, that is extremely
19 unfair. And again, if we are looking for participation, I
20 think this will do it. This will bring more people out to
21 the polls, it will bring more people out to vote. It is
22 equitable; it is fair; it's not going to be done any other
23 way except by this Constitution commission and I ask that
24 we pass this.
25 CHAIRMAN DOUGLASS: Commissioner Hawkes?
48
1 COMMISSIONER HAWKES: Have a question, Mr. Chairman.
2 CHAIRMAN DOUGLASS: Commissioner Riley yields to your
3 question.
4 COMMISSIONER HAWKES: When you say the major party
5 candidates, for instance, if you have a county that's
6 50/50 in their registration, the Republican candidate
7 would have to receive as many signatures as the Democratic
8 candidate. But if you had a county that maybe had
9 60 percent Democratic registration and 30 percent
10 Republican registration, the Republican candidate is going
11 to have to get half the signatures that the Democratic
12 candidate gets.
13 Obviously the Republican and the Democratic parties
14 are considered major parties because it's done by a
15 percentage of the number of registered voters in your
16 party. And I was wondering from your proposal if I'm one
17 of these minor party candidates, do I have to get the same
18 number of signatures as the largest party or that's
19 considered a major party or the smaller of the two parties
20 or does major party mean the party with the most
21 registered voters?
22 CHAIRMAN DOUGLASS: I'm not sure I've got the right
23 proposal. I don't see anything in here about getting --
24 COMMISSIONER RILEY: What the proposal is, is that
25 the requirements for a minor party cannot be any greater
49
1 than those for a major party. So, as I understand it and
2 as I intended it, if you, whatever your major party is,
3 whichever has the largest majority, Democrat or
4 Republican, whatever the requirements are for that party,
5 that the Independent candidates' requirements cannot be
6 any greater than that as far as percentage of registered
7 voters or dollars needed to file.
8 CHAIRMAN DOUGLASS: Commissioner Hawkes?
9 COMMISSIONER HAWKES: Would you accept an amendment
10 that clarified that it was the majority party? Whichever
11 was the -- if you were qualifying for a statewide race and
12 if the Democratic Party was the majority party, then you
13 would have to meet the same requirements for qualification
14 whether it be by signature or payment of fees as the
15 Democratic party candidate would?
16 COMMISSIONER RILEY: Yes, I would.
17 CHAIRMAN DOUGLASS: I have a question before you do
18 that. Wouldn't that create litigation, majority party and
19 then you could turn around and have something for a major
20 party, couldn't you, or somebody could argue, couldn't
21 they, Commissioner Hawkes?
22 COMMISSIONER HAWKES: Well, Mr. Chairman, my concern
23 was in reading this, I mean, for instance, I qualified by
24 signature one time in Citrus County as a Republican
25 candidate, I had to get 736 signatures, I guess it was.
50
1 If I was a Democratic candidate, I would have had to
2 get 912 or something. It was different because the
3 Democratic party was bigger than the Republican party and
4 I had to collect, I believe, 3 percent of the registered
5 voters in my county. It truly was unfair because if I was
6 an Independent candidate, I'd have to collect 3 percent of
7 the total registrations, which would be over twice as much
8 as every candidate. But from this, I don't know if I have
9 to collect what the republicans have or what the democrats
10 have.
11 CHAIRMAN DOUGLASS: All right. We don't have an
12 amendment on the table. We can't discuss that until there
13 is one. We'll proceed. If you have an amendment, put it
14 on the table. If not, we are on the proposal which does
15 not have that in it. Commissioner Corr, you rose.
16 COMMISSIONER CORR: Thank you, Mr. Chairman.
17 Commissioner Hawkes, we discussed this issue in the
18 committee on elections and our understanding in the
19 committee, if I'm right, I don't know if some of the other
20 folks are here, was that under your scenario, Commissioner
21 Hawkes, the minority candidate would not have to collect
22 more votes than you would have had as a Republican.
23 Because the language says there would be no greater than
24 the requirements of a major party candidate. So, it would
25 be the lower of the two, that's right.
51
1 CHAIRMAN DOUGLASS: Commissioner Zack? Commissioner
2 Barkdull?
3 COMMISSIONER BARKDULL: I'd like to make an
4 observation that, obviously, this is another matter that
5 is being and has been considered by the Legislature. I
6 understand we did hear comment about this at the public
7 hearings. But I'll tell you one thing, we are talking
8 about a lot of litigation on what is major and what is
9 majority. And I think this is an item. Certainly, I
10 don't think this provision is going to clear up what you
11 want. You ought to spell it out or leave it to the
12 Legislature. I think you ought to leave it to the
13 Legislature.
14 CHAIRMAN DOUGLASS: Anyone else? Commissioner
15 Connor?
16 COMMISSIONER CONNOR: I'd like to speak on behalf of
17 the proposal.
18 CHAIRMAN DOUGLASS: As it is without the amendment.
19 COMMISSIONER CONNOR: As it is. There is no
20 amendment as I understand now.
21 CHAIRMAN DOUGLASS: That's correct. Go ahead, you
22 can talk about it.
23 COMMISSIONER CONNOR: I'll address it as it comes up.
24 I've been heartened in the debates that have taken place
25 in this body that we've been operating on the basis of
52
1 first principles and not on the basis of political
2 partisanship, that's been a very gratifying experience for
3 me. I come from a party who extols the virtues of
4 competition. And I believe strongly in providing a basis
5 for competition in the political are arena. I believe
6 that the major parties have in large part contributed to
7 the political malaise that exists among the voters today
8 and that, in fact, they are not providing for the kind of
9 competition that will stir the pulse of voters.
10 And just to give you an example of some information
11 that's been furnished to me. In the 20 years between 1974
12 and 1994, the two major parties failed to offer competing
13 candidates for more than 49 percent of the 1320 state
14 House seats that were to be filled. During that same
15 period, they failed to provide competing candidates for
16 more than 30 percent of the U.S. House seats that were to
17 be filled during that interval of time. From '84 through
18 '94, the two major parties failed to offer competing
19 candidates for more than 42 percent for the state Senate
20 seats that were to be filled during that period of time.
21 This procedure that we have gone through has been a
22 wonderful civics lesson, I would submit to you, for all of
23 us. I had no idea of the inequity and unjust treatment
24 that minor parties were receiving in this state. They
25 have been subjected to hurdles that are unfair, unjust,
53
1 inequitable and that have the affect of disenfranchising
2 their participation in the process. And frankly, it's
3 with the intent to do so in order to preserve the hegemony
4 that now exists for the two major parties. I think that's
5 wrong. I think we have an opportunity to act on a
6 principle basis.
7 As I interpret the language of the proposal, the
8 effect of this proposal would be that no minor party could
9 be required to have a more burdensome requirement than the
10 smallest of the major parties. I think that's how it
11 would work, plain and simple. And if we have to have
12 litigation to straighten some of this out, so be it. A
13 few of us lawyers would complain about that.
14 Now, if there's a way and you think it's important to
15 clarify that, I don't object to clarifying that. But for
16 goodness sakes, we have seen the rights of people
17 preserved and adjusted through the litigation process.
18 And one that I'm not down on is trial lawyers. I am
19 thankful for the role that trial lawyers have played in
20 preserving the rights that we enjoy under our Constitution
21 and under the laws of this state.
22 But we have an opportunity to do something that the
23 Legislature never will, which is to provide access to the
24 ballot and provide a broader choice for electorate by
25 modifying our state Constitution in this fashion. Thank
54
1 you, Mr. Chairman.
2 CHAIRMAN DOUGLASS: Commissioner Evans-Jones?
3 COMMISSIONER EVANS-JONES: Thank you, Mr. Chairman.
4 I would like to speak in favor of this proposal too. And
5 I agree with Commissioner Connor, it will never get out of
6 the Legislature. And I would prefer this not have to be
7 in the Constitution. But I do think this is important and
8 all over the state, as you said, we kept hearing about the
9 minor parties have to get all this money plus all these
10 signatures and it makes it an impossibility for them to
11 get on the ballot.
12 I do have some concerns about the language. I'm not
13 real comfortable with that. I want to the vote for this,
14 but I want to be sure -- I mean, they certainly need to
15 have to get more than, say, three signatures, if they are
16 three libertarians or whatever. I know the intent, but
17 maybe the rules and drafting or somebody can come up --
18 maybe we do have an amendment but let's kind of get it
19 clear. Thank you.
20 CHAIRMAN DOUGLASS: Commissioner Nabors.
21 COMMISSIONER NABORS: Thank you. I'd like to speak
22 in favor of this proposal. We have got to keep in mind
23 that we are dealing with a constitutional amendment. What
24 may be a major party today, may be a minor party tomorrow.
25 As I read this language, what it says is, is that
55
1 regardless of what that point in time, whether you're a
2 minor or Independent candidate, the requirements for
3 ballot access are the same. And I don't have problems
4 with the language. If there are minor problems, it can be
5 dealt with in style and drafting.
6 We've got to remember we're dealing with a
7 constitutional provision; this is very appropriate. Our
8 democracy is based upon a competition of ideas. And if we
9 are going to have a true marketplace, we need to have
10 everybody have access to the ballots so their ideas can go
11 forward. I see no reason in 1997 to continue some
12 perception of a major party access. This requires
13 everybody to have equal access whether you're major today
14 or minor tomorrow. I speak in favor of it.
15 CHAIRMAN DOUGLASS: Commissioner -- are you offering
16 that as an amendment to make the language simply what you
17 said?
18 COMMISSIONER NABORS: Well, I think that's what the
19 language says.
20 CHAIRMAN DOUGLASS: No, it says more than that.
21 COMMISSIONER NABORS: Well, maybe I don't have the
22 amendment.
23 CHAIRMAN DOUGLASS: All right. Well, let's go ahead
24 with the amendment. It's on the table, Commissioner
25 Hawkes, and let's have his amendment -- he's presenting an
56
1 amendment at this point and we'll come back. You are on
2 the main motion?
3 COMMISSIONER KOGAN: No, I'm on the amendment.
4 CHAIRMAN DOUGLASS: Okay. I think he wants to speak
5 to the amendment and then I'll recognize you. It's his
6 amendment.
7 COMMISSIONER KOGAN: I wanted to propose to change
8 the wording which may make it somewhat I think less
9 confusing than the way it reads now.
10 CHAIRMAN DOUGLASS: Why don't you get with him and
11 see if you-all can work out some agreement? Commissioner
12 Barnett, I was glad to see you here after your eventful
13 trip.
14 COMMISSIONER BARNETT: Thank you. And I had an
15 excused absence, Mr. Chairman.
16 CHAIRMAN DOUGLASS: Yes, you did.
17 COMMISSIONER BARNETT: Just so you-all know, I was in
18 Miami last night. Just as a filibuster of time here for a
19 minute, Chief Justice asked me to do this, you know. It's
20 a filibuster while he gets the language done. I am in
21 favor of this. And I just wanted to remind those of you
22 who attended the public hearings, that if you did not know
23 anything about government in this state or political
24 parties in this state, you would have thought that the two
25 major parties in the state of Florida were the Green Party
57
1 and the Libertarian Party.
2 We did not see the other major parties there. And I
3 was very persuaded by the testimony that we heard at the
4 public hearings. In fact, I was educated on something I
5 knew little about and I was persuaded that we do need to
6 open up the marketplace of ideas to people from all
7 parties.
8 CHAIRMAN DOUGLASS: All right. Commissioner Brochin.
9 COMMISSIONER BROCHIN: I also rise in favor of the
10 proposal. And the reason I do is not in respect to
11 whether the Legislature shall or shall not put this in.
12 They probably won't, I think that's somewhat irrelevant.
13 What I think is pertinent is that this is a matter of
14 equal protection and equal protection should find its way
15 into our Constitution. I think it's a simple proposal. I
16 think it should remain simple although the language, I do
17 have some concerns, it probably needs to be tightened a
18 little bit.
19 But it's a simple proposal for equal protection for
20 anybody that wants to run in our state. And I think that
21 should find its way in our Constitution, particularly in
22 light of the diversity of this state and the various
23 amounts of candidates who want to run, they are -- we all
24 deserve to have that in our Constitution as a matter of
25 protection. So for those reasons, I am going to vote in
58
1 favor of this.
2 CHAIRMAN DOUGLASS: All right. They are still
3 drafting an amendment over here. Commissioner Alfonso?
4 COMMISSIONER ALFONSO: As long as they are drafting
5 an amendment, I quickly rise in favor of this proposal. I
6 do believe it is one of the more important proposals that
7 we will undertake. We heard it very clearly. I was not
8 at all aware of the limitations on the access to the
9 ballot and I'm just in agreement with all of the previous
10 presentations made here. And I think it is a very
11 important proposal and I support it.
12 CHAIRMAN DOUGLASS: Commissioner Smith.
13 COMMISSIONER SMITH: Thank you, Mr. Chairman. While
14 Commissioner Riley and myself were very aware of the
15 problems of today that a lot of our good friends here had
16 with the prior proposal with regard to the second primary,
17 I'm heartened to see such a broad base of support for this
18 equal protection issue. And I think this is one of the
19 most important things that we are going to go. And I
20 think 20 years from now as we watch the next Constitution
21 Revision Commission, we'll really be proud that we opened
22 up the process fairly. I don't have as much problem with
23 the language, because of the people who I respect that do,
24 whether in this form or in improved form from your
25 perspective, I look forward to supporting this.
59
1 CHAIRMAN DOUGLASS: Commissioner Marshall?
2 COMMISSIONER MARSHALL: Mr. Chairman, if we are still
3 filling time, I try to follow a practice of not rising to
4 speak if somebody else has already made my points, but
5 this is maybe kind of peripheral. After the hearing in
6 Palm Beach I think or Fort Lauderdale, the Libertarian,
7 the statewide Libertarian Party, would exist in this
8 meeting and they invited me to have dinner with them that
9 evening, for some reason, I don't know.
10 CHAIRMAN DOUGLASS: You are a liberatarian.
11 COMMISSIONER MARSHALL: I did not pick up the check.
12 (Laughter.)
13 COMMISSIONER MARSHALL: But I felt that those people,
14 first of all, they feel disenfranchised. They believed
15 they have been kept out of the process and I think they
16 can make that point pretty effectively. As Commissioner
17 Nabors said, a minor today may be a major one a couple of
18 years from now. I think switching roles of the parties
19 ought to be considered, at least the possibility of that.
20 They feel they are not treated fairly and I tried to
21 take the other side in an informal debate over dinner. I
22 found it hard to refute them. They do have a more
23 difficult time getting on the ballot. I have some
24 concerns about the language too. That is Commissioner
25 Connor says there are always lawyers to litigate these
60
1 matters. And I hope some of that can be cleared up in
2 drafting, but I think on balance, this measure deserves
3 our support and I speak in its favor.
4 CHAIRMAN DOUGLASS: All right. I think the amendment
5 is now drafted. Will you hand us a copy of it and we'll
6 read it? And it's introduced by Commissioner Hawkes; is
7 that correct? This is the amendment. All right. Would
8 you read the amendment?
9 READING CLERK: By Commissioner Hawkes, on Page 1,
10 Line 24, delete all said lines and insert, Greater than
11 the requirements of a candidate of a party having the
12 majority of registered voters at the time of qualifying.
13 CHAIRMAN DOUGLASS: Does that seem to meet the
14 objections that we have been hearing?
15 COMMISSIONER HAWKES: I think so, Mr. Chairman, and
16 the Chief Justice had a role in the drafting of this to
17 make sure that the language was tight and clear to the
18 judiciary --
19 CHAIRMAN DOUGLASS: No, no, that could be 61,
20 couldn't it, Commissioner Kogan?
21 COMMISSIONER KOGAN: It wouldn't be the first time.
22 (Laughter.)
23 COMMISSIONER HAWKES: But what this does,
24 Mr. Chairman, just to clarify, Commissioner Corr stood up
25 and said that it should be the party with the lower number
DIVISION OF ADMINISTRATIVE HEARINGS (904) 488-9675
61
1 of registration. This makes it clearly the party with the
2 greater number of registration. And I think the reason
3 for that is, at least you are showing that there's some
4 level of community support in order to get this name on
5 the ballot so the people can't unfairly clog up the ballot
6 without any community support at all. So this is the
7 party with the larger registration, the fees or the
8 signatures, whatever you decide to do will be the larger
9 party, whatever the party happens to be at the time.
10 CHAIRMAN DOUGLASS: Will they supply the qualifying
11 fees?
12 COMMISSIONER HAWKES: Well, qualifying fees are set
13 up in the office. And I think that Independent candidates
14 pay the same qualifying fees anyway because that was based
15 upon salary. I think where they had a difficult time was
16 collecting signatures for the office if they wanted to do
17 the alternative method of qualifying.
18 CHAIRMAN DOUGLASS: Okay. Commissioner Riley, you
19 were up.
20 COMMISSIONER RILEY: Yes, I would like to speak in
21 favor of the amendment.
22 CHAIRMAN DOUGLASS: Do you have a question, first?
23 COMMISSIONER MILLS: Yes.
24 CHAIRMAN DOUGLASS: He has a question of the
25 proponent of the amendment.
62
1 COMMISSIONER MILLS: This is just clarifying. I
2 intend to vote for this, and I think this is a good idea.
3 We've heard a lot about it. And one of the things that we
4 want our revision commission to have are some
5 understandable things and this is opening up the process
6 and this is I think responsive to what we heard. But
7 would this -- right now, would this continue to allow a
8 differentiation in the major party qualifications?
9 COMMISSIONER HAWKES: Yes, sir.
10 CHAIRMAN DOUGLASS: Commissioner Hawkes yields to
11 Commissioner Connor.
12 COMMISSIONER CONNOR: Commissioner Hawkes, this is
13 the great thing about being a lawyer. Commissioner Hawkes
14 said yes, I would say no. What I would suggest is, it
15 means everybody is going to have the same requirement.
16 Let's say you are in a county election, you have a
17 majority party, everybody else then is a minority party at
18 that point. But what that means is that there is -- there
19 are equal requirements for everyone with regard to the
20 financial qualifying fees and with regard to the
21 petitions, number of signatures that must be gathered, the
22 levels of playing field. The inequity now is that a
23 minority party has more stringent requirements than the
24 majority party and I think that's grossly unfair. This
25 then puts everybody on the same playing field as I
63
1 interpret the language.
2 CHAIRMAN DOUGLASS: Commissioner Brochin, you have a
3 question?
4 COMMISSIONER BROCHIN: I do.
5 CHAIRMAN DOUGLASS: Are you through, Commissioner
6 Mills, I didn't mean to cut you off on the question.
7 COMMISSIONER MILLS: No, sir, I would agree with
8 Commissioner Connor. I think that's what it does. I'm
9 just not sure that's what everybody --
10 CHAIRMAN DOUGLASS: Commissioner Brochin?
11 COMMISSIONER BROCHIN: Isn't it the intent of this
12 proposal that everyone be treated equally no matter
13 majority or minority and isn't there a simpler way to do
14 that as compared to making it relative to who the majority
15 party is, why is that relevant? I mean, isn't it more
16 appropriate from a constitutional point to just say that
17 there shall be no law that in essence favors one party
18 over the other in terms of qualification and eliminate
19 words like "major" and "minor" and "greater"?
20 CHAIRMAN DOUGLASS: That's why I asked Commissioner
21 Nabors, you know, he stated it pretty simply.
22 COMMISSIONER BROCHIN: I think what we are alluding
23 to is trouble with the language, I think that's what's
24 giving us a little bit of a problem although I think
25 conceptually everyone believes, not everyone, many of us
64
1 think equal protection should be preserved but the
2 comparison or the relative comparison to a minority or
3 majority party or even Independent candidate may make it a
4 little bit confusing and more litigious in the future.
5 CHAIRMAN DOUGLASS: Commissioner Ford-Coates, oh, you
6 want to answer that. That was addressed to you as a
7 question. Commissioner Hawkes?
8 COMMISSIONER HAWKES: Thank you, Mr. Chairman.
9 CHAIRMAN DOUGLASS: Commissioner Ford-Coates, you are
10 next.
11 COMMISSIONER HAWKES: Qualifying serves the purpose
12 primarily to make sure that the people who are on the
13 ballot are serious candidates and deserve the serious
14 consideration of the people who are going to vote. And
15 the argument in favor of requiring Independent candidates
16 to get 3 percent of the voting public was to ensure that
17 in fact they had some level of support in the community
18 and if you as a voter were going to take the time to
19 evaluate their qualifications and make decisions, you were
20 engaging in an activity that wasn't going to be a total
21 waste of time because this individual had some requisite
22 support.
23 It was not my intention to change the qualifications
24 for the two major parties. I think the qualifications for
25 this says no greater than the requirements. That means
65
1 they could be less. Under statute, if your party received
2 a certain number of votes in the last presidential
3 election, I think is the way it is tied, I'm not exactly
4 sure, then you would qualify under -- you could qualify, I
5 believe, under a different and a lower number of
6 signatures if you were qualifying by the alternative
7 method. And I would submit that that's appropriate
8 because then your party has shown that it has some support
9 and you have greater than 3 percent of the community.
10 So you are showing that not only do you have your
11 party's, a bare minimum level of your party's support, you
12 have a minimum -- your party has a minimum level of
13 support in the community or in the state. And so you are
14 fulfilling the purpose of qualifying to make sure that the
15 people are looking at legitimate candidates.
16 So I think, contrary to Commissioner Connor and
17 Commissioner Mills, that you could have lower requirements
18 for a party that received a certain percentage in the
19 electorate and I think that that's appropriate.
20 CHAIRMAN DOUGLASS: I had agreed to -- will you yield
21 to Commissioner Connor? Commissioner Connor.
22 COMMISSIONER CONNOR: I simply wanted to augment that
23 response to Commissioner Brochin's question. I think
24 Commissioner Hawkes is right in that the requirements may
25 be less than but they cannot be more than the requirements
66
1 of a candidate of the party having the majority of
2 registered voters at the time of qualifying. And that's
3 what the language provides. So what happens is that that
4 maximum, in terms of requirements, winds up being set by
5 the party that has the majority of voters at the time of
6 qualifying.
7 I would agree with you that by general law the
8 requirements could be less, but they cannot be more and
9 the inequity that we have now is that minor parties have
10 greater other requirements than the majority parties with
11 respect to the petition signature requirements. And so I
12 think that the proposed language levels the playing field
13 and says that nobody is going to have to live with more
14 burdensome requirements than are imposed on the party with
15 the majority of voters in the area at the time of
16 qualifying.
17 CHAIRMAN DOUGLASS: Commissioner Ford-Coates has been
18 up and you have a question or do you want to address the
19 issue?
20 COMMISSIONER BARKDULL: I have a question.
21 CHAIRMAN DOUGLASS: No, I mean Commissioner
22 Ford-Coates.
23 COMMISSIONER FORD-COATES: Both.
24 CHAIRMAN DOUGLASS: Well, do your question then.
25 You've been up. I recognize you. I'll come back to you,
67
1 Commissioner Barkdull.
2 COMMISSIONER FORD-COATES: What Commissioner Connor
3 has said, I think we need to separate the two concepts of
4 the Independents who now have a serious battle because
5 they do have to get 3 percent of all registered voters.
6 Their filing fees are the same as everyone else.
7 We then have the two majority parties wherein some
8 county one party has a majority of the registration, the
9 other has the minor party in that situation, whether they
10 be democrat or Republican, has the same kind of
11 requirements in that it is a 3 percent.
12 If we are saying, and I don't think this says this,
13 but what I heard you say is that there would be a level
14 playing field and everyone would have to do the same
15 thing. If you are a member of a minority party in
16 registration, to get 3 percent of all of the majority
17 party's number of signatures is very difficult because
18 your party might not even have that many people.
19 So I don't think it says that, as Commissioner Hawkes
20 said, that you were in a minority party when you got your
21 signatures, so you had to get less signatures than the
22 majority party. That's fair because your pool of
23 registered voters is smaller than the majority party. I
24 read this that no requirements for a minority party or an
25 Independent or a majority party just by reason of the
68
1 number of registered voters can be any greater than. And
2 my assumption is that the Legislature would keep that as
3 it is now on an even playing field.
4 So I guess that's my question, Commissioner Hawkes,
5 and originally I heard Commissioner Connor say everybody
6 would have to do the same thing which would not be fair in
7 the sense of the 3 percent but that it would be no more
8 than in the 3 percent than the top, that would be fair.
9 CHAIRMAN DOUGLASS: Just a moment. Commissioner
10 Connor. Your question was addressed to Commissioner
11 Connor or to somebody. Commissioner Connor --
12 COMMISSIONER FORD-COATES: Commissioner Connor or
13 Commissioner Hawkes, both.
14 COMMISSIONER CONNOR: You may recall,
15 Ms. Ford-Coates, that I affirmed what Commissioner Hawkes
16 said in that regard in that it cannot be greater than.
17 There is nothing that would prevent the Legislature from
18 imposing less stringent requirements, but under no
19 circumstances could it be greater than the requirements of
20 the party who had the majority of votes in the area under
21 consideration.
22 COMMISSIONER FORD-COATES: Would you agree that in a
23 situation if it were equal though, it would in effect do
24 the opposite and make it more difficult to gain those
25 signatures? I trust the Legislature not to do that.
69
1 COMMISSIONER CONNOR: And I think those are the kinds
2 of adjustments that are properly within the legislative
3 prerogative. What we have here though is a situation
4 where currently the requirements for minor parties and
5 Independents are greater than those. What we are saying
6 is, let's at least bring it down where everybody has the
7 same base requirement at the maximum. But if there are
8 policy considerations that warrant imposing less stringent
9 requirements, then that should happen. And I will suggest
10 to you that that is more likely to happen in the
11 Legislature under this scenario than will ever occur in
12 the future without it.
13 CHAIRMAN DOUGLASS: All right now, these are
14 questions and Commissioner Barkdull was next.
15 COMMISSIONER BARKDULL: Commissioner Connor, would
16 you explain to me how you would say at the time of
17 qualifying, and I mean this in the form of a friendly
18 question, because as I understand it, qualifying goes on
19 as a registered voter almost when you cast the ballot. So
20 I can see the litigation coming over what was the total
21 registered vote at the time.
22 COMMISSIONER CONNOR: Ms. Ford-Coates I think is
23 probably better qualified to address that than I. My
24 recollection is that there is a formal qualifying period
25 that is set up by state statute that --
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1 COMMISSIONER BARKDULL: That's true. But my concern
2 is what was the registered voter's at the time of
3 qualifying.
4 COMMISSIONER CONNOR: I'll yield to Ms. Ford-Coates,
5 Mr. Chairman, if that's --
6 CHAIRMAN DOUGLASS: That's Commissioner Ford-Coates.
7 We are gender neutral here.
8 COMMISSIONER FORD-COATES: The statutes provide the
9 date on which the registration levels are set. As of a
10 certain date, these are the registered voters. You know
11 that what you get to the qualifying portion even though
12 qualifying is over a two-week period, you know long before
13 what the registration figures are, what percentage you
14 need, what the amounts are, you know, it must be set
15 probably a year in advance or at the last election or
16 something. It is provided in statute.
17 COMMISSIONER BARKDULL: That's my point. It is now
18 generally set at the last general election.
19 COMMISSIONER FORD-COATES: Fine.
20 COMMISSIONER BARKDULL: And I don't have any
21 objection to this. My only point is this is leaving it
22 very open-ended and doesn't tie it down to the last
23 general election which is what most statutes do. And this
24 is changing that. And I think that that's going to cause
25 some confusion.
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1 CHAIRMAN DOUGLASS: Just a minute. I think we need
2 to direct this debate to another amendment that has been
3 put on the desk. If you would like to have it read it is
4 being introduced, proposed by Commissioners Rundle and
5 Brochin.
6 Okay. We have the Hawkes amendment pending so we
7 have got to, before we can take up this amendment, we have
8 to finish the debate on the Hawkes amendment. I thought
9 it might be helpful in this debate, maybe Commissioner
10 Brochin can rise and say what his amendment is going to
11 be, he and Commissioner Rundle's amendment, so that you
12 might want to consider that in dealing with Commissioner
13 Hawkes' amendment.
14 Very briefly, could you just tell us what you propose
15 to do to the Hawkes amendment, what this would do?
16 COMMISSIONER BROCHIN: Well, this actually makes
17 another run at some different language --
18 CHAIRMAN DOUGLASS: All right. Let's have a little
19 order, please. Okay. Go ahead.
20 COMMISSIONER BROCHIN: I at least want to start by
21 saying I want to make sure that procedurally by making all
22 these amendments, we don't kill a very good idea.
23 CHAIRMAN DOUGLASS: You haven't made it yet. All I
24 want you to do is say what it is.
25 COMMISSIONER BROCHIN: I saw this movie yesterday,
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1 and I just wanted to make sure that --
2 CHAIRMAN DOUGLASS: The day before yesterday too.
3 (Laughter.)
4 COMMISSIONER BROCHIN: So I just want to make sure, I
5 think we are all trying to get to the same place, but we
6 just scratched out and I say that is an amendment that
7 speaks to the equal protection without referencing
8 majority or minority parties and it is simply saying
9 ballot access of Independent candidates or political
10 parties shall be uniform and equal and not based upon
11 political party status.
12 CHAIRMAN DOUGLASS: All right. I'll tell you what
13 I'm going to do with your permission. I'm going to take
14 about a three-minute stand down here and ask the people
15 that are involved in these amendments to see if they can
16 have a quick committee meeting and arrive at some proposal
17 that will be one amendment. So we will stand in informal
18 recess until we call order. Do not leave the chamber for
19 too long, but there are snacks in the lounge.
20 Commissioner Butterworth, there are snacks in the lounge,
21 I know you wouldn't want to miss that.
22 (Brief recess.)
23 CHAIRMAN DOUGLASS: Madam Secretary, call a quorum,
24 please.
25 SECRETARY BLANTON: Quorum call. Quorum call. All
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1 commissioners indicate your presence. Quorum call.
2 Quorum call. All commissioners indicate your presence.
3 (Pause.)
4 CHAIRMAN DOUGLASS: One of our questioners came back.
5 All right. We don't have a quorum.
6 (Pause.)
7 Come to order, we have a quorum. Take your seats,
8 please. Commissioner Hawkes, you are back, center stage.
9 COMMISSIONER HAWKES: Mr. Chairman, with the
10 consensus of the group, I think that we have agreed upon a
11 substitute amendment. Basically, Mr. Chairman, what the
12 substitute amendment does is, it is very similar to the
13 original Hawkes amendment except it strikes "at the time
14 of qualifying" and puts in language "at the time as
15 provided by general law" because general law already
16 provides the time when you measure the number of voters
17 and we don't want to disrupt that. And the language could
18 be, perhaps, smoothed out and style and drafting will look
19 at it to make sure that everyone's concerns are addressed.
20 CHAIRMAN DOUGLASS: The Secretary suggests to me that
21 you withdraw your amendment.
22 COMMISSIONER HAWKES: I withdraw my original
23 proposal -- amendment.
24 CHAIRMAN DOUGLASS: And you propose this as your
25 amendment. Is that this amendment the one that's being
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1 passed out? All right. Would you read it? Everybody pay
2 attention now. This is the Hawkes new amendment.
3 READING CLERK: By Commissioner Hawkes on Page 1,
4 Line 24, delete all said lines and insert, Greater than
5 the requirements of a candidate of the party having the
6 majority of registered voters at the time provided by
7 general law.
8 CHAIRMAN DOUGLASS: All right. That's being passed
9 out. Does everyone understand we are on the amendment?
10 Any discussion directed to the amendment? If not, all
11 those in favor of the amendment signify by saying aye.
12 Opposed?
13 (Verbal vote taken.)
14 CHAIRMAN DOUGLASS: Motion carries. All right. We
15 now revert to the motion as amended -- I mean, the
16 proposal as amended which includes that language deleting
17 all of Line 24 and replacing it with this amendment.
18 Everybody got that clearly in mind? Okay. Are you ready
19 to vote? Open the machine.
20 (Vote taken and recorded electronically.)
21 CHAIRMAN DOUGLASS: Has everybody voted? Everybody
22 voted -- not quite everybody has voted. Now everybody has
23 voted. Close the machine and announce the vote.
24 READING CLERK: Twenty-eight yeas and zero nays,
25 Mr. Chairman.
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1 CHAIRMAN DOUGLASS: Tell you what, they told me one
2 time that when you had a unanimous vote you should revisit
3 it because there is always something wrong when everybody
4 agrees. But we will proceed to the next proposal.
5 Anybody hasn't voted, come up and ask that your vote
6 be recorded. Proposal 80 by Commissioner Freidin. Would
7 you read it, please?
8 READING CLERK: Proposal 80, a proposal to advise
9 Article III, Section 18, Florida Constitution, requiring
10 that a code of ethics for persons or entities in the
11 exercise of governmental duties which prohibits conflict
12 between public duty and private interest be prescribed by
13 law.
14 CHAIRMAN DOUGLASS: Commissioner Freidin, this
15 proposal was reported out with approval by the committee
16 on ethics and elections. You have moved the proposal and
17 we will go forward.
18 COMMISSIONER FREIDIN: Commissioners, this is a very
19 simple, straightforward proposal that really is intended
20 to bring us into the current state of society. Twenty
21 years ago when the Constitution was last revisited by the
22 Constitution Revision Commission, the issue of
23 governmental functions being performed by private
24 industry, by private entities, really wasn't an issue. It
25 wasn't happening. It is happening today. We have
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1 corporations doing everything in our state from collecting
2 garbage to running prisons and other things as well.
3 This proposal simply requires persons or entities
4 exercising governmental duties to be bound by a code of
5 ethics as are people who are government employees,
6 government officials, et cetera, and that's what it is.
7 CHAIRMAN DOUGLASS: Commissioner Barnett?
8 COMMISSIONER BARNETT: Question.
9 CHAIRMAN DOUGLASS: Question. Do you -- she yields.
10 COMMISSIONER BARNETT: What are governmental duties?
11 I mean that term is of concern to me because I don't know
12 what it means in the breadth of what it could mean. I saw
13 in the analysis the reference to entities like Enterprise
14 Florida. I mean, we could probably define situations that
15 clearly were governmental duties, but there are a lot of
16 people who may perform, you know, what might be a duty as
17 opposed to a function or something more specific.
18 I am just concerned about what that phrase means and
19 that it may extend the code of ethics to people in private
20 situations that would always put them in a conflict, for
21 example, or at risk of violating the code of ethics.
22 COMMISSIONER FREIDIN: Let me ask you a question in
23 response to your question. Do you think that the word
24 "function" would be better than duties?
25 COMMISSIONER BARNETT: Function is better. I think,
77
1 though, that we need to give some thought to the concept.
2 I like the idea. I'm really looking to be in support of
3 this idea, but that concept of governmental duty or
4 function is substantially unclear to me so that I am
5 worried about what, about unintended consequences of it.
6 CHAIRMAN DOUGLASS: Commissioner Evans?
7 COMMISSIONER EVANS: Questions also. I would think
8 along this line that we would assume that education is a
9 governmental duty or a governmental function, government
10 is certainly in the business of education. This then
11 would require that I, as a home-schooled mom, would have
12 to comply with all the ethics requirements. And I think
13 that in itself would be an overbearing, I don't know how
14 strongly I could say the word, requirement in order for me
15 to -- and I think it would -- well it would just be an
16 absolute chilling effect.
17 And there are a lot of things that government does
18 that is not governmental duty or governmental function.
19 Government is in the business of private enterprise and so
20 would we say that that too is governmental business?
21 CHAIRMAN DOUGLASS: Answer the question. Anybody
22 want to answer the question?
23 COMMISSIONER FREIDIN: Well, certainly that wasn't
24 the intent and I'm just -- this is a public proposal and
25 clearly the intent was a situation where a private entity
78
1 is running a prison and the warden ought to be bound by a
2 code of ethics just the way a prison warden would be bound
3 if it was being done publicly. So that is the intent of
4 the proposal.
5 I don't disagree that the language is a little bit
6 loose here and I would welcome suggestions or amendments
7 that would tighten it up.
8 CHAIRMAN DOUGLASS: Commissioner Sundberg, for what
9 purpose?
10 COMMISSIONER SUNDBERG: To speak in favor of the
11 proposal.
12 (Commissioner Mills assumes the Chair.)
13 COMMISSIONER MILLS: You are recognized.
14 COMMISSIONER SUNDBERG: I have, as some of you may
15 know, I have rejoined the public sector recently where I
16 can now count on a paycheck every two weeks and it has
17 been, particularly being at a university, it has really
18 been astonishing to me how many of these public/private
19 partnerships and undertakings exist out there today. And
20 that's the mantra. If you want to sell something, if
21 you've got a program, you package it as a public/private
22 partnership. Because of that, I see -- in a number of
23 instances, I have seen where the private sector culture is
24 brought into one of these partnerships where you have the
25 public sector culture and they collide. And you get --
79
1 you know, for people in the public sector, they really
2 need this sort of statement by the people of this state
3 and that is when is, in fact, you are going to have a
4 private enterprise undertaking -- and I like the term
5 governmental function better than -- no matter what word
6 you use, I suggest it's going to get some interpretation
7 by the courts over time, but lots of words do.
8 But you need the ability to say now, you know, you
9 come from a different culture and you are going to have to
10 adjust to the culture because the people of the state of
11 Florida, although they welcome private enterprise in
12 performing these kinds of functions in some instances and
13 while they welcome these private/public partnerships,
14 there is a -- there is a level or a standard of conduct
15 which you must adhere to if, in fact, you are going to be
16 involved in a public purpose here.
17 So I speak heartily in favor of this proposal.
18 COMMISSIONER MILLS: Further debate? Commissioner
19 Wetherington, for what purpose?
20 COMMISSIONER WETHERINGTON: To oppose.
21 COMMISSIONER MILLS: Okay. How many wish to debate
22 this issue? We will just line up debate. Commissioner
23 Wetherington in opposition, a proponent. Commissioner
24 Zack, Commissioner Morsani?
25 COMMISSIONER MORSANI: Questionable opponent.
80
1 COMMISSIONER MILLS: A questionable opponent. I'm
2 not acquainted with that term, but we'll put it down.
3 Commissioner Nabors? Opponent?
4 COMMISSIONER NABORS: Uh-huh.
5 COMMISSIONER MILLS: Any other commissioners wish to
6 debate? Recognize Commissioner Morsani first then
7 Commissioner Zack.
8 COMMISSIONER MORSANI: Mr. Chairman and
9 Commissioners, I certainly am a strong believer in ethics,
10 in fact, I am a lecturer periodically on business ethics
11 to some of the ethics classes and ethics organizations
12 around the state and around the country because I believe
13 very strongly in how we conduct business.
14 My concern and especially the way it is written and
15 I'm not sure I even like the word "functions," I like that
16 better than the language as proposed. But I'm very
17 concerned about the camel, the nose under the tent
18 syndrome here, what are we getting into as far as
19 regulations and businesses that are just -- just doing
20 business with government entities on an ongoing basis.
21 If it is, you know, in my business, selling cars to
22 the state of Florida or to some government entity, I mean
23 using that as a -- not that I do that because they won't
24 buy imported cars. All the cars are imported, they just
25 think they are not. But anyway, but I am worried about
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1 that, not that we don't want to have ethical standards,
2 because we do. But I am concerned about the regulatory
3 side of this equation that's not literally -- clearly
4 defined. I don't think it can be clearly defined. And as
5 government has grown to the extent that it has, both
6 state, local and national government, it is almost
7 impossible for a large sector of the private sector not to
8 be doing business with government everyday.
9 It is like having rules in a company. If they are
10 not enforceable, how are you going to have workable rules?
11 I don't think, as much as I agree with Mr. -- colleague
12 Sundberg and I have great respect for Ms. Freidin and
13 everything. I don't think that these are enforceable
14 because they are so broad with all the people, they are
15 enforceable in the courts if someone wanted to probably,
16 but is that where we are going? That is another intrusion
17 in government in the private sector to such a degree that
18 I don't think it is healthy, even though I want to do it,
19 but I don't think this is the proper vehicle to do it in
20 our state Constitution and I strongly oppose it, I think,
21 and I reluctantly say that.
22 COMMISSIONER MILLS: Commissioner Douglass, for what
23 purpose?
24 CHAIRMAN DOUGLASS: I'd like to make a remark before
25 I return to the Chair on this particular subject.
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1 COMMISSIONER MILLS: Proponent, opponent or remarks?
2 CHAIRMAN DOUGLASS: Remarks.
3 COMMISSIONER MILLS: Okay. That would probably be
4 timely now as any time.
5 CHAIRMAN DOUGLASS: Well, I want to just remind
6 everybody that we are dealing with the Constitution number
7 one. And number two, the issue of ethics is the most
8 perplexing issue for the Bar, for doctors, for
9 businesspeople, and everybody has a different view of what
10 ethics or what an ethical conduct is. And there are no
11 definitions of ethical conduct and it changes from year to
12 year. It changes from day to day. Having been involved
13 with interpreting the canons of ethics for lawyers on the
14 ethics committee for a number of years and also having
15 served on the Board of Governors where we voted on whether
16 people violated ethical conduct, and I am certain the
17 judicial people agree with me on this, what is ethical has
18 totally changed every year.
19 What is ethical now was unethical, and I can assure
20 you what is now unethical was ethical. And we are dealing
21 with a document that transcends these changes and I think
22 that we should be extremely careful when we restrict
23 people from serving in government on broad-based problems.
24 And all of them -- a lot of them have been raised here and
25 we all are concerned with them. But the fact that people
83
1 might have some minor what now are ethical transgressions
2 doesn't mean they are not the best qualified and the most
3 thoughtful and have the best ideas for the will of the
4 people.
5 And what we are doing here is creating a vehicle
6 which can be used to attack the most ethical of people.
7 And I found, and I think you-all will agree, that when you
8 are accused publicly by some media or some person in
9 public life of unethical conduct, no matter how hard you
10 try, you never overcome the accusation. And many times,
11 and this has become more important as we go along with
12 television one line coverage of the news, ethical
13 considerations quote, unquote, eliminate many very sound
14 ideas from ever being in the media because they have to
15 become totally involved because they are selling their
16 product with reporting things that titillate the public or
17 me or you or otherwise.
18 And if we support the person's political views, we
19 tend to say, That wasn't ethical and if it was, it was
20 minor. If we oppose them, we blow them up to the point
21 where we just unbelievably follow them through and hound
22 many good people out of office. Many businessmen that I
23 know that are not used to having to deal with this public
24 shifting sands of right and wrong, once they get into
25 government are appalled at what is happening to them. And
84
1 therefore they don't go.
2 And I'm not saying that anybody has the right to be
3 unethical, but what I'm saying is that before we adopt any
4 provisions which are limited in general scope to, in
5 effect, making it wrong for a public employee, and that
6 goes right down to the tractor driver with the state road
7 department of the DOT or a county person, to do something
8 that is, quote, unethical and undefined. I therefore
9 caution the Commission that when we are amending or
10 proposing to amend the Constitution, that we be extremely
11 careful by creating any exclusion to public service or,
12 while it may not directly preclude it, it deters people
13 from serving.
14 And I will remind you by closing of two things.
15 Number one, some of the greatest people that we admire the
16 most in American history were unethical. In fact, some of
17 them were crooks but the things that they accomplished for
18 this great republic have transcended all of that.
19 And in government, the issue should always be are
20 they serving the best interest of the public whether it be
21 ethics, laws or otherwise. And I will tell you what my
22 old law partner J. Louis Hall, Senior, who was president
23 of the Florida Bar, who had had a long distinguished
24 career, and he had a story that he told that I always
25 liked to say to lawyers when we are talking about ethics.
85
1 He said, You know, old John Mills is in town today
2 and he is speaking to the Bar Association. And what's he
3 speaking on? Well, he is speaking on ethics. And Louis'
4 comment was, Well, I didn't know he had gotten rich enough
5 to be speaking on ethics. And the answer to that is, most
6 people consider ethics involving money and that's where
7 they always -- you get into your gambles and your problems
8 of definitions and interpretation.
9 I therefore suggest that when we pass, if we do,
10 proposals such as this that we recognize that we are
11 treading in very dangerous ground.
12 COMMISSIONER MILLS: Commissioner Freidin, for what
13 purpose do you rise?
14 COMMISSIONER FREIDIN: I rise to yield to
15 Commissioner Sundberg.
16 COMMISSIONER MILLS: Commissioner Sundberg is going
17 to explain the amendment on the desk? Oh, Commissioner
18 Sundberg, for what purpose?
19 COMMISSIONER SUNDBERG: To respond to Mr. Morsani and
20 the Chairman's remarks.
21 CHAIRMAN DOUGLASS: Well, we have an amendment on the
22 desk. Would it be appropriate to, at this point, consider
23 the amendment? And if you wish to speak for or against,
24 Commissioner Sundberg, you want to do that later?
25 COMMISSIONER SUNDBERG: Well, the point is, their
86
1 remarks did not go to the amendment and it is a basic
2 premise underpinning all of this and I think it is an
3 error and I just want to correct it. If people don't want
4 it corrected, that's fine.
5 COMMISSIONER MILLS: A basic premise, we all would
6 really like to hear that and I presume it would be in the
7 nature of either supporting or opposing the entire bill;
8 is that correct?
9 COMMISSIONER SUNDBERG: Yes.
10 COMMISSIONER MILLS: Commissioner Freidin, if you
11 want to, this is your amendment on the desk. By
12 Commissioner Freidin, read the amendment.
13 READING CLERK: My Commissioner Freidin on Page 1,
14 Line 17, delete all of said line and insert, Or entities
15 that have contracted with government to perform
16 governmental functions which prohibit.
17 CHAIRMAN DOUGLASS: Commissioner Freidin?
18 COMMISSIONER FREIDIN: I think this might get the
19 camel's nose out from under the tent. With great
20 sensitivity to the comments that were made earlier about
21 the language that was being used and the potential
22 problems that would come up in terms of private schools,
23 private school buses, and other such things that are --
24 that perform functions that are similar to governmental
25 functions, or parallel to governmental functions, I offer
87
1 this amendment because it makes more specific the fact
2 that we are talking about entities that were contracted
3 with government to perform governmental functions.
4 CHAIRMAN DOUGLASS: Is there debate on the amendment,
5 debate on the amendment? Commissioner Nabors, for what
6 purpose?
7 COMMISSIONER NABORS: I'd like to ask a question
8 about the amendment if I could.
9 COMMISSIONER MILLS: She yields.
10 COMMISSIONER NABORS: As I indicated, I'm going to
11 oppose this, not because I disagree philosophically,
12 because I'm concerned about the language and what it
13 means. And my problem with the amendment is this
14 heightens my concern when you use language contracted with
15 the government to perform governmental functions, that
16 says to me almost anybody who contracts with government,
17 if I am a consulting engineer and I contract with
18 government to design a road, that's a governmental
19 function that the staff could do as well or any type of
20 governmental service. My problem with this is, is one of
21 definition and I'm not sure that this language helps.
22 In some ways duties is better because duties implies
23 some kind of sovereign function, a sovereign obligation.
24 When you say any entity that contracts with government to
25 perform governmental functions, almost any consultant
88
1 could perform a governmental function that could otherwise
2 be performed by staff. That's what bothers me about the
3 amendment.
4 COMMISSIONER MILLS: Commissioner Freidin, do you
5 wish to respond? Is there debate on the amendment? Is
6 there debate on the amendment? If not, Commissioner
7 Freidin, would you like to close on the amendment?
8 COMMISSIONER FREIDIN: No, I just move it.
9 COMMISSIONER MILLS: All those in favor of the
10 amendment? Commissioner Zack, for what purpose?
11 COMMISSIONER ZACK: To ask a question of Commissioner
12 Freidin.
13 COMMISSIONER MILLS: You are recognized.
14 COMMISSIONER ZACK: I have a couple concerns as we've
15 got a number of former chairmen of the ethics commission
16 and we have been discussing the question as to whether the
17 intent of the amendment is to require these individuals to
18 be under the ethics code of the state which would require
19 financial disclosure and would frankly be virtually
20 impossible as a practical matter if it applied to all the
21 people that could possibly come under this definition, or
22 are we referring to a -- because it doesn't say the code
23 of ethics of the state, it says a code of ethics.
24 And I can tell commissioners here that this is a very
25 serious problem. We found, as it relates to the conflict
89
1 aspects of a code of ethics, for example, even a bus
2 driver who is a private bus driver, if they use that bus
3 to take their family to a picnic, has a conflict. We have
4 a number of -- a number of cases which the ethics
5 commission could not deal with because of this loophole,
6 if you will. And it is a growing problem, not a shrinking
7 problem, and I presume based on what has happened
8 regarding privatization it will continue to grow.
9 As far as ethical issues there, I served on the Board
10 of Governors for ten years as our chairman head and dealt
11 with these issues. And stealing money from clients has
12 always been wrong. Okay. Year in and year out. There
13 are certain ethical issues that are always wrong. They
14 don't change regardless of the whims of society.
15 And if there is a code of ethics that deals with
16 specific issues of conflict, then I'm very much in favor
17 of this; however, if this is going to require financial
18 disclosure from everybody who -- and anybody who has
19 filled out those financial disclosure forms can know how
20 confusing they are. However, you know, we accept that.
21 And it is appropriate. But I'm not sure it is appropriate
22 to apply to every schoolteacher, every college professor,
23 et cetera.
24 So my question is, are you referring to a code of
25 ethics to be established by the Florida Legislature, or
90
1 are you referring to putting them under the code of ethics
2 as presently in the Florida statutes?
3 COMMISSIONER MILLS: Commissioner Freidin to respond
4 to the question.
5 COMMISSIONER FREIDIN: The proposal simply amends the
6 existing provision in the Constitution which says a code
7 of ethics. Now in terms of what I intend the Legislature
8 to do on that, I really -- I don't think -- I would not
9 begin to presume to say that. It simply requires that
10 there be one, is the way I read it.
11 COMMISSIONER MILLS: Commissioner Barnett, for what
12 purpose?
13 COMMISSIONER BARNETT: To respond to Commissioner
14 Zack.
15 COMMISSIONER MILLS: You are recognized.
16 COMMISSIONER BARNETT: It would be my interpretation
17 of this provision that it would fall under Chapter 112,
18 Part 3 of the Florida Statutes, which sets up a code of
19 ethics for public officers and employees and it is in that
20 section that among many other specifics, are set forth the
21 financial disclosure requirements and that that would
22 apply to whoever is covered by this provision if it is
23 adopted.
24 COMMISSIONER MILLS: All those in favor of the
25 amendment as offered by Commissioner Freidin, signify by
91
1 saying aye. Those opposed.
2 (Verbal vote taken.)
3 COMMISSIONER MILLS: It fails. We are back on the
4 main proposition. I have Commissioner Zack in favor,
5 Wetherington opposing, Sundberg in favor, Nabors opposing,
6 and Freidin to close. Anyone else wish to speak?
7 Commissioner Zack?
8 COMMISSIONER ZACK: I made my remarks and stand by
9 them.
10 COMMISSIONER MILLS: Commissioner Wetherington?
11 (Off-the-record comment.)
12 COMMISSIONER MILLS: Commissioner Sundberg?
13 COMMISSIONER SUNDBERG: This responds really or
14 addresses the issue raised by the Chairman and by Mr. Zack
15 and Mr. Morsani and responded to by Commissioner Barnett.
16 And I agree with Commissioner Barnett that currently
17 the Legislature has addressed this Constitutional
18 imperative by Section 3 or really Part 3 of Section 112 of
19 the Florida Statutes. And indeed it does provide for
20 financial disclosure.
21 All this does, however, and the Chairman says, Golly,
22 ethics is an ethereal sort of thing and you just, you
23 know, it is hard to put your hand on it. Well, this
24 doesn't deal in ethereal terms, it says there will be a
25 code of ethics applicable to the named people or entities.
92
1 And it says that the Legislature shall enact that code and
2 they have. Section 112, Part 3, deals with a number of
3 conflict situations and it is spelled out rather clearly.
4 It says, for example, if you are a member of an agency,
5 you will not, except under some accepted circumstances, do
6 business with your own agency, you won't contract with
7 them. It's not some sort of ethereal conflict about go
8 forth and do no evil, it is quite specific.
9 And all this does is enable the Legislature to expand
10 that ability it already exercises under the Constitution
11 imperative it now enjoys to expand it to those situations
12 where the private sector is becoming involved in the
13 public's business. Now that might be very good public
14 policy. But what is better public policy is to say that
15 when the private sector and private individuals become
16 involved in the public's business, that they ought to be
17 held to the same standard of accountability of anyone else
18 who is performing the public's business.
19 So Commissioner Morsani, this isn't something vague
20 or ethereal, what this does is says, Legislature, enact a
21 code of conduct. It has. I am quite sure it will have to
22 address and it can have certainly different standards with
23 respect to financial disclosure, and I would suspect that,
24 well, that simply is a decision that's not made here. It
25 will be made by the Legislature and under this imprimator
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1 it is clear that the Legislature could impose that as a
2 part of the code of ethics imposed on these other private
3 entities. But it need not necessarily do that. I mean,
4 that remains to be seen. So we are not talking about
5 something ethereal and vague here. It will, in fact, be
6 quite precise.
7 COMMISSIONER MILLS: Commissioner Wetherington then
8 Commissioner Nabors and Commissioner Freidin to close.
9 Commissioner Wetherington?
10 COMMISSIONER WETHERINGTON: I think, for example,
11 where prisons are concerned, if you are going to have
12 private people running prisons, the same due process
13 principles should apply if they are performing a function
14 such as running a prison which is a pure governmental
15 function and I think the rights of the people in those
16 prisons should be exactly the same, I'm not wild about
17 private prisons anyway, but if you are going to have them
18 I think the standards, the constitutional standards,
19 should be exactly the same in those areas.
20 On the other hand, there are other instances
21 involving governmental contractors in which it is
22 beneficial for the government to have governmental
23 contractors where the considerations aren't the same. In
24 other words, there are differential considerations. And
25 one of the problems that you have, for example, in getting
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1 people to serve on governmental advisory boards is the
2 conflict of interests regulations, for example, like in
3 Dade County.
4 If you make conflict of interest restrictions too
5 severe, there are a lot of good people that will not agree
6 to serve government, they will stay away from government.
7 Those standards may be perfectly appropriate for people
8 that are regularly employed as government employees, but
9 there may be different considerations and differential
10 considerations depending upon the particular contract
11 service that's being performed for the government.
12 The Legislature should, I believe, regulate every
13 governmental contractor, and I think there should be
14 standards that should be imposed on every governmental
15 contractor to make certain that the public interest is
16 served.
17 But I think that that's a complicated decision and I
18 think there are different types of services, there are
19 different types of considerations and that's why I don't
20 think that putting this as part of the Constitution would
21 be the way to do it. And I think that there could be,
22 depending on if it is exactly the same code that is being
23 imposed with financial disclosure, a lot of people won't
24 touch government work. I know a lot of good people that
25 will not go into government life at all because of all
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1 these things.
2 So it seems to me that it is something that should be
3 done by the Legislature and that we don't need to have it
4 in the Constitution.
5 COMMISSIONER MILLS: Commissioner Nabors?
6 COMMISSIONER NABORS: Following through on that
7 argument is, I have two objections to this. The first is,
8 is that the Legislature could do this now. I mean, the
9 Legislature could take Chapter 112 and it could expand it
10 to people that perform governmental duties, and in that
11 process, there would be precision in terms of definition.
12 We would know what was being dealt with and there would be
13 a deliberative process to do that. So I don't think it is
14 needed Constitutionally for that reason.
15 So then you ask yourself, why do you need it in the
16 Constitution? The only reason you need it in the
17 Constitution is to have a Constitution imperative to the
18 Legislature that you shall do that. And therein lies my
19 second problem because do I not know what we are telling
20 the Legislature to do?
21 The language to me is not clear. I don't like to put
22 anything in the Constitution, I think we should be
23 reluctant unless it is clear what we are putting in the
24 Constitution. So if the people were to tell the
25 Legislature that, you are directed to do a code of ethics
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1 for entities exercising governmental duties, I'm not sure
2 that -- that doesn't mean anything to me. I wouldn't know
3 what I'd be voting on today. I wouldn't know what I would
4 be voting on on the ballot because it does have the
5 precision to me and doesn't include just prisons, people
6 performing a contract to governmental services, it doesn't
7 include consulting engineers, it includes all those who do
8 governmental services for the state.
9 So the problem with it is, as a value to the
10 Constitution, as directing the Legislature, I don't think
11 it directs it with sufficient precision to be in the
12 Constitution. And secondly, the Legislature could do it
13 anyway. So I would oppose it for both reasons.
14 COMMISSIONER MILLS: Commissioner Freidin to close.
15 COMMISSIONER ZACK: I have a question.
16 COMMISSIONER MILLS: Commissioner Zack for a question
17 of whom?
18 COMMISSIONER ZACK: Commissioner Nabors.
19 COMMISSIONER MILLS: He yields.
20 COMMISSIONER ZACK: Commissioner, your opposition to
21 this matter and for that matter if any of us decide to
22 vote against it for the reasons stated by yourself and
23 Commissioner Wetherington is not to be interpreted by the
24 Legislature as a lack of concern or for that matter, there
25 is no need to pursue this matter, it is that on the
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1 present basis and the way it is formulated here that it
2 appears to be unworkable but there is a continuing need
3 for the Legislature to review this matter and to adopt
4 appropriate codes of ethics for people who come to work
5 for government in a private capacity; is that correct?
6 COMMISSIONER NABORS: Absolutely. I think it is an
7 appropriate Legislative issue. I think there are all
8 sorts of things that are concerned with people that
9 contract for government to the extent that, you know,
10 their records are public records, all of those types of
11 issues. There is a myriad of issues when you start to
12 privatize government. So I would agree that my
13 oppositions should not be an opposition to the concepts.
14 As you know, our law firms just represent government and
15 we take the position -- we don't represent a private
16 entity precisely for the reason of a conflict between our
17 representation and the main client.
18 But the problem with it is, is to have something in
19 the Constitution that's perceived to be an imperative that
20 is vague in terms of this application, I think creates
21 confusion and doesn't move the system along. So I would
22 say, yes, nothing that I would oppose this or any vote
23 here should be interpreted as a signal that there isn't
24 something that perhaps needs to be done in the legislative
25 area.
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1 COMMISSIONER MILLS: Commissioner Evans, what
2 purpose?
3 COMMISSIONER EVANS: Question.
4 COMMISSIONER MILLS: Of Commissioner Nabors?
5 COMMISSIONER EVANS: Of Commissioner Freidin.
6 COMMISSIONER MILLS: Commissioner Freidin, would you
7 take the floor and yield to a question?
8 COMMISSIONER FREIDIN: Yes.
9 COMMISSIONER MILLS: She yields.
10 COMMISSIONER EVANS: In light of the failure of the
11 amendment, my question is, would you believe that under
12 the current language I could be held to be subject to this
13 code of ethics because I am a home-schooled mom. I have
14 no problem myself with refusing to conform to that
15 Constitutional provision and instead standing on my
16 Constitutional rights to freely exercise my religious
17 convictions; however, my husband is an elected member of
18 the judiciary and our home -- I don't home school, we home
19 school. So he would be forced to choose whether to abide
20 by one Constitutional provision or the other and such
21 choice could subject him to JQC control because he
22 might -- it might be held to be an improper conduct.
23 And then the other part of the question is, would you
24 believe that government is in the business of collecting
25 garbage and that if I were to rent a U-Haul, which I have
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1 done, to clean out the garage and take it to the garbage
2 dump that I will have to do that, that compliance, because
3 again, we are engaging in governmental functions.
4 COMMISSIONER MILLS: Commissioner Freidin to respond
5 and then close.
6 COMMISSIONER FREIDIN: Well, I don't have any more
7 response than I had earlier. Obviously, the intent of
8 this is not to include you when you take your garbage out.
9 With regard to your conflict, or your husband's conflict
10 between the conflicts, this provision of the Constitution
11 specifically excludes judicial officers. Well, it says
12 nonjudicial officers. So by its language it doesn't
13 include judicial officers.
14 COMMISSIONER EVANS: A home schooling father, not a
15 judge.
16 COMMISSIONER FREIDIN: Well, I don't think he would
17 be -- I don't think, and it certainly isn't the intent,
18 that he would be -- that he would be included at all in
19 this.
20 Now this is nothing more than an extension of an
21 imperative that the Legislature already has. The
22 Legislature already has a directive to prescribe a code of
23 ethics for all state employees and nonjudicial officers.
24 This is simply expanding their directive to draft a code
25 of ethics. And if you look through Chapter 112, it is my
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1 understanding that every provision of that chapter says
2 who it is directed to and they don't all apply to every
3 person in the same and to every function in the same way.
4 Similarly, the Legislature would be directed by this
5 amendment to look at the -- revisit the code of ethics and
6 to provide for codes of ethics for appropriate
7 governmental functions that are being performed by
8 private -- private entities or persons.
9 This is not an insignificant issue in our state. I
10 understand that about 30 percent of our state budget now
11 goes for contracted services. The Legislature, under this
12 amendment, is free to draft and to fashion a code of
13 ethics that would be, in its opinion and judgment,
14 appropriate and I would move the proposal.
15 COMMISSIONER MILLS: Final passage of proposition 80.
16 The clerk will unlock the machine and members will proceed
17 to vote.
18 (Vote taken and recorded electronically.)
19 COMMISSIONER MILLS: All members voted. The clerk
20 will lock the machine and announce the vote.
21 READING CLERK: Six yeas and 18 nays, Mr. Chairman.
22 COMMISSIONER MILLS: So the proposition fails. Read
23 the next proposition, please.
24 READING CLERK: Proposition 84, a proposal to create
25 Article VI, Section V, Florida Constitution, providing
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1 that campaign contributions may be made only by persons
2 who are eligible to votes for the candidate to whom they
3 are making the contribution.
4 (Chairman Douglass returns to the Chair.)
5 CHAIRMAN DOUGLASS: Commissioner Corr is recognized
6 and move Proposal 84.
7 COMMISSIONER CORR: Thank you, Chairman. Thank you.
8 I want to introduce this by first -- maybe this is a
9 little bit of a qualification in the way of an
10 introduction. But also just to start by describing what
11 the intent of this proposal and the one that follows is.
12 This Proposal 84, and the one that is Proposal 114 that we
13 will hear next, move in the direction of severe campaign
14 finance reform. Will they cure all the ills, I don't
15 think so. But will it move a step in the right direction,
16 I would say, yes.
17 While they are severe and probably we'll hear this
18 morning or it will be characterized as radical, I would
19 further again that this is exactly why we need to be
20 considering these as a Constitution Revision Commission
21 because the politicians won't and because the public is
22 tired of excuses.
23 So the following proposals are in response to the
24 public outcry that we heard during the public hearing
25 process to get a grip on the powerful lobbyists and
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1 special interests that control the election process, a
2 system that has people more and more believing that their
3 votes do not make a difference and that only money rules
4 in Tallahassee.
5 So let's go to Proposal No. 84 and this was -- in the
6 form it is --
7 CHAIRMAN DOUGLASS: Commissioner Corr, I'd like to
8 ask him to read this first. And now that it's moved, do
9 you have an amendment you are going to move right after
10 that?
11 COMMISSIONER CORR: Yes.
12 CHAIRMAN DOUGLASS: All right. Sir, read the
13 proposal.
14 READING CLERK: Propose 84, a proposal to create
15 Article VI, Section V, Florida Constitution, providing
16 that campaign contributions may be made only by persons
17 who are eligible to vote for the candidate to whom they
18 are making the contribution.
19 CHAIRMAN DOUGLASS: Do you now move the amendment
20 that you have on the table?
21 COMMISSIONER CORR: Yes, move the amendment.
22 CHAIRMAN DOUGLASS: All right. Would you read the
23 amendment offered by Commissioner Corr to Proposal No. 84
24 which is on the table and should be on your desk?
25 READING CLERK: By Commissioner Corr on Page 1, Lines
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1 15 through 18, delete those lines and insert lengthy
2 amendment.
3 COMMISSIONER CORR: Thank you, Mr. Chairman. This
4 amendment attempts to do what the original public proposal
5 sought after, but it handles some of the serious
6 constitutional questions that were brought up during the
7 committee process and I think accurately pointed out
8 during the staff analysis that we would probably never get
9 away with restricting campaign contributions only to
10 somebody that could vote for a candidate. So in an
11 attempt to keep the original intent and idea alive, this
12 amendment makes the disclosure as obvious as it possibly
13 can be.
14 So that it says that anybody can continue to
15 contribute, but they are going to do that at the, with the
16 full knowledge of the electorate as to who the
17 contributors are. And so what it does is, it puts the
18 contributors, their names, their occupations and the
19 amount right on the ballot under the candidates' name. So
20 when you go to the ballot on election day, you will be
21 able to see the candidate's name and everybody who
22 contributed and what dollar amount it was for them right
23 on the ballot.
24 Now this amendment also establishes a -- or it
25 directs the Legislature to establish a trust fund, the
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1 campaign finance disclosure trust fund, that takes a
2 percentage of the contributions received by nonnatural
3 persons and funds the obviously more costly requirements
4 now of putting together a much larger ballot and also
5 directs the Legislature that general law will say that no
6 more than 30 days prior to election, no more contributions
7 can be received to allow the supervisor of elections to
8 prepare this lengthy ballot.
9 What I will do, Mr. Chairman, is yield to questions
10 and comments and then save some further remarks for
11 closing.
12 CHAIRMAN DOUGLASS: All right. First I'm going to
13 follow the procedure that was followed at the end of the
14 last debate. Proponents, I'm going to list you, who are
15 going to speak in favor of this. All right. Any
16 opponents? Okay. Those will be the two opponents. And
17 you have a question. All right. And anybody that has a
18 question, of course, can address it to whoever has the
19 floor. At the moment, Commissioner Corr has the floor and
20 you have a question -- no, Commissioner Brochin has a
21 question.
22 COMMISSIONER BROCHIN: Commissioner Corr, do I
23 understand this that if, say, a gubinatorial election if
24 there were 75,000 contributors at $100 each, all 75,000
25 contributors would be listed on the ballot?
105
1 COMMISSIONER CORR: If you understand it correctly.
2 COMMISSIONER BROCHIN: Could you also articulate the
3 thinking behind not allowing candidates to receive
4 contributions in that 30-day window period? I understand
5 what it says, I'm just not sure I understand the reasoning
6 for it.
7 COMMISSIONER CORR: The reason for the 30-day limit
8 is that in order to get the full disclosure out, what we
9 need to do is cut off, prior to the election day, the time
10 in which you can receive contributions. Because what
11 happens today is, many times we don't really understand
12 who the contributors were to a candidate until way after
13 the election, in which might either sway or change the
14 voter's opinions. So in order to make that -- in order to
15 give the voters all the information they need, and if it
16 is important to them to understand who the contributors
17 are to the candidate, then we have to stop that
18 contribution process far enough out in front of election
19 day to allow the information to get out.
20 CHAIRMAN DOUGLASS: All right. An opponent is
21 Commissioner Ford-Coates.
22 COMMISSIONER FORD-COATES: I will probably vote
23 against this but I actually have a question for Commission
24 Corr.
25 CHAIRMAN DOUGLASS: A question then.
106
1 COMMISSIONER FORD-COATES: In this process, have you
2 discussed with any of the supervisors of election how
3 physically these names can appear on the ballots? My
4 experience obviously is only in one county, but I cannot
5 quite imagine how physically the ballot can be configured
6 to include the lists of names. To me, it feels like a
7 massive change and at a cost which, although I applaud the
8 intent, I think the cost is prohibitive in this situation.
9 These records, as I understand it, are all public
10 records. Perhaps they could be advertised or there could
11 be some requirement to publish that information beyond
12 what the press already picks up. But I have a real
13 concern and wondered if you had considered the actual,
14 what is the cost going to be to the state of Florida to do
15 this?
16 COMMISSIONER CORR: Clearly, I couldn't estimate the
17 cost. That's why we put the provision in to provide a
18 funding mechanism from the candidates themselves that have
19 lengthy contributions. But I would also say that I am not
20 so na‹ve as to think that this is probably impractical.
21 My job here is to continue to keep a public proposal
22 alive, something that was brought forth to us with serious
23 commitment and is also something that we heard time and
24 time again in our public hearing process about just the
25 frustration that the electorate is having at getting
107
1 campaign finance reform. We heard it on the national
2 level, we heard it on the state level. We continue to
3 hear about progress, but voters know there is no progress.
4 The money continues to control the process. I understand
5 what we would end up with is a huge, giant ballot. Again,
6 my job as visionary is to not think about those practical
7 limitations but to think about what would be the right way
8 to do it. And I would think that our supervisor of
9 elections would be creative enough to figure out a way to
10 provide that information on the election day.
11 I don't know if new technology would allow that
12 information to be easier to be provided so it doesn't have
13 to be on paper, it can be electronic. I predict that in
14 the next 20 years we be considering or even voting over
15 the Internet or in electronic process.
16 So just because the paradigm that we have today would
17 probably limit this doesn't mean that it's not the right
18 idea. What I would like us to consider is the merits of
19 the idea of full disclosure on election day so that the
20 electorate understands full well who is contributing to
21 these candidates on election day and then in advance and
22 not having to wait until after election to find that
23 information out.
24 COMMISSIONER FORD-COATES: Commissioner Corr, would
25 you believe perhaps that although the intent is provide
108
1 more information to the public, that by adding this much
2 information it may actually have the opposite result that
3 the public has to thumb through page after page after page
4 of names and addresses and occupations and amounts will
5 find it harder to get to the point of voting as they had
6 with Amendment 1 in 1978, and that instead of making it
7 easier for people to vote, we actually will be putting a
8 roadblock in their way?
9 COMMISSIONER CORR: I would disregard that. I would
10 say that the electorate is smart enough to be able to go
11 through the information, to be able to make decisions on
12 their own, and they should appreciate the information
13 before them. And again, I would think that there are
14 possibilities with the technology we have today to make
15 this information easy to go through. It doesn't have to
16 be on paper, it can be done a number of different ways.
17 So again, I can search the Internet today and with
18 one query come up with a million responses to a question.
19 And somehow I manage to get to the answer that I want.
20 And I think there are ways to do -- to provide the same
21 information to people, not just being limited by the old
22 paradigm and to have them understand and appreciate it and
23 it will make a difference on election day.
24 CHAIRMAN DOUGLASS: All right. I think we are ready
25 to vote on this. We are voting on the amendment first.
109
1 All those in favor of the amendment going to the proposal
2 say aye. Opposed like sign.
3 (Verbal vote taken.)
4 CHAIRMAN DOUGLASS: Carries. We will now vote on the
5 proposal which you are all familiar with. Open the
6 machine, please.
7 (Vote taken and recorded electronically.)
8 CHAIRMAN DOUGLASS: Lock the machine and announce the
9 vote.
10 READING CLERK: Three yeas and 19 nays, Mr. Chairman.
11 CHAIRMAN DOUGLASS: By your votes, you have defeated
12 Proposal No. 84. Now we'll move to Proposal No. 114 by
13 Commissioner Corr which was approved by the committee on
14 ethics and elections. Would you read it, please?
15 READING CLERK: Proposal 114, a proposal to revise
16 Article VI, Florida Constitution, providing that campaign
17 contributions may be made only by a natural person.
18 CHAIRMAN DOUGLASS: All right. Commission Corr.
19 COMMISSIONER CORR: Thank you, Mr. Chairman. Now all
20 those folks that are sympathetic about the last vote can
21 vote for this one. And by the way --
22 CHAIRMAN DOUGLASS: Incidentally, on the vote about
23 the judges didn't have to carry out garbage, I have been
24 told that Justice Kogan wants to revise his vote on that
25 one, that he's against judges having to take out garbage.
110
1 (Laughter.)
2 CHAIRMAN DOUGLASS: Go ahead, Commissioner Corr.
3 COMMISSIONER CORR: Proposal 114 actually received
4 the approval from the committee of elections and ethics.
5 And I have to admit, I was shocked for a moment because I
6 think that it -- that it does raise constitutional
7 questions. But what it showed was the principles of the
8 members of the elections committee in trying to get to
9 some kind of campaign reform during this process realizing
10 that we have a unique opportunity as a Constitution
11 Revision Commission to do something that politicians never
12 will.
13 What this does is, again, it is a dramatic move. It
14 will limit all contributions by nonnatural persons so that
15 if this Constitutional amendment passed, only individuals,
16 people under their own name, could make contributions to a
17 political candidate. It would restrict political action
18 committees, corporations, labor unions, any other
19 association from making contributions under their name.
20 Questions?
21 CHAIRMAN DOUGLASS: What we will do is, all opponents
22 or proponents let me know who you are.
23 COMMISSIONER SUNDBERG: I rise for a question.
24 CHAIRMAN DOUGLASS: All right. But I want to know if
25 there are any proponents that want to speak. Any
111
1 opponents that want to speak? Then we will have
2 questions. Commissioner Sundberg?
3 COMMISSIONER SUNDBERG: Commissioner Corr, I assume
4 the Constitutional problem you elude to is there is
5 certainly some question as to whether or not you could
6 limit individuals who joined together in pacts from making
7 contributions; is that correct?
8 COMMISSIONER CORR: That's correct.
9 COMMISSIONER SUNDBERG: That's a problematical
10 Constitutional validity?
11 COMMISSIONER CORR: Correct.
12 COMMISSIONER SUNDBERG: Thank you.
13 CHAIRMAN DOUGLASS: Any other questions?
14 Commissioner Marshall?
15 COMMISSIONER MARSHALL: Commissioner Corr, what kinds
16 of independent expenditures might nonnatural persons be
17 able to make in the second paragraph, the effect of
18 proposed changes?
19 COMMISSIONER CORR: Well I don't understand the
20 question, I'm sorry.
21 COMMISSIONER MARSHALL: Under proposed changes I
22 read, Although the proposed prohibitions -- although the
23 proposal prohibits contributions to a candidate from
24 nonnatural persons, these persons could make independent
25 expenditures in support of or opposition to the candidate.
112
1 I'm wondering what kinds of independent activities.
2 COMMISSIONER CORR: Well, what that means is, that I
3 could make a contribution under my own name, but I could
4 not make a contribution under the name of any other
5 organization or association.
6 COMMISSIONER MARSHALL: Let me try the question again
7 because I'm not sure. This is an exception to what a
8 nonnatural person can do. And we stipulate that they
9 could make independent expenditures in support of. And
10 I'm wondering -- have I made the question clear?
11 COMMISSIONER CORR: Now I understand. The analysis
12 claims that a political action committee or a political
13 party could still make a contribution that may benefit a
14 political candidate. For example, if I was running for
15 office, the Republican party, if they so chose, could take
16 out a full-page ad in the newspaper and say vote for Chris
17 Corr. It would be a contribution on behalf of the
18 Republican party but not to me as a candidate. Or they
19 can make an expenditure for a number of candidates or for
20 one proposal or an issue or an idea. But they couldn't
21 make that contribution direct to the candidate.
22 I think what that says, now, that wasn't the intent
23 of the language, but that's what the analysis says if I
24 understand the question correctly.
25 CHAIRMAN DOUGLASS: All right. Question from
113
1 Commissioner Barnett.
2 COMMISSIONER BARNETT: I first want to know what that
3 little sign you were giving to the press was.
4 CHAIRMAN DOUGLASS: I was telling them you were
5 fixin' to ask a question.
6 COMMISSIONER BARNETT: Oh, you looked like you were
7 holding your nose.
8 (Laughter.)
9 CHAIRMAN DOUGLASS: Oh, no, I was telling him
10 something much better than that. It's your turn now
11 and --
12 COMMISSIONER BARNETT: I'd like to ask --
13 CHAIRMAN DOUGLASS: -- I learned that from
14 Commissioner Jennings.
15 COMMISSIONER BARNETT: I'd like to ask Commissioner
16 Corr a question about this. I mean, the intent of this is
17 to -- as I understand it, the intent is to limit campaign
18 contributions simply to an individual making a
19 contribution to a candidate for office. Under the
20 language, it appears to me, and I guess this is in the
21 form of a question to you, would this prohibit
22 contributions by political parties to candidates for
23 office and also would it prohibit contributions by
24 individuals to political parties?
25 COMMISSIONER CORR: My attempt to answer the question
114
1 is, yes, it would prohibit contributions from a political
2 party to a candidate but would not prohibit contributions
3 to a political party.
4 CHAIRMAN DOUGLASS: Any other questions? Are you
5 ready to vote? Unlock the machine.
6 (Vote taken and recorded electronically.)
7 CHAIRMAN DOUGLASS: Anybody in the back that wants to
8 vote, you better get here. We are fixin' to lock the
9 machine. Lock the machine and record the vote.
10 READING CLERK: Nine yeas and 15 nays, Mr. Chairman.
11 CHAIRMAN DOUGLASS: By your vote you have defeated
12 Proposal No. 114. We will now move to Proposal 128 by
13 Commissioner Ford-Coates approved by the committee on
14 ethics and elections. Please read it.
15 READING CLERK: Proposal 128, a proposal to revise
16 Article VI, Section V, Florida Constitution, providing for
17 primary elections.
18 CHAIRMAN DOUGLASS: All right. All -- well, you go
19 ahead and make your presentation and move the proposal and
20 then I'll ask for proponents and opponents to identify
21 themselves.
22 CHAIRMAN DOUGLASS: I'll ask for opponent and
23 proponent to identify themselves.
24 COMMISSIONER FORD-COATES: Mr. Chairman, I have a
25 very minor amendment on the table.
115
1 CHAIRMAN DOUGLASS: Amendment on the table. Has it
2 been distributed?
3 COMMISSIONER FORD-COATES: I have no idea.
4 CHAIRMAN DOUGLASS: It has been distributed.
5 COMMISSIONER FORD-COATES: We did not distribute it
6 because it changes one word only.
7 CHAIRMAN DOUGLASS: Okay. Would you read the
8 amendment?
9 READING CLERK: By Commissioner Ford-Coates on Page
10 1, Line 13, delete, as and insert if.
11 CHAIRMAN DOUGLASS: Tell us what it does.
12 COMMISSIONER FORD-COATES: The purpose of the
13 amendment, as originally crafted, it said a primary
14 election shall be held in each county, as provided by
15 general law. I wanted to change that to if because this
16 proposal has nothing to do with whether or not we have
17 primaries.
18 CHAIRMAN DOUGLASS: All right. You heard the
19 amendment. All of those in favor, say aye. Opposed, no.
20 (Verbal vote taken.)
21 CHAIRMAN DOUGLASS: Amendment is adopted. You may
22 proceed on the proposal as amended. Commissioner
23 Ford-Coates to make the presentation on it.
24 COMMISSIONER FORD-COATES: First of all, this is an
25 amendment that Commissioner Mills also signed off on. Let
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1 me clarify what this proposal is not. It is not a
2 proposal for an open primary. This does not change the
3 way in which we currently select our candidates for the
4 political parties. It is not a proposal which eliminates
5 the second primary or does anything to the system as we
6 have it now.
7 But currently, this proposal will correct an
8 injustice we have currently and ensure the basic right of
9 our citizens to vote for their elected officials. If
10 you'll look at what is currently in the Constitution under
11 what would be renumbered as Paragraph B under Section 5,
12 it refers to the fact that we are to hold an election to
13 choose a successor to each elective state and county
14 officer. As I read that, each one of us is responsible
15 and has the right to elect those people who serve us at
16 the local, state, and federal level.
17 The Legislature, in implementing this process, has
18 provided a primary system whereby each party can select
19 their nominees. I have no problem with that system,
20 except the reality of what happens in many counties where
21 one party greatly outnumbers the other results in, as
22 Commissioner Connor stated earlier, are numerous
23 situations where the minority party fields no candidates.
24 Therefore, we have many situations in which the public at
25 large does not get to vote for those officials because, in
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1 effect, the primary becomes the general election.
2 Candidates, therefore, run only in their own party
3 although that election is the same as the general
4 election. People literally have situations where their
5 school board members, their county commissioners, their
6 state representatives are people that are only elected by
7 members of one party. What this proposal will do is
8 ensure that everyone, Independents, Republicans,
9 Democrats, can vote in the situation in which the primary
10 is in effect, whether it be first or second, the final
11 election and the general election. I'll have comments on
12 closing if anyone else wants to.
13 CHAIRMAN DOUGLASS: All right. Anybody have any
14 questions? First of all, any proponents? Commissioner
15 Connor, Commissioner Mills. All right. Commissioner
16 Connor was first.
17 COMMISSIONER CONNOR: I'll speak in favor of the
18 proposal. Mr. Chairman, when I first registered to vote,
19 I drove over to Jackson County and registered as a
20 Republican. The supervisor of elections had already
21 filled out the form and it was marked "democrat." And I
22 told her, I said, Ma'am, I would like to register as a
23 Republican. She worked across the hall from my mother who
24 served as a secretary for the county judge and she looked
25 me straight in the eye and she said, Oh, Kenny, it would
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1 be the biggest mistake of your life to register as a
2 Republican.
3 I told her I was 21 and I wanted to register as a
4 Republican. She took me by the arm, across the hall,
5 walked into my mother's office and said, Faye Connor, your
6 son is about to make the biggest mistake of his life. And
7 she said, Well, Ilene, what on earth is he trying to do?
8 And she said, He wants to register as a Republican. And
9 my mother just shrugged her shoulders and dropped her head
10 and said, Well, Ilene, he is 21.
11 CHAIRMAN DOUGLASS: You do know that that lady is
12 considered one of the most intelligent ladies in Jackson
13 County.
14 (Laughter.)
15 COMMISSIONER CONNOR: She is also one of the finest
16 people in Jackson County. Now from Jackson County, I
17 moved to Polk County where I was told that if I wanted to
18 have any kind of meaningful participation in the electoral
19 process, I simply had to register as a democrat. And then
20 would you believe it, from Polk County, I wound up moving
21 to Leon County where the registration is grossly
22 disproportionate, Democratic to Republican. I have been
23 disenfranchised most of my life in primary votes. I rise
24 to strongly support this very good proposal which I would
25 suggest will actually foster people registering in
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1 conformity with the party of their conscience knowing that
2 they will no longer be disenfranchised from participating
3 in the process.
4 CHAIRMAN DOUGLASS: All right. Commissioner Mills
5 has asked to speak as a proponent.
6 COMMISSIONER MILLS: Mr. Chairman, I might rethink
7 that after Commissioner Connor said he was
8 disenfranchised. But I still want to speak as a
9 proponent. There were just a couple of things, going very
10 quickly. It clearly expands, by definition, you are going
11 to increase turnout in those particular situations. By
12 definition, you will increase participation. And you will
13 also increase, as Commissioner Connor who is a person who
14 stands by his principles, the opportunity to stand by your
15 principles with those people who want to register in a
16 party that participate will be able to do that. And for
17 those reasons, I think this is a good idea for this
18 commission to do.
19 CHAIRMAN DOUGLASS: Commissioner Brochin is a
20 proponent.
21 COMMISSIONER BROCHIN: I too rise as a proponent
22 really on a fundamental concept that if more than one
23 person wants to vie for an elected office, it just seems
24 wrong that everyone doesn't have an opportunity to vote
25 for those people that are running. So if you have a
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1 contested election, it seems only fundamentally fair that
2 everyone who is affected by that elected official have an
3 opportunity to make that choice. And I think what this
4 amendment does is correct that. And I think it's well
5 founded and I intend to vote for it.
6 CHAIRMAN DOUGLASS: All right. There was one person
7 who said he wanted to be an opponent who didn't stand up
8 but he came up here and told me he wanted to be an
9 opponent, that was Judge Barkdull. Nobody else registered
10 to be an opponent. He can ask a question.
11 COMMISSIONER BARKDULL: Mr. Chairman and members of
12 the commission, I'm not opposed to everybody having a
13 right to vote, but we are making a fundamental change with
14 this proposition, what we have today. We have political
15 parties and they hold primaries. And we are talking about
16 letting people that are not a part of that political
17 party, of a political party, participate. In effect, you
18 are -- in those instances where a ballot has opposition by
19 people within the same party, you are going to let their
20 nominees be controlled to some extent, or possibly to an
21 ultimate extent, by people that are not members of that
22 party. And I think it's completely contrary to our
23 so-called party system, and that's why I rise to oppose
24 it.
25 CHAIRMAN DOUGLASS: Do you have a question,
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1 Commissioner Hawkes? Commissioner Hawkes has a question
2 for you, Commissioner Barkdull.
3 COMMISSIONER HAWKES: Thank you, Mr. Chairman.
4 Commissioner Barkdull, would you believe that in Citrus
5 County Florida, there's probably 7 percent of the
6 population that's registered as Independent? And because
7 they are registered as Independent, they have no say over
8 who is going to be on the ballot for them to have the
9 ultimate choice in and I suppose that if we are going to
10 continue this fairness, we ought to allow them to maybe
11 pick which primary they want to belong in and not be
12 accountable for their choice when they registered at all.
13 Would you believe that?
14 COMMISSIONER BARKDULL: I certainly would.
15 CHAIRMAN DOUGLASS: He's very gullible, you know.
16 (Laughter.)
17 COMMISSIONER HAWKES: That one of the reasons that
18 people cite as why they do not vote is because there
19 really is no difference between the candidates, eeny,
20 meeny, miney, mo, it doesn't really matter because neither
21 one of them are saying anything, that they just try to
22 gravitate to the middle. And would you believe that
23 that's in part because we don't hold them accountable
24 through the parties?
25 COMMISSIONER BARKDULL: I would believe so. I've
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1 heard there's not a dime's worth of difference.
2 COMMISSIONER HAWKES: And doesn't this further
3 deflate the party's or lessens the party's ability to make
4 a difference, to stand up for something and have a
5 significant platform that means something different
6 perhaps than what the other political parties, so people
7 are making real choices when they go to the ballot and
8 cast their --
9 COMMISSIONER BARKDULL: In all seriousness, I think
10 it is a tremendously damaging thing to the political
11 parties, either party.
12 CHAIRMAN DOUGLASS: I don't want to inject into the
13 debate, but I think you are not reading this because an
14 independent voter would only be able to vote in an
15 election where there was no candidate from any other
16 political party as I read this. Is that it Ford-Coates --
17 is that what you were going to point out, Commissioner
18 Smith?
19 COMMISSIONER SMITH: Through a question, yes, sir,
20 which you have asked.
21 COMMISSIONER FORD-COATES: The point is, the party
22 system, as I understand it, is to allow political parties
23 to select their nominee to run in the general election.
24 The reality of the situation is that many times there is
25 no other candidate in the general election, therefore, the
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1 primary, is, in fact, the general election. So what I'm
2 saying is, in those situations where we are not selecting
3 a party nominee to run against another party person or an
4 Independent, or whatever. But only in those situations,
5 where, in effect, although called the primary, it is no
6 longer a primary in reality, it is, in effect, the general
7 election and we have disenfranchised the voters of that
8 county because they never get a chance to select the
9 candidates in that election.
10 CHAIRMAN DOUGLASS: You are still on the floor as an
11 opponent, Commissioner Barkdull. So far, you are it.
12 COMMISSIONER BARKDULL: Well, I still think that the
13 impact of what you are doing is you are destroying the
14 party principle. If only two people or three people in
15 the same party qualify in the primary to be a state
16 Senator in either the Democratic or Republican party,
17 whichever, the people that offer themselves to represent
18 the principles of that party ought to be able to be
19 considered on the basis only by the people that are
20 members of that party and not let other people that don't
21 belong to it come in and influence the outcome, because
22 they want to, they should be in another political party or
23 an Independent.
24 CHAIRMAN DOUGLASS: Commissioner Morsani has a
25 question then Commissioner Barnett has a question.
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1 COMMISSIONER MORSANI: I ask you, sir, why do those
2 same candidates come to me for donations and contributions
3 when they are in the other party and I can't vote for
4 them? Now, if I give you money, can't I go vote for you?
5 COMMISSIONER BARKDULL: You have the choice to give
6 people in your political party money or people in other
7 political parties money, but you don't have to.
8 COMMISSIONER MORSANI: Well, that's true, we don't
9 have to. But my point of it is, if we are solicited on an
10 ongoing basis, which we are, regardless of the party, and
11 if there's no other opposition that there's not a
12 Republican or democrat, and you don't know which one I am
13 because everyday I change.
14 (Laughter.)
15 But, no, I'm serious, I think that if we, that if
16 people -- I think that also drives it. If we really want
17 the best person and there's no other candidates, if
18 there's not an Independent or there's not a democrat or
19 there's not a Republican and yet on a daily basis or
20 during election cycles we are consistently asked for
21 contributions, and then if there's no other party, I would
22 think that we would have every -- I believe this is a
23 great change to our Constitution and for our citizens and
24 it's very meaningful. I understand your concern, and I
25 want to agree with you and I do in spirit, but not in
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1 actuality.
2 CHAIRMAN DOUGLASS: And the question is, did he
3 change your mind?
4 COMMISSIONER BARKDULL: No, sir.
5 CHAIRMAN DOUGLASS: Another question from
6 Commissioner Barnett.
7 COMMISSIONER BARNETT: I had a question and think I
8 heard it raised and I didn't hear an answer to it. And
9 that is, is the phrase, "political party registration,"
10 does that include Independent people who are registered as
11 Independents? Because if it doesn't, then you have by
12 this disenfranchised a group of people who otherwise would
13 have been able to vote in the general election --
14 CHAIRMAN DOUGLASS: Will you offer an amendment to
15 clarify that?
16 COMMISSIONER BARNETT: I'd like the question answered
17 first.
18 COMMISSIONER FORD-COATES: The proposal says that all
19 qualified electors may vote regardless of their political
20 party registration. Everyone who registers to vote most
21 register, if I recall, no party or in one of the parties.
22 So all qualified electors. The intent is that everyone
23 can vote if the primary is, in effect, the general
24 election.
25 CHAIRMAN DOUGLASS: Does that satisfactorily answer
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1 your question, Commissioner Barnett?
2 COMMISSIONER BARNETT: It helps.
3 CHAIRMAN DOUGLASS: Are you of the opinion that it
4 does allow the independents to vote? Commissioner Barnett
5 nodded her head very slowly yes.
6 COMMISSIONER BARNETT: Yes. Well I'm thinking.
7 CHAIRMAN DOUGLASS: All right. Any further
8 questions? You-all ready to vote?
9 COMMISSIONER FORD-COATES: May I close?
10 CHAIRMAN DOUGLASS: Oh, yes, you may close.
11 COMMISSIONER FORD-COATES: Just -- I would just like
12 to point out one other thing. We are not only talking
13 about who has the opportunity to vote, but as Commissioner
14 Morsani was talking, these candidates are not running at
15 this point in time to be the nominees of their party.
16 They're running to be the elected officials. As such,
17 they should be appealing to all the voters in their
18 district.
19 And let me just close with something that I told the
20 committee, whatever day this was this week, it's been a
21 long week. As Commissioner Connor, when I voted in my
22 first election at age 21, I considered it a real honor and
23 a real responsibility and an awesome task. And I know
24 that everyone in this room, every time you have an
25 election, you vote no matter how difficult it is, no
127
1 matter what your schedules are, you go and you vote and
2 you feel the weight of that responsibility.
3 And I want you to imagine what it's like for people
4 to get up on election day, to go out and see the signs in
5 your neighborhood, to see the candidates on the street, to
6 drive by your polling place, see all of the people going
7 in to vote and keep going because you cannot vote that day
8 because there's no one from your party on that ballot.
9 And you know that the next morning, you are going to get
10 up and see who your county commissioners are, who your
11 state representatives are, who your school board members
12 are.
13 We have basically disenfranchised a great proportion
14 of our electorate. This is a good proposal, it
15 establishes a basic right of our Constitution, it belongs
16 in the Constitution. I urge your support. Thank you.
17 CHAIRMAN DOUGLASS: All right. We are ready to vote.
18 Please unlock the machine.
19 (Vote taken and recorded electronically.)
20 CHAIRMAN DOUGLASS: Has everybody voted? Last
21 chance. Lock the machine and announce the vote.
22 READING CLERK: Nineteen yeas and seven nays,
23 Mr. Chairman.
24 CHAIRMAN DOUGLASS: By your vote, you have approved
25 proposal 128 as amended. And we'll proceed to the next
128
1 proposal. Incidentally, I presume everybody can tell you
2 where you were when you cast your first ballot when you
3 were 21. I had the privilege of casting my first ballot
4 in a foxhole on the top of hill 851 in Korea. It was a
5 very intelligent ballot. I think I voted in the
6 presidential preferential primary for Estes Keefover
7 (phonetic) and he never made it.
8 And then in the second primary, I got the ballot
9 three weeks after the election, after my mother wrote me
10 who won the elections, and in the same mail, I got a
11 notice from the draft board to report for my preinduction
12 physical. Which I was always impressed with the
13 efficiency of the government.
14 Commissioner Hawkes, you rise for what point?
15 COMMISSIONER HAWKES: A motion, Mr. Chairman. I'd
16 like to make a motion to waive the rules, withdraw the --
17 reconsider the vote by which the amendment to committee
18 substitute 79 was adopted. And then I would like to
19 withdraw that amendment. What happened was, in the
20 package that's labeled as the committee substitute really
21 is not the committee substitute. And just for the clerk's
22 purposes, so her paperwork can be in line, we need to go
23 through the exercise and just take a couple of minutes and
24 reconsider the vote.
25 CHAIRMAN DOUGLASS: It's a technical thing. You need
129
1 to vote yes to reconsider the proposal first. All those
2 in favor of reconsidering the proposal, say yes. All
3 opposed, say no.
4 (Verbal vote taken.)
5 CHAIRMAN DOUGLASS: Now, you've reconsidered the
6 amendment to the proposal, correct? All in favor of
7 reconsidering the amendment to the proposal, signify by
8 saying aye. No?
9 (Verbal vote taken.)
10 CHAIRMAN DOUGLASS: It is reconsidered -- you are on
11 reconsideration. Now you are offering --
12 COMMISSIONER HAWKES: I'm offering a substitute
13 amendment. Now, I need to withdraw the amendment. It was
14 drawn in error --
15 CHAIRMAN DOUGLASS: All right. Without objection,
16 he's withdrawing the amendment and you're offering the new
17 amendment.
18 COMMISSIONER HAWKES: I'm offering the new amendment
19 withdrawing to the correct lines and the correct committee
20 substitute and it's on the desk and it is the same
21 amendment just drawn to the correct --
22 CHAIRMAN DOUGLASS: All right. What it was was a
23 title mistake. All those in favor of the amendment,
24 signify by saying aye. All in favor of the proposal as
25 amended signify by saying aye. All opposed.
130
1 (Verbal vote taken.)
2 CHAIRMAN DOUGLASS: The motion carries.
3 Now, I guess we could vote again on the proposal.
4 I'll vote by voice vote. Okay. We are going to have to
5 take a roll call. Does everybody remember what the
6 proposal was, it was 79, correct? It was unanimous.
7 Without objection. Vote again. Everybody open the
8 machine and make it unanimous again. I always thought
9 Commissioner Sundberg had trouble with that red and green
10 button there.
11 (Laughter.)
12 (Vote taken and recorded electronically.)
13 CHAIRMAN DOUGLASS: Lock the machine.
14 READING CLERK: Twenty-four yeas and zero nays,
15 Mr. Chairman.
16 CHAIRMAN DOUGLASS: By your vote, you have adopted
17 committee substitute proposal 79 as amended. Now, we'll
18 move on to Proposal No. 158 by Commissioner Marshall.
19 Would you read the proposal, please.
20 READING CLERK: Proposal 158, a proposal to revise
21 Article IX, Section 4, Florida Constitution providing for
22 nonpartisan school board elections.
23 CHAIRMAN DOUGLASS: Commissioner Marshall, you are
24 recognized to present your proposal.
25 COMMISSIONER MARSHALL: Yes, Mr. Chairman, thank you.
131
1 It's very simple. School board members are determining
2 policy for the schools in their districts and they ought
3 to do that on a nonpartisan basis, and therefore, I
4 believe they should be elected on a nonpartisan basis.
5 We have nonpartisan -- we have people selected on a
6 nonpartisan basis for many other boards having to do with
7 education and other functions in our society. And it
8 seems to me that democracy would be served by having
9 nonpartisan school board elections as well.
10 I have forgotten, did we include in this the
11 provision that they would be non-salaried? Is that still
12 in there? I believe it is. Let me make that case too,
13 then, sir. That it ought to be considered a privilege to
14 serve your district in this way. The Board of Regents are
15 non-salaried boards, the community colleges are
16 nonsalaried and many other boards are. The question might
17 be raised, would good people be willing to serve to invest
18 the time required to be an active, thoughtful, school
19 board member? And I think the answer to that is yes.
20 If it has ever been in question, it surely is not now
21 because of the strong popular interest in the schools, the
22 public schools, the willingness of people to participate,
23 parents and others to participate in school operations and
24 school policy in a variety of ways. And I believe that
25 good people will come forward and serve their school
132
1 districts as school board members without compensation.
2 So I recommend, fellow commissioners, of an affirmative
3 vote on this resolution, this proposal on both counts,
4 nonpartisan elections and non-salaried school board
5 members.
6 CHAIRMAN DOUGLASS: Commissioner Henderson?
7 COMMISSIONER HENDERSON: Will Commissioner Marshall
8 yield for a question?
9 COMMISSIONER MARSHALL: Yes.
10 COMMISSIONER HENDERSON: Do you believe, sir, that
11 county commissioners should be paid for their work as a
12 county commissioner?
13 COMMISSIONER MARSHALL: I think you could make a good
14 case that this principle applies. I think in terms of
15 practical politics, it does not apply and I would not
16 favor that action for county commissioners.
17 COMMISSIONER HENDERSON: Are you aware that there are
18 provisions in certain county charters which tie the
19 salaries for county commissioners to the salary for the
20 school board?
21 COMMISSIONER MARSHALL: I am aware of that, sir.
22 COMMISSIONER HENDERSON: So the effect of this, if it
23 were adopted, would be that county commissioners in say
24 Volusia County, where I reside, would be paid nothing for
25 their service?
133
1 COMMISSIONER MARSHALL: I don't follow that,
2 Commissioner.
3 COMMISSIONER HENDERSON: In Volusia -- Volusia County
4 is a charter county. The salary of the commissioners
5 there is tied by charter amendment to the salaries of
6 school board members which are now established by state
7 law. So, if this proposal were to pass in its current
8 form, then the county commissioners there would be paid
9 nothing.
10 COMMISSIONER MARSHALL: I do understand the point. I
11 thought the school board member's salaries were tied to
12 those of county commissioners and that -- and you are
13 saying it's reciprocal?
14 COMMISSIONER HENDERSON: It's just the opposite. The
15 salaries of the county commissioners there is tied to the
16 statutory rate for school board members.
17 COMMISSIONER MARSHALL: Thank you. I did not know
18 that. But I believe that matter could be addressed
19 through legislation.
20 CHAIRMAN DOUGLASS: Any more questions? Commissioner
21 Butterworth.
22 COMMISSIONER BUTTERWORTH: Thank you, Mr. Chairman.
23 Commissioner Marshall, I personally agree that school
24 board members should be nonpartisan. I agree with you on
25 that. In some of our larger counties, school boards meet
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1 literally once a week for many hours, sometimes in the wee
2 hours of the morning. Many people who are able to serve,
3 they are able to serve because they have another
4 employment and this may be a supplement to the employment.
5 In smaller counties, they may not have to meet as often.
6 The Board of Regents, I don't believe, meets once a week.
7 I could be wrong on that but I don't believe that they
8 meet that much.
9 I think that we could end up losing a number of
10 well-qualified, well-meaning people who will not be able
11 to run for financial reasons. I believe the little bit of
12 money that they get would be better off -- I believe have
13 a better chance of the winning this proposal if in fact
14 the nonpartisan is your number one priority with the
15 non-salary being the number two priority.
16 If they are both number one priorities, you can go on
17 the board on that. But I'd like to see personally, and I
18 can draft the amendment, to take out the salary issue and
19 just make it clearly a nonpartisan issue.
20 COMMISSIONER MARSHALL: You have ranked them
21 correctly, Commissioner. I do favor to the nonpartisan
22 election of the school board members over the nonsalary
23 issue. And I recognize the political wisdom of your
24 recommendation and would be willing to accept an amendment
25 to that extent.
135
1 CHAIRMAN DOUGLASS: I understand there is an
2 amendment on the way.
3 COMMISSIONER HENDERSON: Mr. Chairman, there's an
4 amendment that I filed.
5 CHAIRMAN DOUGLASS: All right. It's being copied so
6 it's not ready just yet but if you want to tell us what it
7 is, you may. This is Commissioner Henderson.
8 COMMISSIONER HENDERSON: Yes, thank you. The
9 amendment which I just filed tracks comments made by
10 Commissioner Butterworth that would strike the new
11 language at the end of Lines 19, 20, 21 and 22, and
12 therefore, take out the language with regard to the
13 salary. And I'll tell you, I strongly support the idea of
14 making this -- making school boards nonpartisan. But what
15 I'm seeing in urban counties, more and more things that
16 you're having to do to be a member of a school board,
17 makes it very difficult to attract people for public
18 service for that. In addition, the unintended
19 consequences for some other county commissioners and some
20 charter counties makes this very difficult.
21 CHAIRMAN DOUGLASS: All right. The amendment is
22 being distributed. Does the reading clerk have the
23 amendment? Read the amendment, please.
24 READING CLERK: By Commissioner Henderson, on Page 1,
25 Lines 19 through 22, delete everything after the word law.
136
1 CHAIRMAN DOUGLASS: All right. What that does is
2 omit -- delete the language which reads, school board
3 members shall not be paid a salary but may be reimbursed
4 for expenditures related to their duties as provided by
5 law.
6 Commissioner Henderson, you've already spoken to that
7 amendment. Does anybody else want to speak to that
8 amendment? Commissioner Corr?
9 COMMISSIONER CORR: To oppose it?
10 CHAIRMAN DOUGLASS: Either.
11 COMMISSIONER CORR: My understanding that what this
12 would do, Commissioner Henderson, is take out the language
13 that restricts the salary, so that we would have a
14 nonpartisan school board but they could still receive a
15 salary for the position.
16 COMMISSIONER MARSHALL: That's correct.
17 COMMISSIONER CORR: Then I would oppose the
18 amendment. The position of school board, as Commissioner
19 Marshall already spoke, should be a privilege, not thought
20 of as a salaried opportunity. I would say that if we
21 think this is going to prohibit qualified candidates from
22 coming forward, that that's not the truth. School boards
23 shouldn't be looked at as an opportunity to make more
24 money, but to influence the direction of education for our
25 children.
137
1 So, salary, notwithstanding, I think that we'll still
2 get qualified people to come forward and the result of the
3 meetings might even be better because they might be
4 shorter and they might get their work done faster if they
5 are on their own time instead of the taxpayer's time. I
6 would speak and urge you not to adopt this amendment.
7 CHAIRMAN DOUGLASS: Commissioner Mills was up first.
8 You will be next, Commissioner Riley and then Commissioner
9 Smith.
10 COMMISSIONER MILLS: I would like to the speak
11 briefly in favor of Commissioner Henderson's amendment.
12 CHAIRMAN DOUGLASS: This is on the amendment and I
13 would like proponents to speak. You are a proponent of
14 the amendment?
15 COMMISSIONER MILLS: That's correct.
16 CHAIRMAN DOUGLASS: Proceed.
17 COMMISSIONER MILLS: I think he correctly mentioned
18 that school board members should consider it a privilege.
19 I think all elected officials and all public servants
20 should consider their service a privilege and most of the
21 salary scales reflect that.
22 When I served in the Legislature, I recall coming
23 home and watching the school boards work. In some ways,
24 the elected school board members are some of the hardest
25 working public officials I know. Whereas I may have voted
138
1 on the FEFP funding formula for the county of Alachua, the
2 four or five school board members had to vote on what
3 school somebody's kid was going to go to. And believe me,
4 people take that a lot more personally. I think it is a
5 tough job. I don't know many people in that realm of
6 public service that are in it for the money. I think they
7 work long hours and I would simply endorse Commissioner
8 Henderson's amendment, which all that does is allow the
9 Legislature to make that decision.
10 In other words, by doing this, we take away the
11 discretion of the Legislature to make that decision. If
12 in some time in the future, they are persuaded that school
13 board members shouldn't be paid, they can't make that
14 decision because we have told them here they can't be paid
15 constitutionally.
16 CHAIRMAN DOUGLASS: Commissioner Riley as a proponent
17 of the amendment.
18 COMMISSIONER RILEY: Yes. I speak in favor of the
19 amendment. I would ask Commissioner Corr and agree with
20 him that it is, in fact, a privilege to be a school board
21 member but it is not for the privileged to be a school
22 board member.
23 We have in our county a school board member who
24 donates all of his salary back to the school board because
25 he doesn't need it. And we have people who serve on that
139
1 school board who I guarantee you could not be there if
2 they weren't compensated for their time. And, therefore,
3 I would speak for the amendment.
4 CHAIRMAN DOUGLASS: Commissioner Smith also wanted to
5 speak for the amendment. Commissioner Smith?
6 COMMISSIONER SMITH: I join to say ditto to
7 Commissioner Riley. It should be a privilege but we must
8 be careful not to reserve it for the financially
9 privileged class.
10 CHAIRMAN DOUGLASS: Commissioner Marshall on the
11 amendment.
12 COMMISSIONER MARSHALL: Mr. Chairman, yes, I'm
13 speaking in favor of the amendment and I think I ought to
14 explain my position to those with whom -- the benefit of
15 those with whom I've discussed this in the past.
16 Commissioner Butterworth pointed out, let's see, he
17 said that the Board of Regents don't meet every week as
18 school boards do. I don't think every school board meets
19 every week, but the Board of Regents meets monthly with an
20 enormous amount of paperwork in between, committee work in
21 between meetings.
22 So I think the volume of work required is not the
23 issue. I think good, devoted people who want to serve
24 their schools, their school districts will do it and do it
25 without compensation. I acknowledge that we would lose
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1 some people. I concede that we would lose some people who
2 could not afford to serve. I think we would gain some
3 others who we would consider it a privilege to serve in
4 this way. And indeed, he may be turned off by the
5 compensation that's involved. I can tell you, I won't,
6 but I could name some school board members I've known over
7 the years who have served because of the salaries
8 involved. I regret to say that, but I suspect that you
9 know some too.
10 But if it's a matter of practical politics, I've
11 ranked these two aspects of the proposal as Commissioner
12 Butterworth suggested and therefore I will vote for the
13 amendment and propose that you do so.
14 CHAIRMAN DOUGLASS: All right. Are you ready to vote
15 on the amendment? All in favor of the amendment, say aye.
16 Opposed like sign.
17 (Verbal vote taken.)
18 CHAIRMAN DOUGLASS: The amendment is adopted. We now
19 are on the proposal as amended. Commissioner Marshall, do
20 you have further remarks or do you stand on your original
21 presentation?
22 COMMISSIONER MARSHALL: I have nothing else to add,
23 sir.
24 CHAIRMAN DOUGLASS: Hear from any other proponents
25 that haven't spoken. Now from opponents. Commissioner
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1 Hawkes as an opponent.
2 COMMISSIONER HAWKES: Gosh, I'm afraid maybe I'm the
3 only one here. And I guess it's partly -- and I don't
4 understand what's wrong with partisan. If you put on the
5 ballot that someone is a Republican or someone is a
6 democrat, it is a piece of information. Does that mean
7 that that piece of information is always 100 percent
8 accurate, no.
9 But maybe if I recognized the name on the ballot as a
10 name that's been in my community a long time, maybe that
11 conveys to me that this is someone who has some stability
12 and cares about the community and lives there and makes it
13 his home. And I include that in part of my voting
14 decision. Or maybe it's a person I recognize has a
15 position of trust in the community and I think, Gosh, I
16 know he's in a position of trust in the community. That
17 might mean that he's trustworthy, maybe not, but I use
18 that piece of information.
19 And maybe if's he a Republican and there's certain
20 Republican philosophies, maybe I think that he's going to
21 try to do what's best for our children utilizing those
22 philosophies as his basis. Whether he's a democrat, maybe
23 he's going to use those philosophies to try to decide
24 what's best for our children. So I just think it's
25 another piece of information. And by making it
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1 nonpartisan, you're taking that away from the voter.
2 And I'll point out that the second thing that you're
3 doing, is if we look at the voter turnout in a primary,
4 because nonpartisan elections are decided in September,
5 they're not decided in November. In November, we might
6 get 80 percent turnout. In September, we don't. Not
7 normally anyway.
8 And so what we are doing now is, we are saying who's
9 going to be on the school board in many instances on a
10 much smaller population base than in the general election
11 in November because if someone gets over 50 percent in
12 September, that's it, they are the school board member.
13 And I'm not aware, and maybe Commissioner Marshall
14 can tell me where, that the partisanship has somehow
15 destroyed a school board's ability to function because
16 someone ran as a Republican or someone ran as a democrat
17 or someone ran as some other party. So I guess I just
18 don't -- it just seems to me that's an automatic
19 assumption that if it's partisan, it's bad. And I just
20 think partisan is information and I would ask you to
21 defeat the proposal. Thank you.
22 CHAIRMAN DOUGLASS: Opponent? Commissioner Evans.
23 COMMISSIONER EVANS: I merely have a question.
24 CHAIRMAN DOUGLASS: Oh, a question of Commissioner
25 Hawkes, he's got the floor.
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1 COMMISSIONER EVANS: Commissioner Hawkes, okay, yes.
2 I do not know the answer to this question. In school
3 board elections, do parties contribute to the campaigns?
4 COMMISSIONER HAWKES: Yes, they can, if it's a
5 partisan election. And I'm glad you brought that up
6 because that's another point I wanted to make. I think it
7 ties in with Commissioner Smith's point. We want people
8 who want to serve and can do the job to be able to serve.
9 And one way that you win elections, quite honestly, is you
10 get your message out there. If nobody knows who you are
11 and you can't get your message out there, you're really
12 limiting your chances to win.
13 Well, the way you get your message out in reality is
14 by having some campaign contributions. And executive
15 committees of local counties do, in fact, give money to
16 their candidates in many cases. People contribute based
17 on the basis of party identification. They care, there's
18 more excitement, there's more interest. And so I think
19 that if you make it nonpartisan, now political parties are
20 prohibited from contributing, and you are removing one of
21 the sources of contributions that that candidate might
22 have in order to get their message out.
23 CHAIRMAN DOUGLASS: All right. Commissioner Connor,
24 you want to speak as an opponent or ask a question?
25 COMMISSIONER CONNOR: As an opponent.
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1 CHAIRMAN DOUGLASS: Okay.
2 COMMISSIONER CONNOR: I share Commissioner Hawkes'
3 views that there may be very sharp party distinctions on
4 issues that affect the education of our children and that
5 we gain valuable information by understanding with which
6 party a particular candidate identifies themselves not
7 only on the curricula that are a part of our schools, but
8 on the philosophy of spending money, on the philosophy of
9 taxation, on issues that relate to the dispensing of
10 contraceptives, on the presence of health clinics in
11 schools. There's just a whole, whole wide variety of very
12 diverse issues that the parties typically will address in
13 school board elections and that the identification of one
14 candidate with one party or another may be of assistance
15 to the voter in making those choices.
16 And furthermore, I would submit to you, that given
17 the primacy of the role of the education of our children
18 that it plays in the life of our community and the life of
19 our country, it is and ought to be very much a subject
20 that political parties deal with. And that the way in
21 which those parties define those issues may have
22 everything to do with whether or not voters are attracted
23 to a particular party or not.
24 So I don't think we ought to blur the lines here. I
25 think there's great benefit to maintaining that
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1 identification. And the spectrum of issues that wind up
2 being dealt with in the educational arena touch virtually
3 every facet of the life within the community from an
4 economic to an educational standpoint.
5 CHAIRMAN DOUGLASS: Commissioner Morsani, question?
6 COMMISSIONER MORSANI: Question, yes, sir. Do, and I
7 think, I'm not sure, that's the reason I'm asking the
8 question, don't some counties now have nonpartisan school
9 board elections?
10 CHAIRMAN DOUGLASS: Commissioner Marshall, can you
11 answer that?
12 COMMISSIONER MARSHALL: Yes, they do.
13 COMMISSIONER MORSANI: Is that by statute or by
14 charter? What is the rule?
15 CHAIRMAN DOUGLASS: Charter as a general rule; isn't
16 it, Commissioner Nabors?
17 COMMISSIONER NABORS: Generally, it's by county
18 charter.
19 COMMISSIONER MORSANI: Do we need this -- I'm
20 philosophically, I'm on both sides of this question. But
21 I guess all of us are. But, Mr. Nabors, if you would, if
22 it's by charter then, can't the individual counties change
23 this without having it in the Constitution?
24 COMMISSIONER NABORS: Well, it's generally -- you
25 have a lot of counties that are non-charter counties which
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1 you will not be able to change. And for those counties
2 that were charter, which are about, what, 15 or 12,
3 charter counties, if their charter provides, and most do,
4 you could have an initiative by the citizens under the
5 charter to change the charter and provide for nonpartisan
6 elections. But if you're a non-charter county, you would
7 not have that access.
8 CHAIRMAN DOUGLASS: Does anybody know how many
9 charter counties there are?
10 COMMISSIONER NABORS: There's about 12, 12 to 15,
11 something like that.
12 CHAIRMAN DOUGLASS: So out of 67?
13 COMMISSIONER MORSANI: Why don't they get their
14 charter and then they can do what they want?
15 CHAIRMAN DOUGLASS: Not without a vote of the people.
16 COMMISSIONER NABORS: The charter would have to
17 specifically say nonpartisan election.
18 COMMISSIONER MORSANI: I understand. Should this be
19 in the Constitution, as much as I -- basically I agree in
20 many respects, but is it back to this Christmas tree that
21 we are possibly creating here, which we don't want a
22 Christmas tree, but if this is possible without this, it
23 would seem that we -- if we have got the 12 charter
24 counties which is probably the larger counties in our
25 state, I don't know that. Maybe there are some smaller
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1 population counties too.
2 But does this need to be -- if we feel that strong
3 about it in Hillsborough County and we do have a charter
4 and I think Dade does, Broward. And I don't know whether
5 Levy County has one or Lake County, but they could change
6 those through their charter rather than to put this in our
7 Constitution. That's one of my major concerns.
8 CHAIRMAN DOUGLASS: Any further questions?
9 COMMISSIONER MARSHALL: If I may respond to that,
10 yes. We already stipulated in the Constitution the
11 conditions under which school board members are selected
12 and serve. This is not introducing a new topic, it's
13 merely modifying this already in a small way, it's already
14 in the Constitution, Commissioner.
15 CHAIRMAN DOUGLASS: I think what he's saying is that
16 the Constitution requires that there be in each school
17 district, a board composed of five or more members,
18 whether it is a charter county or not. And that's what
19 your response is. Commissioner Henderson?
20 COMMISSIONER HENDERSON: For Commissioner Marshall.
21 I know in my county, Volusia, we have nonpartisan, it
22 seems to be working well. Do you know of any other
23 counties that have that tradition or that system and how
24 well is it working?
25 COMMISSIONER MARSHALL: Did you say, nonpartisan and
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1 it's working well? I do not know. The county that I live
2 in has partisan elections. It's a very strange situation
3 in Leon County. We have partisan elections of school
4 board members but nonpartisan election of county and city
5 commissioners.
6 CHAIRMAN DOUGLASS: Just city commissioners.
7 COMMISSIONER MARSHALL: I'm sorry, yes, just city
8 commissioners.
9 CHAIRMAN DOUGLASS: And judges. Any other questions?
10 If not, are you ready to vote?
11 COMMISSIONER MARSHALL: Let me close.
12 CHAIRMAN DOUGLASS: Yes, sir. Excuse me,
13 Commissioner Marshall.
14 COMMISSIONER MARSHALL: Putting this in the
15 Constitution does not seem to me to change the -- does not
16 seem to me to Christmas tree up the Constitution very
17 much. As to the role of partisanship and the selection of
18 school board members, I regard the schools as a kind of a
19 sacred trust, quite different from many other civic public
20 functions. And I regard the role of a school board member
21 as a sacred responsibility.
22 Now, I acknowledge that county commissioners and city
23 commissioners also are involved in decision-making on very
24 important civic questions. But when we talk about
25 curriculum, for example, I would like to see that be less
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1 partisan, not more, Commissioner Connor. And the same
2 thing, I think, can be said for many other decisions that
3 school board members make. I don't think partisanship
4 ought to be involved. I've been approached by partisan
5 candidates for the school board here who know that I'm a
6 member of the same party and they appealed to me on that
7 basis.
8 And I first say to them, I must depart my party on
9 this, because I have strong feelings about these school
10 board issues and I have got to go with that allegiance
11 first. Is that similar to my stance on election of city
12 and county -- of city commissioners, it is. In my
13 judgment, it is because I think the schools are
14 enterprises of the people that separate themselves from
15 other civic functions in important ways. I really think
16 they represent a kind of a sacred trust and I urge you to
17 give this proposal your endorsement. Thank you,
18 Mr. Chairman.
19 CHAIRMAN DOUGLASS: Thank you, Commissioner Marshall.
20 Now, having closed, we're prepared to vote. Open up the
21 machine. Let's vote. All right. Has everybody voted?
22 Lock the machine and announce the vote.
23 (Vote taken and recorded electronically.)
24 READING CLERK: Nineteen yeas and seven nays,
25 Mr. Chairman.
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1 CHAIRMAN DOUGLASS: By your vote, you have adopted
2 Proposal No. 158 as amended. And we will move to Proposal
3 No. 1 by Commissioner Sundberg which has been approved by
4 the committee on declaration of rights. Would you read
5 the proposal, please, Mr. Clerk?
6 READING CLERK: Proposal 1, a proposal to revise
7 Article I, Section 9, Florida Constitution, providing that
8 private property may not be forfeited unless the owner is
9 convicted of a felony and has exhausted all appeals.
10 CHAIRMAN DOUGLASS: All right. This was Proposal
11 No. 1. Commissioner Sundberg?
12 COMMISSIONER SUNDBERG: Thank you, Mr. Chairman.
13 This proposal is direct, straightforward, without
14 complexity. It is an intended amendment to Section 9 of
15 Article I which is our declaration of rights. Section 9
16 deals with due process and it outlines several areas where
17 the government may not tread upon the rights of
18 individuals. Says it will not take their life, liberty,
19 or property without due process of law, or that they be
20 twice put in jeopardy for the same offense or be compelled
21 in any criminal matter to be a witness against himself.
22 This adds, simply, that their private property, the
23 private property of the citizens of this state may not be
24 forfeited -- or may be forfeited only after felony
25 conviction of and exhaustion of appeals by the property
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1 owner.
2 For information purposes, the -- there is another
3 provision in our Constitution which deals with the private
4 property rights of the citizens of this state. And that
5 is Section 6 of Article X of our Constitution. And it
6 simply says, in a very straightforward way, that no
7 private property shall be taken except for a public
8 purpose and with full compensation therefore paid to each
9 owner or secured by deposit and registered with the Court
10 and available to the owner.
11 I mentioned this to make the point that forfeiture is
12 an exception to the rule that we, in this state, presume
13 that the government will not take a person's private
14 property unless you compensate that person for that
15 property. It is an exception, I suggest to you, based
16 upon the fact that it is perceived to be, and therefore,
17 constitutional, because it is a penalty extracted for the
18 commission of a crime.
19 The only problem is that, under our processes as they
20 now exist, nobody has been convicted of a crime at the
21 point in time when their private property can be
22 forfeited. Now, the property in question, I grant you,
23 must have been involved -- and that's one of the elements
24 of proof, involved in the commission of the crime. I
25 grant you -- and by the way, I'm sure you-all have
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1 received much of the information I have from -- I mean,
2 there are police chiefs of communities that I didn't even
3 know existed in the state of Florida until this
4 proposition came up.
5 But much of the information from the head of the FDLE
6 was helpful and it made it clear that there have been some
7 protections in vote since the terrible abuses that we are
8 all, I think, familiar with that took place in, well,
9 Mr. Henderson's county in particular, where stops were
10 made by law enforcement, cash was taken off of people on
11 the spot and they were forfeited, you know, without -- and
12 it was somebody who was a transient. I don't hold
13 Mr. Henderson responsible for that.
14 (Laughter.)
15 CHAIRMAN DOUGLASS: He wasn't one of them they
16 stopped either.
17 COMMISSIONER SUNDBERG: But the point is -- the point
18 is, you can only justify, in my mind, taking someone's
19 property, without compensating them for that property, if,
20 in fact, it is an appropriate penalty for the commission
21 of crime. That has been the exception. But as I say,
22 under the process that we now have, even though there's
23 the protection, yes, in the proceedings that the State has
24 to go through to effect the forfeiture, ultimately, they
25 have to prove the elements beyond -- pardon me, by clear
153
1 and convincing evidence.
2 And for those of you who don't deal in these kinds of
3 word games that lawyers do, there are essentially three
4 standards of proof. One is by preponderance of the
5 evidence and that just means that the person has to be
6 convinced that the weight is ever so slightly tilted in
7 favor of the proposition.
8 There's clear and convincing, which I know of no good
9 definition for except that it falls somewhere in between
10 preponderance and beyond and to the exclusion of all
11 reasonable doubt. All of you, even those of you who have
12 been -- only been exposed to Perry Mason, know what that
13 standard is.
14 But that is the standard by which the state must
15 offer its proof and convince the trier of the fact before
16 one is -- can be convicted of a crime. On the other hand,
17 we now, under the circumstances as they now exist, by this
18 lesser standard of clear and convincing evidence, they can
19 take the person's property, the citizen's property, by a
20 standard of only clear and convincing evidence, and the
21 person has not been convicted of any crime.
22 What this proposal does is simply say that you will
23 not take a person's property by forfeiture unless and
24 until that person has been convicted of the crime, which
25 is the predicate for your taking that person's property in
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1 the first instance, and that you won't take it from that
2 person unless and until he has, he or she has, by clear
3 and convincing evidence, been convicted of the crime.
4 CHAIRMAN DOUGLASS: I'm sorry, first of all, there is
5 an amendment on the desk by Commissioner Wetherington and
6 would you read -- we will take up the amendment. Would
7 you read the amendment, please?
8 READING CLERK: By Commissioner Wetherington, on
9 Page 1, Lines 14 through 19, delete those lines and
10 insert, Section 9, due process. No person shall be
11 deprived of life, liberty, or property without due process
12 of law or be twice put in jeopardy for the same offense or
13 be compelled in any criminal matter to be a witness
14 against himself. Private property may be forfeited only
15 upon proof beyond all reasonable doubt of the commission
16 of a felony by the property owner.
17 CHAIRMAN DOUGLASS: Commissioner Wetherington on the
18 amendment.
19 COMMISSIONER WETHERINGTON: I think that Commissioner
20 Sundberg is correct, that a person's property should not
21 be forfeited, which in effect, is a criminal penalty
22 without the same burden of proof being achieved, which is
23 proof beyond all reasonable doubt. There are problems,
24 however, with requiring conviction. There are
25 circumstances in which -- which may intervene with respect
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1 to the conviction process that create all kinds of
2 practical problems that I don't think are necessary to
3 achieve the principal purpose of the proposal, which is to
4 simply ensure that the proof be there beyond all
5 reasonable doubt before, in fact, there can be a
6 forfeiture. That's why I've suggested that we remove the
7 language concerning conviction and substitute language
8 dealing with proof beyond all reasonable doubt.
9 CHAIRMAN DOUGLASS: Commissioner Barkdull, I --
10 before we go forward, all of this doesn't apply to a
11 felony or a crime being committed at the time that the
12 property is forfeited; is that correct?
13 COMMISSIONER BARKDULL: That's what I'm trying to get
14 to.
15 CHAIRMAN DOUGLASS: Okay. Commissioner Barkdull?
16 COMMISSIONER BARKDULL: Will Commissioner
17 Wetherington take the floor for a question, please? I am
18 sympathetic to the idea that you can forfeit property
19 that's used in the criminal enterprise but there's no
20 limitation as to what private property may be forfeited as
21 I read your provision. And any private property owned by
22 a person who committed a felony would appear might be
23 subject to forfeiture. And I don't think that's what you
24 intend.
25 COMMISSIONER WETHERINGTON: I'm advised by
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1 Commissioner Hawkes that that's already provided for in
2 the statute.
3 COMMISSIONER BARKDULL: This is going to override the
4 statute.
5 CHAIRMAN DOUGLASS: Not only that, that hasn't been
6 affirmed by the Supreme Court. Commissioner Barkdull?
7 COMMISSIONER BARKDULL: Well, I need an answer to
8 that question because I think this encompasses all the
9 property that be owned by somebody that is charged with
10 committing a felony. And I think you are only trying to
11 address property that is used in the commission of a
12 felony; is that not correct?
13 COMMISSIONER WETHERINGTON: I'll yield --
14 CHAIRMAN DOUGLASS: Commissioner Wetherington yields
15 to Commissioner Hawkes to answer the question.
16 COMMISSIONER HAWKES: I think what this does is it
17 sets up a condition precedent. It says we are never going
18 to forfeit property unless we at least have this. Now the
19 Legislature has gone in and they said that it has to be
20 used in connection with a felony and along those lines.
21 So I don't think that Commissioner Wetherington's proposal
22 suffers from that defect, maybe I'm wrong, but not that I
23 like Commissioner Sundberg's better, but I don't think
24 that that's a problem, that's all I was going to say.
25 COMMISSIONER BARKDULL: I'm still confused as to the
157
1 intent. I think all of us are. If you say private
2 property may be forfeited only upon, proof beyond a
3 reasonable doubt a commission of a felony by the property
4 owner, that doesn't just apply to criminal enterprise,
5 doesn't it? I mean, in other words, you can't do it. You
6 can't forfeit property unless the owner has been convicted
7 of a felony.
8 COMMISSIONER WETHERINGTON: No, that's not true.
9 That's not true at all. Right now under the --
10 CHAIRMAN DOUGLASS: No, I'm talking about by this
11 proposal.
12 COMMISSIONER WETHERINGTON: No, by this proposal,
13 whatever forfeiture procedure is in place, such as the
14 forfeiture procedures that are in place now, you would
15 have to prove the case, instead of by clear and convincing
16 evidence, you would have to prove the case beyond all
17 reasonable doubt.
18 CHAIRMAN DOUGLASS: How about discouraging profits
19 and that sort of thing, Commissioner Kogan?
20 COMMISSIONER KOGAN: I think the problem here is, and
21 people may be troubled with, and by reading this, the
22 question arises whether or not the property was used in
23 the commission of a felony. I think that's what is
24 causing the confusion here and we may have to do a little
25 fine-tuning on that, Commissioner Wetherington. It think
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1 that is the problem they are raising.
2 The property before you can forfeit it, even under
3 the statute, the property must have been used in the
4 commission of a felony. And I believe a homestead is
5 exempt, so don't think about homestead.
6 CHAIRMAN DOUGLASS: Only exempt in the state, it's
7 not exempt in the Constitution under this provision, if
8 they are both there.
9 COMMISSIONER KOGAN: I don't know, that all depends
10 upon certain people.
11 CHAIRMAN DOUGLASS: I've never overruled the chief
12 justice before, so -- I really don't want to take over the
13 debate, but I want Commissioner Wetherington to conclude
14 what he wants to on this since he's the one who proposed
15 the amendment. Commissioner Wetherington?
16 COMMISSIONER WETHERINGTON: I think that Commissioner
17 Kogan is right, that's the source of the confusion about
18 it, so.
19 CHAIRMAN DOUGLASS: Why don't you just withdraw your
20 amendment and file another amendment and have the proper
21 language in it?
22 COMMISSIONER WETHERINGTON: All right.
23 CHAIRMAN DOUGLASS: Without objection, he withdraws
24 the amendment and he's drafting another amendment. Now,
25 we are on the proposal itself at this point, unless you
159
1 want to take a second for him to propose -- to get his
2 proposed amendment before you. I think that's what we'll
3 do. Commissioner Brochin, is that what you were going to
4 suggest?
5 COMMISSIONER BROCHIN: I just had a question.
6 CHAIRMAN DOUGLASS: If you want to go ahead and ask
7 it, go ahead.
8 COMMISSIONER BROCHIN: Commissioner Sundberg, the
9 analysis seems to suggest that the current standard is a
10 preponderance of the evidence.
11 COMMISSIONER SUNDBERG: I think that's inaccurate. I
12 think there's been recent -- it's my understanding that
13 the state of the law is that it's clear and convincing at
14 this point in time.
15 COMMISSIONER BROCHIN: So the current law would
16 require a clear and convincing burden of proof to show
17 that the property owner was somehow -- knew or should have
18 known that the property was being used in the commission
19 of the crime?
20 CHAIRMAN DOUGLASS: Yes, that's correct.
21 Commissioner Butterworth is up.
22 COMMISSIONER BUTTERWORTH: I have a question.
23 CHAIRMAN DOUGLASS: You are recognized.
24 COMMISSIONER BUTTERWORTH: Commissioner Sundberg, and
25 not to be unexpected I guess.
160
1 COMMISSIONER SUNDBERG: I bet, it is a rhetorical
2 question too.
3 (Laughter.)
4 CHAIRMAN DOUGLASS: He watches Perry Mason. As you
5 suggested, some of us should have. Commissioner
6 Butterworth.
7 COMMISSIONER BUTTERWORTH: I saw it on the old movie
8 channel last night. What would happen if an arrest is
9 made in another state or another country and the property
10 happens to be in Florida, what would happen? Let's say
11 Georgia makes an arrest, the property happens to be in
12 Florida, what happens?
13 COMMISSIONER SUNDBERG: But forfeiture is a civil
14 suit, isn't it?
15 COMMISSIONER BUTTERWORTH: So that would be here in
16 Florida?
17 COMMISSIONER SUNDBERG: Sure.
18 COMMISSIONER BUTTERWORTH: So that if Georgia has one
19 law dealing with -- let's say that the airplane happens to
20 be in Florida, the arrest is made in Georgia, that
21 particular plane, let's say, was proven to have
22 transported drugs illegally into the United States. The
23 plane drops the drugs off in Georgia and then comes over
24 here to Signature Aviation in Tallahassee. In order for
25 the Georgia authorities to seize that plane, what must
161
1 they do?
2 COMMISSIONER SUNDBERG: Well, I'm not sure I know the
3 answer to that. But we are talking about the actual
4 forfeiture of it and that's --
5 COMMISSIONER BUTTERWORTH: When they start the
6 forfeiture, do they start the forfeiture at the time of
7 the arrest and the seizure of the plane or must they wait
8 until all of the conviction in Georgia, the appeal in
9 Georgia, and the ultimate case in Georgia?
10 COMMISSIONER SUNDBERG: I would yield to my spiritual
11 leader, H.T. Smith, to respond to that.
12 CHAIRMAN DOUGLASS: You better pray over that,
13 Commissioner Smith. Okay.
14 (Laughter.)
15 COMMISSIONER SMITH: With regard -- that was the
16 question which is prompting the amendment so that you will
17 be able to move into civil court immediately and just
18 raise the standard of proof from clear and convincing to
19 beyond a reasonable doubt. And that was the issue that
20 was raised appropriately by the law enforcement community,
21 that you had to wait.
22 If it was a car or something like that, it could rust
23 out and be no good for the property owner or the
24 government by the time you finished the conviction and the
25 appeals. And with regard to your question, that's where
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1 we're drafting the Wetherington amendment for the specific
2 purpose of allowing the issue to be joined immediately to
3 the benefit of the property owner as well as the
4 government, because that gives the property owner an
5 opportunity to get his property back immediately if he's
6 right and it gives the government an opportunity to get it
7 if they're right.
8 COMMISSIONER BUTTERWORTH: Commissioner Smith, if you
9 will yield for a moment, I guess you would agree that the
10 forfeiture laws were enacted by the Florida Legislature in
11 order to take profits away from people who have committed
12 crimes against people of this state. And therefore, so,
13 they cannot use their profits illegally, but the
14 government can go after those profits.
15 COMMISSIONER SMITH: Yes, I totally agree with that.
16 And they wanted to make sure that people who were not --
17 who were innocent were allowed also to partake in that --
18 to get their property back.
19 COMMISSIONER BUTTERWORTH: The government also allows
20 that also?
21 COMMISSIONER SMITH: Yes, they do. With a much more
22 onerous burden of placing a 10 percent bond to even get
23 involved in the process.
24 COMMISSIONER BUTTERWORTH: And will you agree with
25 me, Commissioner Smith, that there have been some, as
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1 Commissioner Sundberg stated, there has been some abuses
2 of that forfeiture law over the 20 or so years that it's
3 been used in the state of Florida?
4 COMMISSIONER SMITH: Absolutely. And we'll
5 publicize.
6 COMMISSIONER BUTTERWORTH: Would you agree with me
7 also, Commissioner Smith, in recent years the Florida
8 Legislature has had many, many hearings on this particular
9 issue?
10 COMMISSIONER SMITH: Absolutely and has taken action.
11 COMMISSIONER BUTTERWORTH: And they have taken action
12 to go from the preponderance to clear and convincing
13 evidence.
14 COMMISSIONER SMITH: That's absolutely correct.
15 COMMISSIONER BUTTERWORTH: And also the innocent
16 property protections has been enhanced.
17 COMMISSIONER SMITH: That's correct as well.
18 COMMISSIONER BUTTERWORTH: And that the seizure of
19 property is subject to advisory judicial review shortly
20 after seizure which was not available before.
21 COMMISSIONER SMITH: With regard to the preliminary
22 hearing process, correct.
23 COMMISSIONER BUTTERWORTH: And also a claimant is
24 entitled to a jury trial in the forfeiture proceedings.
25 COMMISSIONER SMITH: That's correct.
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1 COMMISSIONER BUTTERWORTH: And also, if, in fact, law
2 enforcement seizes it improperly the claimants are
3 entitled to attorneys' fees and costs.
4 COMMISSIONER SMITH: Limited to $1,000 and that
5 wouldn't help too many of the big-time lawyers that you
6 need in these kind of cases, but yes.
7 COMMISSIONER BUTTERWORTH: Would you believe that
8 this problem is not as bad as it was in the past because
9 of legislative action?
10 COMMISSIONER SMITH: I agree that it has improved.
11 COMMISSIONER BUTTERWORTH: Can you advise me as to
12 one incident that has occurred since the Legislature has
13 taken this action which law enforcement was opposed to?
14 COMMISSIONER SMITH: Well, your questions cannot tell
15 you about any one action. The action that this corrects
16 is the general principle that we have as Americans and
17 that we have as Floridians that the same standard should
18 be involved taking freedom or taking property. And so
19 while the Legislature has, as you have so eloquently
20 stated and accurately, raised the bar from a preponderance
21 of evidence to clear and convincing evidence, it has
22 always been, that's why with regard to matters -- in
23 Florida, you can only get a 12-person jury trial if you
24 take a person's life or take a person's property. And so
25 what we are saying is, if you are going to take a person's
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1 freedom or take their property, the standard of proof
2 should still be beyond a reasonable doubt.
3 COMMISSIONER BUTTERWORTH: Would you believe,
4 Mr. Smith, that the Attorney General of this state, in
5 advocating for these changes over the past few years, has
6 suffered a great deal of animosity from the law
7 enforcement community and also the head of the Florida
8 Department of Law Enforcement, also the same, in order to
9 correct and also make the standard much more difficult to
10 where now there are very, very few seizures?
11 COMMISSIONER SMITH: And that's why I feel very
12 confident that the attorney general would not in any way
13 be intimidated to help us get to the goal line with regard
14 to this particular amendment which will allow the same
15 standard for taking freedom as taking property.
16 COMMISSIONER BUTTERWORTH: Mr. Smith, would you
17 believe that the attorney general believes that the
18 Legislature has done what the Legislature should do in the
19 authority of the Legislature and this particular issue
20 should be handled by the Legislature and really there's no
21 place for it in the Constitution?
22 COMMISSIONER SMITH: Well, to end our dialog, I
23 absolutely agree with you that you believe that the
24 Legislature has done what it should do and that now, we,
25 as the Constitution Revision Commission with you as a
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1 member, must do what we must do.
2 CHAIRMAN DOUGLASS: I love that but it's eating me
3 up. Commissioner Butterworth, you are still on the floor.
4 COMMISSIONER BUTTERWORTH: Yes, I would like to know,
5 maybe if Commissioner Sundberg could take the floor.
6 CHAIRMAN DOUGLASS: Commissioner Sundberg, you have
7 to break up your huddle there.
8 COMMISSIONER SUNDBERG: I was the huddlee not the
9 huddler, you noticed that.
10 CHAIRMAN DOUGLASS: Absolutely.
11 COMMISSIONER SUNDBERG: Yes, sir.
12 CHAIRMAN DOUGLASS: Commissioner Butterworth.
13 COMMISSIONER BUTTERWORTH: Thank you, Mr. Chairman.
14 Commissioner, what would happen if the criminal flees from
15 a jurisdiction, dies or it's basically unknown under your
16 particular bill?
17 COMMISSIONER SUNDBERG: There will be no forfeiture
18 of the propoerty.
19 COMMISSIONER BUTTERWORTH: Therefore, even though law
20 enforcement might find a nice lear jet that the government
21 would not mind having, full of cocaine, there's no way of
22 determine who the owner is, that --
23 COMMISSIONER SUNDBERG: Yes, because the owner of
24 that aircraft may have had nothing to do with that cocaine
25 or the commission of any -- or the violation of any
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1 criminal law.
2 COMMISSIONER BUTTERWORTH: But you can't find out who
3 the owner is.
4 COMMISSIONER SUNDBERG: Well, fine. That's not very
5 persuasive to me. That's sort of finders keepers.
6 COMMISSIONER BUTTERWORTH: That's what I was
7 advocating for. I think what you do, you would not allow
8 the State to do finders keepers.
9 (Laughter.)
10 COMMISSIONER SUNDBERG: That's right.
11 COMMISSIONER BUTTERWORTH: I like finders keepers.
12 COMMISSIONER SUNDBERG: We have had too many weepers.
13 CHAIRMAN DOUGLASS: Okay. Justice -- Commissioner
14 Kogan rises to question somebody.
15 COMMISSIONER KOGAN: I rise on a point of
16 clarification, so that --
17 CHAIRMAN DOUGLASS: All right. But at the moment, I
18 understand the amendment --
19 COMMISSIONER KOGAN: This is on the amendment.
20 CHAIRMAN DOUGLASS: The amendment is back.
21 COMMISSIONER KOGAN: Yes, this is on the amendment.
22 CHAIRMAN DOUGLASS: This is on the amendment.
23 COMMISSIONER KOGAN: This is absolutely on the
24 amendment.
25 CHAIRMAN DOUGLASS: All right. So let's get the
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1 amendment before the body. It's moved by Commissioner
2 Wetherington and it should be on your desk and I'll ask
3 the clerk to read it. You can't speak on it yet, we don't
4 have it.
5 COMMISSIONER KOGAN: Actually what I would like to do
6 is just a point of clarification and just for edification
7 for those who have been wondering what this is all about.
8 CHAIRMAN DOUGLASS: All right, sir. You have the
9 floor.
10 COMMISSIONER KOGAN: Right now, the law of the state
11 of Florida is that in the event property is used in the
12 commission of a felony, it can be forfeited. It is
13 forfeited by a lawsuit being filed as a civil lawsuit.
14 And you go into civil court and by clear and convincing
15 evidence, you show the property was used for the purpose
16 of committing a felony and then that particular property
17 can be forfeited regardless of the outcome of the criminal
18 case. You don't have to wait for a conviction, and as a
19 matter of fact, the defendant, theoretically, could be
20 found not guilty and the property is gone also.
21 Under the proposal, as first advocated by
22 Commissioner Sundberg, it would have required that before
23 you could go in on that civil suit to forfeit the
24 property, there would have to be a conviction of that
25 felony. The amendment says that, No, we are going to
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1 stick with the law as it is now, you can go in before the
2 conviction with a civil suit. What it does is, it changes
3 the burden of proof from the clear and convincing to
4 beyond a reasonable doubt. And that's really what the
5 amendment is providing for.
6 CHAIRMAN DOUGLASS: Do we have the amendment? It's
7 on the table. Would you read the amendment, please. This
8 is by Commissioner Wetherington. First amendment to
9 Proposal No. 1.
10 READING CLERK: By Commissioner Wetherington, on
11 Page 1, Lines 14 through 19, delete those lines and insert
12 Section 9, due process, no person shall be deprived of
13 life, liberty, or property without due process of law or
14 be twice put in jeopardy for the same offense or be
15 compelled in any criminal manner to be a witness against
16 himself. Private property may be forfeited only upon
17 proof beyond all reasonable doubt that the property was
18 used in -- this part is edited -- or was the products of
19 the commission of the felony by the property owner.
20 CHAIRMAN DOUGLASS: All right. I think this is a
21 substitute motion because it has the entire substance in
22 it of the proposal. It's not an amendment in the classic
23 sense, and I'm going to rule that it is a substitute
24 motion and we are going to debate this proposal as a
25 substitute motion by Commissioner Wetherington and that
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1 will get us directly to the issue of the passage or
2 non-passage of this issue.
3 So, the debate now will be for proponents of the
4 substitute motion which changed the original motion so
5 that it reads, Private property may be forfeited only upon
6 proof beyond all reasonable doubt that the property was
7 used in or was the product of the commission of a felony
8 by the property owner. That is the motion that's before
9 the body. Those who wish to speak as proponents, please
10 identify yourself.
11 COMMISSIONER BARTON: I have a question.
12 CHAIRMAN DOUGLASS: I want proponents. Now, who is
13 going to speak as a proponent? I know that Commissioner
14 Wetherington is and Commissioner Sundberg is and
15 Commissioner Henderson is. Commissioner Smith is and
16 Commissioner Hawkes is. I'm going to start with
17 Commissioner Wetherington because he offered the
18 substitute motion. You may rise, Commissioner
19 Wetherington.
20 COMMISSIONER WETHERINGTON: Well, the purpose of the
21 proposal is essentially, is mainly the same as the purpose
22 of Commissioner Sundberg's proposal and that is simply
23 that forfeiture is the equivalent of a punishment for a
24 commission of a crime in these contexts. And the United
25 States Supreme Court has held in re Windship that due
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1 process of law requires that a criminal case be proved
2 beyond all reasonable doubt. This is a matter of federal
3 due process of law which also binds the states.
4 This being, in essence, although we call it a civil
5 proceeding, but in essence, this being a penalty or
6 punishment for the commission of the crime, just like a
7 fine, for example, or imprisonment, should have the same
8 standard of proof. This would not change any other
9 aspects of the procedure. You can still have the civil
10 forfeiture procedure. You don't have to wait for a
11 conviction. You don't have those limitations. The only
12 change it would make, basically, would be that before you
13 can take somebody's property for committing a crime, you
14 have to prove that under the same standard that you would
15 have to prove to convict them and punish them otherwise
16 for the commission of the crime.
17 CHAIRMAN DOUGLASS: Questions? Commissioner Brochin
18 I think has been trying to ask one for a long time.
19 COMMISSIONER BROCHIN: Commissioner Wetherington, as
20 I understand now, the proposal that's before us by your
21 amendment would simply changed the burden of proof in the
22 civil action from a clear and convincing standard, which
23 is today, to beyond a reasonable doubt, which is your
24 proposal. My question is, assuming that's correct,
25 because I think Commissioner Kogan clarified it by stating
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1 so, do you know of any other statutory or constitutional
2 schemes in Florida that require a beyond a reasonable
3 doubt standard for the taking of anything but one's
4 liberty?
5 COMMISSIONER WETHERINGTON: Well, the only time -- in
6 terms of taking, you have taking property for public
7 purposes for just compensation, which you have a 12-person
8 jury trial. The proof in that instance is not proof
9 beyond all reasonable doubt but you do, in that particular
10 context, you get compensated for the property taken, it
11 isn't just taken from you, and you do get your attorneys'
12 fees and you do get your costs. But the burden of proof
13 in that instance is not.
14 There's long-standing principles in civil law
15 concerning forfeitures. Forfeitures generally are
16 disallowed under civil law. For example, the provision
17 dealing with liquidated damages in contract cases. The
18 law will not allow a forfeiture. It will allow liquidated
19 damages which would be a reasonable estimate of the
20 probable damages that you would sustain that might be
21 otherwise difficult to calculate. But the law will not
22 permit a forfeiture at all under civil law.
23 In terms of civil law, with respect to forfeiture
24 generally, and so far, civil law is extremely restrictive,
25 but even in those instances, if you could justify what
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1 would be called the equivalent of a forfeiture, it would
2 probably be in the context of private person versus
3 private person. And it would not be in the context of the
4 government, of a governmental forfeiture because when
5 you're dealing with governmental forfeiture, of course,
6 you are dealing with constitutional limitations of due
7 process and other kinds of limitations.
8 So the question is, should we have a different
9 standard with respect to criminal forfeiture than the
10 standard of having to prove that the crime occurred beyond
11 all reasonable doubt and so the question would be, what
12 would that justification be? In other words, if I want
13 take you down and I'm going to fine you $1,000, or I want
14 to fine you $5,000 or I want to put you on probation for
15 committing a crime, I have to go down, unless I get a plea
16 agreement, and I have to prove the case beyond all
17 reasonable doubt to get a conviction. But if you have got
18 a $150,000 house for example or $150,000 worth of
19 property, and I'm going to take that from you because you
20 have committed a crime, the question is, how can you draw
21 a rational, principal distinction, between those two
22 situations? What is the difference between a fine and
23 taking your property?
24 Taking of property has always been something that
25 we've have limited very carefully, not just as a part of
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1 our law, but as a part of our culture. So the question
2 is, can you really justify a different standard? Now, we
3 are stripping you of other procedural -- there is the
4 right to jury trial, but many times the procedure is much
5 more summary and there's a lot of -- we make it much more
6 expeditious in the ordinary case to do the forfeiture
7 cases. And that may be okay. But the question is, if you
8 do that, should you still have the same standard of proof?
9 COMMISSIONER BROCHIN: If I could just follow-up, in
10 taking cases that you referenced at the outset, is the
11 burden there preponderance or clear and convincing?
12 COMMISSIONER WETHERINGTON: The burden there would be
13 preponderance.
14 COMMISSIONER BROCHIN: Under this proposal or whether
15 the current standard of clear and convincing, isn't the
16 defendant entitled to a jury trial and doesn't that jury
17 have to be unanimous before the decision would be allowed
18 to take the property?
19 COMMISSIONER WETHERINGTON: If there's a jury trial,
20 it would have to be. If there's a demand for jury trial,
21 it would have to be unanimous.
22 COMMISSIONER BROCHIN: Question. If there is a
23 demand for jury trial, under either proposal, the
24 defendant would be entitled to a trial by jury, right?
25 COMMISSIONER WETHERINGTON: Correct. And the
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1 difference would be simply the clear and convincing
2 standard as opposed to proof beyond all reasonable doubt
3 and those are different standards.
4 COMMISSIONER BROCHIN: Just a comment, the
5 distinction between the fines, to me, there is a
6 distinction. A fine is not taking somebody's liberty, and
7 therefore, maybe the standard is too high for a fine, even
8 if it is a criminal fine. I agree, there's no distinction
9 between a criminal fine and a criminal taking of your
10 property. But there is a distinction as to the remedy
11 imposed upon the defendant. One takes his liberty, one
12 takes his property.
13 CHAIRMAN DOUGLASS: All right. I've got to clear the
14 record before we go further. All amendments to the
15 original proposal were withdrawn. Then Commissioner
16 Wetherington offered the substitute motion which was read
17 as an amendment. It wasn't, it was a substitute motion,
18 and that is what is before the House -- not the House, but
19 the body.
20 Now, that's where we are. And if you are offering
21 amendments, it will be to Commissioner Wetherington's
22 substitute motion. I didn't ask for opponents, but you
23 rise for a question; is that correct? Commissioner
24 Butterworth.
25 COMMISSIONER BUTTERWORTH: Yes. Thank you. This is
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1 for a question of Commissioner Wetherington. So far, we
2 have been fairly successful in having the courts -- when
3 we have these hearings on forfeiture of property and then
4 later on have the criminal trial, courts have not held
5 this to be double jeopardy or res judicata, we have been
6 very successful in that. It correct, in a way -- in your
7 substitute proposal, that in essence, that would be in
8 jeopardy because the wording is basically stating that we
9 have to, in essence, prove that the felony was committed
10 by the property owner? Wouldn't we have a problem with
11 that?
12 COMMISSIONER WETHERINGTON: A collateral estoppel
13 problem?
14 COMMISSIONER BUTTERWORTH: A res judicata problem or
15 a double jeopardy problem. The wording -- I'm very
16 concerned about the wording of it.
17 COMMISSIONER WETHERINGTON: I don't think you'd have
18 any different collateral estoppel problem or res judicata
19 problem than you have now simply because of a change in
20 the burden of proof. It's true that one of the
21 justifications that have been offered, for example,
22 between a civil case and a criminal case, one of the
23 justifications, not the only one, has been that there is a
24 different burden of proof in the civil versus the criminal
25 case.
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1 But conversely, for example, if you are convicted, as
2 you know in a criminal case, you cannot use that
3 conviction later in a civil case even to prove that the
4 case has been proved by the greater weight of the evidence
5 because of the fact that they are considered to be
6 different parties in the two proceedings.
7 Now, there is a legitimate question that could be
8 raised as to whether or not principles of res judicata or
9 collateral estoppel should be applied anyway with respect
10 to civil forfeiture procedures and criminal procedures,
11 but I don't think the alteration in the burden of proof,
12 either from preponderance and it has been moved up to
13 clear and convincing or from clear and convincing to proof
14 beyond all reasonable doubt should alter any of those
15 well-stablished principles that we have adopted that we're
16 not going to apply the principle res judicata or
17 collateral estoppel to those issues.
18 COMMISSIONER BUTTERWORTH: Mr. Chairman, if I could
19 continue.
20 CHAIRMAN DOUGLASS: Go ahead.
21 COMMISSIONER BUTTERWORTH: To follow up, I may have
22 the wrong thing I'm reading from here, Commissioner, but
23 what it basically says is that the property may be
24 forfeited only upon proof beyond all reasonable doubt that
25 the property was used in the commission of a felony by the
178
1 property owner.
2 COMMISSIONER WETHERINGTON: No, I have extended it.
3 Was used in or was the product of the commission of a
4 felony by the property owner.
5 COMMISSIONER BUTTERWORTH: But if you have to proof,
6 Commissioner, that the property owner was involved in the
7 felony beyond and to the exclusion of all reasonable
8 doubt, you might as well just have one trial and have one
9 trial and do them both together from what you're saying.
10 I think you force -- would you believe that you are going
11 to force the prosecution into one trial?
12 COMMISSIONER WETHERINGTON: I don't think it will
13 change anything other than what you're doing now. What
14 you do now is this. In a typical forfeiter case is they
15 come down there and they bring in a case to forfeit the
16 automobile. When they come into the case -- they may even
17 nol pros the criminal case for all I know -- when they
18 come into court and they say, This guy is out there and
19 he's sitting in the automobile and there is some marijuana
20 or some narcotics are being sold in the area and we saw
21 that he was using it in the car and then he comes in and
22 he says, either that wasn't me, and somebody else was
23 using the car and I didn't know anything about it, or puts
24 up the innocent owner defense, and you sit and you listen
25 to the case and you decide whether or not it was him, was
179
1 he there, and were they in fact selling narcotics out of
2 that car, and that's the way the cases come up.
3 They are done quickly, expeditiously, most of the
4 time there is not any defense offered to these cases, they
5 go by way of default generally. Every now and then we get
6 one of them that are contested, at least in state court.
7 If it is a lot of money and so on and so forth, you can
8 expect a contest in there. But the routine forfeitures go
9 through without any objection. Now there are significant
10 instances if it is a lot of property or something where
11 you are going to go down and have a forfeiture trial
12 because there is enough in there to make it worthwhile to
13 fight over and you will get that kind of situation and you
14 will end up -- now, could you have one proceeding and have
15 both consequence, I think absolutely.
16 I think you could have the criminal trial and the
17 forfeiture trial be one trial if you wanted to do it. I
18 can see no reason why anybody would object to that and
19 that could be done if you wanted to. But right now, the
20 government is the one that's electing to take, because of
21 reasons of efficiency, they are electing to take the
22 two-step process because they frequently feel they can
23 move quicker in the civil forfeiture procedure. And many
24 times, unless somebody demands a jury trial, they can move
25 quicker.
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1 So as a practical matter, the only time you're going
2 to get a problem on this, I think, is when there is
3 something of substance here and then you are going to have
4 two trials anyway. But whether you have a clear and
5 convincing standard, or whether you have a proof beyond
6 all reasonable doubt standard, isn't going to change the
7 question of whether or not you really get two trials. The
8 question is, do you want to make it easier for the
9 government to take somebody's property than it would be to
10 convict that person of the crime and that's a
11 philosophical question about which -- now, the argument on
12 the other side, if you want to make an argument on the
13 other side, would be there may be a lot of people out
14 there, there may be a lot of bad people out there that are
15 doing some very bad things that maybe we have trouble in
16 some instances convicting through a full criminal trial
17 procedure.
18 And we think there is a lot. Maybe there is some
19 organized crime out there or maybe there is some people
20 doing some very bad things. And we would like to be able
21 to more effectively, under RICO and all, reach their
22 property and punish them by getting their property and we
23 want to make it easier, we want to make it easier to get
24 their property than to convict them. And if I accept the
25 fact that it is a bad person, I probably would agree with
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1 that.
2 If I know it is a bad person and it is limited only
3 to the bad people, I probably would say, I'm for it.
4 CHAIRMAN DOUGLASS: All right. I'm going to have to
5 interrupt you in just exactly one minute and ten seconds
6 we will be out of business because the notice was to end
7 at 1:00 p.m. Commissioner Barkdull?
8 COMMISSIONER BARKDULL: I'd like to make a motion
9 that we extend the time of recess until we conclude the
10 action on this proposal and announcements and withdrawals.
11 CHAIRMAN DOUGLASS: All right. It has been moved by
12 Commissioner Barkdull that we extend the time for this
13 session until we conclude action on this amendment --
14 proposal. And all in favor say aye, opposed like sign.
15 (Verbal vote taken.)
16 CHAIRMAN DOUGLASS: So now you are on your time,
17 proceed. Does that answer all your questions,
18 Commissioner Butterworth? Or do you have others or do you
19 want to reserve time?
20 COMMISSIONER BUTTERWORTH: I'll reserve time later,
21 Mr. Chairman. Thank you.
22 CHAIRMAN DOUGLASS: Okay. Other questions at this
23 moment? Commissioner Henderson, do you have a question?
24 COMMISSIONER HENDERSON: Yes, I do, to Commissioner
25 Wetherington. I'm sympathetic to the proposal and now
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1 questions from General Butterworth and now I'm confused.
2 The innocent owner defense, which is what we have now, and
3 which is often the case as you have proceeded. Now let's
4 suppose that we have the owner, the person at the wheel of
5 the car, cocaine in the trunk of the car, the car is owned
6 by his wife, his brother or a corporation.
7 COMMISSIONER WETHERINGTON: Yes.
8 COMMISSIONER HENDERSON: How do we -- can we forfeit
9 the car under your proposal?
10 COMMISSIONER WETHERINGTON: You could forfeit the car
11 under this proposal, if there was knowing use of that
12 particular car by the owner. You could not forfeit it if
13 it was completely innocent use. In other words, if
14 somebody is using my property I have no knowledge that
15 they are using it improperly, basically you would be an
16 innocent owner. If they are using the property with my
17 knowledge and approval and authorization, I'm in
18 complicity in the commission of the crime and the property
19 could be forfeited.
20 CHAIRMAN DOUGLASS: All right. Any further
21 questions?
22 COMMISSIONER HENDERSON: I think my question is, is
23 that not a statement of the current law but not quite the
24 proposal that is before us, because at least I read this
25 as not only must it be the commission of the felony but by
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1 the property owner.
2 CHAIRMAN DOUGLASS: What he is saying, I think, is
3 that somebody that knows it and allows it to be used is
4 involved in the crime.
5 COMMISSIONER HENDERSON: Then what about the case of
6 the unknown property owner or the corporation set up by
7 someone out of state, offshore?
8 CHAIRMAN DOUGLASS: If you couldn't prove they knew
9 about it, you'd be out of luck under this. Commissioner
10 Nabors -- when you sit over here, I have a right eye, I
11 don't catch you-all a lot of times.
12 COMMISSIONER NABORS: Judge, I'm also a pretty skinny
13 guy too. I need to stand this way.
14 (Laughter.)
15 CHAIRMAN DOUGLASS: You are doing good.
16 COMMISSIONER NABORS: I want to make sure on this
17 abandoned property issue on the lear jet. The way I read
18 your proposal, if there is abandoned property, whether it
19 has cocaine in it or Girl Scout cookies or whatever it has
20 in it, and we cannot determine who the owner is, and it is
21 abandoned, as long as due process is there, there's
22 legislative solutions to deal with abandoned property to
23 dispose of it; isn't that correct?
24 COMMISSIONER WETHERINGTON: That's correct.
25 CHAIRMAN DOUGLASS: All right. Any more questions?
DIVISION OF ADMINISTRATIVE HEARINGS (904) 488-9675
184
1 All right. We'll now hear from proponents of it.
2 Commissioner Smith as a proponent.
3 COMMISSIONER SMITH: Just briefly. In addition, I
4 think the important things to realize here is basically
5 this proposal raises the standards of proof. The question
6 is whether we, as Floridians, want our government to be
7 able to take our property with a lower standard of proof.
8 And that's what the question is.
9 So you can't change collateral estoppel or you can't
10 change the case law of proof. I rented a car, I loaned my
11 car to someone yesterday, if they did something in my car,
12 they got to prove, they want to take -- let's just say it
13 was my car. They want to take my car. If they are going
14 to take Avis' car, they have to prove they knew something
15 about it. But this is just a higher standard of proof,
16 that's number one.
17 Number two, I think this is good because I really
18 think it's going to cut down on some litigation because I
19 find it positive, I think there will be a lot of cases
20 where the government and the property owner, as the
21 property owner is on trial, will agree that the result of
22 the criminal trial will be dispositive of the civil trial.
23 You couldn't do that before because there were
24 different standards of proof, so I think that's a positive
25 in it. And let me just take this opportunity also to say
185
1 having been intimately involved in this issue, and that I
2 commend Commissioner Butterworth for his leadership along
3 with our Legislature in getting us 90 percent of the way
4 there. But to score, you've got to get to the goal line
5 and this gets us to the goal line.
6 CHAIRMAN DOUGLASS: All right. Other proponents?
7 Commissioner Sundberg. You'll have an opportunity to
8 close now on the main proposal when you're through if you
9 want to reserve it.
10 COMMISSIONER SUNDBERG: I think when I am done here
11 that will not be necessary. I would simply like to say,
12 and Commissioner Wetherington will know precisely what I
13 mean when I say, Commissioner Wetherington, I like the way
14 you are thinking. And as a result of that, I think this
15 does not -- this is, in fact, a compromise because this
16 still requires a person whose property is sought to be
17 forfeited, prior to being convicted of any crime, to come
18 forward and defend that civil action. That is a burden on
19 a criminal defendant who does not -- you heard the
20 attorney general talk about collateral estoppel.
21 There's also the effects of having to make a record
22 either by yourself or by your witnesses which are
23 exculpatory that criminal defendants don't like to do
24 before they are, in fact, tried. That is a problem I
25 still see with the proposal but I think it is, in fact, an
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1 appropriate compromise. I think that it goes,
2 essentially, to the heart of this problem. And for that
3 reason, I support the amendment and will support it on the
4 main proposition.
5 CHAIRMAN DOUGLASS: You are a proponent, Commissioner
6 Connor? Question?
7 COMMISSIONER CONNOR: Yes, sir. Mr. Smith, doesn't
8 this amendment also do one other thing, that unless I am
9 mistaken, has not been recognized under Florida law, which
10 is that it would also result in the disgorgement of
11 ill-gotten gains, even if they were not used in the
12 commission of the felony, which would bring us more in
13 line with a federal RICO action and --
14 COMMISSIONER SMITH: That's call the Connor
15 participation and amendment process or the product of.
16 COMMISSIONER CONNOR: Well, I'm not trying to take
17 credit for it, but I mean, in fact, what you indicated
18 simply was that all this does is raise the standard of
19 proof. But in fact, you're correct, it does more than
20 that and would this be something the attorney general
21 supports in that regard?
22 COMMISSIONER BUTTERWORTH: (Nods affirmatively.)
23 CHAIRMAN DOUGLASS: Proponent? You are for it?
24 COMMISSIONER MORSANI: Yes, sir.
25 CHAIRMAN DOUGLASS: Speak. Commissioner Morsani.
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1 COMMISSIONER MORSANI: Certainly not being an
2 attorney, but having confronted a number of times this
3 situation over the years, almost, especially when you have
4 a lot of companies and you are decentralized, we have had
5 these very things happen, having automobiles confiscated
6 that were used in felonies, that were used in drug
7 arrests, as well as aircraft.
8 I, for years, had airplanes and had a Citation jet
9 and we would take people to Mexico and other places in
10 Central and South America and we were continually
11 concerned that our aircraft might be confiscated when it
12 came back into the country through no fault of my own, as
13 just, you know, loaning it really or taking people,
14 friends.
15 So in my limited knowledge of the situation, as a
16 businessperson and coming from a whole different
17 standpoint especially when these, especially airplanes and
18 automobiles in my case, would be tied up for months and
19 years before we could get that property back, it seems
20 like there is some unfairness in there when we had nothing
21 to do at all and especially myself as the owner of all
22 these automobiles, had nothing to do whatsoever with any
23 crime. We think that there has been some inequities. And
24 if this will help in that direction, I strongly support
25 and I think that the business community in general would
188
1 be very supportive of this proposal.
2 CHAIRMAN DOUGLASS: All right. Any more proponents?
3 Are you a proponent?
4 COMMISSIONER HENDERSON: Yes, sir. You look
5 surprised.
6 CHAIRMAN DOUGLASS: No, I'm not surprised, at
7 1:08 p.m. I'm not surprised.
8 COMMISSIONER HENDERSON: Then I will be brief. I no
9 longer have a dog in this hunt but in a former life, I
10 think I've been on all sides of this issue. I have
11 actually defended property, innocent property owners I
12 might add, from forfeiture action by government to obtain
13 property.
14 As a city attorney, I actually, I couldn't tell you
15 how many items I actually forfeited on behalf of our local
16 police forces, most cars, boats, I think one time there
17 was even an airplane. And almost all those, as has been
18 discussed earlier, were all noncontroversial. The owner
19 was gone, abandoned, probably never even an arrest made
20 because of the flight of the defendant.
21 I can tell you though that my trouble about this
22 issue comes from my years of service as a county
23 commissioner in a place called Volusia County where, from
24 time to time, we were called upon to fund portions of our
25 budget with what seemed to be a very rapidly growing area
189
1 of revenue from the sheriff's office.
2 And I might tell you -- well, I'm not going to get
3 into all that. But our sheriff there has quite a national
4 reputation for his success in this area, has been
5 investigated a number of times and nobody -- nothing has
6 been proved wrong. But I can tell you that it left a sour
7 taste in my mouth and others to have persons appear before
8 us at the county commission who told us of their
9 experiences about, you know, being pulled over on the
10 interstate, having committed no crime, having upon them
11 large amounts of cash, which were confiscated. And I
12 can't remember her name, it's one of these things you
13 never forget, and elderly African-American lady who had
14 been pulled over, she had in her trunk a large amount of
15 cash that she said was from the insurance proceeds after
16 she lost her home in Hurricane Andrew.
17 And she was put in the position of having to
18 negotiate with the government to get back this money that
19 had been confiscated on the basis that the dog sniffed a
20 scent of marijuana upon a large amount of cash and we
21 learned in that conversation, whether it was right or
22 wrong, that a dog can probably come up with the scent of
23 marijuana on any large amount of cash in Florida.
24 CHAIRMAN DOUGLASS: Good dog.
25 COMMISSIONER HENDERSON: That's a good dog, that's
190
1 right. And I'm not disparaging the sheriff and I'm not
2 disparaging the dog. She was a good sheriff and that was
3 a good dog, let me tell you. But in terms of the
4 constitutional standards and constitutional values, I can
5 tell you that it troubles you. It troubles you because
6 you are not sure. It troubles you because of the civil
7 forfeiture provision where it was preponderance of
8 evidence.
9 Now General Butterworth is absolutely right. The
10 standards, because of issues like this, whether you call
11 them abuses or not, have been improved. The crossbar has
12 been raised.
13 These -- a lot of this has gone there. But this
14 compromise provision, and I think this is a good
15 compromise, takes us to that constitutional standard if
16 you are going to take somebody's liberty or their
17 property, that it will be the same standard. And so it is
18 unusual for me to get involved in an issue like this, but
19 for those reasons, I support the proposal.
20 CHAIRMAN DOUGLASS: Commissioner Hawkes, you are
21 recognized to file your substitute amendment which is on
22 the desk. Shall I have him read it?
23 COMMISSIONER HAWKES: Sure.
24 CHAIRMAN DOUGLASS: Mr. Clerk, read the substitute
25 amendment.
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1 READING CLERK: By Commissioner Hawkes, on Page 1,
2 Lines 14 through 19, delete those lines and insert Section
3 9, due process, No person shall be deprived or life,
4 liberty, or property without due process of law or be
5 twice put in jeopardy for the same offense or be compelled
6 in any criminal matter to be a witness against himself.
7 Private property may be forfeited only upon proof beyond
8 all reasonable doubt that the property was use in or was
9 the product of the commission of a felony by the property
10 owner. All proceeds from forfeiture shall be used for
11 enhancement of education as provided by law.
12 COMMISSIONER HAWKES: Thank you, Mr. Chairman.
13 CHAIRMAN DOUGLASS: You're heard on your substitute.
14 COMMISSIONER HAWKES: You know, a lot of the abuses
15 that we heard about work because these people litigated
16 this matter in front of a judge. Quite frankly, I
17 wouldn't really care if it was a preponderance if every
18 case went before a judge with a defendant who would defend
19 himself, who understood his rights. If you get accused of
20 shoplifting or if you get accused of trespassing, you get
21 an attorney appointed to represent you and you are not
22 allowed to enter a plea to that until you appear before a
23 judge and the judge determines whether or not you should
24 be allowed to enter the plea.
25 And I have seen people go into court and say, Judge,
192
1 I'm guilty and the judge stay, I'm not going to accept
2 your plea. I want you to get an attorney. Because the
3 judge was looking from a neutral perspective to make sure
4 that the integrity of the state of Florida was protected,
5 that we are not convicting people or punishing people when
6 we really shouldn't be doing that under the Constitution.
7 Well a lot of these abuses didn't come about because
8 the sheriff was evil or wanted to do bad, it came about
9 because the incentives were in the wrong place.
10 Realistically, I believe it is the function of government
11 to provide the needs for criminal justice, whatever those
12 needs are, provide them. When we have extra money,
13 education is an area that can benefit from extra money
14 where we can enhance. And so if you want to couple the
15 good work that the Legislature did to make this a little
16 bit better because right now the criminal defendant --
17 what I liked about Commissioner Sundberg's proposal, was
18 at least there was a conviction. In every case there was
19 a conviction. If there wasn't a conviction, we weren't
20 going to take to away property and what that meant is the
21 individual was charged for a crime and it wasn't one of
22 these situations where you pull over, you sign some
23 paperwork, and you leave with your property -- and you
24 leave and you are free and they take your property. Or
25 now I guess we go before a judge. But you don't -- the
193
1 defendant doesn't go above the judge, law enforcement goes
2 before it and it is not a contested matter.
3 So there is some protection but it is not absolute
4 protection. So the idea of this amendment is to merely
5 take out the incentives for self-benefit. We still punish
6 crime, we still take away the proceeds of crime and we put
7 it in an area where most people would agree that if you
8 have extra money, that area can benefit from extra money.
9 Criminal justice should be funded at the level that
10 criminal justice needs to be funded at. And that's our
11 basic obligation, not with extra money that may be found.
12 So I would ask for your favorable consideration.
13 CHAIRMAN DOUGLASS: All right. This changes it
14 because it adds another subject. Commissioner Kogan on
15 the substitute.
16 COMMISSIONER KOGAN: All well and good for education.
17 The problem is, local law enforcement makes a nice little
18 pile to go along with their allocation from the city
19 commission or the county commission or whatever it is.
20 And they rely heavily upon this. I understand, and the
21 attorney general can tell me if I'm wrong, if it is
22 statewide, there is a different way to divide it up. But
23 local law enforcement agencies really depend very heavily
24 upon the money they get from forfeitures and that's money
25 they can use in law enforcement.
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1 Just an observation.
2 CHAIRMAN DOUGLASS: So you are in opposition to the
3 substitute and we go back on the original motion?
4 COMMISSIONER KOGAN: I'd be in opposition to that.
5 CHAIRMAN DOUGLASS: Okay. Everybody ready to vote on
6 the substitute which adds how the money is going to be
7 spent? It doesn't change anything else, we will go back
8 to that when we vote. Okay. On the substitute offered by
9 Commissioner Hawkes. We have to open the machine on that,
10 don't we? Or can we vote, voice vote? Take a voice vote.
11 All in favor of Commissioner Hawkes' substitute which
12 would direct the proceeds to education enhancement,
13 signify by saying aye. All opposed?
14 (Verbal vote taken.)
15 CHAIRMAN DOUGLASS: It fails. Now, back on the
16 underlying amendment which we've discussed quite
17 extensively, and we will vote on the underlying amendment
18 and on the underlying amendment, we will open the machine.
19 (Off-the-record comment by Commissioner Barkdull.)
20 CHAIRMAN DOUGLASS: Well, I sure thought they did,
21 but I'm ready for them to just opponent it all they want
22 to. And Commissioner Barton, you are first up.
23 COMMISSIONER BARTON: I'd just like to point out that
24 this law, when it was enacted, and in subsequent years was
25 served as the model law for this nation and most states
195
1 have adopted legislation similar to this. I would also
2 like to point out that in 1995 the Legislature did
3 strengthen this law, revised it to add protections for
4 citizens and that if they had the ability to do this, and
5 they have done that, it seems likely that they could do
6 that again in the future, let the Legislature do it. It
7 belongs there.
8 CHAIRMAN DOUGLASS: All right. Any other opponents?
9 Commissioner Butterworth?
10 COMMISSIONER BUTTERWORTH: Mr. Chairman, I concur
11 with the former speaker, that this should be for the
12 Legislature to do. The Legislature has made it much
13 tougher. And in the Volusia County situation, I don't
14 think there has been a forfeiture in Volusia County in the
15 last three years. So I would urge a no vote on this.
16 CHAIRMAN DOUGLASS: Any other opponents?
17 Commissioner Barkdull?
18 COMMISSIONER BARKDULL: I want to be listed as an
19 opponent. I'm not sure of the answer, but I've heard
20 enough concerns about whether we are, by putting this in
21 the Constitution and in this section, may be causing some
22 confusion on collateral estoppel or double jeopardy and I
23 would rather -- prefer to leave it to the Legislature
24 rather than taking the chance of messing that up.
25 CHAIRMAN DOUGLASS: Any further opponents? Do you
196
1 want to close, Commissioner Wetherington, on your
2 amendment or have you said all you need to say?
3 COMMISSIONER WETHERINGTON: I've said it all.
4 CHAIRMAN DOUGLASS: Okay. Then we will vote on the
5 amendment, which is the Wetherington amendment No. 1. And
6 all -- now, all in favor -- well, let's open the machine
7 and vote on this. Open the machine.
8 (Vote taken and recorded electronically.)
9 CHAIRMAN DOUGLASS: This is the Wetherington
10 amendment, it's the substitute amendment but it is the
11 Wetherington amendment and then he withdrew No. 1. So you
12 can call it whatever you want. You can get to it here in
13 a minute. This is the Wetherington amendment. You are
14 not voting to pass this now, you are voting for the
15 Wetherington amendment versus the original language.
16 Close the machine. Announce the vote.
17 READING CLERK: 19 yeas and six nays, Mr. Chairman.
18 CHAIRMAN DOUGLASS: By your vote, you have adopted
19 the Wetherington amendment. The issue now is on whether
20 you want to do it at all which is the original proposal as
21 amended. So this is a different vote. Open the machine
22 and take the vote.
23 (Vote taken and recorded electronically.)
24 CHAIRMAN DOUGLASS: All right. Has everybody voted?
25 Close the machine and announce the vote.
197
1 READING CLERK: 17 yeas and 9 nays, Mr. Chairman.
2 CHAIRMAN DOUGLASS: All right. That -- we have
3 announcements. First announcement I want to make is that
4 the style and drafting committee announced yesterday that
5 Commissioner Mills would be chairman of that committee.
6 People that will be appointed to that committee, that I
7 have discussed it with, Commissioner Barnett will be a
8 member of the committee; Commissioner Alfonso will be a
9 member of the committee; and Commission Lowndes will be a
10 member of the committee. And we will proceed there and
11 put them to work on some of the things that we passed.
12 Commissioner Barkdull, do you have other announcements?
13 (Off-the-record comment by Commissioner Barkdull.)
14 COMMISSIONER BARKDULL: First I want to --
15 CHAIRMAN DOUGLASS: Commissioner Barnett.
16 COMMISSIONER BARNETT: I'd like to withdraw Proposal
17 No. 15.
18 CHAIRMAN DOUGLASS: All right. There's been a motion
19 by Commissioner Barnett to withdraw Proposal 15 which is
20 what?
21 COMMISSIONER BARNETT: It deals with applying the
22 code of ethics to members of the Legislature. We
23 discussed it in the ethics committee yesterday with the
24 advice of the people from the ethics commission and
25 decided that this is something that really can be done and
198
1 is being done appropriately legislatively and does not
2 need to be in the Constitution.
3 CHAIRMAN DOUGLASS: All right. Without objection,
4 Proposal No. 15 is withdrawn. Anybody else have anything
5 they want to withdraw? Commissioner Henderson?
6 COMMISSIONER HENDERSON: It is not a withdrawal, it's
7 an announcement on the committee.
8 CHAIRMAN DOUGLASS: All right. But we're on
9 withdrawals at the moment. Is that the only withdrawal?
10 I thought you told me there were some more that were going
11 to be withdrawn.
12 COMMISSIONER BARKDULL: I had some others that came
13 up to me over the course of the day, but I don't see them
14 in the chamber.
15 CHAIRMAN DOUGLASS: They withdraw.
16 COMMISSIONER BARKDULL: Yeah, they withdrew.
17 CHAIRMAN DOUGLASS: All right.
18 COMMISSIONER BARKDULL: I may take care of
19 Commissioner Henderson's problem in a minute here.
20 CHAIRMAN DOUGLASS: All right. Go ahead.
21 COMMISSIONER BARKDULL: I want to make a motion that
22 all the bills, all the proposals that are in committees
23 the time for consideration being -- will be extended
24 through Tuesday, January 13th, 1998, that will be the
25 second day that we are up here in January. It gives the
199
1 time for committees to complete their action.
2 CHAIRMAN DOUGLASS: All right. Without objection,
3 that will be done. Commissioner Barnett?
4 COMMISSIONER BARNETT: I don't know if I want to
5 object, but I don't know that I know what that means
6 either.
7 CHAIRMAN DOUGLASS: What that means is that instead
8 of having them set for the first day we are here, they
9 will be set for the second day we are here in committee.
10 COMMISSIONER BARKDULL: Right now, if we don't extend
11 the time for the committees to consider the matters that
12 are before them, they will all come out and be on the
13 calendar and we won't be in here in January.
14 CHAIRMAN DOUGLASS: But you could have a committee
15 meeting before we even come up here if everybody comes
16 into committee, but it will have to be noticed.
17 COMMISSIONER BARNETT: The question I have is whether
18 that announcement says that the last substantive committee
19 meetings we're going to have will be January 13th.
20 CHAIRMAN DOUGLASS: No.
21 COMMISSIONER BARKDULL: Unless -- it will be up to
22 the chairs of the committees to come in and ask that the
23 time be extended. Under the rules, they can do that. If
24 they don't do it, it is automatically going to go to the
25 calendar with no recommendation.
200
1 CHAIRMAN DOUGLASS: What he has done here is extend
2 the time which we had to, it has to be by motion, which
3 he's made the motion to extend the time for all the
4 matters pending before committee through the meeting of
5 January 13th.
6 COMMISSIONER BARNETT: So does that mean that the
7 only day of that week that we are going to have committee
8 meetings is January 13?
9 CHAIRMAN DOUGLASS: No, it does not. Because you
10 could ask that you be noticed for another day too.
11 COMMISSIONER BARNETT: There are several reasons --
12 CHAIRMAN DOUGLASS: It is up to the chairman now.
13 COMMISSIONER BARNETT: There are several reasons for
14 my question and my concern. One is I didn't fully
15 understand what Commissioner Barkdull was saying.
16 Secondly, there are a number of very substantive matters
17 that are still in committee and one of the problems in
18 addressing those matters has been the short time frame
19 within which we had notice of committee meetings and
20 notice of matters coming before the meetings and the fact
21 that they were changed at the last minute. Now that's
22 understandable because of the deadlines and dates the
23 staff was working under but it has presented just some
24 scheduling issues.
25 The last time I talked with the staff about getting
201
1 dates certain for some of the committee meetings we were
2 even talking about they may schedule meetings at the end
3 of January. So I'm a little confused as to --
4 CHAIRMAN DOUGLASS: Don't be confused.
5 COMMISSIONER BARNETT: Well, that's why I have asked
6 the question.
7 CHAIRMAN DOUGLASS: The only thing now, and I want to
8 explain this, and listen to me closely, and I watch Perry
9 Mason too, listen to me very closely. The committees are
10 all extended under the rule. They wouldn't be extended
11 under the rule if you passed this motion through the
12 meeting of Tuesday, the 13th of January. All committees
13 will be scheduled for that day or they are noticed for
14 that day. That is subject to the chairman coming in and
15 asking to extend the committees or to set them at another
16 time certain after January 13th.
17 Now I want to tell you that your concern is well
18 placed but we had adequate notice for this week for
19 committees and we didn't have a quorum in three or four
20 and it wasn't because of notice. It is because people
21 decided they didn't want to come or had made other plans
22 and didn't come.
23 So what he is telling you now is, rather than try to
24 set them on Monday, we are going to have the commission
25 meeting on Monday, they are extended through the 13th of
202
1 January. But that's not the end if you come back and ask
2 for an extension. That ought to be clear.
3 COMMISSIONER BARNETT: That is clear and my questions
4 have nothing to do with the quorum issues. I concur in
5 your concern about that. My questions have to do with
6 trying to schedule people to appear before those
7 committees and to have some idea of the dates that we are
8 looking at and whether that Tuesday is the last day for a
9 committee meeting and if it is not, it is very important
10 that we know those dates from the committee chairman or
11 the rules committee far enough in advance particularly
12 because we have the Christmas holidays before us, one, so
13 other members can come. And secondly, so we know the
14 agenda and can have time certains for some of those
15 issues.
16 CHAIRMAN DOUGLASS: Commissioner Barkdull?
17 COMMISSIONER BARKDULL: In response to that, if this
18 motion is not passed, everything that is in the committees
19 will be on the calendar for Monday the 12th with no
20 recommendation. So that's where we stand today without
21 this motion. If you extend the time until the conclusion
22 of the work on the 13th, the committees will have an
23 opportunity, and all our chairs have to do is to request
24 of the staff when they want to set, and they are going to
25 have to set them on the 13th to get people here because we
203
1 are running out of time. And that is the purpose of the
2 motion is to try to bring this thing to a conclusion.
3 CHAIRMAN DOUGLASS: All right. Commissioner Nabors,
4 question?
5 COMMISSIONER NABORS: Mr. Chair, I understand the
6 motion and the reason for the motion. But if a committee
7 chairman wants to have committee meetings in February, is
8 that contemplated?
9 COMMISSIONER BARKDULL: He's going to have to come
10 and ask for it. Right now I think it would not look with
11 favor unless it was a select committee on some issue that
12 came up that has not been before the body before and been
13 referred to a committee.
14 COMMISSIONER NABORS: And we make the decision here
15 in January or how is that decision made?
16 COMMISSIONER BARKDULL: If it was the prerogative of
17 the commission to have a select committee on a matter that
18 would be something that arose in January, then obviously
19 the committee would have to meet sometime subsequent to
20 when that incident occurred. But I think the subject
21 matters that have been referred to committee --
22 CHAIRMAN DOUGLASS: If we don't leave, we are not
23 going to have a quorum.
24 COMMISSIONER BARKDULL: The subject matters that have
25 been referred to the committees, they need to draw closure
204
1 on them and not keep extending this time. I'm going to
2 get down to that in a little more --
3 CHAIRMAN DOUGLASS: Just to alleviate your pain, it
4 is up to the committee chairman to move to set these
5 meetings beyond the 13th if they have a cause and they
6 have to make the motion when we get here. The thing that
7 is causing the problem is people don't come and don't want
8 to have enough meetings. Now between now and the 13th, if
9 some --
10 COMMISSIONER BARKDULL: You can have all the meetings
11 you want.
12 CHAIRMAN DOUGLASS: That's right. Between now and
13 the 13th of January, if you want to call your committee up
14 here to have a meeting of your committee, you may do so.
15 All you have to do is get the chairman to call the meeting
16 and notice it and you can bring your people, Commissioner
17 Barnett, on January the 5th, 6th, 7th, 8th, if your
18 committee needs.
19 COMMISSIONER BARKDULL: Or the morning of the 12th.
20 CHAIRMAN DOUGLASS: But now after the 13th it is
21 going to require, again, the chairman to move for an
22 extension of time for the committee to meet and that's
23 what Commissioner Barkdull is trying to say because we are
24 trying to complete the bulk of our work by February and
25 the way we are going, we are not going to do it.
DIVISION OF ADMINISTRATIVE HEARINGS (904) 488-9675
205
1 COMMISSIONER BARNETT: Mr. Chairman, I'm sorry to
2 make this -- this is not meant to be an adversarial
3 question in any way at all, it is really meant to try to
4 clarify the committee's schedule. And you and
5 Commissioner Barkdull may fully understand where you are
6 but some of us don't and it is really meant in the spirit
7 of trying to clarify. Is there a reason, Commissioner
8 Barkdull, that you could not have that date, the 13th,
9 through that -- the end of that week?
10 COMMISSIONER BARKDULL: Yes, ma'am, because we are
11 trying to get to the conclusion on some of these matters.
12 And if we wait until the end of that week, it will be what
13 happened yesterday afternoon. Some very crucial matters
14 were temporarily passed and not acted upon that need to be
15 addressed. And we don't want to see that happen on
16 Thursday in January.
17 CHAIRMAN DOUGLASS: Okay. Let's vote on the motion.
18 Commissioner Jennings.
19 COMMMISSIONER JENNINGS: Mr. Chairman, in support of
20 Commissioner Barnett as a request to our rules chairman,
21 perhaps if you give us the drop dead of through the end of
22 that week and that in fact you will not allow it to go any
23 further, that will allow us, as the chairman, to say, put
24 up or shut up, you know, we need you there, your
25 proposals, both the committee and those who are providing
206
1 proposals in front of us. And, in fact, probably some of
2 the committees, I know we had -- I had several of our
3 commissioners who had proposals in front of education
4 yesterday but they were really tied up and needed to be in
5 their committee or they would have broken the quorum
6 there. So maybe we can get into a little management.
7 CHAIRMAN DOUGLASS: You make a substitute motion?
8 COMMMISSIONER JENNINGS: Well, I'd like to offer the
9 substitute motion.
10 CHAIRMAN DOUGLASS: That it be through the end of
11 the --
12 COMMISSIONER BARKDULL: Through the end of the week
13 of the 12th and that's it.
14 CHAIRMAN DOUGLASS: All right. But recognize that
15 during that time we are going to have committee -- I mean,
16 commission session so they may have to be at night.
17 COMMISSIONER BARKDULL: Right. Right.
18 CHAIRMAN DOUGLASS: Now the substitute motion, which
19 has been accepted by the movant, would extend the time,
20 Commissioner Barnett, through the end of that week and
21 that's the drop dead date and you are going to have to
22 un-drop dead if you go beyond that. All those in favor of
23 that motion please say aye. Opposed?
24 (Verbal vote taken.)
25 CHAIRMAN DOUGLASS: It does carry. Now there are
207
1 other announcements. Go ahead.
2 COMMISSIONER BARKDULL: I want to call your attention
3 that in the time we spent this morning, we took up nine
4 items. If you divide the time we used, we spent a half
5 hour on each one of them. Remaining on the calendar that
6 we did not reach are 26 items. If we use the same amount
7 of time, that's 13 hours that's going to be needed that
8 does not include any of the matters that are in your
9 committees now. I call your attention to that because I
10 want you to get some idea of the volume of time or
11 quantity of time, I don't know about quality, but quantity
12 of time that's going to be needed to address these
13 matters.
14 Now the committee is going to take into consideration
15 the suggestion by Commissioner Zack that we go to 7:00 on
16 some evenings. We are going to consider starting at 8:30
17 on most mornings except the first morning of any period
18 and try to address these different issues. I want to
19 thank all 27 of you that stayed here because I think the
20 debate has been good. I think we have moved everything
21 through with everybody having their opportunity to speak.
22 But I think you can see from the time constraints
23 that we are going to have to have more time in this
24 session. And that's another reason why we have got to
25 conclude the committee work. And beyond that, Mr. Chair,
208
1 and wishing everybody a happy holiday, that's --
2 CHAIRMAN DOUGLASS: Before you do that, thank you for
3 the happy holiday, Santa Claus, you are such a happy Santa
4 Claus, you know, we need to all give a big hand and thank
5 the Senate staff, they have really worked hard for us.
6 (Applause.)
7 CHAIRMAN DOUGLASS: And the secretary said I only had
8 to correct her once and I was wrong then. So we have done
9 very well. And I guess we can all join in wishing each
10 other and all of us a happy holiday and see you in
11 January, if not before. Commissioner Barkdull?
12 COMMISSIONER BARKDULL: I move we recess until
13 Monday, January 12th, and you will receive the notice.
14 CHAIRMAN DOUGLASS: All in favor say aye. It
15 carries. We all go home.
16 (Session adjourned at 1:35 p.m.)
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209
1 CERTIFICATE
2
3 STATE OF FLORIDA:
4 COUNTY OF LEON:
5
WE, JULIE L. DOHERTY, KRISTEN L. BENTLEY,
6 and MONA L. WHIDDON, Court Reporters, certify that
we were authorized to and did stenographically report
7 the foregoing proceedings and that the transcript is a
true and complete record of our stenographic notes.
8
9 DATED this ______ day of ____________, 1997.
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_________________________________
12 JULIE L. DOHERTY, RPR
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14 _________________________________
KRISTEN L. BENTLEY
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17 MONA L. WHIDDON
COURT REPORTERS
18 DIVISION OF ADMINISTRATIVE HEARINGS
1230 APALACHEE PARKWAY
19 TALLAHASSEE, FLORIDA 32399-3060
(904) 488-9675
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DIVISION OF ADMINISTRATIVE HEARINGS (904) 488-9675
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