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1 STATE OF FLORIDA
CONSTITUTION REVISION COMMISSION
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6 DATE: January 12, 1998
7 TIME: Commenced at 1:00 p.m.
Concluded at 6:15 p.m.
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PLACE: The Senate Chamber
9 The Capitol
Tallahassee, Florida
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REPORTED BY: MONA L. WHIDDON
11 KRISTEN L. BENTLEY
JULIE L. DOHERTY
12 Court Reporters
Division of Administrative Hearings
13 The DeSoto Building
1230 Apalachee Parkway
14 Tallahassee, Florida
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1 APPEARANCES
2 W. DEXTER DOUGLASS, CHAIRMAN
3 CARLOS ALFONSO
CLARENCE E. ANTHONY
4 ANTONIO L. ARGIZ
JUDGE THOMAS H. BARKDULL, JR.
5 MARTHA WALTERS BARNETT
ROBERT M. BROCHIN
6 THE HONORABLE ROBERT A. BUTTERWORTH
KEN CONNOR
7 CHRIS CORR (EXCUSED)
SENATOR ANDER CRENSHAW (EXCUSED)
8 VALERIE EVANS
MARILYN EVANS-JONES
9 BARBARA WILLIAMS FORD-COATES
ELLEN CATSMAN FREIDIN
10 PAUL HAWKES
WILLIAM CLAY HENDERSON
11 THE HONORABLE TONI JENNINGS (EXCUSED)
THE HONORABLE GERALD KOGAN
12 DICK LANGLEY
JOHN F. LOWNDES
13 STANLEY MARSHALL
JACINTA MATHIS (EXCUSED)
14 JON LESTER MILLS
FRANK MORSANI
15 ROBERT LOWRY NABORS
CARLOS PLANAS
16 JUDITH BYRNE RILEY
KATHERINE FERNANDEZ RUNDLE (EXCUSED UNTIL 2:05)
17 SENATOR JIM SCOTT
H. T. SMITH
18 CHRIS T. SULLIVAN (EXCUSED)
ALAN C. SUNDBERG (EXCUSED)
19 JAMES HAROLD THOMPSON
PAUL WEST
20 JUDGE GERALD T. WETHERINGTON (EXCUSED)
STEPHEN NEAL ZACK
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PAT BARTON
22 IRA H. LEESFIELD
LYRA BLIZZARD LOGAN (ABSENT)
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1 PROCEEDINGS
2 (Roll taken and recorded electronically.)
3 SECRETARY BLANTON: All commissioners indicate your
4 presence. All commissioners indicate your presence.
5 Happy New Year. (Pause.) All commissioners indicate your
6 presence. All commissioners indicate your presence.
7 CHAIRMAN DOUGLASS: All right. If you will take your
8 seats, please. Take your seats please. Everyone in their
9 seats.
10 SECRETARY BLANTON: Quorum present, Mr. Chairman.
11 CHAIRMAN DOUGLASS: I would like to call on
12 Commissioner Evans to give the prayer. If everybody would
13 rise, please. Let us pray.
14 COMMISSIONER EVANS: Our Heavenly Father, we thank
15 you for your ever presence, thank you for your guidance.
16 Open our hearts so we will be allowed to vote as you guide
17 today, amen.
18 (Pledge of Allegiance.)
19 CHAIRMAN DOUGLASS: Before we begin our daily order
20 of business, I would like to take a few minutes to take a
21 brief overview of where we are and where we are going as
22 we start the new year. The bulk of our work will be in
23 full commission meetings.
24 Our aim is to have all preliminary votes taken by the
25 last week in February so the style and drafting committee
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1 can work on the amendments that have been preliminarily
2 approved. In March, we have scheduled three public
3 workshops to receive feedback on those amendments and then
4 we'll meet again in the spring to take our final votes.
5 As you can tell by that schedule, the bulk of our
6 time commitment is going to be January and February, as we
7 take preliminary votes on these proposals. I'm asking
8 that you clear your calendars accordingly and that you,
9 over the next two months, and that you renew your
10 commitment to the commission and its work. And I thank
11 you, as chairmen, for the fine work that's been
12 accomplished thus far.
13 Before we get to the daily order of business, there
14 are a couple of announcements that I would like to make.
15 Commissioner Carlos Alfonso has graced the state of
16 Florida with another little Alfonso in your absence. He
17 has a new daughter named Isabella Katherine Alfonso, who
18 is his third child. (Applause.) We would like to express
19 our condolences to Dorothy, as we have before, for having
20 married you, but congratulate her on this fine achievement
21 and we are very proud of that.
22 I would like to also recognize the death of one of
23 our commissioners on the '68 commission, Mr. Joe Jacobs,
24 Joseph C. Jacobs, an attorney here in Tallahassee, was 74
25 years old. He died Saturday with a heart attack. His
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1 funeral is tomorrow at 3:00 in the First Baptist Church.
2 Mr. Jacobs was one of the truly outstanding Floridians in
3 his career.
4 And I know Commissioner Barkdull served with him in
5 '68 and has known him a long time. You might want to say
6 something in that regard. Commissioner Barkdull, you are
7 recognized.
8 COMMISSIONER BARKDULL: Thank you Mr. Chairman,
9 members of the commission. In reflecting on Joe Jacobs'
10 service on the '68 constitution, I am reminded of the
11 wisdom he brought to that body. In the old Senate chamber
12 that we had, he sat about where Commissioner Langley's
13 desk is now. He was of immeasurable aid to the commission
14 because there were a lot of knotty problems that got sent
15 to select committees.
16 The select committee usually had three people on it;
17 a strong person for the proponents, a strong person for
18 the opponents, and the person that was the conciliator was
19 Joe Jacobs. And many, many times he got us through many
20 thorny problems with his quiet wisdom and demeanor. He
21 was an ardent student of the Constitution revision. And
22 as recently as of last August or September, I had the good
23 fortune to spend a breakfast with him and receive his
24 input as to what he thought this commission ought to be
25 considering.
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1 Florida has lost a true citizen, a true person
2 interested in government, and interested in government not
3 only for his clients, but for the good of the people of
4 Florida. And he will be sorely missed.
5 CHAIRMAN DOUGLASS: Thank you, Commissioner Barkdull.
6 I would like to ask the commission, if you would please,
7 for a moment of silent prayer in memory of Joe and for his
8 survivors.
9 (Pause.)
10 CHAIRMAN DOUGLASS: Before we get started again, I
11 would like to first call your attention to the group of
12 articles that occurred in yesterday's Tallahassee
13 Democrat. I think they are on your desk. In spite of the
14 fact that they had Commissioner Connor and Commissioner
15 Smith there scaring everybody that picked it up, it was
16 just an outstanding piece of work. Incidentally, those
17 were very good pictures, gentleman. And it was cleaned
18 up, as I understand, by having Commissioner Ford-Coates'
19 picture, which certainly improved that a lot.
20 But the articles that were written were, without a
21 doubt, one of the most thoughtful things we had in the
22 press and well presented. And I think I would like to
23 recognize that and recommend that you read it. And it
24 gives us a lot to think about too, because articles were
25 there by law students on certain chosen subjects, as well
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1 as some of the other things in the editorial that we are
2 considering and recommendations.
3 They weren't as much recommendations as what you
4 usually see as they were informative about the subject
5 matter that we are dealing with. And it was very much
6 appreciated.
7 As far as members that are not present today, there
8 are some who are excused. Commissioner Corr was
9 unavoidably scheduled so that he couldn't get here, and he
10 will arrive and be here from Wednesday on. Commissioner
11 Jennings is likewise, it's impossible for her to be here
12 today and tomorrow, but she will be here from Wednesday
13 through the rest of the week. Commissioner Rundle should
14 be here shortly. She had -- was unable to come last night
15 and was on a plane that should be arriving about now.
16 Commissioner Sullivan had a death in his family in
17 Kentucky and we are not sure when he will arrive. But he
18 has not returned so that he is in a position to serve here
19 today. Commissioner Wetherington is at a function which
20 requires his absence all week. Commissioner Mathis, who
21 is not here today, will be here on Tuesday, tomorrow.
22 And Commissioner Sundberg, I'm informed that his son
23 is seriously ill with cancer. Is that right, Justice
24 Kogan? I think he's had it for some time. You might
25 report on Commissioner Sundberg, but he's excused. Take
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1 the mike.
2 COMMISSIONER KOGAN: What's that?
3 CHAIRMAN DOUGLASS: A little help from Commissioner
4 Mills, he's showing you where the mike was.
5 COMMISSIONER KOGAN: It's very, very, very serious,
6 about as serious as you can possibly get. He's there now
7 and we wish them all the best in everything.
8 CHAIRMAN DOUGLASS: All right. If any of you have an
9 opportunity, you might want to convey our support and
10 prayers for Commissioner Sundberg and his family. Those
11 are the only excuses that we have. Others that are absent
12 are absent without excuses and I presume will appear at
13 some point.
14 We are ready, I think, to proceed to the daily order
15 of business. Do we have any communications to receive?
16 READING CLERK: None on the desk, Mr. Chairman.
17 CHAIRMAN DOUGLASS: Of course, we don't introduce
18 proposals, they are all introduced. And Commissioner
19 Barkdull is recognized to report from the committee on
20 rules and administration. Commissioner Barkdull.
21 COMMISSIONER BARKDULL: Thank you, Mr. Chairman,
22 members of the commission. You have on your desk the
23 printed calendar that shows the committee meetings,
24 blocked out calendar for the week and commencing on Page 4
25 is a proposed special order calendar for today. If we
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1 don't complete that, it would be the thought of the rules
2 committee that this same calendar would go over to
3 tomorrow.
4 At this time, Mr. Chairman, I would like to move that
5 special calendar as proposed and shown in the written
6 calendar be approved.
7 CHAIRMAN DOUGLASS: Without objection the special
8 order calendar is approved. It is approved. Proceed,
9 Commissioner Barkdull.
10 COMMISSIONER BARKDULL: On your desk, Commissioners,
11 you will find an orange packet. This packet contains an
12 explanation of each of the proposals as they come up in
13 the order in which they are on the special order calendar.
14 There's one change, which is 151, it's almost at the end
15 of it, it was a misprint. The corrected version is
16 inserted in your packet. Please hang on to this because I
17 doubt we will finish it today and you will need it
18 tomorrow, and this will be -- will not be redistributed.
19 There will be a supplemental calendar prepared for
20 tomorrow, which will also have a color binder on it that
21 will contain the additional items that will be coming
22 before the commission. And that will be distributed to
23 you as we reach those items.
24 You also have on your desk what you have also
25 received in the mail, again, the proposed calendar for the
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1 rest of the meetings. I urge you to consider these. I
2 would say to you, as the Chair has indicated, meetings for
3 January and February are pretty much locked in. I don't
4 think they are going to be changed any.
5 There's a possibility that the public hearings may be
6 adjusted a day or so, one way or the other, as to what
7 appears. We will try to get that information to you as
8 soon as possible. One of the problems that we are running
9 into this time of the year with the tourist influx is
10 finding sufficient accommodations for the commission to
11 hold public hearings outside of Tallahassee, which we do
12 plan to do.
13 There will certainly be one public hearing in the
14 Tampa Bay area, one public hearing in Southeast Florida,
15 and one public hearing in Tallahassee. That is the
16 present program.
17 The select committee on Article V costs is scheduled,
18 as you see, to meet this afternoon at 5:00. They will not
19 meet because of the situation with Justice Sundberg. They
20 will meet probably sometime later on in the week, and that
21 time will be announced when they have decided to have that
22 meeting.
23 The rules and calendar committee is scheduled to meet
24 at 6:00 this evening. The primary work this afternoon
25 would be to set tomorrow's calendar. They have had
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1 distributed to the members of that committee what we would
2 propose to set for tomorrow and there will be a further
3 announcement about whether there will actually be a rules
4 committee meeting as we proceed in the afternoon.
5 Some of you commissioners have indicated that you
6 want to withdraw your proposals. I call to your
7 attention, as we get to the end of the sessions, that all
8 of those who think that they should withdraw proposals
9 should stand up and make such an announcement. You may
10 find as we go through the work of the special order, some
11 of the items you have alive today, you may decide after
12 the result of what happens in the earlier vote that you do
13 not want that continued. If that should occur, please
14 make a note of the proposal and let's withdraw it.
15 I understand that Commissioner Nabors has a motion to
16 correct the journal for one item that was misprinted that
17 he wished to withdraw, they got the wrong number on it.
18 If the commissioner would take the floor and give us that
19 number, we'll get it in the record.
20 CHAIRMAN DOUGLASS: I recognize Commissioner Nabors.
21 COMMISSIONER NABORS: I also have one I would like to
22 withdraw. Do you want me to the wait until the end of the
23 day?
24 COMMISSIONER BARKDULL: Either way.
25 COMMISSIONER NABORS: The correction to the journal
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1 would be that I inadvertently withdrew Proposal 65,
2 Senator Langley's proposal on initiative.
3 CHAIRMAN DOUGLASS: Well, he isn't here.
4 COMMISSIONER NABORS: It's up to the Chair. I should
5 have withdrawn Proposal 175, which is identical to my
6 Proposal 96 which is on the calendar. So I would move, I
7 guess --
8 CHAIRMAN DOUGLASS: Without objection, the calendar
9 shall be so corrected.
10 COMMISSIONER NABORS: There's also a Proposal 92,
11 which is on the agenda for the local government, which is
12 a proposal relating to noncharter counties, which I would
13 like to withdraw. The people that are interested in that,
14 I have communicated to them and we'll use that as an
15 amendment if there's an appropriate vehicle. But it's not
16 of significant importance that we should have it as a
17 separate item.
18 CHAIRMAN DOUGLASS: Do you know the number?
19 COMMISSIONER NABORS: Proposal 92.
20 CHAIRMAN DOUGLASS: Without objection, Proposal 92 is
21 withdrawn from further consideration. Commissioner
22 Barkdull.
23 COMMISSIONER BARKDULL: At this time, I would like to
24 defer to Commissioner Connor who has a motion he would
25 like to make.
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1 CHAIRMAN DOUGLASS: Commissioner Connor, you are
2 recognized.
3 COMMISSIONER CONNOR: Thank you, Mr. Chairman. I
4 rise to request that the body waive the rules and permit
5 me to file a late-filed proposal.
6 The commission may recall that there was testimony
7 during the public hearings in Gainesville on religious
8 freedom issues and the standard of scrutiny that should be
9 applied to laws which burden religious practices. The
10 Liberty Council's proposal was sent to me while I was
11 actually in trial down in Sebring, and the deadline for
12 passage came and went. And those materials remained
13 unopened in my hotel room while I was in trial. So I was
14 unable to file it within the time line and I would
15 respectfully request a waiver of the rules to be able to
16 file that proposal.
17 CHAIRMAN DOUGLASS: Without objection the rules are
18 waived and it will be considered filed and referred to the
19 declaration of rights committee who will meet again this
20 week for consideration this week.
21 Commissioner Smith, I believe, is chairman. Your
22 committee met today, too. You were here before everybody
23 else at 9:00. So you have another meeting scheduled this
24 week and I'll refer it to that, without objection, to that
25 committee. Is that agreeable? It is so done.
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1 Commissioner Barkdull.
2 COMMISSIONER BARKDULL: That concludes the report of
3 the rules and administration.
4 CHAIRMAN DOUGLASS: All in favor say aye.
5 (Verbal vote taken.)
6 CHAIRMAN DOUGLASS: Opposed like sign. Motion very,
7 very silently carried.
8 I have been informed that Proposal 17 on the special
9 order today received and was voted in the declaration of
10 rights committee. Correct me if I'm wrong, Commissioner
11 Smith, to reconsider it in committee; is that correct?
12 COMMISSIONER SMITH: That's correct, Mr. Chairman.
13 There will be a vote for reconsideration tomorrow at the
14 9:00 to 12:00 meeting. So we ask that it not be dealt
15 with today by the full commission.
16 CHAIRMAN DOUGLASS: Without objection, we will
17 temporarily -- well, I guess it would be simpler to
18 recommit it to the declaration of rights committee for
19 action on reconsideration tomorrow. Without objection, it
20 is recommitted. That is Proposal No. 17, which was
21 providing that no person shall be deprived of any right
22 because of gender or sexual orientation, and that is
23 recommitted to the declaration of rights committee for
24 reconsideration tomorrow. It had been reported
25 disapproved previously.
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1 Commissioner Riley, Is that your proposal or is it a
2 combination of yours and somebody else's?
3 COMMISSIONER RILEY: No.
4 CHAIRMAN DOUGLASS: You have no objection to that?
5 COMMISSIONER RILEY: I do not.
6 CHAIRMAN DOUGLASS: Commissioner Barkdull, does that
7 conclude your report?
8 COMMISSIONER BARKDULL: Yes, sir.
9 CHAIRMAN DOUGLASS: We'll move to the special order.
10 The first proposal is committee substitute for committee
11 substitute for Proposal 45 by the committee on executive
12 and legislative and by Commissioner Henderson. There are
13 two amendments on the table. First I'll ask the clerk to
14 read the proposal.
15 READING CLERK: Committee substitute for committee
16 substitute for Proposal 45. A proposal to revise Article
17 IV, Section 9, Florida Constitution, creating the Fish and
18 Wildlife Conservation Commission to be composed initially
19 of the existing members of the Game and Fresh Water Fish
20 Commission and the Marine Fisheries Commission and
21 providing for the powers and duties of the commission.
22 CHAIRMAN DOUGLASS: All right. Would you read the
23 first of the two amendments? They have been moved already
24 by Commissioner Henderson and the committee so we'll
25 proceed with the amendment.
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1 READING CLERK: By Commissioner Thompson. On Page 3,
2 Line 5, after the word "commission" insert "statutes in
3 effect upon the effective date of this amendment."
4 CHAIRMAN DOUGLASS: Commissioner Thompson.
5 COMMISSIONER THOMPSON: Thank you, Mr. Chairman and
6 members. What this amendment does, and Mr. Henderson and
7 I have worked this out, is basically nail down the
8 jurisdiction of this new commission to -- in respect to
9 marine resources, those that were covered under the
10 statutes in effect on the effective date of this
11 amendment.
12 If you have a copy of the proposed amendment, you
13 will notice that I have referred to the statute
14 specifically, and we don't think that's good
15 draftsmanship. If there's something that needs to be done
16 in the schedule as we go to style and drafting, we'll work
17 through that.
18 CHAIRMAN DOUGLASS: Before we proceed, Commissioner
19 Henderson, this is the proposal that unified the current
20 Game and Fresh Water Fish Commission in the Constitution
21 and to combine with that the Marine Fisheries Commission;
22 is that correct?
23 COMMISSIONER HENDERSON: Yes, sir.
24 CHAIRMAN DOUGLASS: And this amendment --
25 COMMISSIONER HENDERSON: And I have no objection.
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1 CHAIRMAN DOUGLASS: -- what it does, it's been
2 explained by Commissioner Thompson, just clarifies the
3 language to make clear that there's no intent that this
4 commission be given the power to control things that are
5 now legislatively controlled that relates to water,
6 wetlands, things of that nature; is that correct?
7 COMMISSIONER HENDERSON: We have already got that
8 covered, Mr. Chairman.
9 CHAIRMAN DOUGLASS: I think it's already covered, but
10 somebody needs to tell the commission and public what we
11 are talking about here before we vote on it.
12 COMMISSIONER HENDERSON: On the amendment or the
13 whole proposal?
14 CHAIRMAN DOUGLASS: The whole proposal with the
15 amendment. You are recognized, Commissioner Henderson.
16 Commissioner Thompson yields. Thank you.
17 COMMISSIONER HENDERSON: Thank you. What the
18 amendment does, Mr. Chairman and members, is to clarify
19 that what we are dealing with is the current jurisdiction
20 authority of the Marine Fisheries Commission. Now, that's
21 defined in Section 370 of Florida Statutes. We are
22 dealing simply with the very narrow aspect of merging that
23 authority with the new commission. Other issues relating
24 to the current authority of the Department of
25 Environmental Protection as it may be to other things,
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1 some future Legislature is going to have to do. We are
2 not addressing that list.
3 This amendment as offered by Commissioner Thompson
4 helps define this and it's consistent with all the
5 agreements that we have reached with all of the other
6 interested parties.
7 CHAIRMAN DOUGLASS: And you support the amendment?
8 COMMISSIONER HENDERSON: Support the amendment.
9 CHAIRMAN DOUGLASS: Does anybody else want to speak
10 on the amendment, this amendment? There's one coming.
11 The other has been withdrawn? All right. So this is the
12 only amendment under consideration. Do you rise to speak
13 on the amendment?
14 COMMISSIONER BARKDULL: To ask a question.
15 CHAIRMAN DOUGLASS: Commissioner Thompson -- is that
16 who you want to question?
17 COMMISSIONER THOMPSON: I yield.
18 COMMISSIONER BARKDULL: Commissioner Thompson, as I
19 understand it, if this amendment passes what we are doing,
20 if this proposal passes this November, what we are doing
21 is locking into the Constitution a statute; is that
22 correct?
23 COMMISSIONER THOMPSON: Locking into the Constitution
24 a reference to the jurisdiction of the new creation which
25 is defined by the statutes as they exist at that time,
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1 which hopefully will be the same. That would be '98,
2 November of '98. We do have a legislative session between
3 now and then.
4 COMMISSIONER BARKDULL: In effect what it is, it's
5 locking what you have got in your hand, the statute book,
6 into the Constitution, by reference.
7 COMMISSIONER THOMPSON: That's right. 370.027 is the
8 original draft of the amendment before you. I'm changing
9 that language because we don't think it's wise to put a
10 reference to a statutory number in the Constitution, but
11 that is in fact what we are referring to, 370.027, which
12 is entitled, Rulemaking Authority With Respect to Marine
13 Life. That is a statute under which the Marine Fisheries
14 Commission has been operating and their jurisdiction has
15 been defined. That is very narrowly what we are trying to
16 transfer over to the new agency by this proposal.
17 COMMISSIONER BARKDULL: I'm not trying to be an
18 opponent, but I'm concerned about the fact that you have
19 now -- if we do what your amendment proposes and what also
20 is in the proposal by Commissioner Henderson, where it
21 makes a reference to a statute, we lock that statute into
22 the Constitution, the Legislature can't touch it.
23 CHAIRMAN DOUGLASS: My question first -- and you
24 might want a ruling from the Chair on that, Commissioner
25 Barkdull. You are objecting, for example, to whether or
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1 not we can do this; is that right?
2 COMMISSIONER BARKDULL: No, sir, I'm not objecting to
3 whether or not you can do it. I recognize that you can do
4 it.
5 CHAIRMAN DOUGLASS: Well, question: It's my
6 recollection from what he said that this will not be in
7 the Constitution. That this is a part of the schedule
8 which in effect defines what can't be done by the new
9 commission. That's the way I understood his explanation.
10 With that regard, I would rule that it does not lock the
11 statute into the Constitution, if it's presented in that
12 fashion.
13 COMMISSIONER BARKDULL: It was not my understanding
14 that it was going to be presented in the schedule.
15 CHAIRMAN DOUGLASS: Let's clarify it.
16 COMMISSIONER THOMPSON: Let me answer the question
17 based on what I think. What I'm trying to do and what I
18 think is being done here is -- I am a little surprised.
19 If you will hear me out, you will realize what I'm doing.
20 I don't want the Legislature to come back and be able
21 to expand the jurisdiction of this constitutional agency.
22 I want the Legislature to be able to retain the
23 jurisdiction it now has, other than that specifically in
24 this statute. I want that then to go over to the new
25 constitutional agency, but I don't want the Legislature to
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1 be able to keep transferring things into this agency.
2 Now, they are going to have a certain jurisdiction.
3 And my other amendment up there addressed that, but I
4 think it's already covered and Commissioner Henderson has
5 acknowledged that it is already covered, that other than
6 by an act of the Legislature, there will be nothing done
7 further in respect to regulatory matters and so forth,
8 than is presently done. But that can be done in the
9 future, as the Chairman is pointing out.
10 But the jurisdiction itself will not go beyond the
11 jurisdiction of that statute today. Within that context,
12 the regular authority will come and go as the Legislature
13 determines.
14 CHAIRMAN DOUGLASS: All right. There any further
15 comments on the amendment, for or against? If not, all of
16 those in favor of the amendment signify by saying aye.
17 Opposed, like sign.
18 (Verbal vote taken.)
19 CHAIRMAN DOUGLASS: The amendment carries
20 unanimously. We'll now move to the proposal as amended.
21 Commissioner Thompson.
22 COMMISSIONER THOMPSON: Are we there, I want to ask
23 you one question.
24 CHAIRMAN DOUGLASS: I'll give the floor to
25 Commissioner Henderson, and he'll yield to you -- before
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1 he even says anything -- for a question, if you want him
2 to.
3 COMMISSIONER HENDERSON: Mr. Chairman, I was going to
4 be brief in my explanation of the amendment, but to make
5 it even briefer, I would be more than happy to yield to
6 Commissioner Thompson.
7 COMMISSIONER THOMPSON: Thank you, Mr. Chairman. I
8 appreciate it. I didn't know how fast you were rolling,
9 that's the reason I wanted to --
10 CHAIRMAN DOUGLASS: We are rolling, we have got a
11 long way to go.
12 COMMISSIONER THOMPSON: I have heard you say that
13 several times, that's the reason I jumped up.
14 Commissioner Henderson, I just want to be sure, my
15 other proposed amendment, which I have withdrawn, would
16 require that no other duties or responsibilities of any
17 division, commission or agency of state government shall
18 be transferred to the Fish and Wildlife Conservation
19 Commission except by act of the Legislature, and my and
20 your understanding is right now that that is covered in
21 the present language; is that correct?
22 COMMISSIONER HENDERSON: That's correct, Commissioner
23 Thompson. In fact, I want to commend you for the
24 explanation that you gave to Commissioner Barkdull just a
25 few minutes ago because we need to keep in mind that this
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1 is a constitutional commission.
2 So you are exactly right, the things that we give
3 this today are that juncture of regulatory and executive
4 authority which makes this constitutional commission
5 different. A future Legislature can transfer other
6 regulatory authority, but with that would go review by the
7 Administrative Procedure Act and other things. So we
8 believe that we have very narrowly drafted this proposal
9 which is before you today to address those specific
10 issues.
11 CHAIRMAN DOUGLASS: Any proponents? Any opponents to
12 this particular provision? We have discussed this before.
13 COMMISSIONER HENDERSON: Mr. Chairman --
14 CHAIRMAN DOUGLASS: Yes.
15 COMMISSIONER HENDERSON: -- if I could. I appreciate
16 the way that you are trying to move this along and I don't
17 want to talk myself out of it, but I've got to tell you,
18 Mr. Chairman, I have tried to tell a story every time I
19 have taken --
20 CHAIRMAN DOUGLASS: Well, we love your stories
21 because I remember the miracle that occurred in Daytona
22 Beach.
23 COMMISSIONER HENDERSON: It was a miracle. I've got
24 to tell you last night -- this is my story from last
25 night.
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1 It was a pretty night, full moon, my son and I walked
2 across the street and we convinced a couple of speckled
3 trout to come out of the water and talk to us last night,
4 with a rod and reel. And it got a little chilly and we
5 came back. My boy is seven years old. He said, Daddy,
6 tomorrow how about picking me up from school and we'll go
7 fishing. And I said, Craig, I can't do that because I
8 have got to go to Tallahassee.
9 And he said, Dad, you are going to Tallahassee too
10 many times, too many times. Tell me, tell me the truth.
11 Are you really going there to go fishing and you are not
12 taking me? I said, Craig, it's more than you would ever
13 believe, what we're doing. So let's talk about fishing
14 and get this done this afternoon.
15 And somebody else has been quiet over there, a new
16 daddy. And I want to thank, of course, Commissioner
17 Thompson for all of the work that he's put in this
18 legislative committee, but there's another proud, proud
19 daddy of this proposal, which is the chairman of the
20 executive committee, Commissioner Alfonso, who is
21 passionate about this issue as well. And I told him that
22 we were not going to take this up until he got here and
23 I'm glad he got here to cast a vote in favor of this.
24 CHAIRMAN DOUGLASS: Very well, if there's no further
25 discussion, and if we'll have no more love-ins, then we'll
25
1 proceed to vote on this particular proposal, Proposal
2 No. 45, as amended.
3 Would you read it again?
4 READING CLERK: Committee substitute for committee
5 substitute for Proposal 45. A proposal to revise Article
6 IV, Section 9, Florida Constitution, creating the Fish and
7 Wildlife Conservation Commission to be composed initially
8 of the existing members of the Game and Fresh Water Fish
9 Commission and the Marine Fisheries Commission and
10 providing for the powers and duties of the commission.
11 CHAIRMAN DOUGLASS: All right. Unlock the machine.
12 Has everybody voted? Lock the machine.
13 (Vote taken and recorded electronically.)
14 READING CLERK: Twenty-four yeas and zero nays,
15 Mr. Chairman.
16 CHAIRMAN DOUGLASS: Good work, Commissioner
17 Henderson, your fishing paid off.
18 All right. Proposal 123 by Commissioner Barkdull.
19 Would you read that, please, sir?
20 READING CLERK: Proposal 123, a proposal to revise
21 Article XI, Florida Constitution, repealing Section 6
22 relating to the taxation and budget reform commission.
23 CHAIRMAN DOUGLASS: Commissioner Barkdull.
24 COMMISSIONER BARKDULL: Mr. Chairman and members of
25 the commission, this is a very simple proposal. We had
26
1 testimony at the Orlando meeting by Pat Turnillo who has
2 been a member of the only budget and tax commission that
3 we have had, that he didn't think that it should be
4 considered continued in the Constitution. Commissioner
5 Barnett also served on the only one that we have had and
6 it was -- my conversations with her other than today was
7 that she wasn't so sure that it was a good thing.
8 I particularly don't like the vote system that's in
9 there because it enables four people to stop what that
10 body does. I understand Commissioner Barnett is preparing
11 an amendment which should be on the desk.
12 CHAIRMAN DOUGLASS: It isn't here yet.
13 COMMISSIONER BARKDULL: Well, the purpose of her
14 amendment would be to straighten out the vote problem.
15 But that still leaves the question of whether we want to
16 have this as an independent body that calls for
17 approximately 25 voting members and four nonvoting
18 members, which is approximately the same size as this
19 commission, and of course, will require substantial funds.
20 There was an amendment to the Florida Constitution in
21 1996, which permits the revision commission, us or
22 subsequent ones, to take up tax matters. That was not
23 true prior to '96 from the effective date of the original
24 passage of the budget and tax commission. So, now, there
25 are two bodies that have this jurisdiction; a
27
1 Constitutional Revision Commission and a budget and tax
2 reform commission.
3 I don't know whether we necessarily need the
4 duplicates. I know one thing, if we were going to
5 continue it, the proposal, amendment that Commissioner
6 Barnett is going to offer would at least make it a better
7 bad provision. And I urge the passage of it.
8 CHAIRMAN DOUGLASS: The present proposal moves to
9 abolish the tax and budget reform commission and
10 Commissioner Barnett rises to offer an amendment, which
11 isn't here yet. Or is it?
12 COMMISSIONER BARNETT: Am I recognized?
13 CHAIRMAN DOUGLASS: You are recognized. You have got
14 to start getting this done earlier, Commissioner. I mean,
15 you know, you are just our star member.
16 COMMISSIONER BARNETT: Flatter me before you shoot
17 me, right?
18 CHAIRMAN DOUGLASS: I recognize learned Commissioner
19 Barnett.
20 COMMISSIONER BARNETT: Thank you, Mr. Chairman. And
21 I do apologize for the delay of this. But the staff has
22 prepared an amendment, let me explain it to you and maybe
23 give you just a minute of background about my position on
24 this issue.
25 I was a little schizophrenic, as Commissioner
28
1 Barkdull may have indicated. I had the privilege of
2 serving on the taxation and budget reform commission. And
3 I found it one of the most educational experiences of my
4 life. I do a lot of tax work in my private practice of
5 law, and I found it to be just enormously helpful to me in
6 understanding the tax structure of the state of Florida
7 and the challenges that we have in the state of Florida as
8 a result of our unique tax structure.
9 It was also the most frustrating experience of my
10 professional career for a number of reasons. But one of
11 the main reasons, as I've reflected upon it, was not the
12 frustration with the commission itself, because it is a
13 tax and budget commission. Many of the budget proposals
14 were actually adopted. Some of them are now being refined
15 and modified, but many of those budget proposals that went
16 to accountability of state government were adopted. None
17 of the tax proposals, the proposals to restructure the tax
18 system were adopted.
19 So it's very frustrating to be a citizen of the state
20 that was the fastest growing state in the country, and we
21 really could not address what in many ways is an arcane
22 and outdated tax structure in a tax commission. So I
23 found it frustrating and felt like, well, let's let the
24 Constitution Revision Commission address it, it is an
25 appropriate body as well.
29
1 I now having been in this commission, serving on the
2 tax committee, and while that committee has worked hard
3 and continues to work hard to address some issues that are
4 important to the tax structure of this state, I do not
5 believe that there is time in that process, in this
6 process, to give the thoughtful and much needed review on
7 a periodic basis of the entire tax and budget structure of
8 our state.
9 I think we are in a position where duplication may be
10 all right in this particular area, that there is much to
11 be gained from the deliberate and intensive look at the
12 tax bonding and budgeting aspects of our state government.
13 And so I have come to the conclusion that it is very good
14 for Florida, particularly as we go into the, you know, the
15 next millenium and as our state faces enormous challenges
16 in terms of funding government, investing in human
17 capital, and in securing for our citizens the type of life
18 in this state they want.
19 What is wrong with this proposal is the cumbersome,
20 in fact, almost impossible system that the Constitution
21 places on the voting. There are, as with us, three people
22 appoint the members of the commission; the Governor, the
23 Speaker and the President.
24 But unlike our commission, the Constitution currently
25 specifies the minimum number of votes that are required in
30
1 order for the proposal to be on the ballot and requires
2 not only a super majority vote, but that a majority of
3 each of the members of the appointing body have to also be
4 in favor. And as Commissioner Barkdull indicated, that
5 allows a very small number of people to actually impact
6 and control what goes on the ballot.
7 It was done in an abundance of caution, and to make
8 sure that only considered, consensus positions went on the
9 ballot. I think it had the unintended consequence of
10 really hamstringing the commission in its work and in its
11 ability to present a proposal to the citizens.
12 So the substitute proposal that I have prepared
13 continues the tax and budget reform commission, but
14 strikes the language in the Constitution, and I'll be glad
15 to read that language to you, it is Article XI, Section 6,
16 it strikes the language which requires -- which sets forth
17 and mandates the voting procedure for the commission. And
18 that is in Section 6, Subsection C. I don't know where it
19 is, maybe it's coming right now. And if I keep
20 filibustering maybe it'll get on the desk by the time
21 it --
22 CHAIRMAN DOUGLASS: It just arrived on my desk. The
23 amendment is on the desk and you may now proceed to --
24 Commissioner Mills, did you rise to question?
25 COMMISSIONER BARNETT: I concluded by remarks, unless
31
1 someone wanted to ask me a question.
2 CHAIRMAN DOUGLASS: Did you want to question the
3 proponent of the amendment or did you rise to support it?
4 COMMISSIONER MILLS: I rise to support it.
5 CHAIRMAN DOUGLASS: Commissioner Mills is recognized
6 to support the amendment.
7 I have one question that occurred to me when I was
8 reading this. Doesn't this also include other items that
9 are significant to this particular constitutional
10 provision, such as a 72-hour rule and some of those other
11 things; or does it?
12 COMMISSIONER BARNETT: The 72-hour rule I do not
13 believe is in Section 6.
14 CHAIRMAN DOUGLASS: But it is in the actual provision
15 though, isn't it?
16 COMMISSIONER BARNETT: I was not aware it was in --
17 it is not my intention to address the 72-hour rule. I
18 don't believe it's in Section 6.
19 CHAIRMAN DOUGLASS: That's in Article III, then, is
20 that right, Commissioner Mills?
21 COMMISSIONER MILLS: Yes, Mr. Chairman. I don't have
22 a copy --
23 CHAIRMAN DOUGLASS: That's not involved here. That
24 was implied in the summary, is the reason I ask that
25 question. I want to clear that up. The only thing we are
32
1 dealing with is the existence of the commission and, as
2 you have discussed and as Commissioner Barkdull has
3 discussed, your amendment, as you have explained, would
4 relate or maybe we would do better to read the amendment
5 instead of us trying to explain it.
6 Would you read the amendment, please. And then,
7 Commissioner Mills, you will be recognized. Everybody pay
8 attention, please, we are going to read the amendment.
9 READING CLERK: By Commissioner Barnett, on Page 1,
10 Lines 2 and 3. Delete those lines and insert lengthy
11 amendment.
12 CHAIRMAN DOUGLASS: And the amendment then,
13 Commissioner Barnett --
14 COMMISSIONER BARNETT: Let me try one more time.
15 Article XI, Section 6, creates the tax and budget
16 reform commission. In (c), which is a procedural
17 paragraph, one of the items in (c) sets forth the voting
18 procedure, mandates a voting procedure for the commission.
19 This amendment, as you will see on Page 2, Lines 13 to 22,
20 strikes the language in the current Constitution mandating
21 an affirmative vote of 22 members of the commission;
22 and -- it is a cumulative requirement -- and a majority
23 vote of the members appointed by each of the appointing
24 authorities. And that is all it does.
25 CHAIRMAN DOUGLASS: It strikes that. All right. I'm
33
1 going to rule, in view of the fact that Commissioner
2 Barkdull moves to strike the whole thing, that this is a
3 substitute proposal and you have amended the present one
4 by striking this language. We will proceed on the debate,
5 because it is a substitute for Commissioner Barkdull's
6 motion, without objection. Commissioner Mills.
7 COMMISSIONER MILLS: Mr. Chairman, what this does is
8 simply strike all of the language that was created when
9 this was initially drafted. I simply rise to say why this
10 was initially drafted this way in 1988.
11 And it was initially drafted this way, I think, for
12 exactly the reason that you have suggested. But I think
13 there was some fear that strange or inadequate proposals
14 might emerge. And I think that in the new world where
15 there is more parity among parties, et cetera, that's
16 highly unlikely when you have a majority vote of a
17 commission. This design really does make it incredibly
18 difficult.
19 If we were to continue this commission, I would agree
20 with Commissioner Barnett that this at least makes it
21 viable. Keep in mind, this commission still has to go to
22 the people with these proposals, just as we would. And
23 without this, it makes it impossible. If you can imagine
24 how we would have to operate, we have operated as a
25 commission of hope. I have seen people vote very
34
1 independently, vote their minds and vote their conscience.
2 But it must be an interesting experience for this
3 commission to have to divide up by appointees and figure
4 out if the majority of each of the appointees is in favor
5 of a position. That seems to me to be a destructive means
6 of failure. So I would favor Commissioner Barnett's
7 proposal.
8 CHAIRMAN DOUGLASS: Any other proponents of the
9 substitute proposal which has been explained? Any
10 opponents?
11 If not, we'll proceed to vote. Lock the machine.
12 (Vote taken and recorded electronically.)
13 CHAIRMAN DOUGLASS: Announce the vote.
14 READING CLERK: Twenty-two yeas and zero nays,
15 Mr. Chairman.
16 CHAIRMAN DOUGLASS: We are on a roll. We'll move to
17 the next proposal, which may end the roll. The proposal
18 passed unanimously. As I understand it, that does away
19 with the proposal, Commissioner Thompson. We will vote
20 now on the proposal. Do it again.
21 COMMISSIONER THOMPSON: But I want to ask a question.
22 CHAIRMAN DOUGLASS: You want to ask a question before
23 we vote?
24 COMMISSIONER THOMPSON: I came to my senses.
25 CHAIRMAN DOUGLASS: When you saw it was unanimous, it
35
1 woke you up; didn't it?
2 COMMISSIONER THOMPSON: I wasn't in the Legislature
3 in '88, I left them in pretty good shape, but now this is
4 part of the problem that they started developing here so I
5 just wanted to ask or maybe say a word and maybe vote
6 against this thing if it really comes up for final
7 passage. I know Commissioner Barnett and I'm real
8 concerned because I don't want to vote against her idea
9 until I really understand it well.
10 But the Legislature had a purpose in not just rolling
11 right to the ballot things that got a simple majority in
12 an appointed group like this. Now, I know that's what we
13 are, and I know how we operate and how we have operated.
14 I also know that we only meet every 20 years under the
15 present Constitution.
16 I'm just wondering how often this group meets, for
17 example, because if every year everybody in the state is
18 going to be subject to a panel appointed by somebody going
19 directly to the ballot to tax them out of business, I'm
20 going to be concerned about it and I imagine a lot of
21 people will be. Tell me that ain't so.
22 CHAIRMAN DOUGLASS: Commissioner Barnett. Do you
23 yield to her to answer your question?
24 COMMISSIONER BARNETT: It ain't so, Commissioner
25 Thompson; it ain't so. And the commission has the
36
1 authority, just as our commission does, to adopt rules of
2 procedure and they would have the right to adopt an
3 extraordinary vote if they felt it was appropriate to
4 actually send proposals to the ballot. This commission
5 meets every 10 years. And I do not remember when they
6 meet again, maybe in 2001 or something like that.
7 But there are restrictions in the Constitution --
8 protections in the Constitution for the concerns that you
9 have. You left the Legislature in good hands and they
10 acted appropriately.
11 CHAIRMAN DOUGLASS: Do you yield to Commissioner
12 Barkdull? Commissioner Barkdull.
13 COMMISSIONER BARKDULL: If I understand it, what you
14 have -- the posture that we are in with the ruling of the
15 Chair, your proposal was a substitute and it's now been
16 adopted. I voted for it because I wanted to see what your
17 reaction was. What has happened, and I ask you this as a
18 question, it's now possible that the next tax and budget
19 commission, by a simple majority, to put on the ballot to
20 repeal the income taxes.
21 COMMISSIONER BARNETT: Yes.
22 CHAIRMAN DOUGLASS: It's possible now; is that right?
23 COMMISSIONER BARNETT: It's not possible with the
24 Constitution Revision Commission because of our procedural
25 rules. Constitutionally, but for our rules, this
37
1 commission could have put that on the ballot.
2 COMMISSIONER BARKDULL: That was not my question.
3 COMMISSIONER BARNETT: My answer is that with this
4 amendment, it would be possible for the tax and budget
5 reform commission to put any proposal on the ballot, on a
6 simple majority vote of the commission. I submit that I
7 believe that would be highly unlikely, set aside a
8 personal income tax. But taxes issues in general and
9 budget issues in general, I believe, that they would adopt
10 the wisdom in this body in trying to get a super majority
11 of the body.
12 The real problem, Commissioner Barkdull, was not the
13 majority vote, I mean the super majority vote. The real
14 problem in the Constitution is the requirement that each
15 of the appointing bodies, that there be a majority vote of
16 each of those appointing bodies, as Commissioner Mills
17 stated. That would require -- that required the people
18 who were appointed, for example, by the Governor to caucus
19 and to talk about issues.
20 It was a device -- it had the effect of being
21 divisive because, you know, it made people think, well,
22 there's something magic about who sent me here as opposed
23 to the requirement as a public officer to look at what was
24 in the best interest of the people without regard to who
25 sent them there. That's the real kernel of error in the
38
1 provision now.
2 COMMISSIONER BARKDULL: As I've indicated to you and
3 I indicated to the commission, I certainly think that that
4 was a big problem, and I recognized that from the
5 beginning. But also, after seeing what this commission
6 did 20 years ago with a simple majority of one vote
7 carrying it and putting things on the ballot, I would like
8 your situation that we're in now -- and one reason I voted
9 for this is so I can put it on reconsideration. We would
10 be better off to lock in a three-fifths vote before they
11 put something on the ballot.
12 CHAIRMAN DOUGLASS: Do you offer that as an
13 amendment?
14 COMMISSIONER BARKDULL: No, sir, not at this point.
15 I don't have the reconsideration.
16 COMMISSIONER BARNETT: It's still available for
17 amendment.
18 COMMISSIONER BARKDULL: The Chair ruled that this
19 passed; that superseded my proposal.
20 COMMISSIONER BARNETT: Now the debate is on the
21 committee substitute, as I understand it.
22 COMMISSIONER BARKDULL: That wasn't my understanding
23 of what he took the vote on.
24 COMMISSIONER BARNETT: You can amend the committee
25 substitute.
39
1 COMMISSIONER BARKDULL: I understand that.
2 COMMISSIONER BARNETT: I'm not the Chair, but --
3 COMMISSIONER BARKDULL: I understand that, but my
4 understanding from the ruling from the Chair, was that we
5 adopted what you proposed, it was a substitute and would
6 vitiate my proposal.
7 COMMISSIONER BARNETT: It's my understanding that by
8 adopting that --
9 CHAIRMAN DOUGLASS: Nobody contested the ruling of
10 the chair, which might have been successful, but nobody
11 did.
12 COMMISSIONER BARNETT: It's my understanding what we
13 now have before us is the committee substitute. The
14 amendment has now been substituted for your original
15 proposal. That amendment is now available for debate and
16 for amendment. That's my understanding of the posture.
17 CHAIRMAN DOUGLASS: What it is at the moment, I ruled
18 it was a substitute for the proposal. It's subject to
19 amendment. If somebody wants to offer an amendment, now
20 is the time to do it. And I would like to avoid
21 reconsideration on these matters if there's consensus, but
22 certainly reconsideration is available tomorrow for what
23 we do today.
24 Commissioner Connor, you rise. Commissioner Connor,
25 you have the floor.
40
1 COMMISSIONER CONNOR: Thank you, Mr. Chairman. I
2 would seek leave of the Chair to file an amendment, which
3 would require a super majority requirement of 60 percent.
4 The rationale being that adopted by this body, first of
5 all, requiring a consensus of the membership of the body
6 that makes the proposal is more likely to reflect a
7 consensus within the state at large.
8 And, secondly, frankly, I think it ought to be
9 harder, not easier, to put forth tax proposals to the
10 people on the ballot. And I support the notion of a super
11 majority requirement of 60 percent. And with the Chair's
12 leave I'll move to the desk and request that be put
13 forward.
14 CHAIRMAN DOUGLASS: So granted. Commissioner
15 Barnett, do you have something?
16 COMMISSIONER BARNETT: Just that that amendment is
17 acceptable to me.
18 CHAIRMAN DOUGLASS: We don't have it on the desk so
19 we can't act on it. Now it's being moved and prepared.
20 Commissioner Barkdull.
21 COMMISSIONER BARKDULL: Mr. Chairman, I move in light
22 of that that we temporarily pass Proposal 123 to be
23 further considered today.
24 CHAIRMAN DOUGLASS: All right. What I'll do is we'll
25 move to the next proposal while this is being done. And
41
1 if it's prepared and ready when we complete the debate and
2 action on the next proposal, we'll come back to it
3 immediately so we don't get too far removed from it.
4 The next proposal, with that being the ruling, the
5 next proposal -- oh, without objection, we'll temporarily
6 pass it until later in this meeting.
7 The next proposal is proposal 152 by Commissioner
8 Barkdull. See, that's why it pays to be chairman of
9 rules, you get all of your proposals heard first.
10 Commissioner Barkdull.
11 COMMISSIONER BARKDULL: That doesn't mean they are
12 going to pass, Mr. Chairman. This one is one that we are
13 all familiar with with our time constraints at the present
14 time.
15 CHAIRMAN DOUGLASS: Just a moment. He hasn't read it
16 yet.
17 READING CLERK: Proposal 152, a proposal to revise
18 Article XI, Section 2, Florida Constitution; amending the
19 deadline by which the Constitution Revision Commission
20 must file any proposed revision with the secretary of
21 state.
22 CHAIRMAN DOUGLASS: Now Commissioner Barkdull to
23 explain the proposal.
24 COMMISSIONER BARKDULL: What this proposal does is to
25 shorten the time within which a subsequent Constitution
42
1 Revision Commission, not this one, but the subsequent one,
2 that will meet in 20 years and so forth, will only have to
3 file their proposals within 90 days of the general
4 election rather than 180.
5 That 180 is really a holdover from the 1885
6 Constitution; primarily communication was by weekly
7 papers. Ninety days should be sufficient with the public
8 hearings that are held. And that's all this proposal
9 does. But it gives the next commission three more months
10 to work.
11 CHAIRMAN DOUGLASS: All right. Is there any
12 questions of the proposer? Commissioner Scott. Do you
13 yield, Commissioner Barkdull?
14 COMMISSIONER BARKDULL: Yes, sir.
15 COMMISSIONER SCOTT: This would mean that the
16 proposals would be submitted after qualifying for office,
17 after whatever is going -- I mean, that three months would
18 be after people qualified for offices, legislative,
19 statewide would be -- I don't know if it's after other
20 initiative petition matters. I don't know how it relates
21 to all of those time frames.
22 COMMISSIONER BARKDULL: Certainly, the time frames
23 remain the same as they are now, as far as primaries and
24 so forth. It would be after that.
25 CHAIRMAN DOUGLASS: Any further questions of the
43
1 proposer? If not, are there any proponents? Anybody wish
2 to speak in opposition? If not, we'll proceed to vote.
3 Unlock the machines.
4 (Vote taken and recorded electronically.)
5 CHAIRMAN DOUGLASS: Lock the machine, announce the
6 vote.
7 READING CLERK: Eighteen yeas and eight nays,
8 Mr. Chairman.
9 CHAIRMAN DOUGLASS: It carries.
10 The amendment is not ready yet; is it?
11 The next proposal by Commissioner Planas. And would
12 you read the proposal, please?
13 READING CLERK: Proposal 5, a proposal to revise
14 Article I, Section 2, Florida Constitution; prohibiting
15 discrimination based on national origin.
16 CHAIRMAN DOUGLASS: Commissioner Planas, you are
17 recognized, sir.
18 SECTION B
19 COMMISSIONER PLANAS: Thank you, Mr. Chairman and
20 good afternoon. I rise here to propose to the equal
21 rights amendment that we have a word of national origin.
22 Currently, right now, there is a lot of other big states
23 in which national original is part of the Bill of Rights.
24 In the state of Florida, in which part of the population,
25 over 50 percent of the population, is composed of
44
1 immigrants, does not have the word "national origin."
2 For example, if you go back in here we show
3 California, Connecticut, Louisiana, Massachusetts,
4 Michigan, Missouri, among other states, every one of those
5 states have the word "national origin" in part of the Bill
6 of Rights. I'm going to everybody's minds and hearts to
7 consider this proposal. I think it's needed in the state
8 of Florida especially in the years coming. We have more
9 people in immigration in here coming up in the state. It
10 will go ahead and give a positive vote of understanding to
11 all the population in the state of Florida.
12 Thank you, Mr. Chairman.
13 CHAIRMAN DOUGLASS: All right. Would you outline
14 what the present section to which is entitled basic
15 rights, if everybody would turn to that if they have it.
16 If not, I think it would be helpful if you read that
17 proposal and then where you're adding "national origin."
18 If you don't have it, we can give it to you. Do you have
19 it in front of you? If you would read that, I think it
20 would make more sense to vote on this proposal with in
21 mind what it is we are adding.
22 COMMISSIONER PLANAS: The Declaration of Rights
23 reads, it's at Section 2, Article I, Basic Rights. All
24 natural persons are equal before the law and have
25 inalienable rights, among which are the right to enjoy and
45
1 defend life and liberty, to pursue happiness, to be
2 rewarded for industry, and to acquire, possess and protect
3 property; except that the ownership, inheritance,
4 disposition and possession of real property by aliens
5 ineligible for citizenship may be regulated or prohibited
6 by law. No person shall be deprived of any right because
7 of race, religion, national origin, or physical handicap.
8 CHAIRMAN DOUGLASS: Now, does anyone -- Commissioner
9 Barkdull?
10 COMMISSIONER BARKDULL: Mr. Chairman, I rise to ask a
11 question.
12 CHAIRMAN DOUGLASS: Commissioner Planas, do you
13 yield?
14 COMMISSIONER PLANAS: I yield.
15 COMMISSIONER BARKDULL: Commissioner Planas, the
16 people you describe, they are national persons; are they
17 not?
18 COMMISSIONER PLANAS: That is correct.
19 COMMISSIONER BARKDULL: The opening sentence is that
20 all natural persons are equal before the law.
21 COMMISSIONER PLANAS: That is correct.
22 COMMISSIONER BARKDULL: Thank you.
23 CHAIRMAN DOUGLASS: Commissioner Morsani?
24 COMMISSIONER MORSANI: Commissioner Planas, I'm
25 sympathetic but I don't understand why we need to -- I was
46
1 reviewing, I guess my own heritage, you have -- my family
2 has been in this country a little longer than yours, but
3 not too much, and I don't understand why we need to change
4 a document like the Constitution for this.
5 I'm really at odds to understand the feeling or the
6 necessity of using -- changing the terminology that we
7 already have. And I guess I need an explanation because I
8 just don't understand the -- what's driving this momentum
9 in the state of California or any other state. I just
10 don't know why we need to change our Constitution. And I
11 haven't heard any argument that convinces me that we're
12 not already covered regardless of whether we're of Spanish
13 heritage or Italian heritage or African-American heritage.
14 I don't understand it.
15 CHAIRMAN DOUGLASS: All right. Commissioner Planas.
16 COMMISSIONER PLANAS: Commissioner Morsani, that is
17 very true, you might not exactly know the reasons why.
18 The Constitution of the United States says also "national
19 origin" in the Constitution. Now, if you -- you're from
20 Tampa, Commissioner Morsani. And now we have to find out
21 what's the meaning of national origin. I talked to the
22 EEOC chairman in the Miami area and I was asking her if
23 there is a need for this type of proposal in this
24 Constitution. They said that in the state of Florida --
25 gentlemen, believe it's 1998. We're coming to the
47
1 year 2000. In 1998, there's still a tremendous amount of
2 discrimination against African-Americans, the ancestry,
3 Germans, French people, Hispanics. There is still a
4 tremendous amount of discrimination against them. And I
5 think this is something that will continuously protect all
6 citizens including all national persons.
7 I do believe that this also would impact in a very
8 favorable way the amount of people that are continuing
9 coming to this country by saying we have open hearts. It
10 doesn't do anything at all except to protect them in which
11 there will be no discrimination. Exactly what it says
12 that we are talking about when we add it up; the physical
13 handicap, when we're trying to add age, when we're trying
14 to add gender. We just want to make sure that this
15 Constitution, this great Constitution that we have in the
16 state of Florida, will protect everybody equally.
17 CHAIRMAN DOUGLASS: Commissioner Connor?
18 COMMISSIONER CONNOR: Mr. Chairman, I rise in
19 opposition to the proposal and I would like to offer a
20 substitute amendment.
21 CHAIRMAN DOUGLASS: All right. Is it on the table?
22 COMMISSIONER CONNOR: It is not on the table --
23 CHAIRMAN DOUGLASS: We're going to have to get you a
24 table.
25 COMMISSIONER CONNOR: I'm sorry. Mr. Chairman, I'm
48
1 certainly opposed to any form of discrimination based on
2 national origin. I dare say every member of this body is
3 as well. I think we need to be very, very careful about
4 the way in which we amend these proposals. Bearing in
5 mind that the standard that is used by the Florida Supreme
6 Court in interpreting amendments to the Florida
7 Constitution. The TW case I think is a good example on
8 that, is the body is well aware Florida has an explicit
9 Constitution rights privacy, Article I, Section 23.
10 In interpreting that provision, the court made this
11 observation. Since the people of this state exercise
12 their prerogative and enacted an amendment to the Florida
13 Constitution which expressly and succinctly provides for a
14 strong right of privacy not found in the U.S.
15 Constitution, it can only be concluded that the right is
16 much broader in scope than that of the Federal
17 Constitution.
18 Now the point I make, Mr. Chairman, simply is this.
19 Is with this laundry list, if you will, of bases on which
20 may not discriminate, the invitation is to include every
21 conceivable group, national origin, sex, sexual
22 orientation, indeed all of those will be coming forward to
23 this body. What my proposed amendment does is simply to
24 strike the last line of Section 2. I think Commissioner
25 Barkdull's point is well taken when he observes in the
49
1 first sentence of basic rights all natural persons are
2 equal before the law and have inalienable rights.
3 Section 9 assures all persons of due process of the
4 law. The Section 16 and Section 17 deals with rights of
5 accused and excessive punishments. And the point very
6 simply is this, that I believe we should be very careful
7 in adding additional language to cover a problem that has
8 already been -- to cover a matter, and an issue that's
9 already been solved, under the Federal Constitution, under
10 the cases that construe the Federal Constitution.
11 We should recognize, I think, that we invite the
12 courts to engage in all kinds of initiative. When we add
13 gratuitous language to solve a problem that has already
14 been adequately addressed under the Federal Constitution,
15 and which is already adequately addressed under other
16 provisions of the Florida Constitution not the least of
17 which is the provision which requires or provides that all
18 persons are to enjoy equal protection of the law.
19 CHAIRMAN DOUGLASS: All right. When it gets here,
20 then the proposed amendment would strike in Section 2 the
21 language which reads, "No person shall be deprived of any
22 right because of race, religion, or physical handicap" for
23 the reasons you explained. The amendment technically
24 isn't here which you're certainly welcome to go ahead,
25 Commissioner Planas, in the interest of saving time and
50
1 oppose it.
2 COMMISSIONER PLANAS: Thank you, Mr. Chairman. I do
3 consider, Commissioner Connor, your proposal. However,
4 let me tell you some negative factors in here. I, as an
5 immigrant, I have been here in the United States and I am
6 so rewarded with the freedom that this country has given
7 me. And I'm so rewarded also by the opportunity that has
8 been given to me in this great state and serve along with
9 all you distinguished ladies and gentlemen.
10 However, something I should never forget is the
11 freedom and liberty that I still go out and try to convey
12 to everybody what's, you know, what happened when I came
13 here from a communist country. And I never saw -- and I
14 remember way back when I came here in 1960, back in 1960.
15 When I went ahead and I was just 13 years old and I took
16 a, for the first time, one of the buses which I was going
17 to my school, and all of a sudden this black lady came
18 over and got on the bus. And I stood up, like I always
19 was taught by my parents, I stood up and I gave my seat to
20 this lady, this black lady.
21 All of a sudden, a couple of gentlemen rose and made
22 this lady stand up -- and myself, as a 13-year-old, was
23 pushed back to that seat. I remember again the days in
24 which -- remember the days in which I went to court, to a
25 federal court, because we were applying for some things
51
1 for my parents and their citizenship and I remember, I
2 asked my parents when I was going to a drinking fountain
3 it says colored and white. I remember those days. I'm
4 sure you remember those days.
5 There is nothing in this life that is going to stop
6 me for adding things to a Constitution that's going to
7 protect the rights of people. If we have to be one
8 sentence, two sentence, ten paragraphs, three books,
9 anything, we must have it. And we must never stop anybody
10 of taking away their rights. It doesn't matter if it
11 takes three constitutions, we should add everything on it.
12 I need for you to consider -- let me also go ahead,
13 and as I was talking about, with the people from the EEOC,
14 they were telling me it's much easier, it's much easier
15 for somebody to go to the Supreme Court in the state of
16 Florida than going to the Supreme Court of the United
17 States, much easier. Who can afford going to the Supreme
18 Court of the United States? We can't in here.
19 I don't see any reason why we should jeopardize
20 because I want to go ahead and just say proposing national
21 origin. Why should we go ahead and penalize the race,
22 religion, and physical handicap. Thank you, Mr. Chairman.
23 CHAIRMAN DOUGLASS: Commissioner Mills? Commissioner
24 Brochin, you're next.
25 COMMISSIONER MILLS: In opposition to Commissioner
52
1 Connor's amendment --
2 CHAIRMAN DOUGLASS: Incidentally, the amendment is
3 now on the table and we can proceed. It has been moved.
4 Do you want to read it?
5 READING CLERK: By Commissioner Connor, on Page 1,
6 Lines 19 through 21. Delete those lines and insert
7 "prohibited by law."
8 CHAIRMAN DOUGLASS: Proceed.
9 COMMISSIONER MILLS: Mr. Chairman, this provision of
10 Declaration of Rights, which particularly what we have
11 included in the past, no person shall be deprived of any
12 right because of race, religion, or physical handicap were
13 established as protected classes for a reason. They were
14 established for the reason there was perceived actual
15 discrimination in our history. And unless and until we
16 think those have gone away, the message we send by
17 removing these is that we intend to do something.
18 So actually, Commissioner Connor's argument for doing
19 this is the best argument for not doing it because the
20 Supreme Court will certainly imply that we meant something
21 by removing these classes. They will imply that we in
22 some way decided that the problem had gone away and I
23 don't believe we can say that. In a pure world, and in
24 fact, in discussions at our Declaration of Rights
25 Committee, we said we would like to do this, doesn't it
53
1 make sense that there shouldn't be a laundry list?
2 Shouldn't we just say that all people should be equal
3 before the law? Well, of course we should. That hasn't
4 been the case in the past. The reason this is in here is
5 because this wasn't the case in the past. And unless we
6 think it's historically over, and unless we want to send
7 that kind of message to a court which would be compelled
8 to take notice of the fact that we did something, then we
9 wouldn't want to vote against this.
10 CHAIRMAN DOUGLASS: Commissioner Brochin was next.
11 You're next Commissioner Nabors.
12 COMMISSIONER BROCHIN: I have a question for
13 Commissioner Connor. Struggling with this, I noticed that
14 this amendment was adopted apparently in 1974. And I was
15 wondering if you have any understanding as to why those
16 three categories were chosen in 1974 as compared to
17 leaving off others and your thought process as to the
18 progress that has been made since 1974 in each of those
19 categories.
20 COMMISSIONER CONNOR: Thank you, Commissioner. And
21 the real purpose of this amendment is to try to make this
22 point. The Constitution, in my estimation, has fairly
23 identified categories and classifications of people who
24 ought to be protected against discrimination. Plain and
25 simple, I think that's the case. None of us, I believe,
54
1 would genuinely affirm the notion that we should have
2 discrimination based on race, based on the religion, or
3 based on physical handicap.
4 The temptation, however, that this Commission has
5 fallen victim to is to add to a laundry list of -- add a
6 laundry list of classifications which ought to receive
7 heightened scrutiny in the Constitutional interpretation.
8 Now, clearly our Constitution at the federal level
9 prohibits discrimination on the basis of national origin.
10 And clearly, I believe, that under the 14th Amendment, you
11 cannot engage in state action of discrimination of that
12 character.
13 Whenever you put a classification like this and add
14 to this list, you heighten the level of scrutiny that
15 courts will engage in in reviewing it, typically to a
16 compelling interest standard. The court will evaluate,
17 first of all, whether or not there is a compelling
18 interest that the state had in passing legislation to that
19 effect and then it will evaluate whether or not it used
20 the least -- the narrowist means and least intrusive means
21 to accomplish that goal. Now the point I make very simply
22 is, that we are tempted to add ad infinitum to this list
23 which limits then the discretion of the Legislature
24 significantly in this regard.
25 National origin will be followed by sexual
55
1 orientation. Sexual orientation will be followed by sex
2 and the list could go on and on. I make the observation
3 solely to point out that, for instance, when sex was added
4 to the list of protected classifications in Hawaii, I dare
5 say the people of Hawaii never dreamed that their Supreme
6 Court would say that in consequence thereof, the people of
7 Hawaii had created a presumption against heterosexual
8 marriage such that laws that limited marriage to
9 heterosexuals were presumed to be unconstitutional. And
10 therefore, laws that discriminated against same sex
11 marriages were deemed to be unconstitutional.
12 Now all of that said, Mr. Chairman, I make the
13 observation that when we act in this manner, we do so with
14 great impact and great import. There are a host of other
15 proposals that follow. I ask you to ask yourselves
16 whether or not under the jurisprudence of this state we
17 need to expand these classifications. I think we do not.
18 That having been said, Mr. Chairman, and this discussion
19 having taken place, I withdraw the proposed amendment.
20 CHAIRMAN DOUGLASS: Well, without objection, the
21 amendment is withdrawn. Commissioner Nabors, you had
22 risen.
23 COMMISSIONER NABORS: I rose to speak against the
24 amendment that's been withdrawn.
25 CHAIRMAN DOUGLASS: And do you wish to speak to the
56
1 proposal?
2 COMMISSIONER NABORS: No.
3 CHAIRMAN DOUGLASS: Anybody wish to speak to the
4 proposal further? Commissioner Smith?
5 COMMISSIONER SMITH: Thank you, Mr. Chairman. Just
6 briefly. As most of you know, a significant number of
7 proposals, especially dealing with Article I and
8 Section 2, have been presented to the Declaration of
9 Rights committee. As of this moment, only one has
10 received a favorable recommendation under this particular
11 section and that was the Planas amendment. So while
12 nothing can be killed and Commissioner Connor is correct
13 that all the proposals will come forward. At this moment,
14 the only one favor we recommended is this.
15 Let me say that -- first of all, let me commend my
16 good friend Commissioner Connor for invoking such a
17 brilliant strategy and that is in an effort to prevent
18 passage of this, recommend something much more severe
19 where others will feel that not voting for this is not as
20 bad as what could have come.
21 Let me just say that I have to admit I have been
22 somewhat dumbfounded concerning what I consider to be
23 conservative philosophy. I know when we argue issues of
24 race, a conservative philosophy is state's rights. And I
25 know that with regard to many of the issues that come up,
57
1 we talk about the sovereignty of our government, of our
2 state, to determine what will be the moral conscious of
3 the people as evidenced by its law.
4 It is somewhat confusing to me to hear brilliant,
5 conservative voices of our state deferring to the federal
6 government to provide protections for our people. And I
7 would ask some of my friends to wink when we're talking
8 true conservative philosophy and when we're talking
9 strategy because I'm just getting a little confused. I
10 think that the people of Florida deserve to set the
11 standard for protections of groups that have historically
12 been discriminated against. Notwithstanding what Virginia
13 or Washington D.C. may do, I believe that we have a
14 responsibility to let the people of the state of Florida
15 determine what its rights and responsibilities are as
16 evidenced in the Constitution and that's why in the
17 Declaration of Rights committee I was proud to vote yea
18 and why today I will proudly vote yea.
19 CHAIRMAN DOUGLASS: Commissioner Brochin?
20 COMMISSIONER BROCHIN: I'm going to vote in favor and
21 I urge you all to do the same primarily for the purpose I
22 agree with Commissioner Connor, and that is that every
23 category we add does raise a strict scrutiny test for the
24 courts to apply. And with that, we have to be
25 extraordinarily careful as to which categories we add.
58
1 And similarly, we have to be extraordinarily careful as to
2 which categories we take away.
3 What makes it difficult, and the reason I'm going to
4 vote for it, is that we don't have the whole panoply of
5 categories that are being considered or should be
6 considered before us and we're ask to vote on these one by
7 one which makes it difficult. But by voting for it, it
8 would at least give me another opportunity to reconsider
9 the list as a whole and I would be interested in
10 Commissioner Smith's thoughts on that as to whether his
11 committee considered that in some holistic view, that is,
12 as to whether or not the rights of the people in the state
13 of Florida and to those who should receive the strict
14 scrutiny have been considered, not only for adding them,
15 but also for deleting them. And that's why I asked my
16 previous question as to the historical origin as to how
17 the categories came about in the first place because they
18 are curious that physical handicap is included and
19 national origin was not.
20 And until we have a better appreciation, it makes it
21 very difficult to make any vote that makes any sense as to
22 what Florida's rights of declaration would be and
23 therefore, I will vote for it with the idea that it will
24 give us another opportunity to consider it on a more
25 holistic view.
59
1 CHAIRMAN DOUGLASS: Any further discussion?
2 Commissioner Zack hadn't been up. I'll get to you,
3 Commissioner Morsani, you're next.
4 COMMISSIONER ZACK: I'd like to also urge the support
5 of this measure. To begin with, if you look at the
6 summary, apparently we mentioned national origin about 100
7 times it says in other places. And, again, in Chapter 760
8 of the Florida Civil Rights Act. So the statement is, you
9 know, is this going to hurt anything? Certainly not. Is
10 it a statement about what we in this chamber believe?
11 Absolutely.
12 Most of you know that I'm a Cuban-American, that my
13 mother was born in Cuba and my father is American. But
14 the fact of the matter is, my grandfather on my mother's
15 side was born in Russia and moved from Russia because of
16 discrimination to Cuba. And then when the liberty in Cuba
17 went out, we moved to the United States.
18 And I remember my grandfather's statement when we
19 were taking a plane over here after having been removed
20 from the first plane that we tried to get on, and he said
21 that he was glad that he was coming to the United States
22 even though he was going to be a refugee for the second
23 time in his life because he said that he'd never be a
24 refugee again because if the United States fell, there
25 would be no place to go.
60
1 So I'm not sure whether national origin applies to me
2 as a Russian descent or Cuban descent or Jewish descent.
3 So I guess I'm going to benefit and my children, at least
4 in three different ways. But as I look around the room
5 here, we don't have any Native Americans in this chamber
6 unfortunately. We do, that's even better.
7 CHAIRMAN DOUGLASS: We have a couple there.
8 Commissioner Henderson has got some. Commissioner
9 Barnett. Will all Native Americans please raise your
10 hand?
11 COMMISSIONER ZACK: I guess you're the only ones that
12 won't benefit.
13 CHAIRMAN DOUGLASS: You better define Native
14 Americans.
15 COMMISSIONER ZACK: But something tells me that
16 you've got some more in you than just Native Americans.
17 So I believe that every person in this chamber, every
18 person in this state, benefits and is protected and should
19 be protected by this language. And I am proud to vote for
20 it. And if it does nothing more than what is already
21 there already, so be it. I'm glad it's there and I'd like
22 it to be in every place possible that anybody who had any
23 question of what we intended is clear. We intend for
24 people, regardless of their national origin, to be treated
25 equally.
61
1 CHAIRMAN DOUGLASS: Commissioner Morsani?
2 COMMISSIONER MORSANI: I don't argue with any of the
3 arguments that have been made. However, unfortunately,
4 ladies and gentlemen that have so far spoken, other than
5 myself and Mr. Planas, it seems that whenever something
6 happens in this Constitution or in statutes, it goes back
7 unfortunately to your profession. I'm afraid that we
8 layman never know how things are going to be interpreted
9 and are never interpreted the way we think they are going
10 to be interpreted, ladies and gentlemen.
11 I have, and wish all of this Commissioner Smith and
12 Commissioner Douglas. I wish that all of the issues under
13 Declaration of Rights can be presented under one thing so
14 we can really talk about them because I have done a little
15 bit of work on the -- I don't want to give the same speech
16 every time, Mr. Smith. And I'm not, until you force me to
17 because I have some very distinct problems with this, and
18 the interpretation years out is not the interpretation
19 with which -- in the good fellowship, with which they were
20 meant. And I have very serious concerns about that. And
21 I don't see those being addressed, Mr. Zack, that how we
22 can cope with this in the future.
23 I think that we should have a document that does not
24 require interpretation by our court system. That's not
25 the purpose of what we are here, is it? I question that.
62
1 And I am going to vote against this proposal, not because
2 I want to in many respects, because I think we just don't
3 know how things are going to be interpreted and we have so
4 much danger in the interpretation that we get versus what
5 we feel in our hearts. And it's with a deep sense of
6 regret that I do that, but I really feel that we must
7 examine that and I don't see us examining that, Mr. Smith.
8 CHAIRMAN DOUGLASS: Commissioner Freidin.
9 COMMISSIONER FREIDIN: I was wondering if
10 Commissioner Morsani would yield for a question.
11 CHAIRMAN DOUGLASS: He yields.
12 COMMISSIONER FREIDIN: Can you anticipate some sort
13 of a interpretation that would bother you on this
14 particular proposal?
15 COMMISSIONER MORSANI: Well, you shouldn't have asked
16 that. But in 1906 in Tontitown, Arkansas when 70 families
17 made up this little community and only one person spoke
18 English at that time, because they had only come to this
19 country in 1898, and a judge -- and it came time for the
20 taxes to be paid on these various communities and they
21 only had like 20 days to pay their taxes and a priest --
22 and I happen to be Methodist -- but a priest, Father
23 Bandini (phonetic), who was the only person who could read
24 English, was not present.
25 So when the taxes weren't paid, the judge fined them
63
1 and demanded they pay all their taxes. So when Father
2 Bandini returned, he went to the judge and the judge
3 said -- and he ruled against them -- he said, That just
4 treats those dagos right. They should have paid their
5 taxes. And this was 1906 and this is 1998. That's only
6 been 92 years. But, yes, I can point to that. And I'm
7 afraid that other things might happen the same way,
8 Mr. Planas.
9 CHAIRMAN DOUGLASS: Commissioner Freidin, does that
10 answer your question?
11 COMMISSIONER FREIDIN: Well, I think that that -- if
12 I understood that correctly, the point of that story was
13 that in 1906 a judge actually felt comfortable enough to
14 use the word dago? That's precisely what this provision,
15 this proposal, would protect against. That is exactly the
16 kind of thing. So it seems to me that's the argument in
17 favor of it and I urge everybody to favorably support this
18 proposal.
19 CHAIRMAN DOUGLASS: Commissioner Smith?
20 COMMISSIONER SMITH: Yes. Mr. Chairman, I rise to
21 respond to two questions that were asked with regard to
22 the committee process. The first question was whether the
23 Declaration of Rights Committee considered the Connor
24 Proposal basically which is since we -- the first sentence
25 says, "All natural persons are equal before the law."
64
1 Whether we need to enumerate in the last sentence "any
2 categories." I want you to know that was in fact
3 considered debated, discussed. We got constitutional
4 scholars to give us input on that and we decided to move
5 forward as we have.
6 The second consideration that Commissioner Morsani
7 raised and Commissioner Brochin raised is the
8 consideration of being able to look at this holistically.
9 Because our rules allow us to package together proposals
10 as we see fit in styling and drafting, et cetera, and
11 because we felt it was important to allow each proposal to
12 stand or fall on its merits, we allowed proponents of
13 proposals, if they so chose, to put a proposal together.
14 But let me tell you why we decided not to do it.
15 Because if Commissioner Morsani had a proposal, let's say,
16 to put race in this section, we were not going to force
17 Commissioner Morsani to have his proposal married with
18 sexual orientation. And he had no say-so on it because a
19 lot of people who would have voted for race may not vote
20 for sexual orientation. And we felt it was important to
21 let each stand on their own and then if any of them
22 passed, more than one passed, if the commission wanted to
23 put them together, then the commission could make that
24 decision. Thank you.
25 CHAIRMAN DOUGLASS: All right. Any further
65
1 discussion for or against? Close, Commissioner Connor?
2 This is on the Connor amendment; is that correct?
3 COMMISSIONER CONNOR: No, sir, that's been withdrawn.
4 CHAIRMAN DOUGLASS: Well, we're still sort of
5 debating it. I guess we'll just go ahead and you can
6 close for the opposition.
7 COMMISSIONER CONNOR: Well, actually, I'm not -- I'm
8 going to surprise you, I think.
9 CHAIRMAN DOUGLASS: Okay. You're going to close for
10 the proponents?
11 COMMISSIONER CONNOR: Well, I'm not going to preempt
12 the sponsor from closing.
13 CHAIRMAN DOUGLASS: Okay. We'll let him close.
14 COMMISSIONER CONNOR: But I rise to make this
15 observation. I'm going to vote for the proposal, but I
16 think the discussion that we've had has been profoundly
17 important. And I'm frank to tell you that I think that
18 having the discussion in the context of the evaluation of
19 Commissioner Planas' proposal makes it easier for us to
20 keep our wits about us as we evaluate this issue.
21 What this proposal does and what it will do is to
22 create a heightened scrutiny for a new classification of
23 people that will enjoy protection under our Constitution.
24 And in a state where we have many new citizens who are of
25 Cuban origin or Jamaican origin or Haitian origin, I think
66
1 that is important. But I rise to tell you that the --
2 that this notion that, what can adding a few words -- what
3 can it hurt? It can do a lot. Ask the parents who have
4 been stripped of their rights to makes decisions for their
5 minor children in the area of the abortion decision. Ask
6 the people of Hawaii, it can do a lot; it's something we
7 should consider very carefully; it's something we should
8 sift very carefully, and frankly, I think taking that up
9 now and in the context of this proposal where I dare say
10 there's great consensus is a greater advantage than taking
11 it up in another proposal where there will be a sharp
12 dispute and dissension. And this will be the only
13 classification that I am going to vote for.
14 CHAIRMAN DOUGLASS: Okay. I interpret that to mean,
15 you are for this one but may not be for the rest of them.
16 COMMISSIONER CONNOR: You can count on that, Mr.
17 Chairman.
18 CHAIRMAN DOUGLASS: Commissioner Leesfield.
19 COMMISSIONER LEESFIELD: I want to comment on
20 Commissioner Smith's comments about strategy,
21 foreshadowing and the domino effect of expanding the right
22 of people. We haven't even gotten to the other rights,
23 but I was very moved by Commissioner Planas' statements
24 here about nothing would stop him from expanding the
25 rights of people and protecting the rights of people based
67
1 on his own experience. I appreciate Commission Connor's
2 remarks and the strategy behind them and the domino effect
3 that he's trying to stop, but I would also join with
4 Commissioner Smith in observing the strategic, not the
5 intellectual but the strategic side of bringing that to
6 our attention today when we have other votes coming up
7 tomorrow. Thank you.
8 CHAIRMAN DOUGLASS: All right. Are we ready to vote?
9 Okay unlock the machine.
10 (Vote taken and recorded electronically.)
11 CHAIRMAN DOUGLASS: We are going to wait on our
12 Native American to get there. Announce the vote.
13 READING CLERK: Twenty-three yeas and one nay, Mr.
14 Chairman.
15 CHAIRMAN DOUGLASS: It carries. We're going to
16 return now to Committee No. 123, Proposal No. 123 and what
17 we need to do is to vote now or to consider now to vote to
18 reconsider the Barnett amendment. I'm following the
19 directions of the clerk who overrules me on some of my
20 rulings, and then we'll take up the Connor amendment to
21 the Barnett amendment, take a vote on the Barnett
22 amendment as amended or not amended and then vote on the
23 proposal as amended on the machine.
24 So at this moment, we're to vote, according to the
25 Clerk, to reconsider the vote for the Barnett amendment in
68
1 order to get to the Connor amendment. So, if you that,
2 voting to reconsider the Barnett amendment is procedural,
3 it's not for the merits. If you could hold your debate, I
4 think that would be appropriate, because we'll go
5 immediately to the merits of the Barnett amendment, even
6 if we vote to reconsider it, by taking up the Connor
7 amendment.
8 Do you suggest to do that, that we vote not to
9 reconsider the Barnett amendment? Madam Secretary, in
10 order to get to the Connor amendment, should we vote for
11 or against to reconsider the vote of the Barnett
12 amendment?
13 SECRETARY BLANTON: For it.
14 (Off-the-record discussion.)
15 CHAIRMAN DOUGLASS: All right. Is that clear to
16 everybody, as it wasn't to me. Commissioner Brochin has a
17 question.
18 COMMISSIONER BROCHIN: Yes, I do. The underlying
19 proposal was a proposal to strike this Commission. I
20 don't understand why we're making amendments when
21 ultimately we are going to return to a proposal that's
22 going to strike it in its existence, and maybe I'm just
23 missing something, but to me it --
24 CHAIRMAN DOUGLASS: See, that's what I did, and she's
25 telling me that under our rules we can't do it that way,
69
1 we have got to do it the way she says. I'm perfectly
2 happy to do whatever it takes to get here. If you vote to
3 reconsider the Barnett amendment, that's the effect of
4 what we are doing, we are returning to the amending
5 process, as I'm told.
6 COMMISSIONER BROCHIN: I guess that is the part I
7 don't understand. What are we amending if the ultimate
8 vote is to wipe out the whole provision in the first
9 place? Why are we spending time --
10 CHAIRMAN DOUGLASS: Commissioner Barkdull may can
11 answer this for the Clerk.
12 COMMISSIONER BARKDULL: Mr. Chairman, it's my
13 understanding that the motion put forth by Commissioner
14 Barnett was ruled by the Chair to be a substitute, and if
15 the substitute passed, it laid on the table my proposal.
16 And therefore, the only thing passed by this body was a
17 Barnett substitute which has got the provision that
18 allows, if their rules so provide, a simple majority to
19 put something on the ballot. Now, as I understand the
20 posture, if we pass a motion to reconsider, we're
21 reconsidering the Barnett proposal, at which time there
22 will be an amendment offered by Commissioner Connor which
23 will provide that that body can only put something on the
24 ballot by a three-fifths vote.
25 CHAIRMAN DOUGLASS: Well, you explained it the way I
70
1 intended it, which was, when the substitute amendment was
2 offered -- I mean when the substitute proposal was offered
3 and passed, that that's what we were dealing with. I
4 think we'll proceed that way unless somebody wants to
5 appeal the ruling of the Chair, which would then allow us
6 to get in a sensible way to the Connor amendment to
7 Barnett's proposal. Has everybody got that?
8 We're going to overrule the Secretary the only time
9 I've been able to do this. All right, here's what we
10 have, we have the Barnett substituted proposal. Would you
11 again tell us what that is, Commissioner Barnett? It's
12 Commissioner Barkdull's original proposal, which was to do
13 away with it. Your proposal was to keep it, but to revise
14 or change or delete Section C; is that correct?
15 CHAIRMAN DOUGLASS: Yes, sir. Okay. So we're now --
16 that's what we have is we have passed a proposal
17 substituted that keeps it but strikes Section C of the
18 existing Constitution. And Commissioner Connor has
19 offered an amendment to that proposal which is on the
20 table, and I'll ask the Clerk to read Commissioner
21 Connor's amendment. I'm sorry, Madam Secretary, but I
22 just did it because we're going to get there.
23 READING CLERK: By Commissioner Connor on Page 2,
24 Lines 1322, delete those lines and insert: Shall convene
25 at the call of the chairman. An affirmative vote of
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1 two-thirds of the full Commission shall be necessary for
2 any revision of this constitution or any part of it to be
3 proposed by the Commission.
4 CHAIRMAN DOUGLASS: Commissioner Connor on your
5 amendment.
6 COMMISSIONER CONNOR: Mr. Chairman, I had mentioned
7 60 percent. Commissioner Barnett was amenable to
8 two-thirds, which is the current language but which would
9 still have the effect of eliminating the majority
10 requirement of the members appointed by each of the
11 various appointing authorities. And the point for my
12 purposes, and which Commissioner Barnett was agreeable to
13 was that I felt the super majority requirement, and
14 frankly, the higher the better as far as I was concerned,
15 was an important safety valve to have before tax proposals
16 were put on the ballot for a vote by the public.
17 CHAIRMAN DOUGLASS: All right. As I understand your
18 amendment as presented was not what you stated, but it
19 would now be --
20 COMMISSIONER CONNOR: Two-thirds.
21 CHAIRMAN DOUGLASS: You would delete Section C still;
22 is that correct?
23 COMMISSIONER CONNOR: All we would delete,
24 Mr. Chairman, all we delete are the provisions that relate
25 to the majority requirements of the members of the various
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1 appointing authorities. We would retain the two-thirds
2 threshold requirement, but we would eliminate having to
3 have a requirement of a majority of each of the members by
4 each of the appointing authorities.
5 CHAIRMAN DOUGLASS: So, the result of your amendment
6 then is to leave it as it is, but to ad, including the
7 two-thirds vote, requirement of the members, but eliminate
8 the provision that's now in the Constitution, delete it,
9 where you had to get a majority of each one of the
10 appointing authorities people; is that right? Does
11 everybody understand that? Okay. So the amendment does
12 that. Is there any discussion on the amendment? Yes,
13 Mr. Nabors.
14 COMMISSIONER NABORS: I'd like to speak against the
15 amendment. I think if we are going to keep the tax and
16 budget reform commission, then I think the proposal by
17 Commissioner Barnett is wise, to make sure that it
18 operates as this commission does and not structured by the
19 appointing body.
20 However, if dealing with the Constitution we think
21 it's important to have a tax and budget reform commission,
22 I think it's also wise to require an extraordinary vote
23 for recommendations. After all, we have to trust the
24 people. All of these proposals, whether it's our
25 proposals or it's proposals from the tax and budget reform
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1 commission, go to the people. And we should leave it as
2 the proposal by Commissioner Barnett has and let that
3 commission itself decide whether it wants a two-thirds
4 vote, a majority vote, or any extraordinary vote.
5 If we have got a budget reform commission that could
6 spend time studying the tax structure, why on earth we
7 want to straddle it in the constitution and require,
8 absolutely, always has to have a two-thirds vote, I think
9 that's unwise.
10 CHAIRMAN DOUGLASS: Commissioner Scott.
11 COMMISSIONER SCOTT: Mr. Chairman, Commissioners, I
12 would like to briefly speak in favor of the amendment.
13 The amendment, if the amendment is adopted, will address
14 the major concern that Commissioner Barnett had about
15 requiring the majority of each a appointing authority. It
16 will leave in place the extraordinary vote. This
17 commission, this budget and tax commission -- there could
18 be a big debate -- some debate of whether they should or
19 should not continue, but they are going to be meeting in
20 two or three years and I don't think it's good for the
21 State to have a simple majority vote of -- we don't know
22 who is going to be on there to allow them to put stuff on
23 the ballot that might have severe impacts on this state
24 for somebody's companies and wherever in the world, or in
25 the united States that might be thinking about locating
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1 here, I think you should require the extraordinary vote,
2 so I would support Commissioner Connor's amendment which
3 in effect keeps the extraordinary vote requirement for
4 this Commission and addresses the problem that
5 Commissioner Barnett has raised.
6 CHAIRMAN DOUGLASS: Any further debate, discussion?
7 All right. All of those in favor of Commissioner Connor's
8 amendment for the Barnett proposal, say aye. Opposed.
9 (Verbal vote taken.)
10 CHAIRMAN DOUGLASS: The ayes have it. The amendment
11 is adopted. We now revert to the proposal as amended.
12 Does everybody understand that? I think we pretty well
13 should have it in hand. Commissioner Barnett, would you
14 like to close on it? All right. Would anybody want to
15 rise in opposition to it? Commissioner Nabors.
16 COMMISSIONER NABORS: Not in opposition. I want to
17 make sure that I -- if I wanted to abolish the tax and
18 budget reform commission, then I assume I would vote
19 against this proposal because then it would not be amended
20 and on the table, would be Judge Barkdull's; is that
21 correct?
22 CHAIRMAN DOUGLASS: That's correct.
23 COMMISSIONER NABORS: But if I vote for this and it
24 passes, then it substitutes for Judge Barkdull and the tax
25 and budget reform commission stays as amended in this
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1 proposal; is that correct?
2 CHAIRMAN DOUGLASS: Commissioner Barnett, that's
3 correct as I understand it, except for the deletion of
4 Connor's amendment. Commissioner Barnett, do you need to
5 close? Or do you want to close? Okay. Now we'll vote on
6 the proposal as amended. Unlock the machine.
7 (Vote taken and recorded electronically.)
8 CHAIRMAN DOUGLASS: Has everybody voted? Lock the
9 machine and announce the vote.
10 READING CLERK: Nineteen ayes and seven nays,
11 Mr. Chairman.
12 CHAIRMAN DOUGLASS: All right. We'll move, then, to
13 the next proposal which is Proposal 14. Would you please
14 read it?
15 SECTION C
16 CHAIRMAN DOUGLASS: We will move then to the next
17 proposal, which is Proposal 14. Would you please read it?
18 READING CLERK: Committee substitute for Proposal 14,
19 proposal to revise Article I, Section 2, Florida
20 Constitution; changing the term "physical handicap" to
21 "physical disability."
22 CHAIRMAN DOUGLASS: All right. The committee
23 substitute, the committee chairman yields to Commissioner
24 Freiden to present this; is that correct? Commissioner
25 Freidin, you have the floor.
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1 COMMISSIONER FREIDIN: Commissioners, this is
2 essentially a housekeeping matter. In the last 20 years,
3 since the Constitution was last reviewed, the term
4 "handicap" has attained significant amount of disfavor
5 among the disabled population of this state and our
6 country. The word "handicap" is considered today to be a
7 demeaning term and a nonrepresentative term, a term that
8 doesn't properly represent the condition of people who
9 consider themselves disabled, but not handicapped.
10 So, for that reason, I offered this proposal to
11 simply change the word "handicap" to "disability." But
12 there is another reason that really makes as much sense or
13 more for changing this provision of Article I, Section 2,
14 and that is in the last 20 years there has developed, not
15 only in our state, but nationwide, in the federal system,
16 a large body of case law that defines what a disability
17 is.
18 This is not a provision that has had -- this
19 constitutional provision has not had significant amounts
20 of litigation surrounding it since its passage in the
21 state of Florida, but should issues come up questioning
22 the meaning of the word "handicap," the federal cases and
23 other Florida cases in the employment sphere would be very
24 useful to the courts in interpreting this provision.
25 So for those two reasons, I would urge that we clean
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1 this up, update it a little bit and pass this proposal.
2 CHAIRMAN DOUGLASS: Commissioner Evans.
3 COMMISSIONER EVANS: I have done just a little bit
4 more research in this, too. And I have found that the
5 term "disability" has also fallen out of favor. And the
6 current terminology, because of the negative connotation
7 of disability, obviously being negative, is special needs.
8 So, I have a problem with changing the Constitution
9 every time we have a change in politically correct
10 terminology when there basically is no change whatsoever
11 in the effect of the language. So, even since our
12 committee considered it, the word "disability" has fallen
13 out of favor and now the preferred term is "special
14 needs."
15 I do wonder, though, about if we were to change it to
16 special needs, does that change the current law, because
17 then we would say no person shall be deprived of a right
18 based upon their special needs. And a lot of us have a
19 lot of special needs.
20 CHAIRMAN DOUGLASS: Do you speak in opposition?
21 COMMISSIONER EVANS: Opposition.
22 CHAIRMAN DOUGLASS: Further debate, discussion,
23 opposition or a proponent? Commissioner Rundle.
24 COMMISSIONER RUNDLE: Just a quick question for
25 Commissioner Freiden. I hear the phrase a lot, physically
78
1 challenged and mentally challenged used by those
2 populations and I suppose because it is more of a positive
3 spin and a term that they really prefer. And I wonder if
4 that isn't more favorable language than to use the word
5 "disabled."
6 CHAIRMAN DOUGLASS: Commissioner Freiden.
7 COMMISSIONER FREIDIN: The answer to that, really, I
8 can't give. I can only respond based on the testimony
9 that our committee heard and other writings, law review
10 articles and case law that I have reviewed that indicates
11 that the appropriate term would be disability.
12 I, too, have heard the expression, but I have not
13 heard anybody suggest that that's a legal term of art.
14 And I think what's important here is that the word
15 "disability" is a legal term of art. Handicap does not
16 have the same extensive body of law defining it that
17 disability does. And that, in itself, would be a good
18 reason to change this provision.
19 CHAIRMAN DOUGLASS: Take a seat, please, if you can
20 spare us a moment. Commissioner Morsani.
21 COMMISSIONER MORSANI: Commissioner Freiden, you
22 addressed a little bit my concern, and specifically, the
23 ADA. As an employer, I am having a lot of problems with
24 ADA. And there's a big difference, at least in most of
25 our minds, I thought if you were handicapped, you were
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1 disabled. I thought if you were disabled, you were
2 handicapped, but obviously, that's not the case.
3 I'm not a lawyer and don't understand that, but I
4 understand that there is a difference now. And especially
5 as an employer and when you may be told that because
6 someone can't do the work that they are now disabled
7 because it had nothing to do with the fact that they
8 don't -- that they have all of their limbs and faculties
9 and everything, it has to do that we are responsible
10 because we didn't show them how to do the work good
11 enough, therefore, they are disabled and we have a
12 responsibility to handle their emotional things for them,
13 and their self esteem and build those folks up even though
14 they don't know come here from sic 'em about what they are
15 doing.
16 And so that's where I have a problem with disability
17 versus handicap. And I have a lot of problems with the
18 ADA in how they are starting to enforce things that I have
19 never heard of in my life and I don't know how to handle
20 them and I think a whole bunch of other folks don't know
21 how to handle them either, ma'am. And that frightens me
22 having put that in our Constitution so that we can now
23 have some more legal proceedings to support that. And I'm
24 sorry, it's like Mr. Planas, I don't know where some of
25 these things are leading. And I'm concerned about it.
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1 CHAIRMAN DOUGLASS: Commissioner Freidin, the
2 question is addressed to you.
3 COMMISSIONER FREIDIN: Commissioner Morsani, maybe if
4 we do a really good job here, the federal government will
5 commission us to come rewrite all of the federal laws;
6 however, we can't do anything about the ADA, it exists.
7 What we are talking about doing here is not creating any
8 new right in the state of Florida, nor are we talking
9 about giving any higher scrutiny level to an existing
10 right. The right is in there. The term that's now in the
11 Constitution is physical handicap.
12 What we are doing, and I'll tell you that my original
13 proposal, which was amended by the committee, with my
14 agreement, was to take out the word "physical" and to just
15 put in the word "disability," which I think deals with, in
16 large measure, one of the things that you are concerned
17 about, the emotional issues and where does it stop.
18 Well, that's not in here. What we are talking about
19 here is simply physical disability, it's something that's
20 there now, it's something that there has been virtually no
21 litigation over in the state of Florida.
22 And the only thing we are trying to do here is
23 clarify exactly what that word "physical handicap" means
24 in terms that are already established under the federal
25 law and other state law.
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1 CHAIRMAN DOUGLASS: Commissioner Barkdull has a
2 question, do you yield? She yields.
3 COMMISSIONER FREIDIN: Yes, sir.
4 COMMISSIONER BARKDULL: Commissioner Freiden, I think
5 you answered my question right at the end. And the
6 purpose of adding this word is to bring within the purview
7 of the Florida law the Federal interpretations of what
8 disability means.
9 COMMISSIONER FREIDIN: Well I think that that's one
10 of them, yes.
11 COMMISSIONER BARKDULL: So it will be an expansion of
12 rights beyond what is now present for handicapped people.
13 COMMISSIONER FREIDIN: I don't see how it would
14 expand the rights for what is now present, other than it
15 will clarify -- it may contract it, it just will conform
16 it so that there isn't a confusion about the terminology
17 that we are using.
18 COMMISSIONER BARKDULL: When you started out in
19 response to the question of Commissioner Morsani, I was
20 very happy to hear it because obviously, hopefully, the
21 courts in construing whatever change will be adopted will
22 follow somewhat the debate that's had here. You had
23 indicated in the early part of your response to him that
24 changing this word, as you had suggested, would not change
25 the law in Florida. And then you indicated at the
82
1 conclusion of your remarks to him that it would put us in
2 a posture where the definition would be subject to the
3 federal interpretations.
4 COMMISSIONER FREIDIN: I wouldn't agree that it would
5 be subject to the federal interpretations, but I think
6 that the federal interpretations could then be used in
7 interpreting the Florida Constitution.
8 COMMISSIONER BARKDULL: Thank you.
9 CHAIRMAN DOUGLASS: Commissioner Smith.
10 COMMISSIONER SMITH: Thank you, Mr. Chairman,
11 colleagues --
12 CHAIRMAN DOUGLASS: Before you speak, with unanimous
13 consent, I would like to ask a question of Commissioner
14 Freiden based on her last exchange. If nobody objects,
15 I'll ask from the chair.
16 What you are really saying, as I understand it, is
17 that this would conform with the present federal law; is
18 that right?
19 COMMISSIONER FREIDIN: Yes.
20 CHAIRMAN DOUGLASS: But if the federal law changed
21 and it changed to make it more restrictive than it is now,
22 it would be greater than the then-changed federal law;
23 would it not?
24 COMMISSIONER FREIDIN: Well, I think that the way --
25 we have to look at what we are talking about here. The
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1 federal law, the Americans with Disabilities Act, sets out
2 certain rights and -- rights for people who are disabled
3 and responsibilities of employers, business owners,
4 landlords, and people who invite the public onto their
5 premises.
6 That, the word "disability" is defined very broadly
7 and not particularly well in the federal statutes. There
8 is then an entire body of case law which is changing every
9 day as we speak that defines what is a disability and
10 which kind -- which physical situations fall within the
11 definition that's in the statute.
12 All I'm saying is that it would be nice for the state
13 of Florida, should the need arise to interpret that, our
14 provision, which is not the same as the Americans with
15 Disabilities Act, this has really nothing to do with it
16 other than the fact that it would be nice to have that
17 body of case law to rely on in order to make an
18 interpretation of what that means.
19 CHAIRMAN DOUGLASS: My question though, I agree with
20 all of that, but my question is that if we adopt this and
21 they repeal the Americans with Disabilities Act, then we
22 would have a law that would be interpreted in accordance
23 with the repealed Americans with Disabilities Act, under
24 your proposal. And the federal government would not now
25 or then have a disabilities act. In recognizing the
84
1 vagaries of Congressional action, it's certainly not in
2 the federal Constitution, it is a federal statute; is it
3 not?
4 COMMISSIONER FREIDIN: That's correct. And I don't
5 think that a repeal of the act would have any impact on
6 the Florida Constitution. In fact --
7 CHAIRMAN DOUGLASS: No, no, no, no, that's not my
8 point. It would if we adopted your proposal.
9 COMMISSIONER FREIDIN: My proposal simply changes a
10 word. I don't say anything about federal law or the
11 Americans with Disabilities Act in the proposal.
12 CHAIRMAN DOUGLASS: So there isn't any point in
13 discussing that, if it doesn't have any application once
14 it's in the Constitution.
15 COMMISSIONER FREIDIN: I'm not sure I understand what
16 you are saying.
17 CHAIRMAN DOUGLASS: I'm trying to get at what
18 Commissioner Morsani's question was. And I think stating
19 it from a lawyer's standpoint, what he's saying is that
20 federal law shall not be embodied in the Florida
21 Constitution. And the reason is that it can be changed in
22 standard by the Congress and the President doing it.
23 And that the presentation led him to the conclusion
24 that Florida would be becoming an ADA constitutional
25 state. Is that what I understood you to question? I'm
85
1 only doing it to clarify his question. I think that was
2 his point, and I don't think you responded to that.
3 COMMISSIONER FREIDIN: Let me just say, and then I'm
4 going to yield to Commissioner Smith who maybe can state
5 it better than I can, that there would be -- we are not --
6 we would not be by making this change in the Constitution,
7 we would not be adopting the federal law as our own. We
8 would simply be using -- having a body of law to which
9 could be referred by courts that, in order to help define
10 the term.
11 CHAIRMAN DOUGLASS: Now, that's what I was trying to
12 get you to say.
13 COMMISSIONER FREIDIN: Thank you.
14 CHAIRMAN DOUGLASS: Commissioner Smith.
15 COMMISSIONER SMITH: Thank you, Mr. Chairman. First
16 of all --
17 CHAIRMAN DOUGLASS: Wait a minute, I think
18 Commissioner Barkdull has got another question for
19 Commissioner Freiden.
20 COMMISSIONER BARKDULL: I'm sorry, but at the
21 conclusion -- would you take the floor again, please? At
22 the conclusion of your remarks, as I understand, again,
23 what you are saying what you want us to do is to change
24 this so we can use the federal definitions, or federal law
25 was your words.
86
1 COMMISSIONER FREIDIN: No, no, not so we can use it.
2 I'm not suggesting that the state of Florida needs to use
3 federal law. I'm suggesting simply that because the word
4 "disability" is the word that is currently being used, not
5 only by federal courts, but even Florida courts where we
6 have the word "handicap" in our law, that Florida courts
7 are still reverting back to the word "disability," let's
8 make it all consistent. That's all I'm saying.
9 COMMISSIONER BARKDULL: Let me be sure I'm clear on
10 this. If it's just to change the nomenclature, I don't
11 have any objection, but if the purpose is to bring into a
12 new body of law, I'm opposed to it.
13 COMMISSIONER FREIDIN: The purpose is to just change
14 the nomenclature.
15 CHAIRMAN DOUGLASS: Thank you for being patient.
16 COMMISSIONER SMITH: Thank you very much.
17 First of all, please understand that this issue came
18 about as a result of a concern by members of the disabled
19 community concerning the word "handicap" as being a
20 negative.
21 Commissioner Morsani, lawyers here will tell you that
22 at one time in Florida law, children born out of wedlock
23 were called bastards, in law. And we changed that to
24 illegitimate. And just like you say, I don't know
25 handicap from disabled; it is the same, for all intents
87
1 and purposes. And the word bastard and illegitimate are
2 basically the same, but one hurts and one doesn't hurt as
3 much. So it was with that understanding that we tackled
4 the issue.
5 Secondly, it is clear, without any doubt at all, that
6 the declaration of rights committee has no intention,
7 whatsoever, to expand the current state of the law in
8 Florida. It is not the intention of the declaration of
9 rights committee or the proponents of the proposal to
10 adopt federal law. Those of you who have heard me speak
11 before know that I don't even agree with that philosophy.
12 This is the Florida Constitution, and not to incorporate
13 the ADA.
14 Once there was a decision, let's try to take on the
15 issue and make it more palatable, the concern then, we go
16 from handicap to what? Special needs probably is the
17 most, is where people are going now. But unfortunately,
18 we don't have any guidance on what that means. So having
19 some guidance about what disability means, we adopted
20 physical disability. So this is a nomenclature change
21 only.
22 And whatever the federal government does has
23 absolutely no force and effect except for guidance as
24 Justice Barkdull in his court looks to other courts for
25 guidance only, but not as a precedent. It was with that
88
1 understanding that this proposal was adopted. It
2 initially came up as noncontroversial, but some of you
3 asked the good questions you have asked today before the
4 committee, which made it a little controversial. But
5 after these questions have been answered now, I hope this
6 is a noncontroversial item.
7 CHAIRMAN DOUGLASS: Any further debate, pro or con?
8 Are you ready to vote? All right. Unlock the machine.
9 (Pause.) We have lost some members. Now, some of them
10 are showing back up. Lock the machine and announce the
11 vote.
12 (Vote taken and recorded electronically.)
13 CHAIRMAN DOUGLASS: Nineteen yeas and five nays,
14 Mr. Chairman.
15 CHAIRMAN DOUGLASS: Incidentally, the matters on
16 reconsideration, if there are any, will be taken up later.
17 One of the ones that I understand is going to come up was
18 one by Commissioner Rundle whose plane didn't get here and
19 we wanted to wait on her. So we'll come to that at a
20 later point in the proceedings.
21 If I'm correct, the clock that you all are looking at
22 up there is three minutes fast, so you just need to know
23 that if you are catching a plane. You better not be
24 today.
25 The next proposal is Proposal No. 17 by Commissioner
89
1 Riley, which I think has been withdrawn from the --
2 Commissioner Riley.
3 COMMISSIONER RILEY: The request of the committee was
4 that we, whatever the proper terminology is, defer this
5 until later.
6 CHAIRMAN DOUGLASS: It's going back to the committee.
7 I think we have already done that.
8 The next proposal is 153 by Commissioner Barkdull.
9 Would you read it please?
10 READING CLERK: Proposal 153. Proposal to revise
11 Article V, Section 12, Florida Constitution. Provide for
12 membership of the Judicial Qualifications Commission.
13 CHAIRMAN DOUGLASS: Commissioner Barkdull.
14 COMMISSIONER BARKDULL: Mr. Chairman, Members of the
15 Commission, it was placed on the ballot at the '96
16 election, a joint resolution that came out of the Article
17 V task force that increased the membership of the Judicial
18 Qualifications Commission from 13 to 15. It added the two
19 additional lawyers from the Florida Bar.
20 In the body of the resolution, it was authorized for
21 15 members. In the schedule which set for staggered
22 terms, they only provide provided for three of the four
23 lawyer members in the schedule. This was a housekeeping
24 amendment to make the schedule provide for four lawyers
25 rather than three, particularly because one of the four
90
1 have already been appointed. So I urge the adoption of
2 the proposal.
3 CHAIRMAN DOUGLASS: Any discussion? All of those
4 in -- unlock the machine. Well, everybody hasn't voted
5 that's here but -- we are still missing a few, but we are
6 going to lock the machine. Announce the vote.
7 READING CLERK: Twenty-two yeas and zero nays,
8 Mr. Chairman.
9 CHAIRMAN DOUGLASS: This proposal is Proposal no. 60
10 by Commissioner Langley. Would you read it please? I
11 don't think the committee can present this. Commissioner
12 Barkdull knows what it is.
13 READING CLERK: Proposal 60. Proposal to revise
14 Article V, Section2, Florida Constitution, providing for
15 the cross-assignment of judges.
16 CHAIRMAN DOUGLASS: Approved by the committee on
17 Judicial Article V. Mr. Barkdull.
18 COMMISSIONER BARKDULL: Mr. Chairman, Members of the
19 Commission, this is Commissioner Langley's proposal and
20 neither Commissioner Langley nor the Chairman of the
21 judiciary committee are present. This is another proposal
22 that is an outgrowth of the Article V task force. It
23 permits county judges to be assigned circuit judges,
24 circuit judges to be assigned county judges and alleviates
25 the problem that cross-assignments have caused, and I urge
91
1 the adoption of it.
2 CHAIRMAN DOUGLASS: Any questions? Commissioner
3 Rundle has a question.
4 COMMISSIONER RUNDLE: Commissioner Barkdull, help me
5 through this if you would just a minute. Because I'm
6 thinking back, in Dade County I know that we have a number
7 of judges that are temporarily assigned from county court
8 to, say, circuit court. How does this change that
9 procedure?
10 COMMISSIONER BARKDULL: It's my understanding that
11 there's a Supreme Court decision that says there's a
12 limitation on what you can do on these cross assignments.
13 And what this will permit is that county judges, when they
14 are assigned as circuit judges, will be able to be there
15 for a longer time and possibly have a -- I don't know how
16 they would expand the jurisdiction, because once they are
17 acting as a circuit judge, they will act as a circuit
18 judge. But I think it is primarily a time limitation
19 factor.
20 CHAIRMAN DOUGLASS: Commissioner Rundle.
21 COMMISSIONER RUNDLE: Does this have a provision as
22 to how long? I mean, is it indefinitely or --
23 COMMISSIONER BARKDULL: I cannot answer that. I do
24 not have it in front of us. I assume that would be
25 handled by the order of the court that assigned them
92
1 because all of the orders that I have seen normally have a
2 time limitation on how long a judge can serve.
3 CHAIRMAN DOUGLASS: Commissioner Zack, do you want to
4 respond to that?
5 COMMISSIONER ZACK: I called during the debate before
6 the judiciary committee that it was basically unlimited.
7 And, as a matter of fact, that was one of the judicial
8 challenges that have been made, is that they are doing
9 indirectly what they could not do directly, by continuing
10 to reappoint the same judges for a six-month period. This
11 is important -- may I rise to debate this issue?
12 CHAIRMAN DOUGLASS: You have the floor.
13 COMMISSIONER ZACK: Actually, I haven't made up my
14 mind about this particular proposal. We have some very
15 fine county judges, we have fine retired judges, we have
16 fine circuit judges, but the citizens vote for a certain
17 circuit judge and they expect that when they have disputes
18 that rise above a certain amount of money, that they will
19 be addressed by a circuit judge. I know having sat on the
20 judicial nominating committee and having discussed whether
21 a particular person should be appointed to the bench --
22 and I remember numerous discussions, Commissioner Freiden
23 shaking her head, having participated in some of those,
24 where we would say, gee, this person is really going to
25 make a great county judge and needs some experience before
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1 they go on the circuit bench. As a matter of fact,
2 sometimes when we have county and circuit openings at the
3 same time there is -- does Judge Barkdull have a question?
4 COMMISSIONER BARKDULL: If the gentleman may yield, I
5 may shorten something here.
6 COMMISSIONER ZACK: I am always happy to yield to
7 Commissioner Barkdull.
8 COMMISSIONER BARKDULL: Mr. Chairman, in view of the
9 fact that this is not my proposal and I'm not a member of
10 the judiciary committee, I would like to temporarily pass
11 this until either Senate -- Commissioner Langley or the
12 chairman of the judiciary committee can be present.
13 COMMISSIONER ZACK: I'm vice-chairman and I would
14 suggest that a TP would be fine at this time. I think
15 quite a few members of the judiciary committee are not
16 present for various reasons today, and I do think that
17 this requires some serious thought before we proceed with
18 it.
19 CHAIRMAN DOUGLASS: Without objection, we would show
20 the matter temporarily passed. Read the next proposal.
21 READING CLERK: Committee substitute for Proposal
22 108. Proposal to revise Article VI, s.4, and Article V,
23 s.10, Florida Constitution; providing that judicial
24 officers may not hold office for more than eight
25 consecutive years; reducing the terms of office for
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1 certain judicial officers.
2 CHAIRMAN DOUGLASS: All right. This was recommended
3 as a committee substitute and disapproved by the committee
4 on judiciary and it was offered by Commissioner Connor.
5 And you are recognized Commissioner Connor.
6 COMMISSIONER CONNOR: Thank you, Mr. Chairman.
7 Commissioners, you will recall that in the not too distant
8 past, the voters in Florida voted overwhelmingly in favor
9 of term limits. They made a determination that they
10 wanted to limit the terms of public officers to eight
11 years. They made the determination that they didn't want
12 career politicians in office. The net effect of that
13 change is that members of the legislative branch of
14 government and members of the executive branch of
15 government, to wit, the Governor and the Cabinet are all
16 limited to eight years of service under the current regime
17 that we have. It comes to no surprise to you that I have
18 been a critic in the past and remain a critic in the
19 present of what's called judicial activism; that is where
20 courts will on occasion usurp, in my estimation,
21 legislative or executive powers that belong to other
22 branches of government.
23 The net effect of what we have presently is that we
24 have limited the terms of members of the legislative
25 branch, we have limited the terms of the members of the
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1 executive branch, but there is no term limit as it
2 currently applies to judges. Judges may serve until the
3 constitutionally, until the age that Justice Sundberg
4 describes as constitutional senility, which means that
5 judges may serve in our courts literally for decades.
6 My concern, very frankly, is that in an era where we
7 have limited terms of government for executive members and
8 for legislative members, and in an era where we have
9 judicial activism, and in my estimation, judicial
10 activism, whether it comes from the left or the right is
11 inappropriate and it's destructive of our constitutional
12 republican form of government.
13 But in an era where we have limited those other two
14 branches of government but failed to limit the terms of
15 members of the judicial branches of government, we run the
16 risk of skewing the balance of power between what is
17 intended to be three coordinate co-equal branches of
18 government in favor of the judiciary, with the net effect
19 being that over time, if this practice of judicial
20 activism that some judges extol of being a very positive
21 virtue on their part, that we will see a skewing of the
22 balance of power among the branches of government in favor
23 of the judiciary.
24 The net effect being that, over time, if this
25 practice of judicial activism which some judges extol as
96
1 being a very positive virtue on their part, that we see a
2 skewing of the balance of power among the branches of
3 government in favor of the judiciary, the net effect of
4 which would mean that the least accountable branch of
5 government will be the primary effect of public policy.
6 I think that that's a dangerous and precarious
7 position to be in. This is not a term limits proposal in
8 the sense that I'm advocating that we should have
9 eight-year term limits or 12-year term limits or whatever.
10 My point is simply, that where the public has chosen
11 to limit the terms of service of members of the executive
12 branch and of the legislative branch, we should give them
13 the opportunity to similarly limit the terms of the
14 judicial branch to avoid this skewing of the balance of
15 power.
16 CHAIRMAN DOUGLASS: All right. Commissioner Barnett.
17 COMMISSIONER BARNETT: I would like to speak in
18 opposition to this proposal.
19 CHAIRMAN DOUGLASS: Proceed.
20 COMMISSIONER BARNETT: I have a great deal of respect
21 for the -- Commissioner Connor and his proposal, but I
22 view the judiciary as certainly one of the co-equal
23 branches of government, but I view the judiciary as
24 different than the executive and legislative branches of
25 government. Indeed things that might be inappropriate --
97
1 might be appropriate for a legislative candidate are
2 inappropriate for a judicial candidate, whether it is a
3 trial judge standing for election or an appellate judge
4 standing for merit retention; they are different.
5 The essential character of the judiciary is an
6 independent, well-informed judiciary to interpret the laws
7 given to us by the Legislature and/or imposed by the
8 executive branch in a fair manner consistent with the
9 constitutional requirements.
10 And I think term limits for judges are particularly
11 inappropriate. I frankly think term limits, in and of
12 themselves, are inappropriate. And so my concern about it
13 for the executive and legislative branch is even stronger
14 when it is applied to the judicial branch of government.
15 Now our people, the citizens of this state already
16 have the ability to limit the terms of their elected
17 officials, and particularly of judges. That power vests
18 in the people today. I believe that there's great merit
19 and wisdom and benefit that comes from a number of years
20 on the bench. I think that it is good that we can attract
21 good people to the bench and that they can stay for many
22 years.
23 I think that is a benefit to the State of Florida and
24 I think it would be an enormous detriment to the people of
25 this state to limit our judges to just one term. I don't
98
1 see a benefit at all to the people of this state by that
2 occurring. And so, therefore, I am opposed to this
3 proposal.
4 CHAIRMAN DOUGLASS: Further discussion?
5 CHAIRMAN DOUGLASS: All right. Prepared to vote?
6 COMMISSIONER CONNOR: Close?
7 CHAIRMAN DOUGLASS: You can close, yes.
8 COMMISSIONER CONNOR: For clarification, Commissioner
9 Barnett, this proposal does not limit judges to one term.
10 It would provide that all judges would serve four-year
11 terms, and the effect of it would be to limit them to two
12 terms, in the same manner that we limit members of the
13 executive branch and of the legislative branch.
14 I would submit to you that this limitation proposal
15 in no way effects the independence of the judiciary. And
16 all of the arguments about experience and the value of
17 experience in office, I would submit can apply with equal
18 vigor to the members of the legislative and executive
19 branches of government. My proposal would be 12 years if
20 the voters had adopted a 12-year term limit. As I say,
21 this is not intended to be a term limits proposal in a
22 vacuum, it is simply designed to try to bring back a sense
23 of symmetry between the coordinate, co-equal branches of
24 government. It in no way limits the independence of the
25 judiciary, and it in no way treats them in any form
99
1 different from the other branches of government. On the
2 contrary, as I say, it brings in a sense of symetry that
3 does not now exist within the Constitution. Thank you.
4 CHAIRMAN DOUGLASS: This has two things in it,
5 doesn't it? It changes the terms from six to four?
6 COMMISSIONER CONNOR: Yes, sir.
7 CHAIRMAN DOUGLASS: And it limits them to two
8 four-year terms, it doesn't limit them to two six-year
9 terms?
10 COMMISSIONER CONNOR: That's correct. Because of the
11 desire to get a multiple of four, inasmuch Floridians had
12 adopted the "eight is enough" proposal, the Supreme Court
13 judges currently serve six-year terms, it reduces their
14 term to four years and then provides, in the same manner
15 as the members of other branches of government, that when
16 they served eight, they have to surrender their position.
17 CHAIRMAN DOUGLASS: All right. Any further questions
18 of the proponent? If not, we'll proceed to vote. Unlock
19 the machine. Has everybody voted? Lock the machine. And
20 announce.
21 (Vote taken and recrded electronically.)
22 CHAIRMAN DOUGLASS: Four yeas and 19 nays,
23 Mr. Chairman.
24 CHAIRMAN DOUGLASS: All right. We'll move then to
25 Proposal 94 by Commissioner Evans, which was disapproved
100
1 by the committee on the judicial article. Read it please.
2 READING CLERK: Proposal 94, proposal to revise
3 Article V, s.10, Florida Constitution; providing that
4 candidates for judicial office may not be precluded from
5 taking public position on issues.
6 CHAIRMAN DOUGLASS: Commissioner Evans, you are
7 recognized.
8 COMMISSIONER EVANS: The question of whether a person
9 surrenders his constitutional right to freedom of speech
10 when he becomes a judicial candidate has been litigated
11 and it has been decided. The answer is an unqualified no.
12 The federal court in the Northern District of Florida, in
13 1990, states that a state cannot require so much. The
14 court further stated that when a state decides that its
15 trial judges are to be popularly elected, it must
16 recognize the candidate's rights to make campaign speeches
17 in the competent right of the public to be informed about
18 judicial candidates.
19 This federal court struck down as unconstitutional
20 the requirement in canon seven that a judicial candidate
21 should not, quote, announce his views on disputed legal or
22 political issues. The court held that, except for
23 information about the candidate's background, this canon
24 effectively proscribes announcements on almost every issue
25 that might be of interest to the public and the candidates
101
1 in a judicial race.
2 Now, even though the members of the Florida Bar must
3 swear to uphold the Constitution, some of those very
4 members in a trusted leadership position rewrote the canon
5 requiring that a candidate, quote, shall not make
6 statements that commit or appear to permit the candidate
7 with respect to cases, controversies, or issues that are
8 likely to come before the court. This new language is
9 even more broad, more vague, and more abusive of the First
10 Amendment than earlier language.
11 Appear to commit. This places the judgment solely in
12 the perception of the beholder. The candidate can make no
13 comment on any issues which another person might perceive
14 as a commitment, whether or not the perception is
15 reasonable.
16 Cases, controversies or issues that are likely to
17 come before the court. This is everything, everything and
18 anything is likely to come before the court. The earlier
19 canon at least required that the issue already be in
20 dispute. The current canon has no restriction whatsoever
21 on the status of the issue.
22 The leadership of the Florida Bar is constantly
23 trying to discern why the public has such a negative
24 perception of its members. We assert that we are members
25 of a dignified profession. Our public relations experts
102
1 point to our mandatory pro bono reporting requirements and
2 to our two hours of ethics courses every three years as
3 proof of our dignity. Our leadership thumbs their
4 collective noses at the United States and Florida
5 Constitutions, while the public is clamoring for knowledge
6 for disclosure of information. Our leadership fails to
7 acknowledge that this third branch of government belongs
8 to the people, not to elite of the Florida Bar. The
9 candidates want to give meaningful, relevant information
10 to their voters and the voters want and need this
11 information.
12 No public interest is served through the concealment
13 of information. I have heard opponents of disclosure
14 state that, We can't have our judges going around talking
15 about the issues. The presumption, I suppose, is that
16 discussing the issues is somehow undignified and it would
17 reflect poorly on the judiciary, thereby, undermining the
18 public's confidence in the judiciary.
19 The Federal court in 1990 answered this concern,
20 finding that the state underestimates the ability of the
21 public to place the information in its proper perspective.
22 The court continued, The state wrongly assumes that
23 members of a respected and learned professional cannot
24 announce their views on legal and/or political issues
25 without undermining the public's confidence in the
103
1 objectivity of the judiciary.
2 Well thankfully, at least one member of our Supreme
3 Court has recently given us a guiding star. Candidates
4 have a concrete example to use for their own comments, and
5 the public has this example to guide their expectations.
6 I share with you Chief Justice Kogan's comments and the
7 media perception of his comments as printed in the Orlando
8 Sentinel, January 2nd, 1998, under an Associated Press
9 byline.
10 "'Chief Justice says state death penalty isn't worth
11 keeping. He thinks cases dealing with executions are
12 cumbersome and take up too much of the Supreme Court's
13 time. State Supreme Court Chief Justice Gerald Kogan says
14 the death penalty isn't working and he wants Floridians to
15 consider whether to abolish it. Kogan doesn't have a
16 moral opposition, he said the death penalty simply takes
17 too much of the court's time. He suggested life in prison
18 without parol might be a better sentence, a move unusual
19 for any judge, Kogan is speaking out with his death
20 penalty message. If the person who deals with it on the
21 daily basis doesn't call the public's attention to the
22 fact that it's not working, then who will.
23 Now, as he begins his final six months as Chief
24 Justice of the Florida Supreme Court, Kogan is traveling
25 the state to take his message to the public. I'm just
104
1 sharing the observations that I've had over all of these
2 years, Kogan told the St. Petersburg Times, in a Thursday
3 story. Why is it that I should not share my experience
4 with the public? Most of them have no where near the
5 experience with these types of cases that I have. Kogan's
6 experience tells him capital punishment in Florida is too
7 cumbersome and monopolizes the time in Florida's high
8 court.
9 He points to the number of people waiting on death
10 row, about 380, and says the judiciary is bogged down with
11 capital cases. Perhaps sentencing inmates to life in
12 prison without parole is more practical, Kogan said. Are
13 we going to spend all of our time on an elite portion of
14 cases that in the long run do not impact a great number of
15 people, he asked.
16 In October, Kogan descended in a four-three ruling
17 that declared Florida's 74-year-old electric chair a legal
18 way to execute killers, despite the foot long flame that
19 broke out during the state's last electrocution in March.
20 If the question of the chair comes back to Kogan's
21 court, the outcome could very well be different. Justice
22 Steven Grimes, one of the majority in the four-three
23 ruling retired in November, he was replaced by Barbara
24 Piontay of West Palm Beach.
25 Retired Supreme Court Justice Parker Lee McDonald who
105
1 chairs the Commission of Administration of Justice in
2 capital cases said he had not heard of a sitting Justice
3 publicly criticizing the death penalty system before, but
4 that he wouldn't criticize Kogan. Others have thought it,
5 McDonald said, they just haven't spoken it.
6 Now, this article brings to mind several observations
7 and questions. First, are Chief Justice Kogan's comments
8 undignified, reflecting poorly on the judiciary? Well, I
9 think not, but could others think differently. If you
10 were to listen the radio talk shows I've listened to and
11 read some of the editorial letters to the editors, then
12 you know that others do think so. Would the Judicial
13 Qualifications Commission think so? Well, we don't know
14 that answer yet.
15 Second, do his comments undermine the public's
16 confidence? Has he revealed that he can no longer sit
17 without bias on death penalty issues? Must he recuse
18 himself if the question of the chair comes back before the
19 court? Remember, if a judicial candidate made these
20 comments, the standard that the JQC is to apply is,
21 appears to commit.
22 The candidate, whether for election, selection, or
23 retention, if he follows the examples set by the Chief
24 Justice, he will not know whether he has violated canon
25 seven until the JQC takes action. Certainly, such a rule
106
1 is chilling of our First Amendment rights to the most
2 extreme degree.
3 The Florida Bar has placed a candidate in a most
4 precarious position. Should he speak on the issues? As
5 allowed by the First Amendment, and as necessary to and
6 from the electorate. If he does not, he may very well be
7 perceived as having something to hide. The electorate
8 does not like choosing judges on the basis of biographical
9 data alone. He very well may not get elected or retained
10 if he remains silent on the issues.
11 On the other hand, the Florida Bar demands compliance
12 with the rules. After all, they are the rules. Even if
13 the rules are unconstitutional. To speak to the issues
14 could cause him to be disqualified as a candidate, or to
15 be removed from the bench, or to be publicly reminded, a
16 fact that can and will be used against him in an election
17 or retention election.
18 But why must we support this kind of high-handed
19 behavior on the part of the Florida Bar? I submit that
20 all 23 of us who are members of the Florida Bar on this
21 Commission must vote in favor of Proposal 94, we have
22 sworn to uphold the Constitution. I further submit that
23 the remaining members should want disclosure of highly
24 relevant information rather than concealment. Only a
25 constitutional provision which speaks directly to this
107
1 issue will suffice. Candidates should not be required to
2 sue over and over and over in Federal court. The
3 Legislature cannot act because of the separation of powers
4 doctrine; we are the only remedy. Do not sentence the
5 people to ignorance.
6 CHAIRMAN DOUGLASS: Commissioner Kogan, if you need a
7 lawyer, I bet you could get one.
8 COMMISSIONER KOGAN: Mr. Chairman, I don't need a
9 lawyer, I can assure you of that. Ms. Evans, Commissioner
10 Evans, let me ask this question. Would you propose to
11 permit candidates for judicial office or city judges to
12 announce how they will vote on a particular matter that
13 would come before them --
14 COMMISSIONER EVANS: Absolutely not.
15 COMMISSIONER KOGAN: -- in your proposal?
16 COMMISSIONER EVANS: Absolutely not.
17 COMMISSIONER KOGAN: What kind of questions would you
18 ask them?
19 COMMISSIONER EVANS: The proposal is that a judicial
20 office -- candidate for judicial office may not be
21 precluded from taking a public position on issues. So,
22 I --
23 COMMISSIONER KOGAN: Well, I suppose when one of
24 those candidates goes to a candidate's rally and the
25 audience is permitted to ask questions, what type of
108
1 questions would you indicate or believe would be asked of
2 the candidates that they, in fact, could answer? And
3 could I have some examples of that?
4 COMMISSIONER EVANS: Yes, I do help draft questions
5 in those situations. And when I do it this time, I will
6 send to them a copy of the article here to use as guidance
7 so that they will know things that they can say, they will
8 know that they can state their opinion on the death
9 penalty. We know that just because you are for or against
10 the death penalty does not mean that you will vote for or
11 against a certain factual situation in a certain
12 particular case.
13 But we also know that there's great discretion in how
14 you can vote. And just because you do not speak of your
15 opinion doesn't mean that your bias will not come through
16 as you are acting within the lawful discretion of your
17 office. We know that judges have great discretion and
18 some who believe, for instance, that --
19 COMMISSIONER KOGAN: Let me ask this. I understand
20 where you are coming from. What else would you ask a
21 judge or a candidate for judge, as to what their position
22 is? What are some other fields or issues you would ask
23 them?
24 COMMISSIONER EVANS: There are a great number of
25 moral issues that I think are highly relevant.
109
1 COMMISSIONER KOGAN: For example.
2 COMMISSIONER EVANS: For example, How do you -- what
3 is your stand on the issue of abortion? What is your
4 stand on the issue of parental consent for abortion? What
5 is your stand on the issue of giving people of certain
6 sexual orientation a higher class of protection? What is
7 your position -- I mean, I can go on and on. What is your
8 position on this? Does it mean that, if it's illegal to
9 do something, that the judge will then be required to do
10 that, or does it mean that, within his discretion the
11 voters at least know where where he stands. Does it bid
12 him? No, it doesn't.
13 COMMISSIONER KOGAN: You understand that justices and
14 judges all the time express their opinion on matters, for
15 example, on guardianship, on dissolution of marriage, on
16 certain matters concerning tort reform, and are regularly
17 called to the Legislature to give their opinions on these
18 particular matters as an exception to the rule that
19 prohibits judges and judicial candidates from speaking out
20 on public issues.
21 One issue that we are permitted to speak out on is
22 the administration of justice and those matters affecting
23 the administration of justice, and judges all of the time
24 talk out on that. Were you aware of that fact?
25 COMMISSIONER EVANS: Yes, I am aware of that. My
110
1 husband has come and spoken in front of Senate committee
2 hearing on Fourth Amendment search and seizure.
3 COMMISSIONER KOGAN: But, that, in fact, is an
4 exception that you can talk out on those matters
5 concerning the administration of justice.
6 COMMISSIONER EVANS: My concern, Commissioner Kogan,
7 is for a candidate, in the heat of an election, the line
8 is very, very vague. And I have been to many of the
9 forums where candidates will say, I wish I could answer
10 your question, I wish I could speak out on, say, my
11 opinion of Fourth Amendment search and seizure, I wish I
12 could do that, but unfortunately the Florida Bar will not
13 allow me to do that.
14 I can tell you what committees I have served on, i
15 can tell you where I was born, but I can't tell you my
16 opinion on any issues because I'm prohibited from doing
17 that. Some of those candidates, perhaps they don't want
18 to talk to the people. I don't know why they wouldn't
19 want to, but maybe they don't want to. Maybe it's just
20 easier to get up and say, I was born in, name the town and
21 sit down. But so many times in the past, candidates for
22 judge have not even been invited to these forums because
23 the public is under the perception that the judges can't
24 answer their questions anyway, so why should they take up
25 three minutes of their time and give biographical data.
111
1 It is very chilling and it is very scary when you are
2 the candidate to think that if you do the wrong thing, the
3 JQC is going to step in and snap you up. It's very
4 chilling. I don't know what the purpose of the canon is.
5 I don't know the purpose, other than to keep information
6 from the people so that they can intelligently vote. I
7 know of no purpose.
8 CHAIRMAN DOUGLASS: Commissioner Barnett.
9 COMMISSIONER BARNETT: To speak in opposition.
10 CHAIRMAN DOUGLASS: Yes.
11 COMMISSIONER BARNETT: I would like to start by
12 saying that I am a proponent of merit retention, and I
13 am -- would vote for merit retention across the board in
14 judicial elections in the state. And some of the reasons
15 for that relate to the issue before the Commission today.
16 I also want to say something that I said briefly when I
17 was talking about a proposal Commissioner Connor had, and
18 that relates to the independence of the judiciary.
19 In my judgment, the independence of the judiciary is
20 the cornerstone of our democracy, it is an essential
21 element of our government. A key fact, a key part of the
22 independence of the judiciary is that judges must be
23 impartial. People who come before the court system need
24 to know that their cases will be tried on the merits,
25 without regard to the judge's particular personal view
112
1 about an issue, on the merits, the law applied to those
2 facts.
3 Judges in our society, in our country -- in our
4 democracy are often called upon to rule on issues that are
5 not very popular. In fact, one of the hallmarks of our
6 system is that our judiciary protects often the rights of
7 minorities and protects people whose position, at that
8 moment in time, may not be popular.
9 Judges are not a, quote, representative body. Their
10 job is not to be a representative, to represent a
11 position. The role of a judge is to preserve the
12 constitutional rights, and even if those rights are not
13 popular at the moment. That is the role of judiciary, and
14 that is the strength of this democracy, and that is the
15 reason, Commissioner Evans, for the canon, to ensure the
16 impartiality of a judge when that individual is asked to
17 make decisions to uphold the Constitution and to fairly
18 apply the laws.
19 If you read that canon, it is very simple. It
20 basically prohibits -- a judicial candidate shall not make
21 statements -- this is the prohibition that is now in
22 concern, Shall not make statements that commit or appear
23 to commit the candidate with respect to cases,
24 controversies, or issues that are likely to come before
25 the court.
113
1 I submit to you that I do not want my judges making a
2 commitment in advance as to their position on an issue
3 that is likely to come before that court, because they
4 don't have the facts before them of that particular case.
5 It runs counter to our whole system of justice that a
6 judge in advance would tell you their position on an
7 issue, and particularly, in the social moral questions
8 that Commissioner Evans has identified that are important.
9 I do not want a judge doing that, and it is not just the
10 Florida Bar, it is the Bar in every state in this country,
11 essentially, with some variations, take the position that
12 judges must be independent and they must be impartial in
13 order for the citizens of this state to have any
14 confidence at all in their decisions.
15 Yes, indeed, the Federal court did throw out one of
16 the cannons, but that canon simply -- the court stated
17 that canon was too broad, they couldn't talk about any
18 legal or political issue. This one is much narrower and
19 much more focused. It talks about cases that might come
20 before the court, real live cases that are likely to be
21 before the court. And we don't want judges taking
22 positions in advance.
23 There is a reason judges are treated different than a
24 candidate for the Legislature, or the Governor, or the
25 Mayor, or a city commissioner. We want those people to
114
1 tell us what their positions are because they are going to
2 be making the laws. It's all right to almost get a
3 commitment in advance from sombebody for an executive or
4 legislative office about their position on a particular
5 issue, to predetermine it and let that be the basis on
6 which you would vote.
7 It is not all right, I submit to you, and in fact, it
8 is wrong to ask or to expect our judiciary to commit in
9 advance as to how they will rule on an issue or what their
10 position will be on an issue. Judges are not under a gag
11 order when it comes to several issues, such as Justice
12 Kogan just mentioned, on the administartion of justice.
13 Justice Kogan's comments that were read by
14 Commissioner Evans, they went to the process, not whether
15 there ought to be a death penalty, and there is a very big
16 difference in that. So I ask you to reject this
17 particular proposal.
18 CHAIRMAN DOUGLASS: All right. Any other discussion?
19 Commissioner Connor. We are not going to limit decision,
20 but if we could be brief, I think it would help.
21 COMMISSIONER CONNOR: Mr. Chairman, I rise to speak
22 in favor of the proposal. Judge Stafford, in addressing
23 this issue in the Federal district court, in the previous
24 iteration of the code of judicial conduct, I commented on
25 the tension that arises between the importance of
115
1 preserving public confidence in the judiciary and the
2 interest in the public having the information it needs to
3 make a wise choice with respect to a judicial election or
4 judicial retention election.
5 And I think that balancing is a very, very important
6 balancing that has to be taken into account. Certainly
7 you want to preserve public confidence in the
8 administration of justice, and you want to give the public
9 information it needs to make an informed choice in the
10 case of a judicial election. Judge Stafford in striking
11 down the previous iteration, which I would submit that the
12 current iteration suffers from all of the First Amendment
13 infirmities that Commissioner Evans has commented on, made
14 these observations.
15 Florida, while entrusting its citizens with the
16 responsibility of electing its trial judges has severely
17 limited the information to be used by those citizens in
18 discharging that responsibility. In fact, the electorate
19 must choose its judges based on little more than
20 biographical data. This court believes that here, as in
21 the advertising arena, the State underestimates the
22 ability of the public to place the information in its
23 proper perspective.
24 The court also thinks that the state wrongly assumes
25 that members of a respected, learned profession cannot
116
1 announce their views on legal and/or political issues
2 without undermining the public's confidence in the
3 objectivity of the judiciary.
4 Ladies and gentlemen, I would suggest to you that it
5 would be na‹ve to suggest that judge's do not have
6 opinions on important moral, social, and political issues.
7 Certainly they have opinions, and they are entitled to
8 hold those opinions, and there's nothing in the
9 Constitution that constrains them from holding those
10 opinions. The limits that are involved here involve the
11 expression of those opinions.
12 Do those opinions in any way affect their rulings, or
13 reflect upon the way in which they administer justice? I
14 don't know the answer to that. It depends on the
15 individual, I suppose. But I will suggest to you that it
16 would be important and valuable to the public to know
17 where a judge came down on those kinds of issues in making
18 a decision about whether or not a judge was to be elected
19 or to be retained.
20 Under the current canon that exists in the present
21 form -- and I will suggest to you that there are those
22 that might fear or worry or wonder whether or not Justice
23 Kogan's positions expressed on forefeiture, or abortion,
24 or on parental rights, or on gay rights, or on gender
25 issues, or any of the myriad of issues that will come up
117
1 before this body will -- whether or not he will be called
2 upon ultimately to render decisions that address those
3 very issues on the proposals that come out of this body to
4 the court. Should the judge then be foreclosed from
5 commenting on any of those issues? I submit to you that
6 the answer is no, that the First Amendment protects his
7 right to express his views on those opinions. And the
8 First Amendment to protect the right of the public to know
9 and have insight as it relates to this.
10 So, I would suggest to you that, contrary to what
11 Commissioner Barnett has suggested -- and I have great
12 respect and regard for her views and her legal acumen, but
13 the current provision is draconian in scope and we would
14 do well to adopt the provision that Commissioner Evans has
15 put forth. Thank you.
16 CHAIRMAN DOUGLASS: Commissioner Zack.
17 COMMISSIONER ZACK: I would like to speak in
18 opposition. You know, for hundreds of years, the symbol
19 of justice has been the Lady of Justice with a blindfold
20 and a scale and a sword. If we pass this, you can throw
21 away the blindfold, certainly you can throw away the
22 scale, and all you have to do is have the sword pointed to
23 whatever she's going to decide ahead of time. The only
24 reason that people want a judge to speak out about their
25 position, that I've heard, is to develop a constituency.
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1 I've heard that, over and over again.
2 Judges aren't supposed to have constituencies.
3 Judges are supposed to listen to the facts and apply the
4 law, period. The same people who are opposed to judicial
5 activism seem to be in favor of this particular amendment,
6 which comes as total surprise to me, though. I understand
7 that if you want to have a litmus test as to how a judge
8 is going to rule on your case, you have got to pin that
9 judge down before you elect him or her.
10 You know, when I listen to this proposal, I really
11 think of the convene in Alice in Wonderland, where she
12 says, Verdict first, trial afterwards. We want the
13 verdict first, we want to know, how are you going to
14 decide, Mr. or Ms. Judge, on my case, on my issue, on my
15 concern today.
16 Now, frankly, if you look at the recusal statutes in
17 the State of Florida, if the judge tells you that and you
18 have that issue before that judge, it is an absolute right
19 of the litigants to recuse that judge. So you haven't
20 accomplished even what you think you are trying to
21 accomplish. You know, in the final analysis, I have
22 always viewed a judge in maybe a little different way than
23 some other people here.
24 And I kind of -- I've always viewed the judge as the
25 driver of the Zambonie machine that comes out in the
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1 middle of the hockey game. And they make sure that the
2 ice is flat for everybody to skate on, no ruts, nobody
3 comes in with an unfair advantage, that what you have is
4 blind justice based on the law and the facts. And I
5 suggest to you that if you vote in favor of this proposed
6 amendment, you will destroy that.
7 CHAIRMAN DOUGLASS: Three minutes to close,
8 Commissioner Evans.
9 COMMISSIONER EVANS: The northern district court, and
10 I am assuming that the case stands because it was not
11 appealed, it has not been overturned, stated that as to
12 the relevance of this information, that is, knowing the
13 views of candidates on legal and/or political issues, that
14 the Federal court, this court, is acutely aware that
15 judges routinely exercise their discretion within the
16 confines of the facts and the law. How judges choose to
17 exercise that discretion is a matter of much concern to
18 litigants, lawyers, and the public alike. That concern
19 makes a judicial candidate's views on disputed legal and
20 political issues anything but irrelevant.
21 The court found, in summary, that the defendants,
22 that is, the Florida Bar and the judicial qualifications
23 committee, had failed to demonstrate that the canon under
24 dispute here is the least restrictive means for protecting
25 a compelling state interest. I submit to you that if the
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1 compelling state interest is to maintain the independence
2 of the judiciary, the least restrictive means would be to
3 have a canon that says that a candidate -- that neither a
4 candidate nor a judge can commit in advance how he will
5 rule in a specific case that is actually already in the
6 court. I believe that was the concern that Commissioner
7 Barnett had.
8 Now, that is not what the canon states. The canon
9 states that the candidate cannot make statements that
10 commit or appear to commit the candidate with respect to
11 cases, controversies, or issues. We are not talking just
12 cases that are actually in court, real live cases,
13 specifically in court, we are talking about all issues,
14 everything that could potentially ever be an issue in a
15 court.
16 So, the least restrictive means would be to pass a
17 canon that says a candidate cannot commit in advance how
18 he will vote on a specific case. Now, I don't know how a
19 candidate would know that he might even have a specific
20 case that is actually already in process. He won't know
21 what his assignment is, whether that be his docket, or
22 whatever, he won't know that. But suppose there's a
23 specific case, somebody has, say, committed a murder, and
24 people want to know, Okay, if he's convicted, are you
25 going to send him to the chair.
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1 Well, you can have a canon that speaks to that, and
2 that will solve your problems, that will solve your
3 concerns. So, we have got to go to the least restrictive
4 means, especially when we are dealing with something that
5 is and has been ruled unconstitutional already. Do we
6 have the right to sit here as a Commission and say, We are
7 going to be blind? After all, justice is blind, we are
8 going to be behind too, and we are going to allow this
9 unconstitutional behavior to continue. You get to live
10 with your decision.
11 CHAIRMAN DOUGLASS: All right. Are you ready to
12 vote? Unlock the machine.
13 (Vote taken and recorded electronically.)
14 CHAIRMAN DOUGLASS: Everybody voted. Announce the
15 vote.
16 READING CLERK: Four yeas and 21 nays, Mr. Chairman.
17 CHAIRMAN DOUGLASS: By Commissioner Freidin. Please
18 read it.
19 READING CLERK: Proposal 37, Proposal to revise the
20 Florida Constitution by adopting language that is not
21 gender-specific.
22 CHAIRMAN DOUGLASS: All right. This was approved by
23 the committee on general provisions. Commissioner
24 Freidin. I would like -- I'm not cutting anybody off, but
25 long debates, I don't think, are helping a great deal.
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1 COMMISSIONER FREIDIN: I don't think this proposal is
2 requiring a debate.
3 CHAIRMAN DOUGLASS: I didn't want to start with you.
4 I know you didn't have long debate.
5 COMMISSIONER FREIDIN: I can make it short.
6 CHAIRMAN DOUGLASS: I wasted more time than you're
7 going to waste by asking not to have long debates.
8 COMMISSIONER FREIDIN: Commissioners, did you know
9 that there are scores, scores of masculine pronouns in our
10 Florida Constitution? Every time the governor is referred
11 to it's he or him. Every time a judge or Cabinet member
12 or public defender or state attorney is referred to, it's
13 he or him. It is time for "him" to change this. It is
14 time to bring us into the 21st century, just as we are
15 about to get there.
16 Now, there is, and I want to be right up front with
17 you so nobody thinks I pulled anything over on anybody.
18 There is an amendment -- there was an amendment 20 years
19 ago that was a catchall amendment that says the masculine
20 should be always considered to included the feminine as
21 well. Well, that's not enough very plainly.
22 It is time to wipe out of vestiges of sexism that
23 existed when this Constitution was drafted originally.
24 And at that time, it was unthinkable that a woman could
25 hold any of these offices.
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1 Today it is not only unthinkable, it is expected that
2 women will hold all of these offices if they haven't
3 already in the very near future. The words "he" and "him"
4 are not generic. They are -- they carry with them a very
5 large message of masculinity. There has been a lot of
6 research done on the concept of gender-neutral language
7 and using gender-neutral language in publications. And
8 the research reveals when "he" is used, people think man.
9 They don't think man or woman. They don't think a
10 masculine pronoun is generic in nature.
11 And these gender-based assumptions lead to implicit
12 sexual stereotypes which we must now purge from the
13 Florida Constitution. Language is very important in the
14 law. And so we have to be attuned to the affect that
15 language has and how it influences thought. The use of
16 masculine nouns and pronouns lend a value-laden
17 perspective to the reader of our Constitution, whoever
18 that might be. We now have the opportunity to erase some
19 of the inaccurate stereotypes that have for too long
20 encumbered our Constitution. And I urge you to vote for
21 this proposal.
22 The only reason I could think anybody might object to
23 this proposal is something that came up in the general
24 provisions committee when we were discussing this and that
25 is, and you will note when you look in your packet, you do
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1 not have specific amendments, words in front of you. You
2 don't have the whole Constitution in front of you. I
3 would submit that that would have been a very cumbersome
4 thing to do to present it all to you.
5 We have identified all the gender-specific pronouns.
6 We are working on having and making the appropriate
7 changes. And I submit to you that the proper, although
8 this is an unusual way of handling it, it's not how we
9 have been handling it. The proper way to do it would be
10 to pass this proposal, to -- it then would be referred to
11 style and drafting who would then review all of the
12 changes that need to be made, make the changes into
13 gender-neutral language and ensure that there isn't any
14 change in the meaning of any of the provisions.
15 CHAIRMAN DOUGLASS: Any discussion? Any questions?
16 If not, we'll proceed to vote. Unlock the machine.
17 (Vote taken and recorded electronically.)
18 CHAIRMAN DOUGLASS: Everybody voted? Announce the
19 vote.
20 READING CLERK: 20 yeas and 2 nays, Mr. Chairman.
21 CHAIRMAN DOUGLASS: Okay. We'll move to the next --
22 where am I? Proposal No. 27 by Commissioner Riley. Would
23 you read it, please?
24 READING CLERK: Proposal 27, a proposal to create
25 Article X, Section 18, Florida Constitution; providing
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1 duties of boards of trustees and fiduciaries of public
2 employees' retirement systems.
3 CHAIRMAN DOUGLASS: Commissioner Riley, you're
4 recognized.
5 COMMISSIONER RILEY: Thank you, Mr. Chairman. When
6 we started out our public hearings, all 13 of them in
7 Panama City, we had a member of the Florida Retirement
8 Trust Fund, a member of the Florida Teachers Group, as a
9 matter of fact, who came before us and said we had this
10 concern, we have a concern to protect our pension fund
11 from other uses other than its pension funds purposes.
12 And you will hear from us all around the state. In fact,
13 we did.
14 We heard at every public hearing teachers and other
15 people from the state who are involved in the pension fund
16 who hope to retire and take money from that pension fund
17 who expressed the same concern.
18 What this proposal does is to put into the
19 Constitution what is already in the statutes. And it
20 provides the stability that would protect the pension fund
21 for its purposes.
22 A bit of history, in the last couple of years, there
23 have been two instances where it was suggested that
24 perhaps the pension fund might be a source of funds if
25 general revenue funds were not available and not only in
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1 this state has that been considered but, in fact, it's
2 happened in northeastern states where general revenue fell
3 and rather than cut spending or raise taxes, the
4 Legislature chose to dip into the pension funds with
5 disastrous consequences and lawsuits.
6 I would suggest that we, with passing this proposal,
7 could set at ease the minds of close to a million people
8 who are either already retired and pulling dollars out of
9 the pension fund, collecting their pension, or are in the
10 process of putting their dollars in and hope to retire and
11 draw from that pension fund. I'd be happy to answer any
12 questions.
13 CHAIRMAN DOUGLASS: Commissioner Riley --
14 Commissioner Morsani?
15 COMMISSIONER MORSANI: Commissioner Riley, first of
16 all, I'm not aware, in fact, I think, the facts state that
17 these funds have never been invaded by the Legislature or
18 by the governor or by anyone else. To set up a commission
19 and to put this on this Constitution for the public to
20 address, I just don't see where it's necessary.
21 There's never been any indication that our
22 Legislature was going to do anything about these funds
23 except continue them. I would like to hear from members
24 or former members of our Legislature of their attitude
25 about this. We've got a smorgasbord now of things that
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1 are going to make our work extremely difficult in the next
2 eight weeks. And to add something that has not been a
3 factor, it just doesn't seem like this is the proper venue
4 to address this. And we all heard the arguments but I
5 think they are shallow arguments.
6 I think that we should -- yes, we went out to the
7 public because we wanted their views. But we can't accept
8 everything that they wanted. And I find this a very
9 shallow point that we would take up this Constitution for
10 this endeavor. And I would like to hear from some of our,
11 as I said, current legislators or former legislators and
12 administrators of our state on what their opinions are,
13 please.
14 CHAIRMAN DOUGLASS: Commissioner Scott?
15 COMMISSIONER SCOTT: Mr. Chairman and Commissioners,
16 since I'm the only current one that's present today, let
17 me say that under no circumstances would the Legislature
18 that I've served in and continue to serve in, ever
19 consider affecting these pension funds in any way. Beyond
20 that, I mean, when this was first broached by the people
21 at the various public hearings and, you know, I think we
22 probably made that same statement then to them, I know
23 that this has been threatened in some states or may have
24 occurred, I'm not sure of the details, but we -- I'm not
25 sure that if there is authority, there may be -- I didn't
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1 get a chance to look -- I didn't know I was going to be
2 speaking on this -- to look at the staff summary.
3 But under no circumstances, would we invade these
4 pension funds for the expenses -- the operating expenses
5 of government.
6 CHAIRMAN DOUGLASS: Are you speaking for it?
7 (Off-the-record comment.)
8 CHAIRMAN DOUGLASS: Commissioner Riley?
9 COMMISSIONER RILEY: Just to point out that, in fact,
10 in '97 the Legislature did at some level of legislation
11 look to this pension fund as a possibility of where to
12 solve the educational problems. They ended up getting it
13 and leveraging the Lottery dollars. But this was
14 certainly put out as a possibility. We're not talking
15 about a few people, we're talking about close to a million
16 people that are already involved in this pension system.
17 And what we were asked to do when we went out in the
18 state, was to listen to what the concerns of the public
19 were. This was one of those concerns.
20 I don't think -- in the scope of the world it may not
21 be a great deal. However, to the close to a million
22 people that are involved in it, what I heard them say to
23 us was, Give us a measure of protection that lets us know
24 when the time comes, our pensions will be there. It's
25 happened in other states. If it's happened in other
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1 states, we may learn from other people's mistakes. But 20
2 years is a long time. If we put it in the Constitution,
3 it won't happen.
4 THE WITNESS: Commissioner Anthony?
5 COMMISSIONER ANTHONY: Mr. Chairman, I rise in
6 opposition to the proposal. This proposal did come before
7 the general provisions committee and was passed out
8 favorably. However, I guess my concern would be not only
9 does it have an impact on the state, it also has an impact
10 on local governments that are a part of the Florida
11 Retirement System. And we have a large number of local
12 governments that really would feel that this would be a
13 mandate that would be presented and created by this
14 commission and thus would have the impact of our
15 retirement systems or those local governments that are a
16 part of this Florida Retirement System having to abide by
17 and not have flexibility in making decisions on the local
18 level. So I just wanted to state that as a part of really
19 the challenge in that local governments have had with this
20 proposal.
21 CHAIRMAN DOUGLASS: Can they use the funds now?
22 COMMISSIONER ANTHONY: Pardon?
23 CHAIRMAN DOUGLASS: Can they use retirement funds
24 now?
25 COMMISSIONER ANTHONY: No. But a number of the City
130
1 of West Palm and other communities have had to -- the
2 overage of investment of those funds have looked at ways
3 in which to not overfund those plans.
4 CHAIRMAN DOUGLASS: So to that extent they do use
5 them now and they are therefore against this proposal; is
6 that right?
7 COMMISSIONER ANTHONY: That would be correct.
8 CHAIRMAN DOUGLASS: I understand the proposal would
9 prevent any use of them other than for retirement; is that
10 right? Is that your understanding, Commissioner Scott?
11 That this proposal would permit the use of retirement
12 funds for anything except for retirement including the
13 overage he talked about? I want to get that clear before
14 we vote on this. Is that right? Everybody understand
15 that?
16 (Commissioner Scott nods affirmatively.)
17 CHAIRMAN DOUGLASS: Commissioner Marshall rises.
18 COMMISSIONER MARSHALL: Thank you, Mr. Chairman. I
19 rise to raise a question with Commissioner Riley. When I
20 saw this proposal for my first reaction was similar to
21 that of Commissioner Morsani. Why is this necessary and
22 have there been any abuses? Then upon reading the staff
23 report summary, it seems to me there are -- I believe
24 there have been at least two threats and I'm curious to
25 know if you want to say any more about those.
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1 It seems to me, if I read accurately on Page 77,
2 those are very substantial threats to the integrity of the
3 system. And there's a second question, Commissioner
4 Riley, could not this be accomplished by statute?
5 COMMISSIONER RILEY: It is, in fact, in statute. The
6 purpose of this proposal is to give more stability to that
7 statute.
8 COMMISSIONER MARSHALL: I want to respond to the
9 first question. What I want to know is, is the threat as
10 serious as I seem to read under effective proposed
11 changes?
12 COMMISSIONER RILEY: Well, Commissioner, I don't know
13 what the future brings. All I can tell you is, if it's in
14 statute, it could be changed. And that's the concern of
15 the people who have put all of their dollars in here and
16 hope to retire on those dollars. Their concern is that if
17 the need arises, and again pointing to last year and the
18 need for educational construction dollars, at least it was
19 considered as a possibility. And it has, in fact,
20 happened in other states where they have dipped into the
21 pension dollars and they have used those funds and have
22 ended up in court because of it. Does that answer your
23 question?
24 CHAIRMAN DOUGLASS: Commissioner Barkdull?
25 COMMISSIONER BARKDULL: Commissioner Riley, at the
132
1 present time, if the Legislature wanted to change the law
2 and declare that there was an overage in certain
3 retirement funds, is it my understanding that they could
4 then permit whichever authority that the fund was being
5 administered for, whether it was a city or a county, or
6 even a state fund, that they could remit, in effect, those
7 overages back to the employing authority?
8 COMMISSIONER RILEY: Again, I would assume the answer
9 to that is yes. I would also like to point out that part
10 of the proposal, it speaks to sound, actual assumptions.
11 If that is true, there is nothing to say in this proposal
12 that overages in a pension fund could not be used as long
13 as the requirements of that pension fund are covered.
14 COMMISSIONER BARKDULL: What concerns me is most of
15 the pension funds are today invested a great deal in what
16 we commonly refer to as stock equities. Well, we all know
17 what the stock market has done in recent years and the
18 inflation in those assets, I'm sure, has made overage
19 above what the original actuaries predicted. And probably
20 any fund that's been in existence for 20 years or more has
21 probably got overages beyond what the actuaries had
22 originally predicted. And of course as the market goes
23 up, it can go down.
24 CHAIRMAN DOUGLASS: Which it did last week.
25 COMMISSIONER RILEY: And I'm afraid to ask what it's
133
1 doing today. That's true.
2 CHAIRMAN DOUGLASS: Any further discussion? Are we
3 ready to vote? All right. Unlock the machine.
4 (Vote taken and recorded electronically.)
5 CHAIRMAN DOUGLASS: Announce the vote.
6 READING CLERK: 10 yeas and 15 nays, Mr. Chairman.
7 CHAIRMAN DOUGLASS: All right. We'll move to the
8 next proposal by Commissioner Zack, Proposal 56,
9 disapproved by the Committee on Declaration of Rights.
10 COMMISSIONER ZACK: Mr. Chairman, I'm moving to
11 withdraw that proposal based on the questions regarding
12 funding that were raised at the committee. I would though
13 state that I do still believe that how our society treats
14 the very young and the very old is how our society is
15 judged. And if we do not take care of the medical needs
16 of children, they are just going to cost us a lot more as
17 they become adults.
18 However, this particular issue, I think, needs to be
19 fully studied by the Legislature particularly in light of
20 what we're unable to determine the funding needs would be
21 or where those monies would come from at this time.
22 CHAIRMAN DOUGLASS: All right. Without objection,
23 this proposal will be withdrawn on the motion --
24 Commissioner Zack, it is withdrawn. We'll move to
25 Commissioner 95 (sic) by Commissioner Evans. Disapproved
134
1 by the Committee on Judiciary. Please read.
2 READING CLERK: Proposal 95, a proposal to revise
3 Article I, Section 16, Florida Constitution; Requiring
4 that the State reimburse a person charged with a crime for
5 the cost of a successful defense whenever the charges are
6 dismissed or the person is acquitted.
7 CHAIRMAN DOUGLASS: All right. Commissioner Evans?
8 COMMISSIONER EVANS: Okay. I want to speak on it
9 just briefly. And then, if permissible, turn it over to
10 Commissioner Smith if he's here.
11 CHAIRMAN DOUGLASS: He isn't here or he's not in the
12 chamber.
13 COMMISSIONER EVANS: Let me just give you a brief
14 overview of it. This proposal applies only in a very
15 significant minority of criminal cases. Formal charges
16 are either dismissed before trial or the accused person is
17 found guilty by a judge or a jury. So that's the only
18 place that this proposal applies. It addresses the
19 fundamentally unfair and often devastating financial
20 burden which an unfounded criminal charge places upon one
21 who is not guilty of any criminal offense but is forced to
22 defend himself.
23 The current state of the law is that an acquitted
24 defendant can recover only witness fees, that's lay
25 witness fees, sheriff's expenses and clerk of the court
135
1 expenses. He cannot recover expert witness fees, which
2 are just as and sometimes more necessary than lay witness
3 fees.
4 The fundamental unfairness that is imposed by the
5 current state of the law is that one who is found
6 guilty -- whether one is found guilty or not, if one is
7 indigent, then one is entitled not only to their costs but
8 also to their full attorneys' fees paid by the State in
9 every instance, guilty or not. So if one is not indigent
10 prior to the charges, one can be rendered indigent by the
11 defense and can recover nothing more than maybe 6- or $700
12 out of the thousands that are expended on actual costs.
13 And again, we're talking cost, we're not talking
14 attorneys' fees even though that would possibly be even
15 more fair. But given budgetary constraints, we wouldn't.
16 So basically what we're talking about here, is the
17 fundamental right to defend one's liberty, putting it in
18 the Constitution as are say civil cases such as imminent
19 domain, putting it in the Constitution so that it is
20 beyond the basic budgetary restraints placed by the
21 Legislature.
22 Commissioner Smith wanted to speak on it because he
23 actually practices in this area and has a lot more
24 knowledge than I on this issue. And I don't know where we
25 go from there since he's not here.
136
1 CHAIRMAN DOUGLASS: Okay. If there's any questions
2 or any further debate? If not, prepare to vote.
3 Everybody hasn't voted. Let's vote. I guess everybody
4 has voted that's going to vote. Lock the machine.
5 (Vote taken and recorded electronically.)
6 READING CLERK: 7 yeas and 17 nays, Mr. Chairman.
7 CHAIRMAN DOUGLASS: It fails. All right. Proposal
8 120. Get alert. Our Native American is rising here for
9 providing a statewide millage cap. Proposal 120 approved
10 by the committee on general provisions. I'll have it read
11 first.
12 READING CLERK: Proposal 120, a proposal to revise
13 Article VII, Section 9, Florida Constitution; Providing a
14 statewide millage cap for water management purposes.
15 CHAIRMAN DOUGLASS: Commissioner Henderson?
16 COMMISSIONER HENDERSON: Thank you, Mr. Chairman. I
17 wish there were an appropriate war dance or war chant I
18 could give on this issue but I can't. But I can tell you,
19 you know, I would never have thought that this issue was
20 as important and significant as what the Miami Herald said
21 in today's paper. But I'm going to tell you what the
22 Miami Herald said about this issue. That this is the best
23 recommendation that the Revision Commission could make to
24 the voters, the best.
25 Now, when I got up this morning, I didn't think that
137
1 this was actually the best recommendation we could make to
2 the voters. But I read the Miami Herald this morning.
3 What is this? This is taking care of a tiny little
4 problem. This is tax equity here. There are five water
5 management districts in the state of Florida. Four of
6 those water management districts have the authority to
7 levy a .10 millage.
8 The fifth water management district, the one in which
9 we're in which extends west to that great sovereign state
10 of Alabama, is allowed only to levy .05 mills. Now there
11 is a long story about why that happens. I won't tell the
12 story, I'll just mention that there is one of these
13 portraits on the wall that has a fellow on a horse on
14 that. And I think it's related to the fellow on the
15 horse.
16 But what this would do is take care of that inequity.
17 Now why is this important? Why is it important to
18 everyone else? Why is it important to people of south
19 Florida? I want you to look at the material that we
20 supplied to you, the staff report. Look at Page 90,
21 there's a chart there. It says in the northwest district
22 3.7 percent of the budget is paid for by the taxpayers of
23 the district. In other words, the other 96 percent is
24 paid by the rest of us, the people who don't live in the
25 Northwest Florida Water Management District. $43.4
138
1 million of that budget is paid for by the rest of the
2 taxpayers of the state of Florida. So this is a simple
3 matter.
4 There may have been some reason way back when to say
5 that the Panhandle was different. But you look at the
6 Panhandle today. We drove through it on the way to
7 hearings in Panama City and Pensacola. There's a big
8 development on the beach, water problems just like the
9 rest of the state. There are pollution problems which are
10 having to be addressed in each of the bays, Chocta,
11 Escambia, Perdido, St. Andrews. It's just like the rest
12 of the state of Florida.
13 It's a simple matter. It is tax equity. And on
14 behalf of all the rest of the people in the state of
15 Florida who are paying the taxes in the Panhandle, I would
16 suggest that we approve this matter.
17 (Commissioner Scott assumes the Chair.)
18 COMMISSIONER SCOTT: Commissioner, you should have
19 made an elegant speech like that on that proposal earlier
20 about merging the Game and Fish Commission. Any further
21 discussion on the proposal?
22 Commissioner Anthony, for what purpose?
23 COMMISSIONER ANTHONY: Thank you. Just to ask a
24 question of the proposer.
25 COMMISSIONER SCOTT: He yields.
139
1 COMMISSIONER ANTHONY: Commissioner Henderson, I know
2 that the Miami Herald has been mandated to be nicer to
3 people so I don't know what credence I give to that --
4 (Laughter.)
5 COMMISSIONER SCOTT: Who mandated that?
6 COMMISSIONER ANTHONY: There was a distinguished
7 mayor in that community mandated that they are nicer. How
8 much money -- this is a revenue issue, of course, in order
9 to deal with the many issues that you identify. How much
10 money potentially -- is there a difference between south
11 Florida in comparison to a north Florida millage rate that
12 you're anticipating this would raise?
13 COMMISSIONER HENDERSON: Thank you, Commissioner
14 Anthony. If you look at the table there, you'll notice
15 that there are a number of programs that each of the water
16 management districts are mandated to do by Legislature.
17 There's land acquisition. There's a Slim (phonetic)
18 program, ecosystem management, a whole range of these
19 things. But the revenues are insufficient to take care of
20 those programs.
21 So where you live, there on the southern shores of
22 Lake Okeechobee, not only are you paying tax to the South
23 Florida Water Management District for water purposes, not
24 only are you paying a tax to the South Florida Water
25 Management District to restore the Everglades, but you and
140
1 everyone else in south Florida are subsidizing those in
2 the Panhandle to the tune of $43.4 million to take care of
3 those other needs.
4 COMMISSIONER ANTHONY: Mr. Chairman, I would like to
5 make a comment in support of this proposal.
6 COMMISSIONER SCOTT: You're recognized.
7 COMMISSIONER ANTHONY: And, Commissioner Henderson,
8 we gladly in south Florida deal with our environmental
9 issues. And I say to the members of the commission that
10 this is an important piece of legislation or proposal. I
11 agree with the Miami Herald that this is one of the most
12 important environmental agencies that we have in our state
13 dealing with issues that we cannot deal with as a local
14 government or a state legislature. But there is a
15 specific body that will deal with the management of our
16 water in our state and I think we should support this
17 proposal wholeheartedly.
18 COMMISSIONER SCOTT: Further discussion?
19 Commissioner Riley, you're recognized.
20 COMMISSIONER RILEY: To speak also in favor of it, if
21 I may. As a lifelong -- or native, mostly lifelong
22 resident of the Florida Panhandle, I'm reminded that what
23 we're doing here is looking at 20 years in the future.
24 And I'm extremely concerned that because of the politics
25 of what happened when the inequitability of the water
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1 management district in the northwest was put in the
2 Constitution that because of that, we're going to not only
3 be hindered but really could really be hurt in the
4 Panhandle as we go 20 years in the future.
5 Separate from the fact that the water management
6 district is mandated and required to do certain things
7 that this district simply cannot do because of the lack of
8 funding, at any point, the state, I think, could come in
9 and say, Sorry, we're not going to do that anymore. And
10 we would really be in massive trouble.
11 The environment and the Panhandle is as precarious as
12 it is in other areas. We have growth in the Florida
13 Panhandle that is increasing constantly. We have --
14 whereas before in the past the state maps may have left
15 off northwest Florida, it seems as though they have not
16 only put us on the map but a lot of people have discovered
17 us. We have a lot of pressure on our environment and we
18 can't protect that environment in the quality of life
19 that's there if they don't have the resources to do that.
20 I'd like to also tell you that the water management
21 district board unanimously passed a resolution in support
22 of this and also to remind you that logistically passing
23 this, were it to go on the Constitution and hopefully were
24 it to be passed by the voters, doesn't mean that
25 automatically the dollars are there. What it means is
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1 that it's their option. It still has to go through the
2 Legislature just like all the other water management
3 districts have to do. What this does is to make it
4 equitable and protect the future of the Panhandle. I
5 would strongly ask your support for this.
6 COMMISSIONER SCOTT: Commissioner -- Chairman
7 Douglass is recognized.
8 CHAIRMAN DOUGLASS: I rise primarily to defend
9 Senator Barren who was referred to, not by name, but
10 having been someone who opposed him on occasions and, in
11 fact, almost defeated him and ruined my entire legal
12 career in 1967 and made him what he is today --
13 (Laughter.)
14 CHAIRMAN DOUGLASS: I rise here to defend him. In
15 1978 he single-handedly kept those who wanted to amend
16 this constitutional provision from doing so. He did so in
17 spite of the then Miami Herald editorial which said it was
18 the single most important piece of legislation they would
19 pass. And I'd like to tell you what he said then because
20 it's probably still applicable now.
21 About the only people in northwest Florida who
22 support raising this tax provision are those that serve or
23 work for the water management districts. There are really
24 very few people that you will meet that know what it is.
25 When you tell them that the potential is to raise their ad
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1 valorem taxes which they now look and see they pay
2 something to a water district which they don't know exists
3 and you're going to raise them or at least have the
4 opportunity to raise them by other legislators than their
5 own three times what they are today.
6 I think when you do that, you're going to create for
7 our product a built-in group who will oppose this so much
8 that they may do what was done in '78. That they may, in
9 spite of some of the other lesser important things that
10 we're dealing with such as our judicial selection.
11 Many of these, the combining the Game Commission and
12 the fisheries and all of those other issues which are
13 lesser important apparently at least in the views of some
14 people far removed from this part of the state, they are
15 all that important.
16 And I'm sure that Commissioner Thompson will probably
17 support my observation that there aren't many people that
18 are going to vote to give anybody the opportunity to raise
19 their taxes from a quarter of a mill, whatever it is, to a
20 full mill, or particularly those that every year call me
21 and when I see them go, What is this thing that I'm paying
22 taxes for?
23 And I think we must -- and while I don't view this as
24 important or unimportant because I do have faith that the
25 Legislature will see that the funds that are now being
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1 generated for this water district are adequate for the
2 current operation, I do think that we should be aware,
3 whether we follow this or not, that when we do this we
4 will raise a significant opposition that does not now
5 exist to some of the lesser important issues that we all
6 want to deal with.
7 So to be told that this is one of those things we
8 should have, I would suggest to you while it might be
9 desirable to have uniformity in the Constitution, it is
10 not necessarily practical politically. And our job, I
11 think, as a commissioner, I think, is to produce a product
12 that has a chance of having statewide support or not at
13 least offending or singling out one area of the state
14 against the other. And I don't think this necessarily
15 intends to do that, but I think that's the type opposition
16 that we'll face.
17 So when you vote, be aware that I think the ghost of
18 the man on the horse will ride strongly again and remind
19 you that that gentleman may have had many faults, but he
20 was truly a populist who understood the people where he
21 came from. And I think we should recognize that when we
22 do this. And while we're just a small part of the
23 population of the state and as part of the state, we are
24 old and have been here a long time. And we're now
25 undergoing a lot of the growing pains of course that other
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1 parts of the states have already had. And this would be
2 one place, just one place, that we could meet some of
3 those growing pains but we could probably meet them
4 without a water district if we had to. There would be
5 other legislative solutions.
6 So I bring to your attention those matters to defend
7 my old friend and adversary and also to suggest that we
8 recognize that this is not all it's cracked up to be from
9 support from the people.
10 Thank you very much.
11 COMMISSIONER SCOTT: Further discussion? Further
12 debate. Do you want to close, Commissioner Henderson?
13 COMMISSIONER HENDERSON: Ever so briefly,
14 Mr. Chairman. Let me just remind, we're not being asked
15 to raise anyone's taxes. What we're being asked to do is
16 to solve an inequity amongst the five water management
17 districts to give the Legislature, made up of elected
18 folks and the water management district made up of fine
19 public servants like Commissioner Riley, the tools to take
20 care of their problems in the face of significant growth.
21 And I remember the old days in the Panhandle and we
22 are all old-timers, but the new days of the Panhandle, as
23 it is, the growth that's occurring there is occurring just
24 as fast as in a place like south Florida where you live,
25 Mr. Chairman. And so this is an opportunity to do that,
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1 to fix it, to do right, and we ought to take the
2 opportunity to do that.
3 COMMISSIONER SCOTT: Okay. Commissioners, prepare to
4 vote. Unlock the machine. Have all commissioners voted?
5 Have all commissioners voted? Lock the machine and record
6 the vote.
7 (Vote taken and recorded electronically.)
8 READING CLERK: 19 yeas and 8 nays, Mr. Chairman.
9 COMMISSIONER SCOTT: So the measure is reported
10 favorably. Read the next proposal.
11 READING CLERK: Committee substitute for Proposal 21,
12 a proposal to revise Article I, Section 22, Florida
13 Constitution; Providing that a party to an action to
14 establish paternity does not have the right to a trial by
15 jury.
16 COMMISSIONER SCOTT: Commissioner Rundle is
17 recognized.
18 COMMISSIONER RUNDLE: Thank you. I have filed the
19 amendment. I hope it's on everyone's table. Let me sort
20 of see if I can explain why I'm bringing this before the
21 commission for consideration. It really has to do with
22 potential physical impact particularly in funding for
23 women, children, and families in Florida and it really has
24 very little to do with trying to take away the right to a
25 jury trial for someone in a paternity case because I'm a
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1 big believer in the jury trial system.
2 But as best as I can explain this, and this is not an
3 area that I have much expertise in, what I understand may
4 be facing in Florida and is facing all other states around
5 the United States, is a new welfare reform bill that went
6 into effect in 1996 which specifically says that states
7 around -- that all states should eliminate the right to
8 trial by jury in paternity cases and the theory behind
9 that is to streamline the process of getting child support
10 monies for children in child support cases.
11 As a practical matter, there are very few if any, I
12 can't think of any in Dade County where we've actually had
13 a jury trial in a paternity case. But the theory, I
14 think, of the federal government is that if you have the
15 ability to do that and a deadbeat dad wants to fight, that
16 he might use that as a delayed tactic. And therefore, and
17 they are trying to streamline this process, they have
18 said, We don't want to have any delay tactics available.
19 Now, some people have raised, and Commissioner Riley
20 isn't here, but she raised a lot of good points at the
21 committee because she said, Why is the federal government
22 telling us what to do? And that's a very legitimate
23 question. In this particular case, as I understand it,
24 the federal government, in an effort to ensure that there
25 is uniformity in child support cases throughout the
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1 country, because as you may know, these cases last the
2 life of a child, rather I should say from birth to 18
3 years.
4 So people move. And to have one jurisdiction be able
5 to enforce an order from another jurisdiction required
6 some kind of federal uniformity. And their goal was to
7 make this as quick as possible to make sure that children
8 got the support that they needed. So what they did was
9 they established an incentive program with all the states
10 around the United States. And every state participates in
11 this partnership with the federal government. And in
12 doing so, as the incentive to the states, the federal
13 government provides quite a lot of money.
14 For instance, in the state of Florida, as I
15 understand it, to actually run the program throughout the
16 entire state is around $201 million, of which, the
17 government funds two-thirds of that which is approximately
18 $138 million, that's based on fiscal year 1997, '98.
19 In addition to this, I'm told by some representatives
20 within the federal government, it's kind of hard to pin
21 them down, but they also say that other federal grant
22 assistance monies may be threatened. If you don't
23 participate and comply with their requirements which could
24 mean, potentially, that we would not receive or we would
25 receive substantially less than the $562 million we
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1 currently receive in funds called family assistance grants
2 to the Department of Children and Families.
3 So it is for this reason that I bring this before
4 this body to really think about whether or not this is
5 something that you feel just based on fiscal -- for fiscal
6 reasons, good fiscal reasons, three-quarters of a million
7 dollars, whether or not we should put this on the ballot.
8 And I would also like to add that the Legislature in 1986
9 did try to change the law and to say that there should not
10 be a right to jury trials in paternity cases. And
11 particularly with DNA and the advent of blood testing
12 today you don't need it.
13 But the Florida Supreme Court struck that down and
14 said they could not do that because the state of Florida
15 had, prior to its Constitution, a law that specifically
16 provided for jury trials in paternity cases. And in a
17 recent case by the Florida Supreme Court, they said
18 specifically that the only way it could be eliminated is
19 through a constitutional change. So, it is for that
20 reason I bring it before this body to consider this.
21 Obviously, I don't think any of us would ever want the
22 unintended effect of losing three-quarters of a billion
23 dollars to children and families in this state.
24 Can it be done by the Legislature? Don't know,
25 probably. My best guess would be they could probably put
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1 it on the ballot but that's a risk you need to take and
2 think about. Additionally, this is the first -- every
3 state, by the way, is given up to five years to change
4 this law, and if they don't, that's when it clicks in.
5 We're already in year two so we have three years left to
6 do something about this particular constitutional right.
7 I have phrased the right, as you might see there, in
8 terms of what it does for children throughout the state of
9 Florida. And I open it up for any questions anybody may
10 have.
11 COMMISSIONER SCOTT: Questions? Okay. Further
12 debate? Commissioner Connor is recognized.
13 COMMISSIONER CONNOR: Mr. Chairman, I rise to speak
14 in opposition to the proposal. Thomas Jefferson once
15 stated, The natural progress of things is for liberty to
16 yield and government to gain ground. I think this is a
17 classic example of the truth of that statement. The
18 federal government, in effect, wants to put the sword of
19 Damocles above our head and say that if you don't cave in
20 and give away or surrender your birthright, if you don't
21 give up on this right to trial by jury, we're going to
22 withhold a half a billion or three-quarters of a billion
23 dollars, or whatever the case that it may be in this
24 particular case.
25 I think it's outrageous frankly that we would allow
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1 the federal government to dictate to the state of Florida
2 that as a condition preceded to participating in a federal
3 program you're going to have to surrender your
4 constituents' rights to trial by jury. I think that's an
5 outrage. I'm astonished that the Academy of Florida Trial
6 Lawyers is not shouting from the housetops their
7 opposition to this proposal. But maybe it's because in
8 effect it involves potential deadbeat dads.
9 Now, I would make the observation that this provision
10 eliminates the rights to trial by jury to the parties,
11 that means both sides, in a paternity proceeding. We have
12 seen the skill and ability of our governor in negotiating
13 with the federal government. The federal government tried
14 to put its hands on the monies that he recouped from the
15 tobacco companies and he very effectively prevented them
16 from doing so.
17 Rather than giving up our right to trial by jury,
18 let's put the burden back on the governor. Let's put the
19 burden back on our senators and on our congressional
20 delegations to say, Look, the people of Florida are
21 unwilling to surrender their right to trial by jury and we
22 recognize the affect of letting the camel's nose in the
23 tent. Remember, ladies and gentlemen, that we have a
24 congress that's dominated by the Republican Party, that's
25 my party, a party of which I'm very proud.
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1 But I will tell you, that I think the Republican
2 Party, by and large, is sadly informed and wrongly
3 positioned on the issue of trial by jury. And if the
4 Congress succeeds in extorting the people of Florida into
5 giving up their right to trial by jury as a condition
6 preceded to receiving federal funds, you can bet that the
7 message we'll send them is that they need to condition
8 other federal funding projects on the same kind of
9 condition and you're going to see it chipping away and
10 stripping away of a right to trial by jury.
11 The trial by jury is a bulwark of freedom and I think
12 we ought to resist with all vigor that we can muster this
13 attempt to cause the people of Florida to surrender it up,
14 to surrender, if you will, up their birthright for a
15 federal bowl of potage, as in the case of Esau Jacob. I
16 object to it. I think it's wrong. I think we ought to
17 tell the federal government to stick it, and we ought to
18 ask our congressional delegation to go up there and hang
19 tough and make sure that the Congress does not come down
20 and strip away our right to trial by jury because of the
21 money that they will offer us if we'll do that.
22 COMMISSIONER SCOTT: Okay. To get us in the proper
23 posture, we have an amendment which is basically a
24 rewording of this proposal which I'm going to ask the
25 clerk to now read. That will get us in the proposal of
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1 what the mover wants his proposal to be. Read the
2 amendment.
3 READING CLERK: By Commissioner Rundle, on Page 1,
4 Lines 16 through 18, delete those lines and insert, Shall
5 be fixed by law in order to protect the right of children
6 to an expedited determination of child support the parties
7 to an action to establish paternity are not entitled to a
8 trial by jury.
9 COMMISSIONER SCOTT: Okay. Commissioner Rundle, this
10 is the version that you were discussing in your statement.
11 COMMISSIONER RUNDLE: Correct. That's correct.
12 COMMISSIONER SCOTT: Okay. As there questions on
13 this amendment, essentially the changed language which
14 adds the part about an expedited determination for child
15 support? Are there questions on that amendment? Does
16 anybody object to that amendment? Without objection, show
17 that amendment adopted.
18 Now we're back on the proposal as amended. And
19 Commissioner Morsani and then Commissioner Douglass.
20 COMMISSIONER MORSANI: I would like for Commissioner
21 Kogan and Commissioner Butterworth to please address this
22 issue in detail. And Mr. Butterworth sometimes under
23 duress and detail, I would like a lot more detail on
24 Commissioner Butterworth's.
25 COMMISSIONER SCOTT: Commissioner Morsani, if you
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1 keep doing that, they are going to start doing that to
2 you.
3 (Laughter.)
4 COMMISSIONER SCOTT: They are going to say, Now, I
5 want your opinion on this judicial matter. So if they
6 wish to speak on it, the Chair would suggest, fine. If
7 they don't, you might not want to get in the habit of
8 singling them out.
9 So Commissioner Butterworth, for what purpose?
10 COMMISSIONER BUTTERWORTH: Thank you, Mr. Chairman,
11 I'll be glad to respond if Commissioner yields. Anything
12 you pass, I will defend with great vigor in front of
13 Justice Kogan.
14 COMMISSIONER KOGAN: Without committing myself as to
15 how I would vote on this, first of all, I have to agree
16 with Commissioner Connor, the jury trial is inviolate in a
17 democracy. And I, of course, have always opposed any
18 attempt to prevent people from getting jury trials whether
19 they be criminal or civil matters. I think that's what
20 separates us from the other nations of the world. We have
21 a strong jury system and we should preserve it. There is
22 one comment though that I want to make. There is a new
23 method of DNA which is now coming to the forefront which
24 makes it easier to collect samples for DNA.
25 The only thing is, with the new DNA, it takes the
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1 odds down from you're not being the one that did it from
2 like one in a million, down to 4 percent that may not have
3 done it. In other words, in Dade County, if you have a
4 million males that are capable of fathering a child,
5 4 percent of that is 40,000. In other words, so it's not
6 like the DNA, that you have now where you can say, Well,
7 it's only one out of that whole million.
8 And whether or not the new DNA method will catch on,
9 and chances are it will, because it's more able to collect
10 specimens for DNA. I think that's a problem you may look
11 at. Because if you're using the argument on DNA and this
12 new system comes to the forefront, and if you're talking
13 about 40,000 out of a million males that could father this
14 child, I don't know if we want to say it's open and shut
15 and it doesn't make any difference what the defense
16 presents that it's going to be conclusive because DNA is
17 really not that conclusive.
18 And also, a DNA, even today, using the old system as
19 you well know from your experience and we all know from
20 just watching television, certainly is not resting in the
21 hearts of jurors in such a way where they automatically
22 will accept it. There are so many ways to attack the
23 selection of the DNA. And I just think this whole idea of
24 giving up the right to a trial by jury, even if there is
25 out there one person that wants the trial by jury and
156
1 you're right, I don't know of any case I've ever heard of
2 in south Florida where a punitive father has asked for a
3 jury trial. The fact of the matter is, should we
4 foreclose that right. I don't think we should foreclose
5 that right.
6 COMMISSIONER SCOTT: Okay. Commissioner Douglass,
7 for what purpose?
8 CHAIRMAN DOUGLASS: I was going to say approximately
9 the same thing Commissioner Kogan said. But I wanted to
10 add to that that anytime we undertake to take away a right
11 to a jury trial, we are eliminating the difference between
12 a citizen's right to remain free and a right not to remain
13 free.
14 While it might not be a criminal case, it subjects
15 this person who might be found on some scientific evidence
16 to be the father to giving up his right to look at a jury
17 and say he's not and recognize also that all scientific
18 evidence is suspect depending on who the scientist is
19 who's testifying about it.
20 And we see from time to time how things that are so
21 definite in science become totally discredited over a
22 period of time. I'm not an expert on DNA but I know
23 enough about trials to know that if we're going to have
24 trials based on who has the best expert to interpret the
25 evidence then we don't need courts, we can do that with
157
1 professors who are on tenure or whatever they may be. And
2 we must give attention, I think, to Commissioner Connor's
3 comments. This is one other step on the part of somebody
4 to take away the rights of others.
5 And if I were an African-American, I would never vote
6 for anything that took away the right to trial by jury now
7 that African-Americans are guaranteed that there will be
8 those of their race that have to be considered for being
9 on the jury. I also question the flat statement that the
10 federal government will not send the money if you don't
11 give up your right to a trial by jury. I don't believe
12 that. I don't care what somebody in Washington wrote and
13 said. I think when the chips are down, when you say,
14 We're not giving up our right to a trial by jury, that
15 they won't send the money that we're entitled to in this
16 state from the taxes that we pay.
17 And our senators and our representatives, if they
18 should allow to be enticed in such foolish conduct would
19 indeed have term limits imposed at the next election. And
20 if we're going to have any form of what we believe in to
21 remain this one little thing which sounds so good, you
22 know, you can get a billion dollars if you'll just give up
23 your right. Well, I bet you that that's where all loss of
24 freedom begins. And if you want to sell it, we can sell
25 it.
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1 I agree, without Commissioner Kogan saying how he's
2 going to vote, I agree with most of his comments. And
3 even with Commissioner Butterworth who will then carry
4 them out. But also, I do commend Commissioner Connor for
5 bringing, in a very vigorous manner, this to us. And I
6 urge each of you to vote against this and let's see how
7 much test we can be put to and let's see how much freedom
8 means to us and retain the right to trial by jury even in
9 paternity actions.
10 Commissioner Kogan, I have defended paternity actions
11 in trials before a jury. And I want to assure you that
12 there weren't but one or two. Because usually when they
13 have to face the jury, somebody chickens out. And I think
14 that still will be the case. I don't believe it's a major
15 problem, but I believe to take away a right in our
16 Constitution would be a major disaster and I urge you to
17 vote against it.
18 COMMISSIONER SCOTT: Further discussion?
19 Commissioner Rundle, you wish to close?
20 COMMISSIONER RUNDLE: Yes, believe me, I share a lot
21 of the same concerns that you do when you strike such a
22 basic fundamental right. You should -- if I said that
23 they were not going to provide us with the money, then I
24 want to restate that because I think as I stated to you,
25 Mr. Chairman, is that in my heart of hearts, I can't
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1 believe they wouldn't continue to give this money to the
2 state of Florida. And I hope what I was representing to
3 the commission was that it's a risk.
4 And also, I would just like you to know that there
5 are only four states that have not eliminated this
6 provision and we're one of those four.
7 COMMISSIONER SCOTT: Okay. Unlock the machine.
8 Commissioners, prepare to vote on Proposal 21.
9 (Vote taken and recorded electronically).
10 COMMISSIONER SCOTT: Have all commissioners voted?
11 Lock the machine, record the votes.
12 READING CLERK: 3 yeas and 24 nays, Mr. Chairman.
13 COMMISSIONER SCOTT: So the proposal is defeated.
14 Read the next proposal.
15 READING CLERK: Proposal 24, a proposal to revise
16 Article IV, Section 8, Florida Constitution; Requiring
17 that a state prisoner serve at least 85 percent of his or
18 her term of imprisonment, unless granted pardon or
19 clemency; prohibiting the reduction of a prisoner's
20 sentence by more than 15 percent; requiring that a state
21 prisoner sentenced to life imprisonment be incarcerated
22 for the remainder of his or her natural life, unless
23 granted pardon or clemency.
24 COMMISSIONER SCOTT: Commissioner Rundle?
25 COMMISSIONER RUNDLE: Well, I don't know. Actually,
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1 this is very appropriate timing that we have filed an
2 amendment. And it is cosponsored by Commissioner Mills
3 and Commissioner Butterworth. And seeing how successful I
4 was on the last one, I think what I'll do is ask
5 Commissioner Mills to present the amendment.
6 COMMISSIONER SCOTT: See Commissioner, if you were in
7 the senate, we would pass some bills for you before we
8 defeated one. Actually, we would never schedule it for a
9 hearing. Seriously, Commissioner Mills, she's deferred,
10 do you want to present the --
11 COMMISSIONER MILLS: Mr. Chairman, I have an
12 amendment. Yes, there is an amendment on the desk.
13 COMMISSIONER SCOTT: Okay. Further -- any questions
14 at the moment? Let's get the amendment. Read the
15 amendment.
16 READING CLERK: By Commissioner Rundle on Page 2,
17 Lines 9 through 16, delete those lines and insert lengthy
18 amendment.
19 COMMISSIONER SCOTT: Commissioner Mills, recognized
20 to explain the amendment.
21 COMMISSIONER MILLS: I think you may have had the
22 text of this passed out to you. If you haven't, then I
23 think it should be done.
24 COMMISSIONER SCOTT: Has this been passed out, do we
25 know?
161
1 COMMISSIONER MILLS: Yes, I think, it is in the
2 packets. That is -- the language that you have in the
3 packet is, in fact, the amendment.
4 Now, this is very interesting as to how I came to be
5 supporting this. I analogize this to a blind date that
6 you have when you're 15 that has been set up by your aunt,
7 you are not anticipating really liking this experience.
8 And the more familiar I became with this proposal in the
9 declaration of rights committee, the more it became clear
10 to me that this was in fact, the logical and right thing
11 to do for one of the two or three most important things we
12 do in this state and that is ensure the public's safety.
13 We know the public is concerned about criminal --
14 their own personal safety and criminal activity. That
15 isn't a mystery, we don't even need polls. What this does
16 is ensure that when the criminal justice system has
17 charged, convicted and sentenced somebody that, in fact,
18 the public can have faith and know that they have been
19 told the truth about what the circumstance is of our
20 criminal justice system. And that isn't the case today.
21 The data that you will see will show that if someone is
22 convicted, they are likely to serve 50 percent of the
23 sentence.
24 Now, why does it make sense to do it at this phase?
25 The criminal justice system is a wide range of activities.
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1 The criminal justice system starts with the Legislature
2 making something illegal. The state attorney and the law
3 enforcement components of our system detain someone and
4 charge them. The judges convict and then sentence. That
5 is a lot of activity. There is a good deal of flexibility
6 in what a state attorney may charge.
7 Now, if at least one part of this system is certain,
8 at least one part of this system, we know that 85 percent
9 will be served, it makes the entire more certain. And I
10 think Commissioner Rundle will be able to explain that
11 from her perspective as someone who has to charge someone
12 hoping that the rest of the system will, in its distorted
13 way, end up doing justice. But if you have certainty as
14 to what ultimately will be served, then the rest of the
15 system can become more honest and there's truth in
16 sentencing. What the Legislature decrees as law, what the
17 prosecutor seeks and prosecutes and what the judge charges
18 will be what's happens. And that isn't what happens now.
19 People are only serving half of their sentence.
20 As to any impact that this may have in terms of cost,
21 I served at one time as chairman of the HRS criminal
22 justice appropriations committee in the Legislature.
23 Corrections is such a small part of the state budget
24 realizing that the entire criminal justice system is only
25 7 percent. I can't think of anything that the public
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1 charges us with that's more basic and that is public
2 safety. So, if it costs more, so be it.
3 But what this is, is a constitutional guarantee that
4 what the Legislature decrees as law, what prosecutors
5 prosecute successfully, and what judges decree is a fair
6 sentence will be served. So therefore, it justifies its
7 title, truth in sentencing. And this amendment simply
8 changes some of the wording of Commissioner Rundle's
9 original proposal. So, Commissioner Rundle, I think now
10 would be a good time for you to stand up. I believe that
11 this previous vote, not that the --
12 CHAIRMAN DOUGLASS: Do you ask for relief; is that
13 what you are doing?
14 COMMISSIONER MILLS: No. No. I think that what
15 Commissioner Rundle doesn't realize about collegial bodies
16 is now there's an enormous wellspring of wanting to
17 support Commissioner Rundle at which point she now needs
18 to the stand up and take advantage of that opportunity
19 because of the good proposal which she has before the
20 commission.
21 CHAIRMAN DOUGLASS: Commissioner Rundle, now that
22 you've been rehabilitated --
23 COMMISSIONER RUNDLE: Thank you very much,
24 Commissioner Mills, I appreciate that.
25 Let me just -- Commissioner Mills mentioned what it's
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1 like to be working in the system and what we see. And he
2 is correct, it is one of the most frustrating occurrences
3 to have to look at a person, a victim and say, I don't
4 know how this guy got out. I can see this rap sheet, it's
5 as long as this hallway, he's been in and out, in and out,
6 and, yes, he only served 25 percent or 30 percent of his
7 time, why? And citizens will look and ask you why. And
8 there is really no legitimate answer to that if you have
9 ever tried to do it.
10 Judges, when they are in courtrooms, it is really an
11 embarrassment of the entire system to have to watch judges
12 who struggle every day with extraordinary caseloads. They
13 have a person's life before them, their liberty, they have
14 victims and victim impact statements facing them. And
15 they have to ask a correction officer in a courtroom, Does
16 anybody know how much time they are serving now in state
17 prison? And everyone looks to a corrections officer to
18 tell the Court so the Court then can make its appropriate
19 decision on what it thinks is the right sentence based on
20 how much time they are serving that particular week or
21 that particular month.
22 Prosecutors, we make a lot of our charging decisions
23 from the front end based on what we think is going to
24 happen on the back end. We do the same thing. We say,
25 Well, let's see, if we charge this, then he's looking at
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1 this much time. But then they are only serving this much
2 time, so we'll charge these crimes to get us to whatever
3 point it is that we're hoping to see.
4 Citizens have lost so much confidence in our criminal
5 justice system. And I submit to you that one of the
6 reasons is because of the revolving door out of our state
7 prison system. A lot of commissioners have asked me, What
8 about the fiscal impact? And that's a very legitimate and
9 important question. We have to face that on all of these
10 issues, whether it's Article V.
11 If we commit to something and we are going to put
12 that on the ballot and we are going to pay for it, that
13 means that we are going to have to do that. And this
14 falls into that same category. There's one exception here
15 that there may not be in other areas. And that is, that
16 when it comes to sentencing, there are other ways that the
17 Legislature can deal with sentencing which also has a
18 fiscal impact. And that is, the Legislature determines
19 the appropriate sentence per crime. They also determine
20 what the guidelines are for the courts. So they will
21 always be able to adjust their sentences as they see
22 appropriate. The courts will still be able to maintain
23 their discretion because ultimately it's their decision as
24 to what sentence applies.
25 And so what we are hoping to do, what we are hoping
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1 to accomplish here, is to have at least one piece of all
2 of those moving parts certain so that no matter what the
3 sentence is going in, everyone will serve that time,
4 whether it's one year, two years, five years or ten years.
5 The average sentence, so some of you will know, I think
6 it's almost 60 percent of those going into the state
7 prison system is just under three years I'm told by the
8 Department of Corrections.
9 I think you will have tremendous support for this.
10 This initially started as a victim's initiative. It got
11 almost -- I believe General Butterworth can tell us, but
12 if my memory serves me correctly, they received almost all
13 the petition votes that it required. It has tremendous
14 support. This was grassroots, this was citizens. No
15 lobbyists, no fancy campaigns, just heart and soul,
16 people, citizens saying, Please, make it a time certain,
17 make it 85 percent, that's fair, that's what the federal
18 government requires, that's what most states require.
19 And by the way, there is a funding potential for
20 Florida, because those states that have 85 percent the
21 federal government provides extra funding too. Let's do
22 this for the people of Florida. They want us to do this.
23 They wanted to do it for themselves. We can do it for
24 them.
25 CHAIRMAN DOUGLASS: Commissioner Leesfield and then
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1 Commissioner Scott and then Commissioner Zack and then
2 Commissioner Kogan in that order, if I can remember it.
3 Commissioner Leesfield?
4 COMMISIONER LEESFIELD: Mr. Chairman, my inquiry, is
5 dealing with the minimum mandatory sentences by Congress.
6 We have had over a decade to evaluate how that's worked.
7 It was passed by a congressional legislative body, not an
8 amendment to the Federal Constitution, I imagine we can do
9 the same thing in our Florida legislative body. But what
10 is the net result? We have empirical data now. What has
11 the net result been of minimum/mandatory sentencing? Are
12 the federal prosecutors happy with it? Is society
13 benefiting from it? Is it working?
14 COMMISSIONER BARKDULL: Commissioner Rundle?
15 COMMISSIONER RUNDLE: Thank you, sir. This doesn't
16 have anything to do with minimum/mandatory sentences, but
17 I respect the question in terms of what impact it will
18 have overall on the population of the prison system. I
19 think that you would find that there's generally a
20 deterioration in the number of minimum/mandatory sentences
21 being imposed and provided by law. We, in the state of
22 Florida, have also changed and we are moving away from
23 minimum/mandatory sentences. Those would still apply
24 like, for instance, in the state of Florida, the use of a
25 firearm in the commission of a felony is it has a
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1 three-year minimum/mandatory attached to it. But a lot of
2 the other drug type, minimum/mandatories that we had, we
3 have very few of those remaining.
4 CHAIRMAN DOUGLASS: All right. Commissioner Scott?
5 Do you want to question or do you want to speak?
6 COMMISSIONER SCOTT: No, I want to speak in favor.
7 This issue, three or four years ago, we initiated in the
8 Senate, basically, initiated the effort to require service
9 of 85 percent of sentences by statute. We went through --
10 I mean, they said, What does it cost? And then somebody
11 would say, Well, it's going to be $40 billion in prisons,
12 and 60 -- 32 billion and all of these numbers. And I
13 said, and many of us on this end of the hall said, We
14 don't care because it is a -- the really number one
15 priority of government is the protection of its citizens.
16 And the message is -- has been so gentle. They were
17 serving, I believe, and I wasn't prepared for this debate,
18 39 percent of their sentences, maybe less than that. And
19 everybody knew it. And we had policemen that came to the
20 committee and they came to my office and they would say,
21 You should be on an arrest where there's a Federal officer
22 along and they are all there and they are getting
23 arrested, who have committed a drug crime or whatever and
24 then they find out it's a Federal officer and they say,
25 Oh, no, this is not a Federal. Well the Federal was
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1 requiring them to serve 85 percent of their sentences.
2 And yet at that time in the state only like one-third of
3 their sentences were being served.
4 So, we kept -- I've been through this in great
5 detail, the financial aspects of trying to show -- and we
6 even -- we would say, Well, there is a deterrent affect.
7 Well, but, you know, the revenue estimators don't want to
8 make -- well, then, how about these repeat offenders that
9 wouldn't have been out? So then we started with some
10 numbers. In the end, long story short, we have, we have a
11 statute on that. We could not -- the reason the average
12 is still not up there, there was -- and correct me if I'm
13 wrong -- but it was to make it retroactive, but we
14 couldn't really make it retroactive as to the ones who had
15 been sentenced or convicted previously.
16 But I think this is a great idea. I don't think the
17 people -- I mean, they knew that two or three years ago.
18 I think General Butterworth supported it. They knew we
19 did it, but now they -- so I think it would be great to
20 have this on the ballot and to put it in the Constitution
21 so it can't be changed if somebody comes along and wants
22 to change it in the future, at least without a vote of the
23 people.
24 So I just want to speak in support of it. And I
25 think it's really good to have it. And we have tried,
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1 actually, to get a constitutional amendment on it, and
2 with all due respect, couldn't get it through the House.
3 But in any event, you weren't there. Don't worry, Speaker
4 Mills. So I hope we'll all vote for it and let's put that
5 on the ballot as part of our package.
6 CHAIRMAN DOUGLASS: Commissioner Zack?
7 COMMISSIONER ZACK: I'm very much in favor of the
8 proposal. But would you yield to a question?
9 CHAIRMAN DOUGLASS: Commissioner Rundle?
10 COMMISSIONER RUNDLE: Yes.
11 COMMISSIONER ZACK: When I served as Governor
12 Graham's counsel, the first thing we did every morning was
13 check the prison population. That was the first thing as
14 we walked into the office because we were under a Federal
15 order at that time that Judge Black in the northern
16 district had entered about prison overcrowding. And we
17 had to make some decisions on a day-to-day basis, almost
18 prisoner-by-prisoner basis. And at that time, I went
19 around to the various prisons.
20 And frankly, I lost track on where we are in that
21 process. And would this cause us some problems if we face
22 that situation again? You know, as I said, I'm very much
23 in favor. I would like to see 100 percent. Or if the
24 Federal was 85, we would have 90. But in any event, I'm
25 just concerned about how that puts us in the Federal
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1 courts.
2 COMMISSIONER RUNDLE: May I respond?
3 CHAIRMAN DOUGLASS: Yes.
4 COMMISSIONER RUNDLE: I'm told, Commissioner Zack, by
5 the Department of Corrections, that in fact right now,
6 there are approximately 7,000 beds that are built and they
7 are not actually occupied at this point. And a lot of
8 people believe that that does have to do with a variety of
9 different strategies that are working. But one of those
10 is maintaining the prisoners inside for a longer period of
11 time as we are approaching closer to 40 and 50 percent of
12 time served.
13 There are a number of studies, and I apologize
14 because I wasn't prepared to debate this today either,
15 thinking it was going to come up, we figured, Wednesday or
16 Thursday, so I didn't bring those materials with me. But
17 there are a substantial number of studies that show that
18 prisoners who serve closer to their full time actually
19 repeat and become recidivists much -- substantially less
20 than they do when they are released early. It also
21 assists with rehabilitation because they are in there long
22 enough to be able to get the kind of rehabilitation, what
23 limited amount there is, inside the state prisons.
24 CHAIRMAN DOUGLASS: All right. Now Commissioner
25 Kogan.
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1 COMMISSIONER KOGAN: I think you are going to find
2 that the longer somebody stays incarcerated, the less
3 rehabilitated they become. When you're put into a system
4 where you have to respond, as an animal living in the
5 jungle might, in order to preserve your dignity as a human
6 being, it tears down your dignity as a human being and you
7 become like everybody else becomes in the prison system.
8 That's why we have 65 percent recidivism.
9 Well, this goes far above and beyond that. The
10 question here is whether or not this ought to be part of
11 our Constitution. We already have a statute which
12 mandates 85 percent. I read the materials that were put
13 out on this. And the materials say, If you make it a
14 constitutional amendment, then the Legislature will not
15 have the ability to change this. And if the Legislature
16 cannot change this, then you're not going to have to worry
17 about prison overcrowding because the Legislature will go
18 ahead and constantly provide enough beds to prevent a
19 crisis and therefore, people won't be let out.
20 The only thing wrong with that is, as long as the
21 Legislature has the right and the authority to set the
22 guideline sentences, that's how they can do it. And if
23 the Legislature decides, Heck, there's a constitutional
24 amendment here, got to put them in for 85 percent of the
25 time, we don't want to spend the money to do that, what
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1 can we do? Very simply, they lower the guidelines. So
2 somebody whose guideline sentence should be ten years is
3 now five years, four years, three years, two years. And
4 what you are going to see is that this thing just will not
5 work the way you intend it to work.
6 I think that if we are going to have this, it ought
7 to be statutory. I don't think you ought to bind the
8 hands of the Legislature. But I think certainly, that we
9 should not delude ourselves into believing that the longer
10 somebody stays in prison the more they become
11 rehabilitated, they don't. As a matter of fact, many of
12 these people come out and truly they don't commit the
13 violent crimes again. Because if you go in at the age of
14 25 and you do 25 years in prison, when you come out you're
15 50, you're a little bit too old to go out and commit those
16 violent crimes.
17 And you and I know that. You and I both know from
18 all of our years in the criminal justice system that the
19 overwhelming majority of violent crimes is committed by
20 people between the ages of 18 and 25, we know that. And
21 what really happens is after long prison terms, they've
22 really, for want of a better way to describe it, they've
23 matured, they've grown up, and they don't have the
24 physical capability anymore to commit the violent crimes
25 that they committed before.
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1 So that's why so many of them coming out may not go
2 back to prison for a violent crime. But I'm not saying
3 they won't go back to the jail for little petty crimes or
4 something like that. I think we have it in the statute.
5 I think that's sufficient. If you put it in the
6 Constitution, the Legislature is going to be able to
7 circumvent it the same way they can circumvent it now.
8 CHAIRMAN DOUGLASS: Commissioner Smith?
9 COMMISSIONER SMITH: Thank you, Mr. Chairman. During
10 our very fine debate and protracted debate we had on the
11 bicameral Legislature Senator Scott made probably one of
12 the more powerful arguments against a unicameral
13 Legislature and he was not able to convince me, but he
14 advised me today that the House would not vote for this
15 constitutional amendment. Had he said that then, I might
16 have voted against unicameral because that's one of the
17 best reasons I can see for us to have a bicameral
18 Legislature, so that this type of proposal doesn't slip
19 through.
20 First of all, let me commend Commissioner Rundle for
21 her stewardship of this proposal through the Declaration
22 of Rights Committee. As a Chair, this was the only one
23 that surprised me. It passed 4-3. I didn't think it had
24 a chance. But with her adept advocacy and persuasion it
25 passed.
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1 I rise to oppose this for three reasons. One, as has
2 been said, we had a problem but the Legislature fixed it
3 with the 85 percent time statutorily. Two, we said
4 initially, we would start off by asking a threshold
5 question, What are the items that we want to put in our
6 Constitution? And when this question was asked at the
7 Declaration of Rights Committee, Commissioner Rundle,
8 correct me if I'm wrong, the question was asked, Does any
9 state have in their Constitution a specific period of time
10 that is mandated to be served? At that time, the answer
11 was no. Yeah, the answer was no other state has in its
12 Constitution a provision that requires that a sentence of
13 a specific period of time be served.
14 Third, in a way, I was sort of surprised of Senator
15 Scott's position favoring this because I really think it's
16 important, as we deal with this issue, the Lottery issue.
17 You know, people saying set aside 40 percent of the budget
18 for education. I really think it's important that we
19 allow some flexibility with our Legislature as they
20 grapple with issues in 2016 and one of the 2017 when we
21 meet again. And for that reason, and other reasons stated
22 by Commissioner Kogan, and I'm sure as you were speaking,
23 Commissioner Kogan, some people were saying, Well, we
24 don't care about rehabilitation, we just want them to be
25 in prison. And legitimate vengeance or retribution,
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1 that's a legitimate purpose.
2 But the issue is, if they are there now as a result
3 of a statutory amendment, is it worth ensuring for the
4 next 20 years that this will stay on the books,
5 understanding that we are taking away from our Legislature
6 the flexibility to deal with a tremendous number of other
7 very, very, very important issues that they will face over
8 the next 20 years? And in the balance, I come down on the
9 side of no.
10 CHAIRMAN DOUGLASS: Commissioner Morsani?
11 COMMISSIONER MORSANI: I greatly respect Judge
12 Kogan's comments. A number of years ago, I was privileged
13 to serve with Chief Justice Berger for a number of years
14 on prisoner rehabilitation in his prison without fences.
15 And maybe a number of you are familiar with his desires
16 to -- for rehabilitation.
17 And I, like Justice Kogan, just --
18 CHAIRMAN DOUGLASS: That's Commissioner Kogan.
19 COMMISSIONER MORSANI: Commissioner Kogan.
20 CHAIRMAN DOUGLASS: Right. We have to defrock him
21 when he comes in here.
22 COMMISSIONER MORSANI: I think we aren't doing the
23 job of rehabilitation. I know we all talk about money.
24 That's one aspect of our prisons. In this nation we have
25 done a poor job. Certainly, it sounds good to have
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1 85 percent of your time. That really sounds nice. I
2 happen to think though, having over with the Legislature
3 and having it under statutes makes so much more sense than
4 to making it something permanent with our Constitution.
5 And many of you, I'm sure, in the justice system have
6 visited prisons. I find it very interesting. One of the
7 main things that's happening, as the new prisons that are
8 being built today, no longer do we have to warehouse
9 prisoners as we have in the past. All you have got to do
10 is drive the roads of Florida and look at these
11 correctional institutions in the counties. And so many of
12 them are 1950 buildings where they are all lined up, and
13 you go in prisons and you've got these halls. And there's
14 nothing in there for them to do and so on and so forth,
15 versus the brand new prisons that we are building, that
16 way you have control of prisoners where you can do
17 something with prisoners in an entirely different way.
18 Certainly, when you go to -- I can't think of the
19 names of those places that I go in, but where you really
20 have the hard cases and it's really -- the psychological
21 problems in there with some of them, it is a deplorable
22 pit, there's no other way to describe it, that's true.
23 And those people, unfortunately, they deserve to be in
24 those pits, and that's a terrible thing to say. But the
25 majority of those people that we put in prison can be
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1 rehabilitated. I don't know what the citizen guidelines
2 are. I don't know, you know, I never have had a handgun.
3 If you had my vote, you wouldn't be getting one for 90
4 days because I don't have any use for them, or don't know
5 why people have to have them. But that's another issue.
6 But I do think that we need to have guidelines and I
7 think that should be left to the Legislature. I don't
8 think it should be part of our Constitution. I know it
9 sounds good, it would probably pass. It would probably
10 pass. The population would probably approve it. But that
11 doesn't make it right. And I challenge you, I think we
12 should not have this on our ballot. We should leave it
13 where it is in the Legislature. Thank you.
14 CHAIRMAN DOUGLASS: Commissioner Butterworth?
15 COMMISSIONER BUTTERWORTH: Mr. Chairman, thank you
16 very much. I appreciate the comments of Commissioner
17 Morsani, I was going to ask his advice but since he spoke
18 first I do not have to do that.
19 (Laughter.)
20 CHAIRMAN DOUGLASS: He's already given it.
21 COMMISSIONER BUTTERWORTH: That's very good advice,
22 sir, I agree with that. I've been involved in this
23 business now for perhaps my entire adult life, ever since
24 1969 in the criminal justice system in various capacities
25 and have been a prosecutor, a judge, a sheriff, and now as
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1 attorney general. And I cannot think of anything that
2 really caused the public to lose complete confidence in
3 the criminal justice system and perhaps government than
4 what happened in this state in the area of prisons.
5 For a period of time this state was not building
6 prisons at a point in time when maybe we should have, we
7 were building everything else. At the same time, we were
8 getting tough on crime. And I can recall speeches on the
9 floor of this particular House and of the House down the
10 hall where people would stand up and say, Mr. Speaker,
11 Mr. President, I wish to move, sir, my minimum/mandatory
12 sentence of 400 years for selling whatever it might be
13 within 1,000 feet of a school or a nursery, and it would
14 pass overwhelmingly.
15 And then it would come up to, Well, maybe, we should
16 also build some prisons, No, no, we are fiscally
17 conservative. We are tough on crime and we have passed
18 these real tough laws.
19 What ended up happening, those of us running for
20 office in 1986, at the statewide level, found that the
21 most pressing issue was that of the criminal justice
22 system and how were we going to deal with the fact that
23 for a point in time there, an inmate or a person sentenced
24 to let's say under sentencing guidelines even if we get
25 10, 15, or 20 years, to find out that they only served
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1 5 percent of that sentence. Or even a couple of years
2 after that, we found out that the system got to be so bad,
3 and Commissioner Rundle can articulate on this much better
4 than I can on this, where you will have the prosecutor
5 asking for probation.
6 And you would have in most cases the public defender
7 asking for prison time because the public defender knew
8 that his or her client could not make probation, and
9 therefore has to come back and do his sentence. But they
10 knew even if they received a three or four-year sentence,
11 they'd be out literally in two or three months and they
12 could do that, as the inmate would say, Standing on my
13 head.
14 We needed to know how to address that particular
15 issue. But none of us knew that it was going to be a very
16 difficult issue to address. And many of us really put our
17 heads together, how are we going to address this and how
18 is the issue actually addressed? The way that this
19 government addressed the issue of prison overcrowding was
20 do something that none of us ever thought of, none of us
21 who campaigned in '86 ever even thought of the most
22 easiest solution, we'll just let them go, that will
23 resolve the prison overcrowding problem. And that was it.
24 We decided that, when, in fact, the prison hit a
25 certain 97 percent of capacity, in accordance with the
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1 lawsuit, that we would then, if we had to release 200
2 people tomorrow, we would determine how many days off we
3 would have to give to every single person in the whole
4 system for 200 inmates to be let go. And if that ended up
5 being 30 days, or 60 days, 90 days, everybody in the
6 system received that much time. Until where it got to be
7 absolutely a joke, a flat-out joke, where someone -- we
8 started advocating, Let's pass the legislation, say, Let's
9 get truth in sentencing.
10 So, when the person was either found guilty or pled
11 guilty, the judge would say, In accordance with the
12 sentencing guidelines in the state of Florida, you are
13 going to receive ten years' incarceration on your offense.
14 But due to prison overcrowding and good time or gain time
15 or whatever, someone going in today, the Department of
16 Correction predicts that you will be out tomorrow.
17 At least let everybody know what the truth is. We
18 couldn't get that passed because that was not politically
19 the right thing to do. What this does here, I believe, as
20 Commissioners Rundle and Mills stated, this puts truth in
21 sentencing right up there, up front, the day that the
22 person is sentenced, so that the victims will know what
23 that particular sentence might be.
24 The Legislature is the one that determines what the
25 sentences will be through the actual number of years for a
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1 particular offense, they don't have to stay with 5, 10,
2 15, 20 years, whatever it went to on that, and also on
3 guidelines. When a person receives that sentence, they
4 will serve 85 percent of that unless they earn their way
5 out, unless they earn their way out, because in the
6 proposal it allows us to do that, for a clemency board to
7 hear the cases.
8 Let's let a clemency board be a clemency board.
9 Let's let everyone know the victims as well as defendants,
10 you will receive 85 percent of that sentence. As
11 Commissioner Rundle stated, in most cases, it's three
12 years or less. You will serve 85 percent of that but you
13 can earn your way out, by convincing the parole
14 commission, or in this case, the clemency board, that you
15 deserve to get out early.
16 What does imprisonment mean? It may not mean behind
17 the brick and mortar. Imprisonment could mean something
18 else, such as that halfway house, such as perhaps even the
19 ankle bracelet or whatever. But you are at least allowed
20 in the beginning for everyone to know it's 85 percent.
21 And then let the rest of the system do what they're
22 supposed to do and let us rehabilitate those that we can.
23 And 95 percent can be habilitated in the appropriate
24 way. But let's let them earn their way out. Let's have
25 the entire system work and let's bring confidence back not
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1 to only criminal justice system, but in government in the
2 state of Florida.
3 CHAIRMAN DOUGLASS: I would like to, if we can,
4 curtail the debate a little bit because I think we've
5 almost finished this special order calendar, if we do. At
6 least the next three we might be able to get. If anybody
7 feels constrained to speak further on this -- to close, is
8 that what you're going to do? Okay.
9 Commissioner Mills?
10 COMMISSIONER MILLS: I will close very briefly.
11 There were a couple of points that were made that are
12 worth repeating. Commissioner Kogan suggested that the
13 Legislature could change sentences and therefore might
14 frustrate the intent of this. Actually, because that is
15 true, it's one of the reasons why I think this is a good
16 idea. Again, it's another moving part. If the
17 Legislature wants to change the sentence, they can. But
18 they will know that 85 percent of that will be served.
19 Now, nobody knows, the stories that Commissioner
20 Rundle and Commissioner Butterworth told you are horror
21 stories for the public, for the victims, who believe that
22 a criminal justice system, I guess, na‹vely, when they
23 convict and sentence someone, that they will serve it.
24 This simply says that that decision made by the
25 Legislature, imposed by the courts, 85 percent will be
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1 served. And I think that they are entitled to expect
2 truth in sentencing, and I think if we pass this, we'll
3 find overwhelming support for this principal public issue.
4 CHAIRMAN DOUGLASS: All right. We are on the
5 amendment. We have to adopt that before we can vote on
6 the proposal. All in favor of the amendment say aye.
7 Opposed like. Motion carries.
8 Now, we will proceed to vote on Proposal 24, as
9 amended. Unlock the machine. Has everybody voted? Lock
10 the machine and record the vote.
11 (Vote taken and recorded electronically.)
12 READING CLERK: 17 yeas and 9 nays, Mr. Chairman.
13 CHAIRMAN DOUGLASS: So it carries. We will now move
14 to Proposal 39, disapproved by the Committee on Bonding
15 and Investments by Commissioner Henderson. Would you read
16 it, please?
17 READING CLERK: Proposal 39, a proposal to revise
18 Article X, Florida Constitution; Creating the Florida Land
19 and Water Conservation Trust Fund and providing for its
20 source of funds and purposes.
21 CHAIRMAN DOUGLASS: Commissioner Henderson?
22 COMMISSIONER HENDERSON: Mr. Chairman, I want to try
23 to simplify this. There are actually three proposals that
24 have been kind of working their way through and came
25 through the Committee on Bonding and Investments. 39,
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1 which is here, 151 by Commissioner Barkdull, and then
2 there was Proposal 64, which is at the committee
3 substitute actually for 64, which is the proper vehicle
4 and was favorably reported by the committee. And in just
5 a minute, I'm going to invite Commissioner Nabors to
6 announce the amendment, which will be the committee
7 substitute.
8 CHAIRMAN DOUGLASS: The amendment is on the table.
9 COMMISSIONER HENDERSON: Has it been distributed?
10 CHAIRMAN DOUGLASS: It has been distributed. It is
11 Amendment No. 1, the Proposal 39, to be moved -- and it's
12 apparently moved by Commissioner Nabors, as you said.
13 COMMISSIONER HENDERSON: Right.
14 CHAIRMAN DOUGLASS: How would you suggest we proceed,
15 Commissioner Nabors present his amendment?
16 COMMISSIONER HENDERSON: Let me yield to the
17 committee chairman, if I could, Commissioner Hawkes.
18 CHAIRMAN DOUGLASS: Commissioner Hawkes?
19 COMMISSIONER HAWKES: Mr. Chairman, I think what we
20 would like to do, if it's okay with Commissioner Nabors,
21 is go ahead and make this a committee substitute for both
22 this proposal and the next proposal and also the proposal
23 that's not on the -- I don't know if we can do the one
24 that's not on the calender today.
25 CHAIRMAN DOUGLASS: We can't do that. You will have
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1 to just act on this one and when we come to the other one,
2 you can kill it.
3 COMMISSIONER HAWKES: If we make it a committee
4 substitute for both of these two, can we take up both of
5 these and make this --
6 CHAIRMAN DOUGLASS: You can't do that.
7 COMMISSIONER HAWKES: Okay.
8 CHAIRMAN DOUGLASS: Let's get going.
9 COMMISSIONER HENDERSON: Mr. Chairman, we can
10 simplify, we want to put our energy into the amendment
11 that Mr. Nabors is about to propose, understanding that's
12 what the committee recommended. And then I'm certainly
13 going to withdraw 39 and I'm sure Commissioner Barkdull
14 will withdraw 151 as well.
15 CHAIRMAN DOUGLASS: Commissioner Barkdull, why don't
16 we do this --
17 COMMISSIONER BARKDULL: Why don't we waive the rules
18 and take up Commissioner Nabors?
19 CHAIRMAN DOUGLASS: Okay. Without objection, we'll
20 take up Commissioner Nabors -- I guess, it is a proposal
21 now. First of all, we'll have to adopt it as an amendment
22 to --
23 COMMISSIONER BARKDULL: To 39.
24 CHAIRMAN DOUGLASS: -- to 39. And all in favor of
25 the amendment, please -- well, read it, it says the same
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1 thing.
2 READING CLERK: By Commissioner Nabors, on Page 1,
3 delete everything after the proposing clause and insert
4 lengthy amendment.
5 COMMISSIONER NABORS: Members of --
6 CHAIRMAN DOUGLASS: Wait a minute, let's just --
7 everybody that's for the amendment, without objection, the
8 amendment is passed. And we will now be dealing with
9 Proposal 39, as amended, which, in effect, is a substitute
10 proposal. And therefore, we are now on the proposal as
11 offered in this amendment by Commissioner Nabors and you
12 have then yielded to Commissioner Nabors to present this
13 amendment, which is the proposal.
14 Commissioner Nabors?
15 COMMISSIONER NABORS: Members of the Commission, I
16 hope you have the language in front of you which is an
17 amendment to the Proposal 39. This is the Preservation
18 2000 issue that we heard testimony on. Briefly, the
19 Florida Constitution says that any state bonds, payable
20 from state tax revenues, require voter approval. The
21 Preservation 2000 bonds are basically done because they
22 are grandfathered in under the old 1885 Constitution.
23 Those bonds have a, under the grandfather provision,
24 have a limited maturity of like another seven years. So
25 we struggle with these three proposals to deal with that.
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1 And what you see is language that came out of the Bonding
2 and Investment Committee. Basically what it does is it
3 directly deals with this issue by amending the
4 Constitution in Article VII to allow the state to issue
5 bonds either full faith and credit or by a designated
6 revenue source to fund the Preservation 2000 project so
7 it's a direct attempt to directly deal with that issue as
8 opposed to dealing with the old 1885 language.
9 You should note that this language has been by
10 reviewed by both the people and concern with preservation.
11 It also -- we met with those that are concerned with water
12 resources. And we have added some language on Line 17,
13 Page 2, of the amendment dealing with water resource
14 development, which is acceptable to everyone. We've also
15 clarified the fact, as is the case of the 1885
16 Constitution, that bonds could be issued for multiple
17 purposes within the corners of this language.
18 So, our hope is that this directly addresses the
19 issue of the Preservation 2000 from a constitutional
20 standpoint.
21 CHAIRMAN DOUGLASS: I have a question. I rule this
22 amendment could come in as a proposal without determining
23 how it differs from the proposal. And I think that might
24 be leading us to confusion. If I understand what you've
25 said, you have added to the present Constitution items
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1 that can been covered under these bonds, pledging the full
2 faith and credit that are now not in it; is that correct?
3 COMMISSIONER NABORS: Well, the only thing we've
4 added is the language -- you know, from the current 1885
5 Constitution we added the language, water resource
6 development --
7 CHAIRMAN DOUGLASS: My point is, what do we have now
8 in the language that authorizes the P2000 bonds? And I
9 don't want to talk about 1885 or any other time. I think
10 we are entitled to know here, if we are going to be adding
11 some matters that can be bonded with the full faith and
12 credit of the state. And I'm not a bond lawyer, but I
13 understand bond lawyers, and I want to know if we are
14 expanding the language in any fashion that allows the
15 pledging of the full faith and credit. And I'm not
16 speaking for or against it. But I think as the Chair,
17 since we all of a sudden here are trying to wrap three
18 amendments into one, that we don't pass a tobacco bill.
19 COMMISSIONER NABORS: Of course I'm not a bond lawyer
20 either, I'm a lawyer. I can tell you what the language
21 says. And what you have in front of you is a proposed
22 substitute for Proposal 39 if that passes. And then I
23 assume then we would take up and withdraw the others if
24 that's necessary.
25 All I can tell you is if you look at the language,
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1 the new language on Lines 12 through 20, the only language
2 that's different in terms of what can be done now in the
3 existing bonding for Preservation 2000, is the additional
4 language, water resource development. That's the only
5 additional language from what appears there now.
6 CHAIRMAN DOUGLASS: Then, I think somebody ought to
7 tell us what that means, at least.
8 COMMISSIONER NABORS: Well, this is a language that
9 was talked about. It allowed, that, for example, if you
10 had land that was acquired under this program, there was a
11 recharge area, there was an area involved in aquifer
12 recharge that potentially, if the Legislature allowed it
13 to be done, it could be used for water supply purposes.
14 It doesn't change the nature of the land as built for --
15 to be done for conservation and for water resource
16 development.
17 CHAIRMAN DOUGLASS: Commissioner Barkdull?
18 COMMISSIONER BARKDULL: I have some reservation. One
19 of these to be substituted is my proposal that would have
20 done nothing but extend the date for refunding and that
21 was as far as I wanted to go. I was not in favor of
22 expanding the authority. And from the colloquy that I've
23 just heard, I get the impression that this does expand the
24 opportunity for the issuance of additional securities and
25 that was not the intent of what I had intended in my
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1 proposal that's on the calendar.
2 CHAIRMAN DOUGLASS: Let me ask this question. We are
3 talking about three proposals now, right? No, no, no.
4 You said you wanted to combine 151. You are combining
5 yours and you are combining Barkdull's. What I'm going to
6 do is recommit all three of these to the committee to come
7 out with a committee substitute. And you have got another
8 meeting and there's no point in not doing this with
9 Commissioner Barkdull having made his last statement.
10 This is what bothered me because Commissioner
11 Barkdull proposed one simple thing, which is what we heard
12 in the public hearings; which was that you eliminate the
13 language 2013 and leave everything like it is. Now, we
14 don't need any other amendments unless we are doing more
15 than that.
16 Commissioner Barkdull?
17 COMMISSIONER BARKDULL: Well, my purpose of my
18 amendment was to do only that. Now, these other
19 amendments, the explanation that they have given me, that
20 did not expand the authority. And I am not prepared at
21 this point to support that proposition. All I want to do
22 is expand the ability to refund it.
23 CHAIRMAN DOUGLASS: Commissioner Hawkes, is that all
24 it does? Why do we need the other language?
25 COMMISSIONER HAWKES: I almost said Your Honor, but
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1 Mr. Chairman, the words "water resource development" were
2 intended as clarification because water is a more
3 important problem in Florida today. And that was just to
4 give the Legislature the power, if they wanted to, to do
5 purely water sources kinds of issues.
6 In other words, where are we going to get the water
7 for Pinellas County? Where are we going to get the water
8 for Hillsborough? Do we need to issue bonds to maybe make
9 a desal (phonetic) plan or produce -- you know, it was
10 that -- but it wasn't -- probably that authority would
11 have existed anyway.
12 Other than that, this amendment, in essence, is
13 Commissioner Barkdull's amendment that gave the
14 Legislature an extended date except we don't ever end it.
15 I mean, the Legislature can issue bonds to 2013. If they
16 want, they can issue bonds to 2025. You know, the
17 Legislature decides what is in the best interest of the
18 State on how long to issue the bonds.
19 The other proposal that this is -- this proposal is
20 the one that got the favorable recommendation out of
21 committee. It is offered as an amendment to Commissioner
22 Henderson's proposal just to simplify things because this
23 one was not favorably recommended because it basically
24 dictated what would happen with this money, how much would
25 be spent. And the committee felt uncomfortable doing that
193
1 and thought that would be best left with the Legislature.
2 CHAIRMAN DOUGLASS: Commissioner Nabors?
3 COMMISSIONER NABORS: Mr. Hawkes, as I understand
4 what happened at the committee was, we had basically the
5 proposal of Commissioner Henderson, which this is being
6 amended to. We also had Commissioner Barkdull's proposal.
7 And both of those were unfavorable. This language was
8 reacted favorable to a proposal that is down with the
9 special order; is that correct?
10 COMMISSIONER HAWKES: That's correct. This is the
11 one that was favorable out of a committee. And we thought
12 that if we went ahead and substituted this on Commissioner
13 Henderson's, and he had no problem with that, we could
14 pass it out. And then when we got down the road, we could
15 just withdraw it and we would save time.
16 CHAIRMAN DOUGLASS: So what you are doing is moving a
17 proposal that was not on special order?
18 COMMISSIONER HAWKES: Well, we're moving the
19 language, not the proposal.
20 CHAIRMAN DOUGLASS: All right. I'm going to rule
21 that that's out of order and we temporarily pass this.
22 We'll take them up on the next special order on the
23 proposal that you're trying to move and we will go forward
24 with the next proposal.
25 Commissioner Henderson?
194
1 COMMISSIONER HENDERSON: The rule of the Chair.
2 CHAIRMAN DOUGLASS: All right. There's been an
3 appeal of the ruling of the Chair. That's non-debatable.
4 Do you understand the ruling of the Chair? The ruling of
5 the Chair?
6 COMISSIONER THOMPSON: I just wanted to know what it
7 was. Yes, what was the ruling of the Chair? I thought
8 you just said you deferred it until tomorrow.
9 CHAIRMAN DOUGLASS: What I said was, number one, we
10 started off with a proposal and then they got up and said,
11 We want to amend the proposal to make it another proposal.
12 And then they said what they were really doing is amending
13 these proposals to be the third proposal which is not on
14 special order.
15 And I ruled that since they were, in effect, using
16 the rule or motion to bring up a proposal that is not on
17 special order, that I was going to rule that it was out of
18 order and then we could temporarily pass these other two
19 until we reached that one on the special order tomorrow.
20 COMISSIONER THOMPSON: Well, let me ask you this,
21 Commissioner Henderson.
22 CHAIRMAN DOUGLASS: I'm going to allow you to do this
23 although this is not debate. You're just asking a
24 question, right?
25 COMISSIONER THOMPSON: First, I had an inquiry of the
195
1 Chair. And I wondered if you would let me inquire --
2 CHAIRMAN DOUGLASS: Oh, yes, sir.
3 COMISSIONER THOMPSON: What I would recommend to you,
4 instead of doing all this challenging and so on and so
5 forth that we don't understand, I don't even understand
6 what we're talking about. And I think that's part of the
7 Chairman's problem although he's certainly a lot smarter
8 than I am. But I don't understand -- I think you started
9 off by saying you're going to take half the dock stamps
10 and dedicate it somewhere.
11 Then there's another proposal here that I've finally
12 seen that came out of committee which looks fairly benign
13 to me, I don't know. Then Commissioner Barkdull has got
14 an idea that's been floating around ever since one of our
15 meetings. So what I'm trying to do, if I can't put a
16 little oil on the water here, I thought I'd just talk
17 until 6:00 and we would leave.
18 I don't want to get in the middle of somebody
19 challenging, this that and the other. So what I'd really
20 like to do is let's just wait until tomorrow and talk
21 about this. Maybe we can talk about it and understand it
22 at that time. How does that sound?
23 COMMISSIONER HENDERSON: Mr. Thompson, I appreciate
24 your attempts to put oil on the water and I'd agree with
25 you and I'd also tell you I can't believe we've even
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1 raised voices over this because what's before us is
2 absolutely benign. So I don't mind spending the evening
3 trying to convince my colleagues that this is benign and
4 worthwhile. So with that, I withdraw my appeal.
5 CHAIRMAN DOUGLASS: I want to explain my ruling, it
6 was not to raise voices. We're late in the day and we're
7 well after 5:00. This is not a subject that's familiar to
8 everybody on this commission as it is to the three of you
9 who have been telling us what to do and it's benign and
10 all this. And what I was trying to tell you is, that we
11 don't need to be voting at this time of day on something
12 where we're combining all these proposals, whether they
13 are the same or not, until somebody has had an opportunity
14 to look at it other than y'all.
15 And therefore, I rule as I did in order to get it on
16 track so that tomorrow you may present it in an orderly
17 fashion without referring to him to refer to him to refer
18 to him. And to TP it is the way I prefer to go. Does
19 anybody move to TP it? All right. All in favor say aye,
20 to TP.
21 Commissioner Barkdull.
22 COMMISSIONER BARKDULL: Mr. Chairman, I suggest that
23 we consider that we've concluded the special order today
24 and we now have announcements, motions for
25 reconsideration, and so forth.
197
1 CHAIRMAN DOUGLASS: All right. We only have -- I
2 don't think we have time to take up the other two that we
3 have on special order. We'll continue these until
4 tomorrow's special order; is that what you're proposing?
5 COMMISSIONER BARKDULL: Yes, sir.
6 CHAIRMAN DOUGLASS: All right. So we'll now revert
7 to matters on reconsideration or to move matters for
8 reconsideration.
9 COMMISSIONER BARKDULL: Commissioner Zack --
10 CHAIRMAN DOUGLASS: Commissioner Zack.
11 COMMISSIONER ZACK: Mr. Chairman, I move to
12 reconsider Proposal No. 1.
13 CHAIRMAN DOUGLASS: I didn't --
14 COMMISSIONER ZACK: I move to reconsider Proposal
15 No. 1, Proposition No. 1.
16 CHAIRMAN DOUGLASS: Okay. Commissioner Zack has --
17 now everybody pay attention, please. Commissioner Hawkes,
18 let's finish up here. It's been moved by Commissioner
19 Zack to reconsider the Proposal No. 1, when the action was
20 taken at the last meeting.
21 Commissioner Scott?
22 COMMISSIONER SCOTT: Mr. Chairman --
23 CHAIRMAN DOUGLASS: Wait a minute, I guess we should
24 read it, or should we?
25 COMMISSIONER SCOTT: No, Mr. Chairman. I think his
198
1 motion carries over until tomorrow when he makes the
2 motion. He just had to make the motion and then it's the
3 order of business tomorrow; am I right about that?
4 CHAIRMAN DOUGLASS: That's correct. We'll leave it
5 pending and tomorrow we will take up Commissioner Zack's
6 motion to reconsider Proposal No. 1.
7 Commissioner Barkdull?
8 COMMISSIONER BARKDULL: All right. Now a couple of
9 announcements. There will be no judicial committee
10 meeting tonight. There will be no Bonding and Investments
11 Committee tonight. I understand Commissioner Hawkes has
12 got a motion to withdraw a proposal in reference to a
13 Criminal Court Committee and have it placed on the
14 calendar. If that's correct, he can make it or I'll make
15 it.
16 CHAIRMAN DOUGLASS: What have we got?
17 COMMISSIONER BARKDULL: I would move the body that we
18 withdraw Proposal 169 from the Judiciary Committee and
19 place it on calendar, it relates to the creation of a
20 criminal court of appeals.
21 CHAIRMAN DOUGLASS: Without objection, it will be so
22 moved.
23 COMMISSIONER BARKDULL: All right. There will be no
24 Bonding and Investments Committee meeting tonight --
25 excuse me, tomorrow. Only has one matter that's before it
199
1 and that's Proposal No. 129 by Commissioner Marshall. And
2 I understand that you want to leave it pending for a
3 while. The -- I would like now to have people that want
4 to withdraw matters to speak up so we can get them
5 withdrawn.
6 CHAIRMAN DOUGLASS: Commissioner Evans-Jones?
7 COMMISSIONER EVANS-JONES: I move, sir, that we
8 withdraw Proposal 177, unicameral legislature from further
9 consideration.
10 CHAIRMAN DOUGLASS: Without objection, that proposal
11 is withdrawn.
12 Commissioner Henderson?
13 COMMISSIONER HENDERSON: Mr. Chairman, without
14 objection, I would like to withdraw Proposal 93 relating
15 to homesteads.
16 CHAIRMAN DOUGLASS: Without objection, Proposal 93
17 relating to homestead -- is that what it was? Is
18 withdrawn.
19 Commissioner Mills?
20 COMMISSIONER MILLS: Mr. Chairman, without objection
21 I move to withdraw Proposal 110 relating to intangible
22 taxes and 111 relating to education as a fundamental
23 right, there's another similar proposal.
24 CHAIRMAN DOUGLASS: Let's move them one at a time.
25 The first one?
200
1 COMMISSIONER MILLS: 110.
2 CHAIRMAN DOUGLASS: All right. It's moved that
3 without objection 110 is removed.
4 COMMISSIONER MILLS: And then, Mr. Chairman, 111.
5 CHAIRMAN DOUGLASS: Without objection, Proposal 111
6 is withdrawn. Any further motions to remove items from --
7 all right. Commissioner Barkdull?
8 COMMISSIONER BARKDULL: Mr. Chairman, there will be
9 no rules committee meeting at 6:00 tonight. There will be
10 one tomorrow. You will have an additional special order
11 calendar tomorrow which will include the items we did not
12 finish today and the other items that are on the calendar
13 are the recurring committees. We're scheduled to convene
14 in the morning at 8:30 for a half-hour session and then
15 the committee meetings are from 9:00 until 12:00, I
16 believe. And we start at 1:00 tomorrow with another
17 afternoon session. Commissioner Freidin, question?
18 CHAIRMAN DOUGLASS: There is a question or two here.
19 Commissioner Kogan first.
20 COMMISSIONER KOGAN: My question is, why are we
21 meeting from 8:30 to 9:00 tomorrow morning?
22 CHAIRMAN DOUGLASS: Well, we could possibly bring on
23 the matters for reconsideration.
24 COMMISSIONER KOGAN: Because we have our committees
25 that start at 9:00 in the morning.
201
1 CHAIRMAN DOUGLASS: That's right. And this should be
2 from 8:30 to 9:00. It's my understanding the TV cameras
3 get turned on at 8:30 so you better be here wide awake.
4 COMMISSIONER KOGAN: Not necessary, I have those over
5 in my building too.
6 CHAIRMAN DOUGLASS: You're not on time full time
7 on-line I don't think on the satellite.
8 COMMISSIONER KOGAN: Only on it 150 hours a year,
9 that's all.
10 CHAIRMAN DOUGLASS: That's not necessary, but it
11 seemed to me the committee -- rules committee must have
12 something for us to consider at 8:30 or we wouldn't be
13 meeting, am I correct, Commissioner Barkdull?
14 COMMISSIONER BARKDULL: Excuse me?
15 CHAIRMAN DOUGLASS: We have something to consider
16 here at 8:30 or we wouldn't be meeting; is that correct?
17 COMMISSIONER BARKDULL: Yes, sir, we do. And the
18 special order, for your information, is being
19 distributed -- will be distributed as we have it. And we
20 hope to have for you in the morning when you come here at
21 8:30 so you'll have an opportunity to look at it before we
22 come in for the full session, a packet that explains the
23 items that are on special order.
24 CHAIRMAN DOUGLASS: All right. So are you
25 recommending that we reconvene in the morning at 8:30, at
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1 which time we will proceed with the items presented by the
2 rules committee or others at that time?
3 COMMISSIONER BARKDULL: Yes, sir.
4 CHAIRMAN DOUGLASS: And we will adjourn promptly at
5 9:00 to start the committee meetings that are scheduled.
6 COMMISSIONER BARKDULL: That's right, because we've
7 got people scheduled to come to those committee meetings
8 at 9:00.
9 CHAIRMAN DOUGLASS: Okay. Anybody have anything
10 else? If not, Commissioner Barkdull moves something.
11 COMMISSIONER BARKDULL: I'm getting ready to move
12 that we adjourn until 8:30 tomorrow morning except to tell
13 you that the staff is passing out a preliminary draft of
14 the special order committee, a special order calendar that
15 you will have available for tonight to look at. And I now
16 move that we adjourn until 8:30 tomorrow morning.
17 CHAIRMAN DOUGLASS: Without objection, we're
18 adjourned to 8:30 tomorrow morning. Thank you very much.
19 It's been a good day.
20 (Session adjourned at 6:15 p.m.)
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1 CERTIFICATE
2
3 STATE OF FLORIDA:
4 COUNTY OF LEON:
5
WE, JULIE L. DOHERTY, KRISTEN L. BENTLEY and
6 MONA L. WHIDDON, court Reporters, certify that we were
authorized to and did stenographically report the foregoing
7 proceedings and that the transcript is a true and complete
record of our stenographic notes.
8
9 DATED this ______ day of ____________, 1998.
10
11
_________________________________
12 JULIE L. DOHERTY, RPR
13
14 _________________________________
KRISTEN L. BENTLEY
15
16
_________________________________
17 MONA L. WHIDDON
COURT REPORTERS
18 DIVISION OF ADMINISTRATIVE HEARINGS
1230 APALACHEE PARKWAY
19 TALLAHASSEE, FLORIDA 32399-3060
(850) 488-9675
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