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1 STATE OF FLORIDA
CONSTITUTION REVISION COMMISSION
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COMMISSION MEETING
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DATE: January 13, 1998
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TIME: Commenced at 8:30 a.m.
11 Concluded at 6:15 p.m.
12 PLACE: The Senate Chamber
The Capitol
13 Tallahassee, Florida
14 REPORTED BY: KRISTEN L. BENTLEY
JULIE L. DOHERTY, RPR
15 MONA L. WHIDDON
Court Reporters
16 Division of Administrative Hearings
The DeSoto Building
17 1230 Apalachee Parkway
Tallahassee, Florida
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1 APPEARANCES
2 W. DEXTER DOUGLASS, CHAIRMAN
3 CARLOS ALFONSO
CLARENCE E. ANTHONY
4 ANTONIO L. ARGIZ (PM SESSION ONLY)
JUDGE THOMAS H. BARKDULL, JR.
5 MARTHA WALTERS BARNETT
PAT BARTON
6 ROBERT M. BROCHIN
THE HONORABLE ROBERT A. BUTTERWORTH
7 KEN CONNOR
CHRIS CORR (ABSENT)
8 SENATOR ANDER CRENSHAW (PM SESSION ONLY)
VALERIE EVANS
9 MARILYN EVANS-JONES
BARBARA WILLIAMS FORD-COATES
10 ELLEN CATSMAN FREIDIN
PAUL HAWKES (AM SESSION ONLY)
11 WILLIAM CLAY HENDERSON
THE HONORABLE TONI JENNINGS (ABSENT)
12 THE HONORABLE GERALD KOGAN
DICK LANGLEY (ABSENT)
13 JOHN F. LOWNDES
STANLEY MARSHALL (PM SESSION ONLY)
14 JACINTA MATHIS
JON LESTER MILLS
15 FRANK MORSANI
ROBERT LOWRY NABORS
16 CARLOS PLANAS
JUDITH BYRNE RILEY
17 KATHERINE FERNANDEZ RUNDLE
SENATOR JIM SCOTT (PM SESSION ONLY)
18 H. T. SMITH
ALAN C. SUNDBERG (ABSENT)
19 JAMES HAROLD THOMPSON (PM SESSION ONLY)
PAUL WEST
20 JUDGE GERALD T. WETHERINGTON (ABSENT)
STEPHEN NEAL ZACK (PM SESSION ONLY)
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IRA H. LEESFIELD (PM SESSION ONLY)
22 LYRA BLIZZARD LOGAN
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1 PROCEEDINGS
2 COMMISSION SECRETARY: All commissioners please
3 indicate your presence. All commissioners indicate your
4 presence.
5 All unauthorized visitors, please leave the chamber.
6 All commissioners indicate your presence. All
7 commissioners indicate your presence.
8 CHAIRMAN DOUGLASS: Will everybody please take your
9 seats, please? Let's come to order, please. Take your
10 seats, please. Commissioner Barkdull, I'll call on you in
11 just a moment. All unauthorized people will leave the
12 chamber. And can we have a quorum?
13 COMMISSION SECRETARY: Quorum present, Mr. Chairman.
14 (Quorum taken and recorded electronically.)
15 CHAIRMAN DOUGLASS: Would you all rise for the
16 opening prayer given this morning by Reverend Robert
17 Shelley, pastor of the Christian Heritage Church in
18 Tallahassee. Reverend Shelley.
19 REVEREND SHELLEY: I would like to pray with you the
20 petition of Micah 6:8. He has showed you, O man, what is
21 good and, what the Lord requires of you, but to do justly,
22 to love mercy, and to walk humbly with your God.
23 Our Father God, you have shown us down through the
24 millenniums by your revelation of knowledge what you
25 desire from man. So we would pray this morning that the
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1 same revelation of knowledge that has been a part of our
2 heritage move and touch and impress each mind, each heart
3 that is here. That each law that is being considered,
4 each word might be considered with justice. It would be
5 equitable and fair to all men. And, Lord, we would pray
6 also that each one of us would love mercy, that compassion
7 would touch our heart today as we consider the
8 far-reaching effect of each decision. And Lord, that we
9 might walk humbly before you, that we might lean upon
10 your strength, upon your wisdom and your knowledge as we
11 contemplate this very important agenda. We ask this in
12 the name of Jesus Christ, our Lord. Amen.
13 CHAIRMAN DOUGLASS: Remain standing, please.
14 Commissioner Nabors, would you come forward and lead us in
15 the Pledge of Allegiance to the flag. You can come up
16 here.
17 (Pledge of Allegiance.)
18 CHAIRMAN DOUGLASS: Well, good morning. I think not
19 everybody hasn't quite made it yet, but we do have a
20 substantial quorum. This should be a very short meeting,
21 I think. Commissioner Barkdull, am I right?
22 COMMISSIONER BARKDULL: Yes, sir. We are going to be
23 meeting in committee in about 20 minutes.
24 CHAIRMAN DOUGLASS: Is there any business that we
25 need to take up or do we defer to the afternoon sessions?
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1 COMMISSIONER BARKDULL: I think everything should be
2 deferred. But we have announcements.
3 CHAIRMAN DOUGLASS: Proceed.
4 COMMISSIONER BARKDULL: First, you have an orange
5 packet that we worked off of yesterday. Those that we
6 didn't reach yesterday are on special order today and
7 should be reached today. Following that, we have a
8 supplement to the special order calendar, which is in
9 blue. When we exhausted the orange calendar, we will
10 revert to the blue one.
11 You are also to be reminded that the judicial and
12 bonding and investment committee meetings for this
13 afternoon have been canceled. We have committee meetings
14 tomorrow in the afternoon, and that is the reverse of what
15 the original block schedule showed, but it was a
16 supplemental schedule, it was sent out last week and it
17 was on your desk yesterday, and it is shown on a block
18 schedule on the front of your calendar today.
19 There will be a rules and calendar meeting at 6:00
20 this afternoon in Room 309. I want to remind the
21 Declaration of Rights Committee that the Proposal No. 17
22 by Riley was recommitted to that committee yesterday
23 afternoon. The -- also some members have indicated that
24 they plan to withdraw proposals and they will be able to
25 do that at -- either now or at the conclusion of today's
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1 meeting, so bear that in mind.
2 Mr. Chairman, that concludes any announcements that I
3 have at this time.
4 CHAIRMAN DOUGLASS: All right. Does anybody else
5 have any announcements? The matter on reconsideration
6 will be taken up this afternoon; is that correct?
7 COMMISSIONER BARKDULL: Yes, sir.
8 CHAIRMAN DOUGLASS: All right. And other matters on
9 reconsideration can be raised any time during the day?
10 COMMISSIONER BARKDULL: Yes, sir.
11 CHAIRMAN DOUGLASS: From yesterday's package?
12 COMMISSIONER BARKDULL: Yes, sir.
13 CHAIRMAN DOUGLASS: Anybody else have any other
14 announcements, Ms. Secretary? I'm reminded by the
15 Secretary that we need to adopt the proposed special
16 order. Without objection, the proposed special order will
17 be adopted. Commissioner Barkdull doesn't think we have
18 to do that, but we'll do it anyway. Commissioner Rundle?
19 COMMISSIONER RUNDLE: Mr. Chairman, at this time I
20 would like to withdraw Proposal 81.
21 CHAIRMAN DOUGLASS: What is that?
22 COMMISSIONER RUNDLE: That has to do with signature
23 verification and absentee ballot.
24 CHAIRMAN DOUGLASS: Okay. Without objection,
25 Proposal 81 will be withdrawn. You have to have more
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1 strict scrutiny of absentee ballots, I understand?
2 (Off-the-record comment.)
3 CHAIRMAN DOUGLASS: Presently, you are doing just
4 that, right? Commissioner Barnett?
5 COMMISSIONER BARNETT: It's my understanding that the
6 proposed special order calendar includes a proposal by
7 Commissioner Brochin and one by me. The one I have is 144
8 dealing with punishment, and I think his deals with the
9 death penalty. We had talked with Commissioner Barkdull
10 about our need to have that mater deferred to the next
11 time the Commission meets. And so if that's on the
12 agenda, I would really like to request that that be done.
13 CHAIRMAN DOUGLASS: Both of them?
14 COMMISSIONER BARNETT: Yes. I don't know where --
15 there he is.
16 CHAIRMAN DOUGLASS: Are these in committee?
17 COMMISSIONER BARNETT: No.
18 CHAIRMAN DOUGLASS: They are on special order. Well,
19 I prepared an amendment to the death penalty provision
20 that I intend to offer. I'm prepared to do it whenever it
21 comes up. But just so you will know, Commissioner Brochin
22 and Barnett, I proposed to offer an amendment that would
23 provide that the capital punishment shall be, when there
24 is a finding of sufficient first degree murder or other
25 capital offenses, if there are any, that the jury shall
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1 have the alternative to sentence to death, upon a
2 unanimous vote, and upon a majority vote, may sentence in
3 the alternative, life imprisonment and solitary
4 confinement without parole.
5 And the third alternative would be -- and that would
6 be my majority vote. And the third alternative would be
7 life in prison, period. And that would be my majority
8 vote. I plan to offer that as an amendment to
9 Commissioner Brochin's proposal, original proposal, which
10 was that it took a unanimous vote for the death penalty,
11 and it was changed, I believe, in the committee from nine
12 to three; is that correct? And I'm going to offer that
13 amendment, so everybody can be getting their thoughts
14 together on it.
15 Recognizing that the federal system already provides
16 for life imprisonment and solitary confinement is one of
17 the alternatives there, and that presently there's several
18 hundred prisoners in the federal system that are in
19 solitary confinement because of incorrigible activity.
20 And I won't argue the point, but I want you-all to be
21 aware of that. I'm ready to go this week or next week or
22 whenever you want it on special order.
23 COMMISSIONER BARNETT: Thank you. I think it is
24 going to promise to be an interesting discussion. And in
25 order to make it more interesting, we would just like a
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1 little more time to talk amongst our commissioners about
2 it.
3 CHAIRMAN DOUGLASS: Okay. I didn't want to be
4 misleading any of you that that was on there. You are
5 deferring them from today's special order; is that
6 correct? Is that the request, Commissioner Barkdull?
7 COMMISSIONER BARKDULL: No, the request is that it be
8 deferred until our next meeting in January.
9 CHAIRMAN DOUGLASS: All right. What does the Rules
10 Committee say on that?
11 COMMISSIONER BARKDULL: The Rules Committee hasn't
12 met and specifically taken it up. I have indicated that
13 we would like to get to it as soon as possible. We would
14 certainly defer to the wishes of the commission and we
15 will schedule it for -- I would recommend that the Rules
16 Committee be scheduled for the next meeting in January.
17 But I would suggest that it will not be deferred beyond
18 that.
19 CHAIRMAN DOUGLASS: Would it be more appropriate if
20 we waited? Is the Rules Committee going to meet before we
21 meet this afternoon?
22 COMMISSIONER BARKDULL: No, it's going to meet at the
23 end of the afternoon session, but we can make a report
24 tomorrow.
25 CHAIRMAN DOUGLASS: Commissioner Barnett?
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1 COMMISSIONER BARNETT: Whatever the will of the
2 commission is, Mr. Chairman. I just simply, when you
3 approve the special order calendar, I wanted to make sure
4 that you and the other commissioners knew that if you
5 can't accomplish it now, at the appropriate time, we'll
6 move to temporarily pass it until the next meeting of the
7 commission, a date certain.
8 CHAIRMAN DOUGLASS: I'll treat that as a motion to
9 remove it from the special order for today and it will not
10 be returned to the special order until it's recommended by
11 the Rules Committee. Without objection, that will be
12 the -- Commissioner Evans, you have to let me know over
13 there. I see out of my right eye pretty well but it's
14 dark over there.
15 COMMISSIONER EVANS: Okay. I object because we have
16 been noticed that this issue is up. I would prefer that
17 discussion amongst commission members be in the sunshine
18 rather than behind closed doors. We have fully discussed
19 it in committee; it's ready. We come to Tallahassee a
20 great deal of the time. We have got this whole week -- we
21 have got quite a few days at the end of January, two weeks
22 in February. I think that we need to get on with our
23 business and stop putting issues off so that we can get
24 our ducks together a little bit better.
25 CHAIRMAN DOUGLASS: All right. We'll treat that as
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1 an objection to the motion Commissioner Barnett previously
2 stated, and we'll vote on it.
3 All of those in favor of the motion, say aye.
4 Opposed.
5 (Verbal vote taken.)
6 CHAIRMAN DOUGLASS: It is a two-thirds vote and it
7 does carry. It is a majority, it does carry, and it is so
8 done. Any further items? Commissioner Freidin?
9 COMMISSIONER FREIDIN: Good morning, Mr. Chairman. I
10 would like, at this time, like to withdraw Proposal
11 No. 88, increasing the length of the regular legislative
12 session and including a mandatory recess.
13 CHAIRMAN DOUGLASS: Without objection that will be
14 withdrawn. Are there other -- Commissioner Anthony?
15 COMMISSIONER ANTHONY: Mr. Chairman, I would like to
16 remove the item Proposal 52.
17 CHAIRMAN DOUGLASS: What is that? Tell us what it
18 is.
19 COMMISSIONER ANTHONY: Oh, proposal, payment of ad
20 valorem taxes on the first half of 50,000.
21 CHAIRMAN DOUGLASS: All right. Does everybody
22 understand the motion; which is to withdraw Proposal 52?
23 Without objection, it is withdrawn. Just a moment,
24 Commissioner Alfonso. That wasn't an objection, is that
25 correct? All right. Commissioner Alfonso? It is
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1 withdrawn.
2 COMMISSIONER ALFONSO: I would like to withdraw
3 Proposal No. 176. This proposal was originally introduced
4 to deal with some of the aspects of Cabinet reform that we
5 are dealing with in the executive, and now all aspects of
6 this proposal have been addressed and other proposals that
7 we are dealing with and it is no longer necessary for us.
8 CHAIRMAN DOUGLASS: Without objection, Proposal 176
9 is withdrawn. We are moving right along today. Has
10 anybody got anything else? Okay. I would like to say
11 that Commissioner Morsani stands among us in vain this
12 morning, he was the only one that got singled out for his
13 vote yesterday when he was the only one that voted for one
14 thing.
15 Commissioner Planas assured him that we needed at
16 least one negative vote. All of you are working very
17 hard, and I think now we can go and finish our committee
18 work. I would entertain a motion that we adjourn.
19 Commissioner Barkdull?
20 COMMISSIONER BARKDULL: I would move that we recess
21 until the hour of 1:00 p.m. today.
22 CHAIRMAN DOUGLASS: It is so done without objection.
23 (Session recessed at 9:00 a.m., to be continued at
24 1:00 p.m.)
25 SECRETARY BLANTON: All commissioners indicate your
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1 presence. All commissioners indicate your presence.
2 Quorum present, Mr. Chairman.
3 (Quorum taken and recorded electronically.)
4 CHAIRMAN DOUGLASS: All right. Come to order.
5 Please take your seats. Clear the gallery. Come to
6 order -- not the gallery, clear the floor. Those who were
7 not here to indicate their presence, be sure the secretary
8 knows you are present.
9 Commissioner Barkdull? Chairman of rules.
10 COMMISSIONER BARKDULL: Mr. Chairman and members of
11 the commission, you have the special order for this
12 afternoon before you. There will be, as we proceed,
13 certain items that will be temporarily passed or would be
14 requested to be temporarily passed and I'll explain those
15 as we get to them. I would ask for the consideration of
16 the commission.
17 I had a request from one chairman of one of the
18 committees that the time for consideration of proposals
19 before that committee be extended through a meeting that
20 will be scheduled for 6:15 on Thursday evening. And at
21 this time, I move you, sir, that the Declaration of Rights
22 Committee have until the conclusion of the meeting
23 scheduled for 6:15 Thursday on evening to complete its
24 work.
25 CHAIRMAN DOUGLASS: All right. Without objection,
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1 the motion passes unanimously. Are you going to have
2 everybody here, Commissioner Smith, do you think, for that
3 meeting?
4 COMMISSIONER SMITH: We expect to have everyone
5 except Commissioner Barton who has advised me that she
6 won't be here. She's an alternate who doesn't vote but --
7 CHAIRMAN DOUGLASS: Would everybody who was there
8 today concur to this time and that you needed that; is
9 that what you told me I think?
10 COMMISSIONER SMITH: Yes.
11 CHAIRMAN DOUGLASS: All right, sir. Then that will
12 be scheduled then for 6:15 for the Declaration of Rights
13 to conclude their work. Commissioner Barkdull?
14 COMMISSIONER BARKDULL: Mr. Chairman, I was the
15 sponsor of Proposal No. 122 which related to automatic
16 restoration of civil rights. After Commissioner Thompson
17 enlightened me this morning, I would like to withdraw that
18 proposal.
19 CHAIRMAN DOUGLASS: All right. Without objection
20 it's withdrawn upon the enlightenment of Commissioner
21 Thompson. We have on special order a matter on
22 reconsideration. I'd like to pass that until everybody is
23 here. The person that moved it has not -- oh, you're here
24 now. How many do we have present, Madam Secretary?
25 (Off-the-record comment.)
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1 CHAIRMAN DOUGLASS: The reason I ask that is
2 Commissioner Rundle isn't here and she's involved in this.
3 We'll pass this without objection until either later today
4 or perhaps tomorrow for consideration. Welcome to
5 Commissioner Argiz who's joined us since this morning.
6 Also Commissioner Mathis is here though she has not
7 arrived in the chamber. And they were unable and were
8 excused from the previous meetings.
9 Commissioner Planas, you rise?
10 COMMISSIONER PLANAS: Yes.
11 CHAIRMAN DOUGLASS: You're recognized.
12 COMMISSIONER PLANAS: Thank you, Mr. Chairman. I
13 want to withdraw Proposal No. 98, that is a different
14 language, that's not legislative terms. I'd like to
15 withdraw it. Thank you.
16 CHAIRMAN DOUGLASS: All right. Without objection,
17 Proposal No. 98 is withdrawn.
18 Commissioner Riley?
19 COMMISSIONER RILEY: Mr. Chairman, I'd like to also
20 withdraw Proposal No. 3 on the assessment of fees if
21 acquitted.
22 CHAIRMAN DOUGLASS: Without objection, Proposal No. 3
23 is withdrawn.
24 Commissioner Anthony?
25 COMMISSIONER ANTHONY: I'd like to withdraw Proposal
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1 No. 100, the creation, slash, abolishment of
2 municipalities.
3 CHAIRMAN DOUGLASS: Without objection, Proposal
4 No. 100 is withdrawn.
5 Commissioner Henderson?
6 COMMISSIONER HENDERSON: Without objection, I would
7 like to request withdrawal of Proposal 136 relating to
8 redevelopment and in-fill.
9 CHAIRMAN DOUGLASS: Without objection, Proposal 136
10 is withdrawn. Any further commissioners --
11 Commissioner Ford-Coates?
12 COMMISSIONER FORD-COATES: After the withdrawal of
13 Proposal 100 by Commissioner Anthony, and yesterday
14 Commissioner Nabors withdrew Proposal 92, those two
15 proposals were the only agenda items for the Local
16 Government Committee. And with that, the Local Government
17 Committee has passed on all of the proposals referred to
18 it. I assume that means the local government is working
19 quite well these days because it is closest to the people.
20 So that committee meeting will be cancelled for tomorrow.
21 CHAIRMAN DOUGLASS: Very well. Everybody involved
22 then is aware of that cancellation now. Anybody who's not
23 here, Commissioner Ford-Coates, you can let them know.
24 Commissioner Barkdull?
25 COMMISSIONER BARKDULL: We'll also make an
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1 announcement tomorrow morning that that's cancelled.
2 CHAIRMAN DOUGLASS: Correct. All right. Is there
3 anything further before we start on the special order?
4 And we're back to the first item on the special order
5 which is Proposal No. 60. Would you read it, please? We
6 have a new reader today.
7 READING CLERK: Proposal 60 by Commissioner Langley,
8 Article V, Section 2 Florida Constitution; providing for
9 the cross assignment of judges.
10 CHAIRMAN DOUGLASS: All right. Commissioner Langley
11 is not here. Does anybody care to present this? Are
12 there any proponents? Are there any opponents? Does
13 anybody want to get up and explain what it does? There we
14 go. Commissioner Kogan?
15 COMMISSIONER KOGAN: All right. It has been the
16 practice of chief judges around the state following their
17 right under the Constitution to reassign certain judges
18 that are under authority, particularly in this instance,
19 county court judges to do circuit court work. What
20 happened was in one of our counties, and if I recall
21 correctly I believe it's Palm Beach County, some of the
22 judges were assigned to temporary duty and that's the way
23 the Constitution now reads, temporary duty for a six-month
24 period, time after time after time, where some of them
25 actually served three and four years in a temporary
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1 capacity in six-month increments. And that case came to
2 us for a decision as to what was temporary and the Court
3 felt that serving three or four years as a county court
4 judge doing circuit court work was not temporary. So we
5 stopped them from doing that.
6 This is an effort to allow the judges, to the chief
7 judges to go ahead and use the county court judges again
8 but this time the word "temporary" is stricken. You know,
9 I'm not speaking for or against this, but the major
10 argument that I've heard for this is that there are some
11 county court judges, and I know this from my own personal
12 experience, who are very, very capable and able to do
13 circuit court work. And for example we've got a county
14 judge in Dade County who's been doing circuit court work
15 now for many, many years and he's even retired on top of
16 it. And he's perfectly able to do the work that he's
17 doing. This is a plus side.
18 The negative side that I've heard is, Look, you know,
19 we elect these judges, you know, to be either circuit
20 court judges or county court judges and a lot of people
21 will tell you, especially those who have been on judicial
22 nominating commissions, that many times we put nominations
23 forward for young attorneys that we feel will make good
24 county court judges but we feel they may need the
25 seasoning or they may never really be ready for circuit
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1 court work. And the problem arises when these particular
2 county court judges get assigned to do circuit court work.
3 Now these are the pro and con arguments that I've
4 heard. I'm not taking a position on this. I've seen
5 situations where the county judges sitting as circuit
6 judges, in fact, really helped the system and really
7 helped us move cases along. Now, perhaps Commissioner
8 Barkdull, from his experience, may be able to add to that.
9 But those are just my observations.
10 COMMISSIONER BARKDULL: Would the gentleman yield?
11 CHAIRMAN DOUGLASS: He yields.
12 COMMISSIONER BARKDULL: Commissioner Kogan, in your
13 explanation something arose that I had not considered
14 really in reference to this. Is not the fact that you
15 have the ability to assign county judges to circuit level
16 particularly important in smaller counties where you only
17 may have one or two county judges and no resident circuit
18 judge?
19 COMMISSIONER KOGAN: Yes, this is very important and
20 used for that purpose. And that is, you know, you don't
21 really want your circuit judges really riding the circuit
22 like they used to and have to travel many, many miles. If
23 you have an emergency situation on the circuit court
24 level, you don't want to have the litigants go several
25 counties over to where the circuit judge may be sitting or
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1 wait for the circuit judge to come there. So it's
2 convenient because you always have in every county at
3 least one county court judge --
4 COMMISSIONER BARKDULL: My recollection now from
5 testimony before the Article V task force is you've got
6 two county judges east of here and some of the rural
7 counties almost as county judges are riding the circuit as
8 acting circuit judges. Would the failure to pass this
9 prevent, obviously, in those situations where you're
10 limited a number of county judges and limited circuit
11 judges not resident in the county? This six-months'
12 limitation must give you a problem in reappointing them to
13 those duties.
14 COMMISSIONER KOGAN: It does give you a problem.
15 Unfortunately, the problem arose in one of the more
16 populist counties, Palm Beach County. We haven't had, to
17 my recollection, a case coming out of the
18 sparsely-populated areas. And I don't know whether or not
19 the court, had it been a sparsely-populated area, might
20 not have ruled the other way. The way it is now, we've
21 ruled that the word "temporary" means that 3« to 4 years
22 assigned consistently as a circuit judge even though your
23 county court judge is not temporary.
24 CHAIRMAN DOUGLASS: Commissioner Butterworth?
25 COMMISSIONER BUTTERWORTH: If Commissioner Kogan
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1 would yield for a question.
2 CHAIRMAN DOUGLASS: He yields.
3 (Off-the-record comment.)
4 COMMISSIONER KOGAN: Remember, I didn't pose this.
5 I'm just trying to explain what it is and give you the
6 arguments on both sides.
7 COMMISSIONER BUTTERWORTH: Well, you're a good
8 sounding board on some of these questions, just bouncing
9 off of what Commissioner Barkdull stated. Let's say in
10 the larger counties, what happens when a number of the
11 county judges that finish their calendars and they're
12 available to take, perhaps, some of the circuit work but
13 not be assigned permanently but just maybe an hour or two
14 hours it takes to be a backup judge for a circuit court
15 judge --
16 COMMISSIONER KOGAN: That's no problem at all. Even
17 when it reads "temporary," that's a temporary assignment.
18 COMMISSIONER BUTTERWORTH: But everyday must a chief
19 judge do that every single time or can he just -- will
20 this allow a chief judge to identify three, four, five,
21 six, seven county court judges, whatever, to where those
22 judges would in essence be available at all times to be
23 able to --
24 COMMISSIONER KOGAN: You can do that now because
25 that's a temporary assignment. The case we had
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1 unfortunately dealt with judges who were sitting full time
2 as circuit judges even though they were county judges for
3 a period of 3« to four years. We just said that's not
4 temporary.
5 COMMISSIONER BUTTERWORTH: Mr. Chairman, my situation
6 as a county judge and circuit judge, having the
7 opportunity to serve as county judge, but a circuit judge
8 in juvenile bench literally would be on vacation quite
9 often and travelling throughout the country insofar as
10 various juvenile justice matters. So I found myself being
11 able to be assigned. I was doing both dockets. And I'm
12 kind of wondering if we have situations like that in the
13 state, we may have it in the rural areas, where I believe
14 there is nothing wrong with passing this measure and we
15 might correct some problems that exist. So there is no
16 harm for doing this.
17 COMMISSIONER KOGAN: The only argument that I've
18 heard in opposition to this is that we have voted for
19 county judges, we want them to do county court work. We
20 voted for circuit court judges, we want them to do circuit
21 court work. And there aren't people who object to the
22 fact that county judges are doing circuit work. The
23 feeling is that the circuit judges sit it in a higher
24 court and are more qualified to do that work than the
25 county judges. That's the argument I've heard on the
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1 other side.
2 CHAIRMAN DOUGLASS: Well, Commissioner Henderson.
3 COMMISSIONER HENDERSON: Mr. Chairman, I'm going to
4 rise in support of the proposal. I don't have a dog in
5 this hunt but some of you may know that my wife is chief
6 administrative judge, county judge, in Volusia. And so
7 there's a big county issue too that I'm familiar with.
8 She is the only sitting county judge in basically a
9 quarter area of the county. If you look, here's a big
10 county, 750,000 acres and here's one county judge, the
11 only judge sitting in this one portion of the county.
12 Now, there are two ways to do this. There is the
13 strict construction of this language, which is temporary,
14 and it would mean that anytime you had an emergency
15 situation dealing with spouse abuse that they would have
16 to go track down a circuit judge somewhere else in the
17 county. But because of the way this works, she is serving
18 as a counterpart in the western part of the county,
19 another county judge, who has the authority to enter
20 injunctions for the protection of spouses who are in
21 danger. And I can tell you that that is a matter of
22 judicial economy. It's a system of helping the victims
23 and it works.
24 And I know at home over Christmas, on three times on
25 Christmas day, a deputy came by to have injunctions
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1 entered. The same thing happened New Year's Day. So
2 there is a great economy for the process to be able to
3 have a county judge in an area where there is not a
4 sitting circuit judge to be able to take care of some of
5 these matters.
6 CHAIRMAN DOUGLASS: Commissioner Connor?
7 COMMISSIONER CONNOR: Question, if I may, of the
8 commissioner.
9 CHAIRMAN DOUGLASS: He yields.
10 COMMISSIONER CONNOR: Commissioner Henderson, I'd
11 like to understand what the prejudice is that is suffered
12 from the ability to make temporary assignments in
13 instances in which you just suggested, for example, I can
14 envision that a court could well assign a county judge to
15 temporarily serve as to take care of the duties you asked.
16 And I ask this for this reason. We have historically had
17 a two-tiered system. We have a system of county judges
18 who are appointed -- who are designated to serve in the
19 county courts, courts of limited jurisdiction.
20 We have circuit judges who serve in our circuit
21 courts. And it seems to me that under the current regime,
22 that a provision is made for temporary assignments in
23 instances where it's necessary to accomplish the very
24 kinds of concerns that you raise. And yet the effect of
25 this proposed amendment would be, I think, in many
25
1 respects to do what cannot now be directly done and which
2 many do feel would circumvent the system.
3 So I ask you what is the prejudice that can't be
4 cured through the temporary assignment process and I
5 understood what the judge had to say -- what Commissioner
6 Kogan had to say, but I wasn't sure I appreciated the
7 significance of the prejudice. I've tried cases in
8 federal courts by consent with federal magistrates rather
9 than Article III judges. I've had county judges by
10 consent handle circuit court matters. But is this an
11 entree that would only wind up altering our system,
12 eliminating the distinctions between county and circuit
13 judges and can the requirements of the administration of
14 justice not be met through the utilization of temporary
15 assignments?
16 COMMISSIONER HENDERSON: I think that's a very good
17 question. And I think the answer in the case I'm familiar
18 with, this is the case in south Florida, it's been a
19 temporary assignment for more than a couple of years. So
20 how long is temporary? And I think the same is true with
21 the other part of the county where you have county judges
22 sitting in an area for some time. And so as a result of a
23 decision Commissioner Kogan mentioned, they know that
24 they're not on as solid ground as they used to be.
25 The other opportunities to provide a unified court
26
1 system before this body, it did not come forward. I don't
2 think there is support for it. I don't see this as an
3 erosion of that. I see it as judicial economy. I
4 remember it as a practicing attorney in a small town that
5 was isolated from the rest of the court system.
6 It was nice to be able to have a judge locally that
7 you could go and deal with and not have to track down in
8 the rest of the circuit and I think that has a lot to do
9 with the cost to litigants as well.
10 I'm also sensitive to the issue raised by
11 Commissioner Butterworth. We often have a lot of waste in
12 the system because of the way that the dockets are set,
13 the agendas are set for extended periods of time. There
14 will be times when judges and courtrooms sit empty when
15 other litigants need to have their day in court. And so
16 if this helps that, I think we've given some improvement
17 to the system.
18 CHAIRMAN DOUGLASS: Commissioner Connor?
19 COMMISSIONER CONNOR: One further question, if I may,
20 in that regard.
21 (Off-the-record comment.)
22 COMMISSIONER CONNOR: You were the last one up.
23 CHAIRMAN DOUGLASS: You married into it from my
24 understanding of what you said. We're not ruling that's a
25 conflict because we know you don't do what your wife tells
27
1 you to do.
2 (Laughter.)
3 COMMISSIONER CONNOR: When those assignments take
4 place then, does that judge have jurisdiction regardless
5 of the consent of the parties or the consent of the
6 parties' lawyers? In other words, if a county judge is
7 assigned temporarily or for an unlimited period, does that
8 mean the litigants and the lawyers are stuck with that
9 judge, if you will, and I don't mean that in a negative
10 sense, but are they required to have that county judge or
11 is it by consent of the parties and lawyers involved?
12 COMMISSIONER HENDERSON: Mr. Chairman and
13 commissioners, I think there are people in this chamber
14 that are smarter than me to answer that question. And
15 maybe I should punt that to, perhaps, Commissioner Kogan.
16 CHAIRMAN DOUGLASS: You can punt it to Commissioner
17 Barkdull because this was discussed in detail on the
18 Article V Revision Commission.
19 COMMISSIONER KOGAN: All right. Actually, the
20 authority is in the hands of the chief justice to make the
21 assignments. But the amendment gives me, the chief
22 justice, the authority to delegate his or her authority to
23 the chief judges. All the chief judges, rather all the
24 chief justices that I know of, including myself, have
25 delegated this authority to the chief judges of the
28
1 circuit.
2 Now, theoretically, I could as chief justice stop
3 every one of these assignments just by revoking the
4 authority that I've given to the chief judges of each
5 circuit to make these assignments. So if somebody would
6 call my attention, for example, to the fact that some
7 county court judge has been sitting an inordinate amount
8 of time, you know, even under the amendment, even if you
9 took out the word "temporary," I could still say, you
10 know, That judge is a county judge and that judge has been
11 there a long time and after all, a county judge is
12 supposed to do county judge work and circuit judges do
13 circuit judge work, and revoke my chief judge's authority
14 to appoint a county judge to sit as a circuit court judge.
15 So it's not an unbridled authority. The chief justice --
16 what's that?
17 CHAIRMAN DOUGLASS: I think Commissioner -- I've got
18 three here competing. I think you were first.
19 COMMISSIONER MILLS: Mr. Chairman, this is perhaps a
20 question -- perhaps a statement. I was going to ask
21 Commissioner Morsani to take the floor and ask the
22 question, but I won't do that yet. It seems to me that
23 the cross assignment is probably a necessary
24 administrative function that makes sense and I haven't
25 understood why it's not working adequately now. But the
29
1 thing that struck me, as thinking of this from the
2 legislative perspective and the funding perspective, do we
3 in an Article V sense, when we go to the Legislature to
4 ask them to fund circuit judges and fund county judges,
5 diminish our capacity to really show the need?
6 In other words, where we're using county judges to do
7 circuit work, isn't what we really need to make the case
8 if we have that kind of caseload for an increased number
9 of circuit judges because I take the point that you have
10 people who are doing a job which isn't precisely their job
11 description doesn't mean they are not capable, it doesn't
12 mean they are not doing a good job. But if we don't have
13 enough people on the circuit bench, why don't we ask the
14 Legislature to do that? And if it's the failure of the
15 Legislature to do that, then it should be pointed out.
16 CHAIRMAN DOUGLASS: Commissioner Thompson -- wait a
17 minute. I think Commissioner Zack had risen. I'll get to
18 you in just a moment.
19 Commissioner Zack.
20 COMMISSIONER ZACK: Commissioner Kogan yield for
21 another question?
22 CHAIRMAN DOUGLASS: You need to use your microphone.
23 COMMISSIONER ZACK: The question, I was with you for
24 a while and now I'm not sure that I understand precisely
25 what you said in your last comments and I want to be clear
30
1 as to what the effect of the amendment would be. But what
2 you indicated is, even if this amendment was favorably
3 passed by this body, that you still would have the right
4 to challenge whether a county judge who is continually
5 reappointed, in fact, was acting as a circuit judge; is
6 that correct?
7 (Off-the record comment.)
8 CHAIRMAN DOUGLASS: Could you use the microphone,
9 please?
10 COMMISSIONER KOGAN: All right. Now this would be
11 the amended one. The amended one would read, The chief
12 justice shall be the chief administrative officer of the
13 judicial system and shall have the power to assign
14 justices or judges, including consenting retired justices
15 or judges, to duty in any court and to delegate to the
16 chief judges of the judicial circuits the power to assign
17 judges for duty in their respective circuits.
18 In other words, I could, if I wanted to, just say,
19 I'm not giving you that authority and I refuse to assign
20 this particular county judge to circuit court work. I can
21 do that. I can do that right now but I don't.
22 COMMISSIONER ZACK: You don't and other --
23 COMMISSIONER KOGAN: Other justices don't either.
24 We've left it up to the chief justices of the circuits
25 because they know what the needs are in their particular
31
1 circuits.
2 COMMISSIONER ZACK: Now, would the ruling of the
3 Supreme Court possibly have been different had the
4 appointment that was challenged under the case law cited
5 in our materials been made by the chief justice as opposed
6 to the circuit chief?
7 COMMISSIONER KOGAN: That's hard to say. The main
8 complaint was these county judges were sitting there as I
9 recall 3« and 4 years. There were two of them and that
10 this not meet the present constitutional provision that
11 says "temporary appointment," that's the issue we decided,
12 whether or not this was a temporary appointment.
13 COMMISSIONER ZACK: So as a practical matter, even
14 though a chief justice would have the right to not allow
15 this continual appointment, as a practical matter, it's
16 highly unlikely that would occur; isn't that accurate?
17 COMMISSIONER KOGAN: Yes, highly unlikely. I know
18 one particular judge sitting in Dade County, he's been
19 sitting there as a circuit judge for years and years when
20 he's a retired county court judge, but nobody has ever
21 complained about it. No case has ever been brought before
22 us and we haven't ruled on it.
23 COMMISSIONER ZACK: Well, I guess I'm curious to know
24 your view of this and where you will end up on this
25 question primarily because I don't know and I would like
32
1 to be enlightened, as I'm sure other commissioners, as to
2 how necessary this is for the chief judges of various
3 circuits to have additional powers to help control their
4 calendar and will this, in fact, aid in the administration
5 of justice or is it not necessary?
6 COMMISSIONER KOGAN: It will help them move their
7 calendars and it is necessary in the administration of
8 justice. I just pointed out to you the one negative that
9 I've heard people mention. And, of course, there is
10 always the chief justice that can, even if you change
11 this, if the chief feels a county court judge is just
12 sitting too long as a circuit judge, can just reassign
13 that particular judge.
14 Then of course you have to trust the chief justice of
15 the court and I don't know whether people want to put that
16 authority. No matter which way you do it, whether you
17 keep what's in here now or whether you put in the
18 amendment the chief justice still has the authority to
19 assign the judges. The only reason this was changed was
20 to take out the word "temporary."
21 CHAIRMAN DOUGLASS: Commissioner Barkdull?
22 COMMISSIONER BARKDULL: Yes, sir.
23 CHAIRMAN DOUGLASS: You served on the Article V
24 Revision Commission. And my recollection is that this was
25 considered by the commission and it was concluded that it
33
1 was an unnecessary addition to the Constitution as
2 proposed; isn't that what happened?
3 COMMISSIONER BARKDULL: Mr. Chairman, I would have to
4 go back to the recommendations. I don't want to go off
5 the top of my head on it because I was of the view that it
6 was recommended and the Legislature decided to defer to
7 what this body had taken up. We'd have to go back to the
8 final report. Possibly Billy can help us.
9 CHAIRMAN DOUGLASS: Well, the reason I asked that is
10 because if I remember the argument correctly that hasn't
11 been made here today was that what we were doing is
12 creating a combined one-tier trial system by this. And
13 why it doesn't appear that way on the surface, that that
14 was the intent and we had a problem with counties under
15 40,000 or less could have county judges who were not
16 members of the Bar, that was all in the discussion. I
17 haven't heard that discussed today.
18 COMMISSIONER BARKDULL: Mr. Chairman, I think that
19 discussion came up when we had a provision before the
20 Article V task force by Senator Dudley which was
21 attempting to merge the trial courts. I didn't recall
22 that debate when it came up on the temporary assignments.
23 In fact, it was my recollection that those -- we had two
24 county judges that came up and testified before us and I
25 thought it was pretty much a consensus of the body that we
34
1 were very happy that they were doing circuit judge work in
2 those seven or eight counties. And I thought -- I know we
3 did not recommend the merger of the trial courts. But I
4 do think we recommended to eliminate the word "temporary."
5 And as Commissioner Kogan has indicated, the chief
6 justice at all times has control of this because he
7 authorizes the chief judges of the circuits to do what
8 they want to but he can also withdraw that and also I'm
9 well aware, being a recipient of some of these, that when
10 you're assigned, you can assign for a specific time or a
11 specific case. So the control lays completely within the
12 chief justice and he can exercise it as he sees fit.
13 CHAIRMAN DOUGLASS: Well, I don't want to get into
14 the debate, but one of the things that was mentioned in
15 this discussion is the fact that the Constitution requires
16 that the chief justice certify to the Legislature the
17 number of circuit court judges and county judges that are
18 needed. And that one of the problems in having this in
19 place, it's not now there, is that the argument can be
20 made that there is no need for additional circuit judges
21 and certainly no need for additional county judges because
22 the county judges have time in addition to their duties as
23 county judges to serve as circuit judge.
24 And therefore, what you wind up doing is giving an
25 improper picture of the caseload to the individual courts.
35
1 That was my recollection of the main discussion that we
2 had on the Article V revision along with the idea that
3 when you -- under the present Constitution, it's
4 impossible for a chief judge, be he good or bad, to just
5 carte blanche assign a judge to last -- a county judge to
6 last as a circuit judge and then the parties couldn't do
7 anything about it.
8 And there was concern reflected by Commissioner
9 Zack's question about do the parties have a right not to
10 use a county judge. And I don't know that this addresses
11 that, does it, Commissioner Kogan, that issue?
12 COMMISSIONER KOGAN: (Nods negatively.)
13 CHAIRMAN DOUGLASS: So that would still be whatever
14 it is today you think?
15 COMMISSIONER KOGAN: (Nods affirmatively.)
16 CHAIRMAN DOUGLASS: Your answer is yes?
17 COMMISSIONER KOGAN: Yes.
18 CHAIRMAN DOUGLASS: Okay. I think we pretty well
19 understand what this does now. If there's further debate
20 we'll certainly entertain it. Anybody else?
21 Commissioner Thompson?
22 COMISSIONER THOMPSON: I'm going to vote for it and I
23 understand those that are not. From the point of view of
24 the rural counties, and I know most of you don't come from
25 rural counties, so your experience is going to be more
36
1 important as to where you live. But rural counties --
2 let's take a circuit like this one. All the judges by and
3 large are going to be elected from one place, Leon County.
4 So in the other counties out in that circuit, you have a
5 county judge. Now we're requiring all county judges to be
6 lawyers and I don't necessarily agree with that by the
7 way. And one of the best I know is not a lawyer. But
8 nevertheless, we're doing that.
9 And so what happens is in those outlying areas,
10 because of the caseload and the bigger county in the
11 circuit, it's harder to get with a circuit judge. And
12 when the jurisdiction was changed of the circuit courts to
13 include probate and some of those things that the county
14 courts have historically done, that then changed access
15 for things like ex parte orders and so forth and probate
16 matters. You can't find a judge. You have to get in line
17 at the Leon County Courthouse for quite a little bit of
18 time because of the caseload and all.
19 Whereas, if you were in Liberty County and your judge
20 was assigned on a more or less permanent basis to circuit
21 matters, then you can go to that judge and in the morning
22 he or she can sit over county court matters and take a
23 break, sign your probate order, and go on about your
24 business. So it works out pretty good. And I think the
25 public is well served by it and the qualification question
37
1 is answered.
2 In our response to Mr. Connor's concern about,
3 probably what I see and being concerned about to some
4 extent, is a singletary trial system. And I tell you, if
5 you're going to require all the judges to be lawyers, you
6 might as well make up your mind that you're going to end
7 up getting there some day and there's no doubt about it,
8 especially in the rural counties, that's about the way
9 something like this will work out. And it's no big
10 problem.
11 And before these decisions that made I think the
12 judges, the chief judges, reluctant to have a sort of a
13 permanent assignment of those county judges, those lawyer
14 county judges to the circuit responsibilities, it worked
15 real well and you had access to judges. Remember in small
16 counties, you've got a county judge for the smallest
17 populated county in the state as well as those and the
18 others. So, you know, they can fill in. They do get paid
19 the enhanced amount that circuit judges get paid, but
20 that's not a big difference to the taxpayers, especially
21 for, I think, the efficiency of the system.
22 So it works pretty good and I don't see any big
23 problem with it from the point of view of the counties
24 that I know about. If you see problems, then, of course,
25 I certainly would understand that.
38
1 CHAIRMAN DOUGLASS: Commissioner Mathis?
2 COMMISSIONER MATHIS: Will Commissioner Thompson
3 yield for a question?
4 CHAIRMAN DOUGLASS: He yields.
5 COMMISSIONER MATHIS: Is there a problem with keeping
6 records of county cases versus circuit cases and where
7 those cases are assigned or doesn't the clerk keep those
8 records now and couldn't you tell from looking at those
9 records when a temporarily-assigned county court judge
10 heard a circuit court case?
11 COMISSIONER THOMPSON: Sure. They always just assign
12 them as active circuit judges is what my experience has
13 been. So the clerk's office keeps up with all that. I've
14 never known of any problems.
15 CHAIRMAN DOUGLASS: Commissioner Connor?
16 COMMISSIONER CONNOR: Mr. Chairman, I'm going to vote
17 against the proposal for two reasons. One, I am persuaded
18 by Commissioner Mills' observations that if this
19 stopped-at measure is permitted to continue indefinitely,
20 it does take the heat off the Legislature from doing what
21 it should do which is to fund a circuit judge's position
22 for the circuit involved.
23 Two, from practicing around the state, I have found
24 that there is wide variation in the experience level with
25 familiarity of circuit judges and county judges with
39
1 respect to issues that commonly recur in circuit court.
2 And the parties do not, as I understand it, have any say
3 in whether or not the case will be presided over by a
4 county judge on assignment or circuit judge. And because
5 of that great variation, I feel confident it may work
6 better in small circuits where folks get called on more
7 commonly to do circuit duty than in some of the larger
8 circuits.
9 My reservations have nothing to do with the lack of
10 confidence in the chief justice or the person who occupies
11 the position of chief justice. We do have a two-tiered
12 system. We are determined to maintain that system in
13 place and I would be careful about doing indirectly what
14 we have not been willing to do directly.
15 CHAIRMAN DOUGLASS: All right. Any further
16 discussion, debate? All right. Prepare to vote. Unlock
17 the machine. Lock the machine and record the vote.
18 (Vote taken and recorded electronically.)
19 READING CLERK: 12 yeas, 15 nays, Mr. Chairman.
20 CHAIRMAN DOUGLASS: It fails. All right. We'll move
21 to Proposal 39 where we left with great confusion
22 yesterday afternoon. Are you prepared to unconfuse us,
23 Commissioner Henderson?
24 COMMISSIONER HENDERSON: Mr. Chairman, I am more than
25 prepared to get everybody on track to put this one up or
40
1 down and get on with it.
2 CHAIRMAN DOUGLASS: Before you go, there is --
3 COMMISSIONER HENDERSON: You're not going to try to
4 confuse us, are you?
5 CHAIRMAN DOUGLASS: Yes, I am. I'm going to call on
6 Commissioner Barnett. Well, I was going to have her
7 introduce our page and our page went to do some work.
8 We'll wait until she comes back, Commissioner Barnett.
9 And then I would like the secretary to note that at least
10 two of the members that are recorded present haven't been
11 here since lunch. I want that recorded in the journal.
12 Now, you may proceed.
13 COMMISSIONER HENDERSON: Thank you, Mr. Chairman.
14 And to my colleagues, I want to apologize for the heat of
15 the moment at the end of the day yesterday. I think we
16 all learned what has been said wisely many times here, you
17 get past 5:00 and 5:30 and on to 6:00, our minds are on
18 other things and it's easy to get confused. And so to the
19 extent that I did anything to confuse, what to me is a
20 very important and sensitive issue, I apologize. And I
21 want to tell you exactly where I think we are.
22 Yesterday before we concluded, we adopted an
23 amendment by Commissioner Nabors and that is now the --
24 and that amendment is essentially what was favorably
25 reported from the Committee on Bonding Investments on this
41
1 issue. And so I want to make sure that everybody has
2 before you the language that we are about to vote on
3 because it is not in the orange packet and it is not in
4 the blue packet. What it is in is in the journal. And if
5 you look in the journal on Page 135, it is the italicized
6 language in the bottom right-hand corner. So I want to be
7 sure you're all with us. So you're all with us, that is
8 what is before us.
9 And I see some people referring to the actual
10 amendment itself from yesterday, it's the same language.
11 It doesn't matter. I just want to make sure that one of
12 these -- I see Commissioner Thompson looking. You can
13 either refer to Amendments 1 to 39, which was handed out
14 yesterday afternoon, or you can refer to Page 135 of the
15 journal down at the bottom, the italicized language. Are
16 we all there?
17 CHAIRMAN DOUGLASS: We're on Proposal 39 which is not
18 what we're on; is that correct?
19 COMMISSIONER HENDERSON: No, sir, we're on Proposal
20 39 as amended.
21 CHAIRMAN DOUGLASS: As amended. And then in order to
22 determine how it's amended, you read the journal or the
23 amendment.
24 COMMISSIONER HENDERSON: I don't want to confuse you.
25 We're on 39 as amended and the only way you can see what
42
1 that is is by looking at the journal.
2 CHAIRMAN DOUGLASS: And that number is what of that
3 proposal?
4 COMMISSIONER HENDERSON: We are on Proposal 39 as now
5 amended.
6 CHAIRMAN DOUGLASS: All right.
7 COMMISSIONER HENDERSON: And I'm prepared to move
8 that forward to conclude this matter which would conclude
9 39 and would also conclude other proposals.
10 CHAIRMAN DOUGLASS: Have we adopted the amendment?
11 COMMISSIONER HENDERSON: We have adopted the
12 amendment, yes, sir.
13 CHAIRMAN DOUGLASS: All right. So maybe I should ask
14 the clerk to read the -- we didn't do any reading when we
15 started. Read the proposal title.
16 READING CLERK: Proposal 39 by Commissioner
17 Henderson, Article X, Florida Constitution; creating the
18 Florida Land and Water Conservation Trust Fund and
19 providing for its source of funds and purposes.
20 CHAIRMAN DOUGLASS: All right. Commissioner
21 Henderson, if you would explain now how the proposal as
22 amended differs from the present Constitution, then that
23 may get us to where we need to go.
24 COMMISSIONER HENDERSON: Let me explain where we are
25 and what we're going to try to do here. Now we've gotten
43
1 past the procedure because I don't want there to be any
2 confusion about this. As we heard during the public
3 testimony, we have a very successful program in this state
4 called Preservation 2000 which was started by Governor
5 Martinez, continued by Governor Chiles. And each
6 Legislature in the last eight years under the leadership
7 of Commissioner Crenshaw, Commissioner Scott and now
8 Commissioner Jennings, have all approved bonding under
9 this proposal.
10 Unfortunately, that bonding existed under a carryover
11 to the 1885 Constitution. And so the reference to this is
12 in a footnote at the end of Article 12, Section 17, of the
13 schedule which says that, The bonding authority for this
14 program expires in the year 2013. Now that means in a
15 practical matter when the Legislature goes to issue bonds
16 this year for the eighth or ninth series of bonds, that
17 there will only be a 14 year or 15-year life on those
18 bonds.
19 And so the program, effectively, will expire in two
20 years because the bonds will be unmarketable. So there
21 were three proposals that were filed. And we went to the
22 Committee on Bonding and Investments. And the language,
23 which is before you, is essentially the preferred language
24 that came out of committee, decided on the wisdom of
25 Commissioner Nabors who I think, by the way, Commissioner
44
1 Nabors is an outstanding bond lawyer -- worked with him in
2 a number of capacities -- that the best way to do this was
3 not to fix it in the schedule of the Constitution but
4 actually to move it into the bond section and allow for
5 the issuance of full faith and credit to be used for this
6 purpose so voters can approve it and be able to continue
7 to do that.
8 And what it does is give to the Legislature the
9 annual discretion, the annual discretion, to decide how
10 they should or would use this authority for bonding.
11 Currently they are doing it on a basis of about $300
12 million a year. Currently they are using a portion of
13 revenues and documentary stamps. And so the proposal that
14 is before you doesn't deal with that, doesn't tie up the
15 Legislature, doesn't tie up the documentary stamps. It
16 gives them full discretion on the use of that. And so
17 that is what is before you today.
18 So what the proposal is different from, merely
19 amending the schedule, as is Commissioner Barkdull's
20 proposal, is because we've learned a lot in the last eight
21 years, Preservation 2000. So the language that is before
22 you makes more sense for where we are in the program
23 today. Will help us with water issues, will help us with
24 Everglades restoration and other things. And I would say
25 this. When we finish -- when we finish with the bond
45
1 committee -- and I wish Commissioner Hawkes were here to
2 express all this today but he was trying to do that
3 yesterday afternoon -- there were a number of interests
4 that were in the room that we were working with.
5 If you can imagine in a bill dollar program like
6 this, not only are there environmental issues, there are
7 representatives of industry, agriculture, forestry, local
8 governments. You know, since this program was put
9 together, over 20 local governments representing a vast
10 majority of people of the state have all approved bond
11 issues of their own and they're using those funds to match
12 with Preservation 2000 so they're able to have additional
13 acquisitions back in their home communities.
14 And so after that, we got together, we worked out the
15 language which is before you. So I can represent to you
16 today that the language, which I'm going to ask you to
17 support favorably, is essentially what was approved by the
18 committee. It is language that all the interests have
19 agreed to and it is something that will command great
20 public support and has indeed tremendous bipartisan
21 support.
22 So I will tell you that of all things that we do,
23 this may be the one thing that when it's all over and done
24 with will have the greatest impact for us, our children,
25 our grandchildren.
46
1 If we were dealing with schools or roads or prisons,
2 we'd all be agreeing that as we grow and continue to grow,
3 the dynamic state we are, 700 people a day moving to this
4 state, that of course we'd like to continue to be able to
5 take care of those needs, those infrastructure needs,
6 roads, prisons, and schools. Unfortunately, our
7 flexibility to deal with this issue will expire in a very
8 short period of time. This is our best opportunity to fix
9 that. It is something that commands great public support.
10 And in that regard, I'm happy to propose its adoption.
11 Mr. Chairman, any questions, I'll be glad to try to
12 answer.
13 CHAIRMAN DOUGLASS: I think what's been bothering, at
14 least bothering me with all of this discussion, and the
15 reason I keep asking how this differs from the previous
16 Constitution, is that my understanding always has been,
17 and as it is stated in Section A of Article 11, that the
18 state bond pledging the full faith and credit of the state
19 may be issued only to finance -- or refinance the cost of
20 state fixed capital outlay projects authorized by law and
21 purposes incidental thereto upon approval by the vote of
22 electors. And we operated on that for many years in the
23 state of Florida when we didn't have full faith and credit
24 bonds by the state.
25 And then we had what is P2000 referred to, and we
47
1 authorized the pledging of state bonds pledging all or
2 part of the full faith and credit of the state. And in
3 the amendment, as I understand it, you just added some
4 language which didn't really change it, it added something
5 to it like water resources or --
6 COMMISSIONER HENDERSON: Just to be very clear about
7 what's added in this --
8 CHAIRMAN DOUGLASS: But it is essentially the same.
9 COMMISSIONER HENDERSON: The same thing as water
10 resources, historic preservation and restoration.
11 CHAIRMAN DOUGLASS: Would the adoption of this allow
12 the state to pledge the full faith and credit of the state
13 by law without the referendum?
14 COMMISSIONER HENDERSON: I'm going to allow -- I'm
15 going to ask, if I could, defer to Commissioner Nabors to
16 answer that. This is, as I understand it, this is
17 typically the way this is done for various projects where
18 the full faith and credit has been pledged. And,
19 Mr. Nabors, could you help me with that question?
20 COMMISSIONER NABORS: Yes, Mr. Chairman, it would.
21 And the reason we went into Article VII, Section 11, is
22 because that's the provision that says there can be no
23 state bonds payable from state tax revenues. There are
24 many times in the Constitution in Article VII we enumerate
25 the ability of the state to incur debt. It has to be a
48
1 specific constitutional amendment because Article VII,
2 Section 11 -- so what it does, except for those that are
3 grandfathered in, like the P2000 was grandfathered in,
4 Peco (phonetic) is grandfathered in, which is part of the
5 gross receipts tax.
6 So what this does, it allows the citizens, if they
7 want to approve this, to allow either the Legislature by
8 general law, by general law, to either pledge a full faith
9 and credit, which is what they are essentially doing now,
10 or to designate a revenue stream within their discretion
11 to be used for these purposes.
12 And it also, since it's in Article VII, Section 11,
13 any projects that are funded with bond proceeds, if you'll
14 look in the journal on the amendment in existing law,
15 Subsection F has to be approved in the appropriations act
16 or by general law.
17 So the Legislature goes through this process, it
18 approves the projects, and it basically, if the voters
19 approve this, it would have the ability by general law to
20 authorize essentially the Preservation 2000 program to
21 continue.
22 CHAIRMAN DOUGLASS: All right. Then what you are
23 telling me is under the present Constitution the only
24 bonds that may pledge the full faith and credit of the
25 state without a referendum are Peco bonds and --
49
1 COMMISSIONER NABORS: Well --
2 CHAIRMAN DOUGLASS: Wait a minute, and these bonds.
3 Now, whether we amended the Constitution or not --
4 COMMISSIONER NABORS: Well you have bonds, you have
5 bonds for transportation, other things. Every time -- any
6 time you pledge a full faith and credit of the state after
7 the '68 revision, it requires a specific constitutional
8 amendment if it is not grandfathered in. The problem is
9 this Preservation 2000 is grandfathered in, but it is
10 scheduled and its term is expiring.
11 So you really -- it is inappropriate really to go in
12 and try to amend the scheduled provision of the 1885
13 Constitution. If the people want to allow this type of
14 funding to continue, then it ought to be a freestanding
15 proposal to that effect.
16 CHAIRMAN DOUGLASS: Well, the reason I keep asking
17 this is because if that's true, then why do we have the
18 provision that requires a referendum to have the full
19 faith and credit of the state proposed? And granted you
20 can bond anything and pledge the full faith and credit, if
21 by referendum it is proposed, what this does is allow the
22 Legislature and maybe that's what it does now, but it
23 allows the Legislature, without a referendum, to pledge
24 all of the future revenue of the state to secure the
25 bonds, which creates a much lower interest rate, I'm sure.
50
1 Commissioner Barkdull, do you rise to that?
2 COMMISSIONER BARKDULL: As I read this, this is a
3 grant of authority to the Legislature by law to issue
4 general revenue bonds with no vote of the people for items
5 that are not covered in the present Constitution. And
6 that's the reason why I have indicated to Commissioner
7 Henderson that I would not support the proposal. All I
8 wanted to do with my proposal was do what Virginia
9 Wetherall asked us to do, and that was to extend the time
10 for refinancing for the P2000 bonds.
11 But clearly, when you add this language to the
12 Constitution, which this does and it is not in the present
13 Constitution, state bonds pledging all or part of
14 dedicated State tax revenues or the full faith and credit
15 of the State, may be issued by the state in a manner
16 provided by general law to finance the acquisition -- I've
17 left out a couple of words which were refinance -- and
18 improvement of the natural land, water areas, and related
19 interests and resources for the purpose of conservation,
20 outdoor recreation, water resource development,
21 restoration of natural systems or historic preservation
22 and for such multiple purposes as provided by general law.
23 There is no such grant in the present Constitution
24 for the Legislature to do that and there is a very good
25 reason. This state either went bankrupt or came very
51
1 close to becoming bankrupt because it issued a lot of
2 bonds in the 1920s. And in the early '30s we put a
3 prohibition in against the state having any more of those
4 bonds. And finally in the '60s it began to relax that a
5 little bit. This is now going back to what we had before
6 where there would be an unlimited authority in the
7 Legislature to issue full faith and credit bonds with no
8 vote of the people and I think it is a bad idea.
9 CHAIRMAN DOUGLASS: Okay. Now, who wants to rise to
10 speak? I think Commissioner Butterworth.
11 COMMISSIONER BUTTERWORTH: Thank you very much,
12 Mr. Chairman. I read some of these words and it gives me
13 a great deal of problems. We don't have any numbers for
14 the sentences, but the words "and related interest," I
15 have real, real problems with that and I would have to
16 vote no on this measure, even though I am in favor of
17 extending Proposition 2000, and I think it will cause more
18 problems in the long run than the small part than the
19 large problem we are attempting to fix.
20 CHAIRMAN DOUGLASS: Anybody else? Commissioner
21 Scott?
22 COMMISSIONER SCOTT: I would like to speak in support
23 of this amendment. It's admittedly a little bit more than
24 just Preservation 2000, but I think it is good. I think
25 that Preservation 2000, which we have had a lot of people
52
1 when we first started it ten years ago or so, concerned
2 about it and what are they doing and whatever. I think
3 it's proven itself. It is an example of the type of thing
4 that should be available to the Legislature to deal with
5 and this does not mandate anything, it simply authorizes
6 them to deal with it.
7 The 50-year, I think it is a 50-year limitation, on
8 Preservation 2000 is an example of outmoded things that we
9 don't really need in the Constitution. So this doesn't
10 have any date in it and I would be in support of it and
11 try to answer any questions if anybody has any, other than
12 the chairman.
13 CHAIRMAN DOUGLASS: I had one you don't want to
14 answer I think. About we can't now issue bonds for
15 historic preservation, can we, without, of the general,
16 pledging the general revenues of the state without a
17 referendum?
18 COMMISSIONER SCOTT: Why don't we let the sponsor who
19 is more familiar with what we can and can't. Some of it
20 we can, some of it we probably can't.
21 CHAIRMAN DOUGLASS: That's what's bothering me.
22 We've added, to me, in the Constitution a lot of things
23 that people never thought you could do with this.
24 COMMISSIONER HENDERSON: If the people vote to
25 approve this then they have issued that authority. I
53
1 think that's --
2 CHAIRMAN DOUGLASS: We all understand that with every
3 proposal.
4 COMMISSIONER HENDERSON: And so right now we are
5 purchasing property for historic preservation out of
6 Preservation 2000. We purchased historic sites,
7 archeological sites, the DeSoto site here in Tallahassee
8 is a good example of that. So that's not inconsistent
9 with what we are doing now.
10 CHAIRMAN DOUGLASS: We have an amendment on the desk.
11 That's what I wanted to hear because I don't think people
12 are aware that you pledge the full faith and credit of the
13 state for those things. And what you are telling me is we
14 do it now and under the existing Constitution, while it is
15 not in the Constitution. It is in the schedule; is that
16 correct? We are trying to now put what's in the schedule
17 in the Constitution and remove the date?
18 COMMISSIONER HENDERSON: That's right.
19 CHAIRMAN DOUGLASS: And also adding what Commissioner
20 Butterworth questioned.
21 COMMISSIONER HENDERSON: That is correct. We are
22 basically taking the language from the schedule, putting
23 in the main body, there are additional words, perhaps with
24 Mr. Crenshaw's amendment we can word-smith. If the
25 Attorney General wants to make it a suggestion, we might
54
1 do that. This is just something we need to do.
2 CHAIRMAN DOUGLASS: All right. The amendment is on
3 the table by Commissioner Crenshaw. It is an amendment to
4 the proposal as amended which we have been debating.
5 Commissioner Crenshaw, you are recognized on your
6 amendment. And welcome, we missed you.
7 COMMISSIONER CRENSHAW: Sorry, my plane was cancelled
8 yesterday. And I watched the mechanic take the top off
9 the wing and he never did put it back. So that's why I
10 didn't get on the plane.
11 CHAIRMAN DOUGLASS: Well, we would have sent a car
12 for you.
13 COMMISSIONER CRENSHAW: Thank you, Mr. Chairman.
14 Members, I think what Commissioner Barkdull said has merit
15 as long as there is a provision in this that I think ought
16 not to be in it because first and foremost, Commissioner
17 Henderson I think has stated well that all this does,
18 without the language that I'm going to amend out, all it
19 does is extend the authority that the state has now to
20 issue bonds for the Preservation 2000 program. It extends
21 that credit through this provision.
22 And if the people of Florida adopt this provision,
23 then they will have -- we will have the referendum. They
24 will have said, Yes, we would like to be able to pledge
25 the full faith and credit of the state to issue these
55
1 kinds of bonds. But the one troubling thing that I think
2 gives credibility to what Commissioner Barkdull says, and
3 what I would propose to amend out, if you read the last
4 sentence of the italicized language or the last sentence
5 on the amendment from yesterday, it goes through and says,
6 You can pledge all or part of the dedicated state tax
7 revenue for the full faith and credit, et cetera, et
8 cetera. And it talks about the different things you can
9 pledge it for.
10 But then it says, And for such multiple purposes as
11 provided by general law. Now, I agree with Commissioner
12 Barkdull, what that says is, if the people were to adopt
13 this, that the Legislature can pledge the full faith and
14 credit of the state of Florida for these things like
15 recreation, water, whatever, and for anything else they
16 decide they want to do in this chamber. And I don't think
17 that's a good idea just like Commissioner Barkdull.
18 But I do think as long as you tell the people that we
19 are going to extend this authority, we are going to allow
20 you, just like you can today, to pledge the full faith and
21 credit of the state of Florida because we think it is
22 important in terms of the preservation of the environment
23 to do things like acquire land, improve land, water
24 resources, restoration of natural systems. Those are
25 clear and simple and understandable. And we ought to do
56
1 that.
2 But we ought not to say -- and also, by the way, we
3 are going to ask you-all to vote, through a referendum, to
4 say anything the Legislature decides it's going to do by
5 general law that it is going to be able to pledge the full
6 faith and credit as well.
7 So I think if you will take out the language that
8 says, And for such multiple purposes as provided by
9 general law, those are in addition to the things that are
10 already there, take that out, I think Commissioner
11 Barkdull's objections go away and we are exactly where we
12 ought to be in terms of extending this kind of authority
13 to the state of Florida. I'll be happy to answer any
14 questions.
15 CHAIRMAN DOUGLASS: All right. There is another
16 amendment. It is an amendment to the amendment or is it a
17 separate amendment, Commissioner Butterworth?
18 COMMISSIONER BUTTERWORTH: A separate amendment.
19 CHAIRMAN DOUGLASS: All right. We will proceed then
20 on the amendment that's pending that's been offered by
21 Commissioner Crenshaw which deletes the last sentence of
22 Section E in the Constitution of Section 11 that reads,
23 And for such multiple purposes provided by general law.
24 Commissioner Scott, you are recognized.
25 COMMISSIONER SCOTT: I just have a question for
57
1 Commissioner Crenshaw.
2 CHAIRMAN DOUGLASS: The commissioner yields.
3 COMMISSIONER SCOTT: Commissioner, what you are doing
4 is taking out a broad reference but it would not preclude
5 a bond issuing being for more than one of these purposes
6 listed; is that correct?
7 COMMISSIONER CRENSHAW: That's exactly right. It
8 will only be for the things that are listed here that
9 people can understand and vote yes or no in this statewide
10 referendum.
11 COMMISSIONER SCOTT: Right. So that multiple
12 purposes could be of those but only those, not something
13 that's not listed.
14 COMMISSIONER CRENSHAW: And the determinative
15 language is as provided by general law. In other words,
16 the people of Florida ought not to give the Legislature
17 the authority to come up here and decide now we're going
18 to pledge a full faith and credit to issue bonds for some
19 strange reason.
20 COMMISSIONER SCOTT: Mickey Mouse, okay.
21 CHAIRMAN DOUGLASS: Commissioner Riley?
22 COMMISSIONER RILEY: I have a question for the maker
23 of the amendment.
24 CHAIRMAN DOUGLASS: The Commissioner yields.
25 COMMISSIONER RILEY: I understand why the multiple
58
1 purposes part you would want to take out, but why is it
2 provided by general law in terms of process, would that
3 not need to be left?
4 COMMISSIONER CRENSHAW: I think as provided by
5 general law really is what is at issue here. In other
6 words, the things that are listed in the constitutional
7 amendment here are like outdoor recreation and water
8 resource development, et cetera, those are things the
9 people have a chance to vote on and they say, yes, it's
10 okay to pledge the full faith and credit. But they ought
11 not to be asked to pledge the full faith and credit of
12 things that the Legislature just decides to do by general
13 law.
14 CHAIRMAN DOUGLASS: All right. Any further debate on
15 the amendment or inquiries? If not, we will proceed to
16 vote on the amendment. All in favor say aye, opposed like
17 sign.
18 (Verbal vote taken.)
19 CHAIRMAN DOUGLASS: It carries. And now we are on
20 the proposal as amended. And there is now an amendment on
21 the table by Commissioner Butterworth. Would you read the
22 amendment, please?
23 READING CLERK: On Page 2, Line 16, delete "related
24 interest" and insert "related natural resources."
25 CHAIRMAN DOUGLASS: Commissioner Butterworth, you are
59
1 recognized on your proposed amendment.
2 COMMISSIONER BUTTERWORTH: Thank you, Mr. Chairman.
3 This goes along with the previous amendment and it takes
4 away the opportunity for multiple purposes. It just says,
5 "related natural resources," versus the old language that
6 says "related interests" and I have no idea what "related
7 interests" means. I have a higher comfort level with
8 "related natural resources."
9 CHAIRMAN DOUGLASS: All right. Any discussion on the
10 amendment? All in favor say aye. All opposed.
11 (Verbal vote taken.)
12 CHAIRMAN DOUGLASS: The amendment caries. And now we
13 revert to the proposal as amended. Is there any further
14 discussion on it as amended?
15 Commissioner Barkdull?
16 COMMISSIONER BARKDULL: Yes, sir, I would like
17 Commissioner Henderson to take the floor if he would and
18 try to explain something to me because I guess I'm dense.
19 CHAIRMAN DOUGLASS: We won't get into that but we
20 will ask Commissioner Henderson to take the floor.
21 COMMISSIONER BARKDULL: I'm looking at the
22 Constitution as printed in the rule book that we have in
23 front of us which is a blue cover on Page C40 which
24 relates to Article XII and makes some reference to the
25 1885 Constitution and Section 17 thereof.
60
1 And that starts out with bonds' land acquisition for
2 outdoor recreation development. Those were what I
3 understood to be the bonds that we wanted to permit a
4 refinancing of. I do not see any of the language that's
5 in the beginning of this section that you find on Page 40
6 which relates to bond -- bonds' land acquisition for
7 outdoor recreation development, that type of limitation in
8 this proposal that's before us.
9 And that's what's concerning me, that this is a broad
10 grant of power and that, which is in this Section 14, is a
11 limited grant of power.
12 COMMISSIONER HENDERSON: Mr. Chairman, I'd be glad to
13 answer that. I think it's important to note the
14 historical context of this because of where this is and
15 what the Legislature has done with it. What is in the
16 footnote at the tail end and fine print of the
17 Constitution is a carryover from 1885 of a grant of
18 authority that would build our state park system.
19 You know, if you think about what we have today,
20 we've got a pretty good, actually we've got a great state
21 park system. And at the time, this was the vehicle to get
22 that accomplished.
23 Now there is a lot of language in there that's now
24 obsolete about the way bonds are issued because it has all
25 been carried over in the main part of the Constitution and
61
1 the part of the Constitution that we are now amending. So
2 what the Legislature did after, when Preservation 2000 was
3 created, was develop a program that was very specific that
4 was tied to the authority, the grant of authority in this
5 tail end of the Constitution.
6 Now since -- so they had this as the authority. They
7 also had the procedures that were in place with other
8 general law in other parts of the Constitution and the
9 mechanics of it. I mean, this is a bonding program. You
10 can't -- bonds still have to be paid off. You still have
11 to have a funding source that's tied to paying them back.
12 The Legislature, through the appropriations process,
13 has done that every year and I see conversations going on
14 back here. I know that Commissioner Scott and
15 Commissioner Crenshaw when they were president of the
16 Senate each year had to work on issues relating to finding
17 the revenue to pay off these bonds. And we have done that
18 through the documentary stamp tax essentially each of
19 these eight years.
20 So what we're doing with this proposal is having a
21 clean start, a grant of authority that people will approve
22 that allows the Legislature to exercise that but they will
23 still have to exercise it prudently. It is a bond. You
24 are borrowing money from the people, you still have to pay
25 it back. Why is bonding important?
62
1 Bonding is important for two reasons. We need to
2 keep this in mind, the economics of all this. Why are we
3 even talking about bonding? The state is growing at a
4 rate of 700 people per day. When we acquire special
5 places today and we do it by borrowing money for bonding,
6 it is allowing all those other people who are moving here
7 to help pay the cost of taking care of that special place.
8 The other thing that it does is lock in the cost today.
9 We all know the beautiful, special places in Florida are
10 escalating in value everyday because of the changes in the
11 real estate market.
12 So there is a prudent, businesslike reason to do
13 this. And so that's what we are trying to do. We are
14 trying to give the Legislature the authority to do this.
15 I certainly believe that the amendments that have just
16 been adopted help us to refine this issue to get us in a
17 place where we ought to be able to approve this. And I
18 guess my question now to the back of the room; is there
19 anything else we move to move forward on this?
20 (Off-the-record comment.)
21 COMMISSIONER HENDERSON: I'm supposed to keep them.
22 Any other questions?
23 CHAIRMAN DOUGLASS: I'm not granting a recess, but we
24 are sort of having one. Because I'm inclined to agree
25 with what you-all were doing because I went back and read
63
1 this and it does create what Commissioner Barkdull had
2 questioned and Commissioner Barkdull opposed which I think
3 you-all were trying to resolve. Which one of you wants to
4 be recognized to report the consensus of the meeting in
5 the back of the room?
6 Commissioner Butterworth?
7 COMMISSIONER BUTTERWORTH: If I could ask
8 Commissioner Henderson a question. Commissioner
9 Henderson, the way this is presently drafted and amended,
10 can we buy a less than fee, just conservation easements or
11 whatever else?
12 COMMISSIONER HENDERSON: I was sure of it before your
13 amendment, Commissioner.
14 COMMISSIONER BUTTERWORTH: What are we doing now?
15 CHAIRMAN DOUGLASS: Commissioner Thompson wants to
16 tell us what the problem is.
17 COMMISSIONER THOMPSON: Mr. Chairman and members,
18 here is the problem we discussed. When you take out
19 related interest, and I agree that was a broad term, and
20 we don't know what all that would authorize the full faith
21 and credit the state to be pledged for the purchase of.
22 But I think all of us, if we are going to do this, and I
23 think the public, if we are going to do this, would want
24 you to be able to buy less than the fee. And for the
25 nonlawyers, what that means is conservation easements and
64
1 development rights and so forth.
2 I think that's a better buy for the government, and I
3 think that is a good way to preserve land without taking
4 it off the tax rolls completely and so forth. And so I am
5 sure that's probably why that term was put in there when
6 you-all were doing the drafting. But we -- everybody also
7 understands and is concerned about making it too broad.
8 One of the things we have discussed was to reconsider
9 that amendment and offer in lieu of that an interest --
10 related interest in land. But I'm not sure of even that
11 because then, what do you do about water resources?
12 So what I guess we are saying is maybe we ought to
13 make a statement here and go on to style and drafting with
14 it and then when it comes back out, that would probably be
15 better considered and lawyered a little bit more. So I
16 guess what's the pleasure?
17 COMMISSIONER HENDERSON: I'll yield to answer your
18 question. I agree with you. The reason why the related
19 interest was placed there was to make sure that we could
20 do less than the fee acquisition. And I think if we just
21 had interests -- plural, interests --
22 CHAIRMAN DOUGLASS: Couldn't you just say less than
23 fee acquisition?
24 COMMISSIONER HENDERSON: No, I don't want to put that
25 in the Constitution. Just put interest. That way, you
65
1 don't define what --
2 COMMISSIONER THOMPSON: Related property interest?
3 CHAIRMAN DOUGLASS: That's what a fee interest is,
4 correct? Well, a fee interest is a property interest.
5 COMMISSIONER THOMPSON: But aren't we talking about
6 something less than the fee when we talk about development
7 rights for example, or conservation easements?
8 CHAIRMAN DOUGLASS: Correct. Any kind of easement
9 would be less --
10 COMMISSIONER THOMPSON: So a related property
11 interest would encompass development rights or
12 conservation easements. All right. Can we temporarily --
13 CHAIRMAN DOUGLASS: Well if somebody would offer an
14 amendment.
15 COMMISSIONER HENDERSON: Interests, plural, interests
16 in land.
17 CHAIRMAN DOUGLASS: Hold on just a moment, we are
18 going to take just a minute for somebody to draft this.
19 But, Commissioner Butterworth, assume they come up with a
20 draft that meets that provision, I would suggest that you
21 would withdraw your amendment and then let them offer the
22 amendment that meets the general consensus of meeting the
23 problem; is that agreeable?
24 COMMISSIONER BUTTERWORTH: Whatever the Chair
25 dictates is fine.
66
1 CHAIRMAN DOUGLASS: I'm not dictating that at all.
2 COMMISSIONER BUTTERWORTH: Whatever the Chair
3 advises.
4 CHAIRMAN DOUGLASS: I would think that would make us
5 get to it easier.
6 Move to -- there has been a motion to reconsider the
7 amendment that we just adopted offered by Commissioner
8 Butterworth. All in favor of reconsidering that say aye.
9 Opposed, like sign.
10 (Verbal vote taken.)
11 CHAIRMAN DOUGLASS: It carries. Now we will -- we
12 don't have to vote on the amendment. It is withdrawn.
13 Now, we have an amendment that will be on the table very
14 shortly covering that subject. In the meantime, for your
15 edification, you might read that again, so we know where
16 we are. (Pause.) All right. Is there an amendment on
17 the table yet? Okay. We have got a little scribner work
18 to do here.
19 We are waiting on them to put the amendment on the
20 table so we can read it. And I'm going to recognize
21 Commissioner Mills first and then Commissioner Scott. Who
22 is offering the amendment?
23 COMMISSIONER MILLS: I am.
24 CHAIRMAN DOUGLASS: Commissioner Mills offers the
25 amendment.
67
1 COMMISSIONER MILLS: Mr. Chairman, as I understand
2 the question --
3 CHAIRMAN DOUGLASS: Now everybody pay attention.
4 Tell them what the amendment says because we haven't read
5 it yet.
6 COMMISSIONER MILLS: It inserts the words "related
7 property interest." And as I understand the issue -- as I
8 understand the issue, it is a desire to be able to acquire
9 an interest in land that may be less than buying the whole
10 land that is the whole -- to buy the property, to buy a
11 conservation easement. So this says a "related interest,"
12 "related property interests" then is that definition and
13 it would be the intention of the Commission, if this
14 passes, to include those lesser interests other than a
15 full fee.
16 CHAIRMAN DOUGLASS: We have got two people wanting
17 you to yield, Commissioner Thompson and Commissioner
18 Scott, which one do you want?
19 COMMISSIONER MILLS: I'd like them both.
20 CHAIRMAN DOUGLASS: I'll give you one at a time.
21 COMMISSIONER MILLS: Okay. I'll take Scott first.
22 CHAIRMAN DOUGLASS: Commissioner Scott.
23 COMMISSIONER SCOTT: What are we striking, because
24 part of the concern that I had was that we had stuck
25 "related resources" which might include water and air.
68
1 CHAIRMAN DOUGLASS: The only thing that was struck in
2 the original amendment was "related interest" I think;
3 isn't that correct?
4 COMMISSIONER SCOTT: What are we striking in the
5 Mills' amendment, that's my point.
6 COMMISSIONER MILLS: Commissioner Thompson will ask a
7 question that would clarify that.
8 CHAIRMAN DOUGLASS: Commissioner Thompson?
9 COMMISSIONER THOMPSON: Mr. Chairman, I went up and
10 looked. Let me tell you-all exactly where we are.
11 CHAIRMAN DOUGLASS: Can I have her read it?
12 COMMISSIONER THOMPSON: Sure, but let me give this
13 explanation.
14 CHAIRMAN DOUGLASS: I certainly will.
15 COMMISSIONER THOMPSON: This is going to be real
16 simple. If you will look at what Commissioner Henderson
17 told you to begin with was the amendment, which is on
18 Page 135, Subsection E, and you'll look one, two, three,
19 four lines down where the words "related interest" are
20 located, we are merely inserting, forget everything that
21 Commissioner Butterworth has done as far as his amendment,
22 we are merely inserting the word "property" between
23 "related" and "interest." That's the only change to what
24 you have in front of you.
25 CHAIRMAN DOUGLASS: Does that then apply to the
69
1 words -- it will read, And water areas and related
2 property interest and resources for the purposes of
3 conservation. It wouldn't apply to resources? Or would
4 it? I think it says "and resources," not "or." So we
5 want to be clear on that because you are talking about
6 applying an easement for the purpose of conservation and
7 all those other purposes as well, are you not,
8 Commissioner Mills?
9 COMMISSIONER MILLS: Yes, sir.
10 CHAIRMAN DOUGLASS: All right. Is that clear to
11 everybody then that that also allows as redrafted "and
12 related property interest and resources" would apply to
13 all those purposes that are stated there? Commissioner
14 Lowndes, you have been very quiet and you know a lot about
15 this. Do you have any interpretations on the language for
16 us?
17 COMMISSIONER LOWNDES: I think they are doing an
18 excellent job.
19 CHAIRMAN DOUGLASS: Yeah, but we are not there yet.
20 Do you think that it does what they intend to do then as
21 it reads which is to allow easements to be acquired for
22 all of these purposes, not just for water resources or
23 related to water areas?
24 COMMISSIONER LOWNDES: If I was going to change it, I
25 would put "related property interests therein" so you knew
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1 what they were related to. But other than that, I think
2 it is the way to do it.
3 CHAIRMAN DOUGLASS: All right. So we can really
4 refer that to style and drafting if there is a needed
5 change in the language with the understanding that you
6 want it to apply too everything; is that correct?
7 COMMISSIONER THOMPSON: Do you want to buy -- the
8 state to buy a related interest, Mr. Mills, in historic
9 preservation? I mean, and I'm just thinking out loud and
10 asking for the group, I think we need to reach a --
11 Mr. Lowndes, maybe he would yield?
12 CHAIRMAN DOUGLASS: Commissioner Lowndes?
13 COMMISSIONER LOWNDES: I think the answer to that is
14 you leave them with the flexibility to do it. You might
15 find the circumstances in which you would like to do it
16 and you might not, but you're not giving them that
17 flexibility. I don't think -- to give them the
18 flexibility, I don't think is harmful.
19 COMMISSIONER THOMPSON: Further inquiry, Mr. Nabors
20 just pointed out to me that if we do what we are talking
21 now, you are buying the property interest for the purpose
22 of those things so that would clarify it, I think,
23 Mr. Chairman, better than anything we have said so far as
24 far as I'm concerned.
25 CHAIRMAN DOUGLASS: All right. So that if it needs
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1 to be cleaned up, we know the intent, the amendment is on
2 the table. All those in favor of the amendment, unless
3 there is further debate, will please say aye. Opposed?
4 (Verbal vote taken.)
5 CHAIRMAN DOUGLASS: It carries. We now are on the
6 proposal as amended which I think we all understand as
7 well as we are going to where we are. Now we will then
8 proceed to vote on the proposal as amended.
9 (Vote taken and recorded electronically.)
10 CHAIRMAN DOUGLASS: Has everybody voted that wants to
11 vote? Lock the machine and announce the vote.
12 READING CLERK: 25 ayes, 2 nays, Mr. Chairman.
13 CHAIRMAN DOUGLASS: Commissioner Morsani, you were
14 not joined by one voter. Almost you were. So that honor
15 is still yours at the moment.
16 We will now move to the next item on the special
17 order, which is Proposal No. 151 by Commissioner Barkdull.
18 Would you please read it?
19 COMMISSIONER BARKDULL: Mr. Chairman, I'll
20 short-circuit it, I'll withdraw this. They tell me what
21 we just did cured it. It cured it all right.
22 CHAIRMAN DOUGLASS: Commissioner Barkdull admits his
23 defeat and moves to withdraw with unanimous consent
24 Proposal 151. And without objection, it is withdrawn.
25 All right. Proposal 91 by Commissioner Hawkes, he
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1 was here this morning. Okay. Commissioner Hawkes who
2 sponsored this, is asking that it be temporarily
3 approved -- I mean passed. And without objection, we will
4 temporarily pass it until special order tomorrow. Without
5 objection, it is done.
6 All right. Proposal 96 by Commissioner Nabors, would
7 you read it, please?
8 READING CLERK: Proposal 96, a proposal to revise
9 Article I, Section 5, Florida Constitution; prescribing
10 types of communications that are within the purview of the
11 people's right to instruct their representatives.
12 CHAIRMAN DOUGLASS: All right. This was approved by
13 the Committee on Local Government. Commissioner Nabors,
14 you are recognized to present this proposal, No. 96.
15 COMMISSIONER NABORS: I believe --
16 CHAIRMAN DOUGLASS: I don't believe your mike is on.
17 COMMISSIONER NABORS: Is it now? I believe this was
18 approved unanimously in the Local Government Committee.
19 For those of you that have dealt with local governments,
20 you have really got to put separation of powers' concepts
21 aside in the sense that a county commissioner or a city
22 council person legislates by the adoption of an ordinance.
23 They do the executive function by the administration of
24 laws and we also appropriate the funds by the adoption of
25 budgets.
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1 So within that body of that local government entity,
2 of all the various functions of government, which is
3 historically done, generally in terms of land use
4 decisions, historically in Florida, they were also
5 considered legislative decisions by local governments and
6 they were always subject to what was called the fairly
7 debatable rule. And that was if it was fairly debatable
8 as to whether the action was reasonable or not by local
9 governments, then that was the standard review by the
10 courts.
11 With the line of cases that were with the Jennings'
12 case and other cases which are talked about in the
13 material, there is a line of cases out of the Supreme
14 Court which characterizes land use decisions as
15 quasi-judicial. And that characterization alone carries
16 with this two concepts.
17 One concept is the standard of review on appeal just
18 like on quasi-judicial procedures, whether or not there is
19 substantial competent evidence. The other issue is a
20 prohibition by court decree of ex parte communications
21 with the decision-makers of the Board of County
22 Commissioners or the city council members.
23 This proposal does nothing with the standard of
24 review. It still leaves it basically as substantial
25 competent evidence but it tries to deal with that issue in
74
1 terms of the abilities of citizens to instruct their
2 government to recognize that in these, even in these ex
3 parte procedures at the local level, citizens have a right
4 to talk to their elected officials.
5 And this is a real world problem in terms of citizen
6 credibility. And the way it has been interpreted all over
7 this state, each county has its own rules and it's a
8 consequence of a county commissioner going to a 7-11 and
9 running into a citizen, the citizen wants to talk about a
10 pending matter. The county commissioner says, Well, I
11 can't talk to you about that except at a public hearing.
12 And the quasi-judicial concept in these land uses
13 just doesn't work at the local level. Citizens don't
14 understand it, elected officials are embarrassed by it.
15 And it really doesn't foster the dialogue that needs to
16 occur. I don't consider this a neighborhood association
17 amendment or development amendment. It really is a good
18 government amendment to allow their citizens to be able to
19 instruct their elected officials on these matters.
20 It doesn't change the nature of the process in terms
21 of quasi-judicial on the standard of review but strictly
22 recognizes constitutionally that the citizens can instruct
23 their elected representatives. This was crafted by a
24 consensus of local government lawyers and officials. It
25 preserves, you will notice in the amendment, the fact of
75
1 any existing laws dealing with public ethics that may be
2 by law now or may be adopted in the future.
3 So if the Legislature wants to put some constraints
4 on that dialogue in terms of ethics, they could do that.
5 But without this, without this constitutionally, the
6 Legislature really cannot effectively deal with this
7 problem.
8 And I would urge you to support it. I think if any
9 of you elected officials are constantly put in pressure of
10 being able to discuss with their citizens these issues,
11 they go to the heart of how they feel about their
12 neighborhoods and their property, whether it is a
13 developer or a homeowner.
14 CHAIRMAN DOUGLASS: All right. Commissioner Connor?
15 COMMISSIONER CONNOR: Mr. Chairman, I'm supportive of
16 the proposal. And a number of folks have commented on the
17 differences between candidates for judicial office and
18 judges and other elected officials. I think nowhere is
19 this more in evidence than in this particular area where
20 people feel it is important and they have a right and it
21 ought to be an unbridled right to address and instruct
22 their executive branch members on these issues.
23 I would like to ask a question, if I may, of the
24 sponsor.
25 CHAIRMAN DOUGLASS: He yields.
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1 COMMISSIONER CONNOR: Commissioner Nabors, I had a
2 question in my own mind as I read this language where it
3 says, And instruct their local government public officials
4 without being constrained with regard to ex parte
5 communication considerations. I can envision that in
6 different counties, different commissions, different
7 bodies, different counties, may choose to conduct their
8 business in different ways.
9 So, for example, if Broward County said, We want to
10 adopt a rule with respect to quasi-judicial matters and
11 zoning issues, which does limit ex parte proceedings, but
12 Bradford County said, We don't want any such rule, would
13 the language that I have just quoted prevent those bodies
14 from providing a rule, an internal operating rule against
15 ex parte communications and if so, is that your intention?
16 COMMISSIONER NABORS: I think it does. And that is
17 the intention. The problem with what we are doing is
18 going into the Declaration of Rights and giving rights to
19 the people. Now we tried to craft this so that local
20 governments all have generally, whether city, county
21 charter, or non-charter, all have powers of local
22 self-government not inconsistent with law. And so this
23 would be a grant of a right to citizens which I don't
24 think that the home rule power could override.
25 However, if there is a decision made in the future,
77
1 which is the purpose of the constitutional revision not to
2 prejudge these things, if there was a decision made in the
3 future, there needs to be some kinds of local authority in
4 terms of ethics and certainly the Legislature could
5 authorize local options to deal with slices of it as long
6 as it didn't interfere with the basic right which is
7 granted by this provision.
8 CHAIRMAN DOUGLASS: Anyone else? Commissioner
9 Anthony?
10 COMMISSIONER ANTHONY: Thank you, Mr. Chairman. If
11 any provision has really limited interaction and input of
12 citizens of local governments, this provision clearly has,
13 the ex parte communication provision. There are a number
14 of examples, and Commissioner Nabors has stated a couple,
15 but let me give you a visual one where an elected official
16 is at the grocery store and there may be a landfill zoning
17 issue that that body has to deal with in that coming
18 Tuesday commission meeting.
19 If a citizen walks up to me and says to me that they
20 have a viewpoint on that landfill rezoning of that
21 property, I will have to tell them to meet me at the
22 public, announced public hearing on that Tuesday evening.
23 And once they get there, and this is a citizen who maybe
24 it's their first interaction with the public policy arena,
25 once they get there, they have to stand before me, raise
78
1 their right hand, and be sworn in as a witness.
2 I will tell you that once they find out that process
3 and find that they have to go through that process, to be
4 able to share their viewpoint on a land use zoning issue,
5 they are very intimidated and they will not follow through
6 in terms of making their testimony and that's what we call
7 it in quasi-judicial proceedings, a testimony before the
8 body. The commission, the city commission.
9 We have had citizens who have been cross-examined, if
10 you will, by lawyers in front of our city commission and
11 thus they respond to their mayor or their city commission
12 or their chairman of their county commission and say, What
13 am I? Am I on the witness stand here? Am I the one who
14 wants the land use rezoning done? I am just a citizen who
15 is concerned about the impact that it may have on my
16 property, on my house, on my homestead in my community.
17 This has been one of the most unfriendly provisions
18 that local government officials have had to deal with in
19 my 13 or 14 years of being an elected official. And I
20 tell you, I am so uncomfortable when I have to tell a
21 person who this may be their first interaction with the
22 public policy arena that they have to come up and be sworn
23 in.
24 We need to change this because I want to and you want
25 me to be able to respond to the citizen who I walk into at
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1 the grocery store. This is not about those developers and
2 the attorneys that represent them. Because I will tell
3 you that most often and not all the time, their
4 communication and they are dealing with this
5 quasi-judicial process, they are very much familiar with
6 it, and they feel at ease with the process. It is about
7 the citizen who wants to be able to share their -- provide
8 their input to their representative that they elected and
9 have access to that elected person. Thank you,
10 Mr. Chairman.
11 CHAIRMAN DOUGLASS: All right. Commissioner
12 Henderson?
13 COMMISSIONER HENDERSON: Mr. Chairman, I don't know
14 if I've said too much today. I might run the risk of
15 confusing people.
16 CHAIRMAN DOUGLASS: Well, you are on a roll. You
17 have got them unconfused with the help of the Attorney
18 General, the former president of the Senate, and the
19 former Speaker of the House. So you may proceed.
20 COMMISSIONER HENDERSON: I'm glad I didn't need the
21 chief justice. I may need him on this one.
22 CHAIRMAN DOUGLASS: Well, he might have been there
23 writing, we don't know.
24 COMMISSIONER HENDERSON: I have shared the same
25 experience as Commissioner Anthony. I served as county
80
1 commissioner during the time that we had to deal with the
2 impacts of the Snyder decision. And I'll tell you, there
3 were two things that happened that greatly impacted the
4 way we do business. First of all, immediately people were
5 tremendously intimidated when they came in. And people
6 are intimidated anyway when they come into chambers for
7 the first time to deal with an issue they care about, they
8 are passionate about.
9 But when they realize they don't know what the rules
10 are, they don't know if they can talk to their elected
11 officials, it is a wall of separation and an unnecessary
12 wall of separation. And the other thing, and I think this
13 is maybe the thing that people feel the strongest about.
14 I mean, before we had to deal with this, there was a way
15 to work things out. You know, I mean these many times are
16 neighborhood issues. You've got a zoning case or board of
17 adjustments case, either a shift of a house or putting in
18 a pool or even, you know, a local development.
19 If there were people that came out against it, what
20 you would do, as a commissioner, is go meet with them.
21 All right. I'll meet you out there on your property, we
22 will go out there, we'll get everybody together and work
23 it out. We'll reach an accommodation and we'll bring it
24 back to the city commission or the county commission and
25 it will get approved. And that's what's missing now.
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1 Now I understand the rationale behind how we got
2 here, and it was the idea to have all -- we're talking
3 about property rights and we'll talk about it in chambers
4 and we'll make a decision based upon the information that
5 comes on in chambers. But the reality is, that that might
6 be the way it works in Hillsborough County with a Hearing
7 Officer system and it is formal, but I was once the city
8 attorney of a town with less than 1,000 people. But the
9 zoning decisions were made in the back of the grocery
10 store because there was more room to do it there than
11 there was in City Hall chambers and that's where decisions
12 were made, and they were made in the open and everybody
13 knew what they were and people got together and they
14 participated in that and it is a reminder that most local
15 governments are not big local governments, they are little
16 local governments. They know how they can find Mayor
17 Anthony. They know where he shops. They know where he
18 goes to church. They know where they can talk to him and
19 that's true all across this state.
20 I support this concept. I am going to say to my
21 friend, Commissioner Nabors, I'm still not totally sure
22 about the language and the placement of this. We have got
23 time to work on that in the committee on style and
24 drafting, but I think this is a provision that will go a
25 long way toward taking down that wall of separation that
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1 we have now built up between people and their local
2 government.
3 CHAIRMAN DOUGLASS: Any further discussion? All
4 right, are we ready to vote? Then we will vote.
5 (Vote taken and recorded electronically.)
6 CHAIRMAN DOUGLASS: Lock the machine and announce the
7 vote.
8 READING CLERK: 27 yeas, 0 nays, Mr. Chairman.
9 CHAIRMAN DOUGLASS: Commissioner Anthony, you
10 prevailed, barely. And you and Commissioner Nabors are to
11 be commended, you got an unanimous vote.
12 We will move now to Proposal No. 98 by Commissioner
13 Planas. And would you read it, please?
14 COMMISSIONER PLANAS: I withdrew that proposal
15 earlier this afternoon.
16 CHAIRMAN DOUGLASS: Okay. That is withdrawn.
17 Then Commissioner Ford-Coates on 127 is the next
18 proposal. Would you read that, please?
19 READING CLERK: Proposal 127, a proposal to revise
20 Article VIII, Section 2, Florida Constitution; providing
21 that a municipality may be abolished only by vote of the
22 electors of the municipality.
23 CHAIRMAN DOUGLASS: You are recognized, Commissioner
24 Ford-Coates.
25 COMMISSIONER FORD-COATES: Commissioners, if you will
83
1 recall, we had testimony during our hearings from a city
2 that was affected without their knowledge in the beginning
3 by an effort in a special act of the Legislature to
4 abolish that city and roll it into a neighboring city.
5 That happened because general law provides two ways
6 to dissolve a municipality. One is by an ordinance of
7 that body and a vote of their electorate, which seems fair
8 to me that the electorate gets to decide whether or not
9 they are going to abolish their own city.
10 However, there is a second way under Florida law
11 which is by special act of the Legislature. There is no
12 provision whatsoever in general law that requires the
13 voters of that municipality to have a voice in that
14 decision. That is not to say that the Legislature could
15 not put in that requirement. But this seems to me to be a
16 basic need that within the Constitution a local
17 government, a municipality, should be assured that it
18 cannot be abolished unless its own electors vote to
19 abolish it.
20 CHAIRMAN DOUGLASS: All right. Commissioner Nabors.
21 COMMISSIONER NABORS: I'd like to speak against this
22 proposal.
23 CHAIRMAN DOUGLASS: Proceed.
24 COMMISSIONER NABORS: And this is a subtle
25 distinction and I can't remember what the vote was in the
84
1 committee but what we are doing here is we are limiting
2 the authority of the Legislature to abolish municipalities
3 by always requiring that they be voter approved within the
4 abolished municipalities. Generally, that's what the
5 Legislature would always do, but the current Constitution
6 gives them that flexibility.
7 Let me give you some examples. In my lifetime, in
8 Brevard County, we had two cities that were consolidated.
9 We had Titusville and Indian River City. We had Melbourne
10 and Eau Gallie. And the Legislature, in its wisdom,
11 provided for votes within the new city and not votes
12 within each of the old cities. So what this does is
13 constitutionally it prohibits you from consolidating
14 cities unless each area that is being consolidated votes.
15 And I don't think that's what we ought to be doing in the
16 Constitution.
17 There may be times as Florida becomes more urbanized
18 where you have small cities and for whatever reason, if
19 they're enclaves of protectionism whether it's land
20 development, or whatever it is, that the Legislature ought
21 to have the flexibility, it should not be limited
22 constitutionally to deal with the status of those
23 municipalities without requiring the people to vote within
24 that area. The Legislature ought to have the ability to
25 provide for a common vote among a new city without this
85
1 dual referendum requirement which is what that would
2 cause.
3 So I'm sympathetic with the issue. I think generally
4 this has been dealt with by the Legislature and we
5 shouldn't limit the Constitution to the power of the
6 Legislature to deal with specific issues of consolidation
7 that may arise in this state.
8 CHAIRMAN DOUGLASS: Commissioner Scott?
9 COMMISSIONER SCOTT: I just want to speak briefly
10 against it. In Broward County one time we had a city
11 named Hacienda Village and it was like on the corner of
12 State Road 84 and whatever and there was like 28 people
13 there and in a bar -- we abolished that city. The whole
14 county wanted it abolished, but if we had to depend on a
15 vote of the people that lived there in the bar and
16 wherever in the trailer park, they never would. I mean it
17 would still be there in the midst of 1.5 million people.
18 So I would rather leave me some flexibility, with all due
19 respect to Commissioner Ford-Coates.
20 CHAIRMAN DOUGLASS: Commissioner Anthony?
21 COMMISSIONER ANTHONY: Would Commissioner Nabors
22 yield for a question?
23 CHAIRMAN DOUGLASS: Commissioner Nabors yields.
24 COMMISSIONER ANTHONY: Commissioner Nabors, do you
25 agree that the best decisions for local government are
86
1 made by the citizens within that local government? Do you
2 agree with that?
3 COMMISSIONER NABORS: Yes, I do.
4 COMMISSIONER ANTHONY: Then do you agree that better
5 decisions are made up here in Tallahassee on behalf of
6 citizens within the local community?
7 COMMISSIONER NABORS: Well, I mean, generally not,
8 but there may be an occasion sometime down the future
9 where all local governments are essentially creatures of
10 the Legislature by general law. So there always has to be
11 the ability of the Legislature to deal with things, they
12 go beyond the boundaries of a particular city. But, yes,
13 I'm an advocate of home rule. I have lived, breathed and
14 died home rule but I think this is an instance where total
15 local priority may be against the best interests of a
16 community.
17 COMMISSIONER ANTHONY: Is it correct then that in
18 order to incorporate a local government community there is
19 an affirmative vote to do so and then action by the
20 Legislature?
21 COMMISSIONER NABORS: Well, not constitutionally. I
22 mean, the Legislature has always required that but the
23 Constitution doesn't require it. The Constitution says a
24 municipality may be established or abolished under
25 charters amended by general or special act. We have a
87
1 history in this state of not abolishing municipalities
2 unless the people vote on it, a history of not creating
3 municipalities unless the people vote on it. That's a
4 history that's ingrained in our system. That doesn't mean
5 we that we should constitutionally limit the ability of
6 the Legislature to deal with peculiar problems down the
7 line.
8 COMMISSIONER ANTHONY: Comment, Mr. Chairman?
9 CHAIRMAN DOUGLASS: Certainly, you have the floor.
10 COMMISSIONER ANTHONY: I do understand what
11 Commissioner Nabors is saying, but I think that if a group
12 of people -- and the history of local governments, local
13 governments are not created by the state like county
14 governments. They are created by the people whether or
15 not it is five or ten people who come together based upon
16 a common issue, common topic, common values and they say
17 to themselves, We want to incorporate because we have
18 something special here that we want to preserve. Once
19 they take that action to do so, they make their decision
20 that they want to incorporate and they do so.
21 I think the same thought process should be available
22 to those citizens who want to now say, We want to abolish
23 our local government and not by the action of the
24 Legislature. We have had a circumstance that we all heard
25 about during our public hearing that one state
88
1 representative had a challenge with the local government
2 and wanted to combine or abolish that local government.
3 And that was heard and I think throughout the state
4 of Florida over 400 local governments and 67 counties said
5 to themselves, Whoa, can we be abolished as a local
6 government, could South Bay be abolished as a local
7 government because we do not agree with our state
8 representative or senator and that person may be able to
9 get the votes up in Tallahassee to abolish us. That's a
10 scary thought.
11 And therefore what this provision does, what this
12 proposal does, is stop that type of action from the state
13 level and provide us, as the citizens within those local
14 communities, who made the decision to incorporate based
15 upon the things that we value most, based upon the fact
16 that we could provide services within our local
17 government, whether it is water, police, all the utility
18 services, we made that decision and we are doing that.
19 And I don't think that a body, that not one member of
20 the Legislature perhaps lives in South Bay, should be able
21 to make that decision on behalf of that municipality and
22 that's the basic principle of this proposal. And I say to
23 you, Commissioners, members of this Commission, that you
24 do not want someone who does not know your community, that
25 does not live in your community, to make a decision about
89
1 the future or the abolition -- more specifically this
2 proposal refers to -- about the future or the abolition of
3 your city. And I urge you to support this proposal.
4 CHAIRMAN DOUGLASS: All right. Before we go further,
5 I want to, I have been negligent here. I recognize
6 Commissioner Barnett to introduce a page that we have that
7 most of you didn't know we had so you can push your
8 button. I'm going to interrupt the debate for that
9 purpose so I don't forget it.
10 Commissioner Barnett, you are recognized.
11 COMMISSIONER BARNETT: Thank you, Mr. Chairman. And
12 I also would like to be recognized to speak on this issue.
13 CHAIRMAN DOUGLASS: Let's do first things first.
14 COMMISSIONER BARNETT: Well, it is my privilege to
15 introduce to you-all my daughter, Sarah Barnett. She is
16 in the back of the chambers there as a junior in school.
17 She is at home for a couple of days on a break. And I
18 just decided that it would be, like Commissioner Evans,
19 this is a great part of her continuing education to see
20 her government at work and to know that her mother does
21 work on occasion and so it is really my privilege to
22 introduce my daughter Sarah to you.
23 (Applause.)
24 CHAIRMAN DOUGLASS: Sarah, you can be very proud of
25 your mother, even though she doesn't work. She does a
90
1 great job on our commission.
2 Now, I will recognize you now to speak on the
3 proposal. And, Sarah, I would -- I need a page, if you
4 would come to the platform, please. Go ahead.
5 Commissioner Barnett.
6 COMMISSIONER BARNETT: Thank you, Mr. Chairman. I
7 rise to speak against this proposal. I think that one of
8 the things I would ask you to focus on is that there is a
9 difference between various types of local government.
10 Local government is not just a homogenous entity. There
11 are county governments which are basically extensions of
12 the sovereign and then there are municipalities which are,
13 in fact, creatures of statute in many ways, they are
14 called municipal corporations, I think even Commissioner
15 Anthony used the words, they are incorporated. And they
16 are historically very different bodies.
17 And I think that there is a reason for the treatment,
18 the current treatment we have where the Legislature often
19 at the initiation of the local -- the people in the local
20 community form a municipality by that the Legislature has
21 the right again to abolish that municipality without a
22 vote of the electorate.
23 I think the situation that occurred I believe it was
24 in Pasco County that we heard about at committee was a
25 very unfortunate situation. But in truth, those citizens
91
1 kept that situation from occurring. That municipality was
2 not abolished. They were very effective in having their
3 voices heard in the process and I do not think that we
4 should take an isolated instance which was not a good, not
5 an instance anybody ought to be proud of, but take an
6 isolated instance and now change the organic document and
7 the organic way that we have treated municipalities and
8 municipal corporations.
9 CHAIRMAN DOUGLASS: Any other comments? Commissioner
10 Butterworth? Morsani will be next. Do you yield?
11 COMMISSIONER BUTTERWORTH: I yield.
12 COMMISSIONER MORSANI: I was going to make one quick
13 comment and I think we forgot to read some of our
14 information here. This was disapproved in the committee.
15 CHAIRMAN DOUGLASS: Thank you. I usually announce
16 that and I forgot to announce it. Now, Commissioner
17 Butterworth, with those announcements.
18 COMMISSIONER BUTTERWORTH: Thank you very much,
19 Mr. Chairman. Having had the opportunity to serve as
20 mayor of a city, I do believe there are a few cases in
21 rare instances where cities such as Hacienda Village
22 should be abolished. But I do believe in strong local
23 government and to listen as the commissioner has stated,
24 that the best place is the local city. And the local
25 cities, they know what they want to do, they know whether
92
1 or not they want to be abolished or not. And let them be
2 the ones to determine that, not the Legislature.
3 CHAIRMAN DOUGLASS: Commissioner Morsani, now you may
4 rise again.
5 COMMISSIONER MORSANI: Well, now I'll speak a little
6 bit further then. I didn't think this was going to be
7 necessary. But as Commissioner Barnett said, the system
8 that we had worked. The City of Port Richie, I'm familiar
9 with it. I know the mayor and it's 14 miles from my
10 house. And I live in that county. But the system we had
11 worked. So we need not change the system.
12 As Commissioner Barnett said, the citizenry decided
13 that they wanted to stay a city, they were not in default
14 on anything, that there wasn't any reason for it and there
15 is a proper procedure through the Legislature to keep
16 their city and they did that. We did not need to change
17 that. And I agree in part with our dear friend
18 Mr. Anthony, but we don't need to change this. It came
19 out of the committee disapproved. I recommend we
20 disapprove it.
21 CHAIRMAN DOUGLASS: All right. Any further comments?
22 COMMISSIONER ANTHONY: Would the gentleman yield for
23 a question?
24 CHAIRMAN DOUGLASS: Will you yield, Commissioner
25 Morsani? He doesn't yield, that settles that.
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1 (Laughter.)
2 CHAIRMAN DOUGLASS: All right. Are there any other
3 comments? Commissioner Barkdull, do you rise to do
4 something?
5 (Off-the-record comment.)
6 CHAIRMAN DOUGLASS: All right. Are we ready to vote
7 on this? Commissioner Ford-Coates to close.
8 COMMISSIONER FORD-COATES: Commissioners, I respect
9 the opinions of my committee members on local government
10 and this was disapproved by the committee. But I submit
11 to you again that this is part of the local government
12 article. It is there to guarantee the basic rights of the
13 citizens of this state at the local government level. And
14 one of the basic rights, I believe, is that a municipality
15 has the right to establish itself and should have the
16 right to abolish itself. That right is not guaranteed
17 anywhere in the Constitution. It can be done by the
18 special act of the Legislature miles and miles away in
19 Tallahassee.
20 It is true that the system worked in this instance
21 but it worked at a cost of dollars and great pain and
22 suffering for the people in the city that was to be
23 abolished. It could have been done with no vote of the
24 electorate. There is nothing in our Constitution that
25 prevents a city from being abolished just by a special
94
1 act, the vote of the Senate and the House.
2 I submit to you that it is just a matter of fairness
3 and a basic right that a city should make the decision as
4 to whether or not it should be abolished. I urge your
5 support of this proposal.
6 CHAIRMAN DOUGLASS: All right. Is everybody ready to
7 vote? Unlock the machine and we'll vote.
8 (Vote taken and recorded electronically.)
9 CHAIRMAN DOUGLASS: Announce the vote.
10 READING CLERK: 10 yeas, 17 nays, Mr. Chairman.
11 CHAIRMAN DOUGLASS: It fails. We'll proceed to the
12 next proposal, No. 116, by the Committee on Education and,
13 Commissioner Corr, please read it.
14 READING CLERK: Committee substitute for Proposal
15 116, a proposal to revise Article IX, Florida
16 Constitution, provides in Section 6 to provide funding for
17 an educational scholarship fund; adding Section 7 to
18 authorize the creation of an educational scholarship fund.
19 CHAIRMAN DOUGLASS: All right. Who's going to
20 present this for the Committee on Education? The chairman
21 isn't here and the other cosponsor isn't here.
22 Commissioner Smith, do you rise for that purpose?
23 COMMISSIONER SMITH: I'd like for you to introduce
24 the new reader, I didn't meet the new reader.
25 CHAIRMAN DOUGLASS: Well, we had two today.
95
1 COMMISSIONER SMITH: Well, I met the other one, I'd
2 like to meet the new one.
3 CHAIRMAN DOUGLASS: I'll ask the secretary to
4 introduce you. Could you introduce the new reader at the
5 request of Commissioner Smith? You've got to figure out
6 who she is. It's what's her name. We caught her on the
7 phone. She was talking to her family.
8 SECRETARY BLANTON: Our reader today is Courtney
9 Christian who works part-time with us. She's a student at
10 Florida State. And our other reader is Debbie Brown who's
11 part of the secretary staff. Our regular reader is in
12 class at Florida State today so we're flexible in our
13 office.
14 CHAIRMAN DOUGLASS: Thank you very much. We're glad
15 to have you, Courtney.
16 Now, Commissioner Smith, you rise to present this or
17 were you just rising for the purpose that we just
18 accomplished?
19 COMMISSIONER SMITH: Well, I think that I was -- I
20 served on the Education Committee --
21 CHAIRMAN DOUGLASS: Commissioner Riley is vice
22 chairman.
23 COMMISSIONER SMITH: That's fine.
24 CHAIRMAN DOUGLASS: She's rising, I think, for the
25 purpose of presenting it.
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1 Commissioner Riley?
2 COMMISSIONER RILEY: Commissioner Corr is not here.
3 And I will present this to the commission. I will tell
4 you that we did not pass this out of committee. I'm sorry
5 Commissioner Corr is not here to defend his position.
6 However, I won't defend his position because I'm against
7 the proposal so I'm not sure how fair that is --
8 CHAIRMAN DOUGLASS: It shows it was disapproved by
9 the committee as a committee substitute. But he's here
10 for consideration but it was disapproved.
11 COMMISSIONER RILEY: Correct, it was.
12 CHAIRMAN DOUGLASS: Okay. Go ahead. Do you want to
13 tell us what it says?
14 COMMISSIONER RILEY: I think it's self-explanatory.
15 If it would please the body, we could defer it until
16 Commissioner Corr is here.
17 CHAIRMAN DOUGLASS: If you'd just read it, it's just
18 one paragraph, isn't it? It says, the educational
19 scholarship fund, the Legislature may establish by law an
20 educational scholarship fund for the purpose of providing
21 education scholarships for qualified pre-kindergarten,
22 kindergarten through grade 12 students and students of
23 higher learning. That's just adding that provision to
24 Article IX, Section 7. Anybody have any questions or any
25 comments on the proposal? If not, we'll proceed to vote.
97
1 Commissioner Barnett?
2 COMMISSIONER BARNETT: I don't understand the
3 proposal or the full intent of it, Mr. Chairman. I was
4 looking forward to hearing some debate on it and it
5 doesn't appear to me there's anyone here prepared to
6 debate it.
7 CHAIRMAN DOUGLASS: Have you read it?
8 COMMISSIONER BARNETT: Perhaps we should move to TP
9 it. I read it but it doesn't --
10 CHAIRMAN DOUGLASS: All right. So you're moving to
11 TP it?
12 COMMISSIONER BARNETT: I think it would be better in
13 light of Commissioner Corr and the chairman not being here
14 to give them an opportunity to fairly debate it.
15 CHAIRMAN DOUGLASS: Without objection, we'll TP it
16 and move to the next item which is Proposal 135 by
17 Commissioner Henderson. Read it, please.
18 READING CLERK: Proposal 135, a proposal to revise
19 Article VII, Section 4, Florida Constitution; adding lands
20 used for conservation purposes to those lands that may by
21 law be assessed for tax purposes on the basis of their
22 character or use.
23 CHAIRMAN DOUGLASS: This was approved by the
24 Committee on Finance and Taxation.
25 Commissioner Henderson?
98
1 COMMISSIONER HENDERSON: Thank you, Mr. Chairman.
2 This is the last of our various environmental proposals
3 that have worked their way through the system. This one
4 came through favorably recommended by the Committee on
5 Finance and Tax. Maybe I should have said earlier that
6 one of the hats that I wear as chairman of the State
7 Greenways Commission, which is charged by the Legislature
8 of trying to develop a program to succeed Preservation
9 2000 which we did earlier and also to make strides to work
10 with private landowners in the state to try to enhance
11 conservation.
12 The last two years we've engaged in a conversation
13 with some of the -- just tremendous private property
14 owners. Great stewards of Florida's landscape and a set
15 of proposals are working their way through, being drafted
16 earlier this week, participated in a drafting session with
17 the legislation which will be introduced in session this
18 year. It was one of the items that came out of that that
19 we can only do by constitutional amendment and that is
20 what is before us today.
21 We all know that local property appraisers are
22 allowed to give exemptions for Green Belt, for
23 agriculture. It's been done all the time, it's time
24 honored, it's a good idea. We also know a few years back
25 the voters of the state approved a provision for Blue Belt
99
1 which is a means to give some limited exemption in the --
2 primarily central Florida -- areas of high water table to
3 be able to enhance the ability for conservation.
4 And by state law, that has been expanded to allow for
5 a grant of partial exemption in the area of noncommercial
6 recreational uses. But there is no ability at present to
7 be able to give any form of exemption when land is used
8 simply in conservation. People are being good stewards of
9 the land.
10 I'll give you an example, the case that really
11 brought it to my attention. Actually, I know of many, but
12 this is one I'm very familiar with. Lisa Vombromboski
13 (phonetic) is a person who lives in Hernando County. She
14 lives on a wonderful piece of property that sits between
15 the two big parts of Withlacoochee State Forest. She has
16 on her property one of the nicest, most wonderful stands
17 of longleaf pine left in Florida.
18 And from her point of view, she's doing a better job
19 of conserving that property than the state forest system.
20 Now, I'm not going to get in that conversation, but she's
21 conserving and she's preserving it and she's been doing
22 that for years. I'd also tell you about Ms. Vombromboski,
23 that she would have enjoyed Commissioner Planas'
24 conversation yesterday about leaving Cuba to come here to
25 discover discrimination.
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1 She left Germany earlier this century. But she left
2 Germany not to avoid Hitler, but she left Germany to avoid
3 the Keiser and she's lived on this property since 1917 and
4 has been an outstanding steward of the land.
5 Anyway, this year the property appraiser in Hernando
6 County finally figured out that she wasn't going to cut
7 down her wonderful stand of longleaf pine, the nicest
8 private stand of longleaf pine in Hernando County, and
9 decided this probably should be taxed as development
10 property.
11 And so if she had cut down her trees, she would have
12 had an exemption for agriculture purposes. But because
13 she chose to keep her longleaf pine, of which we've lost
14 95 percent of it in this state, she's being penalized for
15 that purpose.
16 So I would tell you that this is a means by which the
17 Legislature -- we're not going to create an exemption by
18 doing this -- but it's a means by which the Legislature
19 can fashion a remedy whereby we can work with private
20 property owners who are outstanding stewards of the land
21 to be able to try to protect some precious resources
22 within this state.
23 This is a very simple amendment that has the ability
24 to do a tremendous amount to reward good stewardship by
25 private property owners but also provide for protection of
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1 resources for future generations to come.
2 CHAIRMAN DOUGLASS: I'd like to ask you this. The
3 example you gave, if she had objected, she would have won
4 under the existing Constitution. But the other examples
5 of this would not be related to agriculture use, which
6 even though she's not going to cut the timber, it's still
7 use. And under the Constitution, the tax assessor was
8 wrong and there are cases that would so hold.
9 I want to point out to you though, that what you're
10 proposing, I believe, is other areas of conservation that
11 don't relate to agriculture; are you not? For example,
12 somebody that dedicates part of their land to drainage,
13 would a lake be one?
14 COMMISSIONER HENDERSON: I'd say maybe, maybe not. I
15 think the Legislature is going to have to do that just as
16 they've taken many years to work through the standards for
17 the Blue Belt, but at least they've given them that option
18 to do that.
19 CHAIRMAN DOUGLASS: So under this, if you had a lake
20 that you had constructed for a drainage --
21 COMMISSIONER HENDERSON: Maybe a lake is not a good
22 example because what is the value of that lake anyway? I
23 mean, it's not like you're going to develop the lake. You
24 have, in effect, taken it out of development. But I tell
25 you, this is a battle that we do fight every year with 67
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1 different property appraisers around the state, you have
2 67 different ways of looking at issues.
3 CHAIRMAN DOUGLASS: Commissioner Mills?
4 COMMISSIONER MILLS: Mr. Chairman, gentleman yield
5 for a question?
6 COMMISSIONER HENDERSON: I don't know. Frank, what
7 do you think?
8 (Laughter.)
9 CHAIRMAN DOUGLASS: If he doesn't yield to the
10 question, ask it anyway because you're recognized to have
11 the floor and he doesn't have to answer it if he doesn't
12 want to.
13 (Laughter.)
14 COMMISSIONER MILLS: Commissioner Henderson, we've
15 been working on a parallel issue, which I wanted you to
16 try to explain the difference between -- I think maybe
17 I'll try and then see if this works. This is not a
18 conservation easement, this is a conservation use. And it
19 may result in diminution of the assessment. Now, the
20 other issue that's coming along, for those of you, we were
21 talking about conservation easements and interests in land
22 today, relate to conservation easements which are those
23 interests formerly acquired either by the State or the
24 major conservancy or some organization for which you can
25 provide an exemption.
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1 I just wanted to discuss the distinction so when this
2 issue comes before this Commission in the next couple of
3 days it will understand why they are quite different.
4 COMMISSIONER HENDERSON: Let me ask you or perhaps
5 Chairman Scott, was that considered by the committee today
6 and what happened?
7 COMMISSIONER MILLS: Chairman Scott had the burden of
8 having a lot of very controversial issues and this is not
9 one that he was able to get at at that point. And the
10 other issue that I think we're going to need to do is
11 define conservation that was raised. And I think I
12 support your provision but it is a completely different
13 issue than a conservation easement. This is a
14 conservation use and perhaps you could -- want to augment
15 what that discontinuing is.
16 CHAIRMAN DOUGLASS: Are you suggesting that we TP
17 this to consider the conservation definition in
18 conjunction with the proposal you're talking about?
19 COMMISSIONER MILLS: Well, I mean, I would certainly
20 be loathe to propose -- to TP anything Mr. Henderson has.
21 CHAIRMAN DOUGLASS: He's getting used to it.
22 COMMISSIONER HENDERSON: I'm waiting for that other
23 shoe to drop, you know, it's been that way. And I might
24 ask, Chairman Scott, is this going to come before your
25 committee before the end of the week, do you know?
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1 (Off-the-record comment.)
2 CHAIRMAN DOUGLASS: It will have to.
3 COMMISSIONER MILLS: You can withdraw it from
4 committee and we can take it up on the floor. I mean what
5 do you have, two, you have two --
6 COMMISSIONER HENDERSON: Why don't we do -- with the
7 Chairman's permission, we'll ask that it be withdrawn from
8 F and T and we'll TP it and when we're ready to bring it
9 forward we'll tell the Rules Committee.
10 CHAIRMAN DOUGLASS: I think that's agreeable with me.
11 If it gets unanimous consent, we'll do it.
12 Commissioner Scott?
13 COMMISSIONER SCOTT: This issue is different and I
14 wouldn't want it to be a precedent for a number of other
15 issues. This is really not exactly a tax issue, it's sort
16 of quasi but it's more of an issue on a broader scale; do
17 you agree with that, commissioner? I mean, I don't think
18 it's affecting --
19 CHAIRMAN DOUGLASS: It is a tax issue because it
20 affects the assessment. And it is clearly a tax issue and
21 that's what it is, that's what it's intended to be. My
22 point, which he made in asking the question earlier, was
23 that -- you may want to study this and Commissioner
24 Henderson may, to make sure that we're not giving
25 somebody's lake, like mine, special status to have a
105
1 lowered assess when I'm using it to enhance the value of
2 my property quite extensively.
3 And what's suggested by you is that you withdraw it
4 from consideration and have it clarified before we come
5 back to the floor with it; is that right?
6 COMMISSIONER HENDERSON: No. What I was asking and
7 I'm prepared to ask it formally. What it sounded like we
8 wanted to do is to withdraw the Mills' proposal from F and
9 T, have an opportunity for us to see if we can make these
10 concepts work, and if we can develop that, we'll inform
11 the Rules Committee and it will come back to the floor.
12 Now, if the chairman wants to hear this back in committee,
13 that's fine.
14 COMMISSIONER SCOTT: Well, I would say this, why
15 don't we just temporarily pass your proposal for the
16 moment and let's talk about whether we withdraw this.
17 Let's take a look at it.
18 CHAIRMAN DOUGLASS: We'll temporarily pass this and
19 not remove it from special order but we're just going to
20 TP it and we'll come back to it. The next proposal is
21 No. 119 by Commissioner Corr, who is not here, disapproved
22 by the committee on education. Would you read it, please?
23 READING CLERK: Proposal 119, a proposal to revise
24 Article IX, Section 6, Florida Constitution amending the
25 eligibility requirements for receiving state school funds.
106
1 CHAIRMAN DOUGLASS: Does anybody want to speak to
2 this? Commissioner Riley is vice chair of education.
3 COMMISSIONER RILEY: Mr. Chairman, since we
4 temporarily passed the previous one, I would suggest we do
5 the same for this since Commissioner Corr is not here.
6 CHAIRMAN DOUGLASS: All right. Without objection,
7 we'll temporarily pass it. I do want to caution everybody
8 that just because somebody is not here is not good to TP
9 these items.
10 COMMISSIONER RILEY: Then I'd be happy to not make
11 that motion and we can deal with it. I wanted to deal
12 with the other one and it was the recommendation that we
13 temporarily pass that since he wasn't here.
14 CHAIRMAN DOUGLASS: It's the same person.
15 COMMISSIONER RILEY: I understand that, that's why
16 I'm suggesting having done one, we should perhaps do this
17 one.
18 CHAIRMAN DOUGLASS: Without objection, we'll
19 temporarily pass it. I do want to say in the future just
20 because somebody is not here should not be a grounds, per
21 se, because we have a lot of people that miss meetings
22 that may have sponsored these proposals and we've got to
23 get to the end of our work. We're temporarily passing
24 No. 119.
25 We go to No. 133 by the Committee on Finance and
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1 Taxation which and Commissioner Scott recommended as a
2 committee substitute. Would you read it, please?
3 READING CLERK: Committee substitute for Proposal
4 133, a proposal to revise Article III, Section 19,
5 Paragraph D, Florida Constitution; providing guidelines
6 for the public review period for general appropriation
7 acts.
8 CHAIRMAN DOUGLASS: Commissioner Scott, you're
9 recognized. I wonder if we can have a little order before
10 this starts. This is a proposal that probably needs your
11 attention. Those in the back of the room, would you
12 please take your seat? Thank you very much.
13 Commissioner Scott?
14 COMMISSIONER SCOTT: I normally don't like a lot of
15 attention. I would rather just go ahead and pass it out.
16 CHAIRMAN DOUGLASS: We want you to have attention
17 because when you rise, it's very important to us.
18 COMMISSIONER SCOTT: What this does, commissioners,
19 this corrects a basically drafting problem with the
20 72-hour waiting period for the budget. And some of you
21 that were on the committee will recall what happened. But
22 the way it was drafted and the way it's been interpreted
23 is that you have to wait 72 hours from when the Senate
24 bill is passed and then have to wait another 72 hours when
25 the House bill is passed. And then when you go to the
108
1 conference committee, you've got to wait another 72 hours
2 for them.
3 And what was really intended and even the comment
4 for -- this is a provision that got on the ballot from the
5 Budget and Taxation Commission. Even their comments
6 really meant only the conference report or the final
7 product. So the way this is now drafted and the way we
8 would change it, it would say that there would be a
9 72-hour review period before the passage of the bill in
10 the form that would be presented to the Governor. And
11 this corrects -- all of our experts, House and Senate both
12 agree, that this corrects the problem. It's about that
13 simple. Any questions?
14 CHAIRMAN DOUGLASS: All right. Any further
15 discussion or questions? Does everybody understand the
16 proposal? Ready to vote? Unlock the machine.
17 (Vote taken and recorded electronically.)
18 CHAIRMAN DOUGLASS: Has everybody voted? Announce
19 the vote.
20 READING CLERK: 28 yeas, 0 nays, Mr. Chairman.
21 CHAIRMAN DOUGLASS: All right. Commissioner Scott,
22 you see how important it was that we had you rise and
23 everybody listen because you didn't get a single negative
24 vote on that.
25 All right. Proposal No. 168 by Commissioner Corr
109
1 approved by the Committee on Executive. Would you read
2 it, please?
3 READING CLERK: Proposal 168, a proposal to revise
4 Article IV, Section 6, Florida Constitution; providing
5 that an entity purportedly within an executive department
6 which is not subject to the direct supervision of the
7 agency head is a department.
8 CHAIRMAN DOUGLASS: All right. The committee on
9 executive is -- the chairman was here. Commissioner
10 Alfonso -- did he walk out of the room? I guess he had to
11 go home and take care of his new fatherly duties. Is
12 there anybody on the committee here that wants to present
13 this?
14 Commissioner Morsani?
15 COMMISSIONER MORSANI: I'm the vice chairman of that
16 committee.
17 CHAIRMAN DOUGLASS: Yes, sir.
18 COMMISSIONER MORSANI: I'm the vice chairman of that
19 committee and being so -- who else is on my committee
20 that's here today? Where are you? Commissioner Barkdull
21 and Commissioner Thompson. I would like to defer to
22 Mr. Barkdull on this matter. See, that way I didn't have
23 to bother you, Mr. Butterworth --
24 CHAIRMAN DOUGLASS: You're going to have to call
25 these people "commissioner" because one is a judge and the
110
1 other is a general. They haven't been called "Mr." in so
2 long, they don't know they are one.
3 Commissioner Barkdull?
4 COMMISSIONER BARKDULL: Mr. Chairman, members of the
5 commission, I see this was approved by the committee. I'm
6 not sure that I was present at the time. But in reading
7 it and in view of something that came up in the committee
8 today, I may have a concern I might not have had if I was
9 present at the committee when it was approved and that is
10 in effect we're creating by this proposal here, if it's
11 adopted, we are in effect saying that certain agencies are
12 going to become departments. And I'm wondering about how
13 we're going to run into the 25 department limitation if we
14 do that. And possibly my friend Commissioner Thompson
15 with his wisdom can straighten me out again.
16 CHAIRMAN DOUGLASS: Commissioner Thompson, with your
17 wisdom, you have the floor.
18 COMISSIONER THOMPSON: Well, maybe I can. I read the
19 proposal here and I read in the committee and his
20 explanation, it wasn't consistent with what I was reading.
21 Let me tell you what this does and it's one of those
22 things -- I mean, it's not my proposal, but I don't know
23 that it's all bad. I don't know whether it rises to the
24 level you want to place it in the Constitution or change
25 the Constitution. The problem is you've got a provision
111
1 in the Constitution presently under the executive branch
2 that says you're going to have 25 departments to carry out
3 the regulatory functions of the executive branch.
4 Now, there have been a lot of shenanigans that have
5 gone on through the years to end up creating a new agency
6 without calling it a new agency and therefore skirting
7 this constitutional provision. Most recently I believe
8 the agency-owned health care was that way at one time or
9 maybe it was -- it had something to do with health care,
10 whatever it is. You know more about that than I do,
11 Mr. Chairman.
12 But anyway, the way that Commissioner Corr is trying
13 to take care of that and say, If you're going to have 25
14 agencies only specified in the Constitution, then that's
15 all you ought to have. And the Legislature and the
16 Governor can't get together and creatively come up with
17 another one some way or another. So that one way to
18 assure that is any entity that is supposed to be part of
19 the Department has to answer to that department head.
20 Because what they've done is they've created an agency
21 that has its own head that's supposed to be part of the
22 Department but doesn't have to answer to the agency head.
23 So that's all it is, Commissioner Morsani. And, you know,
24 it's just a decision that we have to make. I voted for it
25 then, I'll vote for it now, recommend it to you.
112
1 I think if you're going to have a 25 limitation, you
2 ought to have it, it ought to be read and this is a way to
3 do it. Maybe there is a better way to do it, but it's
4 probably worth moving forward and probably fits ultimately
5 on the technical side of what we're doing.
6 CHAIRMAN DOUGLASS: Commissioner Thompson, both our
7 general counsel, Ms. Kearney and I were involved in the
8 case that's referred to in the summary. And the issue was
9 dealt with by the Court and they determined the Agency for
10 Health Care was not a department in effect, though there
11 was no ripe discussion of it. My recollection is that the
12 main reason people want a department head as opposed to an
13 agency, where you might have this ambiguity, is a
14 department head must be confirmed by the Senate, an agency
15 head does not, and that can be critical in some instances
16 as you might know. And that was one of the objections
17 that was raised in this case that we had.
18 And I think what this is, is an attempt to avoid a
19 situation where it might be said that the Legislature and
20 perhaps even the Governor avoided the requirement for
21 confirmation by calling a department an agency. And what
22 I think Commissioner Corr's proposal was trying to do was
23 to avoid that being probable as I understand it. Was that
24 discussed in the committee, Commissioner Morsani, in that
25 fashion?
113
1 COMMISSIONER MORSANI: I can't recall exactly now.
2 We discussed this, gosh, about 60 days ago I think.
3 CHAIRMAN DOUGLASS: We argued in this case there were
4 only 23 departments so they could hold it was a de facto
5 department and go from there, but they didn't take that.
6 We were looking for a way to cover it on the other side as
7 I recall.
8 Commissioner Nabors?
9 COMMISSIONER NABORS: Mr. Chairman, I'm concerned
10 there may be some unintended consequences of this. I know
11 no one wants to continue to temporary pass this. But for
12 example, I really haven't studied this proposal. But if
13 you recall last session after great public debate, the
14 Florida Housing Finance Agency was created as a separate
15 corporation. And although it's within the Department of
16 Community Affairs, I don't think it's under the direct
17 supervision as this contemplates. I think it reports to
18 the Governor.
19 I just think we need to be careful about this
20 language because we may have some unintended consequences.
21 What I'd like to do is temporarily pass this, let us look
22 at this language and see if there may be some consequences
23 beyond what we think there is there.
24 CHAIRMAN DOUGLASS: All right. Without objection,
25 we'll temporary pass it for further study and we'll bring
114
1 it back up on the calendar.
2 The next proposal is No. 97 by Commissioner Evans,
3 disapproved by the committee on Declaration of Rights.
4 Would you read the proposal, please?
5 Do you have it? I'll read it. The tile is Article
6 I, Section 23, of the Florida Constitution; prohibiting
7 the performance or partial birth abortion as defined
8 except in specified circumstances providing that a woman
9 upon whom such an abortion is performed is not subject to
10 prosecution under this section.
11 And it's by Commissioner Evans who has risen to
12 present the proposal. Commissioner Evans.
13 COMMISSIONER EVANS: Yes, thank you. I want to start
14 out by telling you what this amendment does not address.
15 This amendment does not address, nor does it affect
16 reproduction choices. In fact, any discussion of
17 reproduction choices merely muddies the waters and removes
18 the focus from this particular procedure. This amendment
19 addresses just one particular procedure which is
20 particularly described in the amendment itself.
21 The procedure occurs in second or third-term
22 pregnancies, the later term pregnancies with viable
23 babies. The procedure involves the doctor turning the
24 baby so that the baby will emerge feet first. The doctor
25 has to induce labor, cause the baby to come out feet
115
1 first, and then right before the baby is fully born, just
2 a nanosecond before, in fact, the doctor has to literally
3 sometimes hold the head in to keep the baby from taking
4 that first breath of air. Just before the mouth and nose
5 emerge, the doctor punctures the skull of the baby and
6 inserts a suction tube, sucks out the brains of the baby
7 and crushes the skull thereby killing the baby.
8 So that's the procedure, in order to give you an idea
9 of viability of the babies. I personally had a friend who
10 last May 25th gave birth prematurely to a 23-week old
11 baby. The baby was 1 pound, 1 ounce, in size, 11 inches
12 long, tiny, tiny, tiny little baby. I wish I could pass
13 the pictures around to you, that would be time consuming,
14 this little child, it's absolutely amazing how tiny a
15 human being can be and be viable and survive. She's alive
16 and well. She went home shortly after when she was
17 originally due to be born and is doing well. So these are
18 viable babies that we're talking about, babies that
19 otherwise would be born alive.
20 Now, the problem with a partial birth abortion is
21 that it is extremely dangerous to the mother to have the
22 baby be born this way. There are serious consequences.
23 No doctor who has a true concern for the health or the
24 life of the mother would ever choose to deliver a baby
25 feet first.
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1 If a mother's health is jeopardized, a doctor will do
2 anything possible to try to turn the baby so that the head
3 would come head first, that's the way a woman's body is
4 made. The head is always able -- well, just about --
5 always able to come out. If there are serious problems,
6 then the doctor turns to a cesarean section. He doesn't
7 turn the baby around feet first and say, We've got to
8 crush the skull of your baby in order to save your life.
9 So, second and third-term abortions can be achieved
10 by methods that are much more safe for the mother. A
11 common method is to inject a drug which will stop the
12 baby's heart, induce labor and the baby is born head
13 first. The mother still goes through labor but she
14 delivers a dead baby rather than a live baby.
15 Now, we do not have statistics to share with you as
16 to how many times per year this procedure is used.
17 Reporting the procedure is -- reporting the particular
18 procedure used is apparently not required. And when there
19 are reporting requirements, the reporting requirements are
20 not necessarily enforced.
21 One report that Commissioner Riley brought to us --
22 and when I'm through, if you need to correct what I say,
23 feel free to -- is that there are one or more groups that
24 have reported that in the last year Florida, at least
25 those groups in Florida, performed this particular
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1 procedure 12 times. So banning this particular procedure
2 obviously does not ban late-term abortions.
3 Now, why does a ban of this particular procedure need
4 to be in the Constitution, why can't it just be through
5 the Legislature? The Legislature indeed has acted on it.
6 The House voted overwhelmingly to support a ban. The
7 Senate voted overwhelmingly to support the ban, the
8 Governor vetoed it.
9 Even if we were to override the veto or have it come
10 up again and have it passed, it's obviously the people of
11 the state of Florida definitely do not want to be
12 associated with this heinous procedure. But even if it
13 were to pass, the question then is, as soon as the
14 opponents found their plaintiff and did their proper judge
15 shopping to get the correct judge to uphold -- to strike
16 on constitutional grounds, would it then withstand
17 constitutional security in the Florida Supreme Court?
18 I have no doubt but that depending on the world view
19 of the various Supreme Court members, that the Supreme
20 Court could indeed say that the statute is
21 unconstitutional pursuant to the privacy clause.
22 So in order to keep this particular heinous,
23 dangerous procedure out of Florida, then we need a
24 constitutional amendment rather than the legislative
25 action.
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1 So this time, this place, is the only way to ensure
2 that this dangerous, heinous procedure is not inflicted
3 upon unsuspecting women who find themselves in a crisis
4 situation. I do not see how a civilized society can in
5 good conscience endorse this barbaric procedure.
6 CHAIRMAN DOUGLASS: All right. Any discussion?
7 Ready to vote? Commissioner Connor? A proponent,
8 Commissioner Connor.
9 COMMISSIONER CONNOR: Members of the commission, a
10 partial birth abortion is an unspeakable act of barbarity
11 in a civilized society. It is difficult to imagine a more
12 horrific procedure to an innocent unborn child who is on
13 the threshold of taking his or her first breath. The only
14 thing that prevents this child from enjoying the
15 protections of Article I, Section 2, which provides that
16 all natural persons are equal before the law, is 3 inches.
17 This is a procedure that by design occurs when the
18 physician repositions the baby within the womb, turning
19 its position from a head-first delivery to a feet-first
20 delivery. The body is delivered to the base of the skull
21 and all but about 3 inches remains before the head is
22 delivered. At that point, the physician, a healer in
23 traditional thought, inserts a pair of scissors at the
24 base of the skull, pushes those scissors in, making a
25 pathway in which to insert a suction catheter.
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1 At that point, the baby's brains are literally sucked
2 into the vacuum tube. The skull is then crushed and the
3 baby is delivered. The sole goal of this procedure is a
4 dead baby. And but for the physician's careful retention
5 of the upper portion of the baby's head in the birth
6 canal, this child would be accorded all the protections
7 available under the Constitution of the state of Florida.
8 We know that this procedure is carried out throughout
9 our United States and we know from testimony that occurred
10 in the Legislature that at least I believe one abortionist
11 performs about a dozen of these procedures a year in the
12 state of Florida. As Commissioner Evans has indicated,
13 there are no mandatory reporting requirements about the
14 procedures that are employed.
15 And, in fact, the number of procedures in Florida,
16 the number of abortions that are carried out in Florida
17 are typically understated because there are no sanctions
18 that accompany the failure to report the number of
19 procedures. But we know from the procedures that are
20 reported, that the total number of abortions reported are
21 something on the order of 80,000 abortions in the state of
22 Florida every year.
23 One of these procedures in a decade, I submit to you,
24 would be too many. Ladies and gentlemen, we have heard
25 profound and compelling debate in which we decried the
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1 desperate sentencing treatment that occurs with respect to
2 African-American citizens in which we have lamented the
3 way in which society may have discriminated in the area of
4 housing, in hiring with respect to Florida's gay and
5 lesbian citizens. We've heard concerns expressed about
6 the way in which females are treated.
7 And the question I would ask you to consider today is
8 whether or not your concerns are broad enough and whether
9 your compassion is deep enough for this unborn child that
10 they should not be subjected -- we already know there is a
11 license to kill the innocent unborn child, that's a
12 fixture on the constitutional landscape of our federal and
13 of our state Constitution.
14 So really, all we're talking about is the way in
15 which we are going to destroy the life of that child. If
16 this were a convicted capital felon who was being
17 submitted to this kind of treatment as part and parcel of
18 the death penalty, the hue and cry would be so great that
19 you could not quell the outrage. But we don't hear the
20 silent scream of the innocent unborn child who does not
21 get the benefit of any due process protection, who does
22 not get the benefit of a trial by jury, who does not get
23 the benefit of any kind of hearing, and who does not get
24 the benefit of a stay of execution.
25 And then this child is executed in the most horrific
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1 manner that one can conceive of. I dare say the Marquis
2 de Sade would not in his wildest imaginations have
3 concocted a procedure of such barbarity. I know we don't
4 like to talk about it. It's something that we don't like
5 to talk about in polite discourse and indeed there was
6 much discussion in our committee that considered this bill
7 about the civility of the discourse that had taken place.
8 Ladies and gentlemen, if we are a civilized society, can
9 we tolerate such cruel and unusual punishment of the most
10 innocent vulnerable member of the human family?
11 I don't expect any folks in here who have firm
12 convictions about the right to abortion to change their
13 mind on whether or not abortion should be or should not be
14 permitted in this state. But ladies and gentlemen, I
15 implore you to look within your own hearts, to look within
16 your own consciences and ask yourselves what the
17 toleration of this procedure says about the nature of our
18 society and our obligation to the tiniest member of the
19 human family.
20 And recognizing that for those of us who are on this
21 commission that the opportunity to address these kinds of
22 issues in general and this issue in particular will not
23 come around for 20 years will we be silent on this issue?
24 Will we give our imprimatur of approval to this issue by
25 negative vote here today?
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1 Or when the day comes when we speak to our
2 grandchildren about our service on this commission and
3 we're asked the question about how we dealt with this
4 procedure at a time when it was countenanced within our
5 society, will we say, I leant my support to the carrying
6 out of that kind of procedure? Or I was willing to stand
7 up and be counted and to take a stand against this
8 outrageous, horrific act of barbarity against the most
9 precious and vulnerable member of the human family? I
10 urge you, I implore you to vote yes to this proposal.
11 Thank you, Mr. Chairman.
12 CHAIRMAN DOUGLASS: All right. Commissioner Planas
13 is up first. You're next, Commissioner Smith, and then
14 Commissioner Evans-Jones.
15 Commissioner Planas?
16 COMMISSIONER PLANAS: I love life and I love my
17 children, I've got five of them. And, Commissioner
18 Connor, I was very moved about what you said and I will
19 strongly support what you had mentioned. Thank you.
20 CHAIRMAN DOUGLASS: Commissioner Smith?
21 COMMISSIONER SMITH: Thank you, Mr. Chairman. As the
22 chairman of Declaration of Rights Committee, I have been
23 privileged to be a part of some of the most heart
24 wrenching, intellectually stimulating and forward-thinking
25 debate that has occurred in any of the committees.
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1 So Commissioner Connor should take some comfort in
2 knowing that this commission is not, will not, cannot be
3 silent on the profound issues of the day including this
4 issue. We took it up, we listened to the public, we
5 listened to the statistics that were available. We went
6 back and recalled what happened with regard to the
7 testimony taken in the Legislature. We found out why the
8 government vetoed it, what his message was about. We
9 looked at the federal legislation that passed and the
10 message as to why President Clinton vetoed it.
11 We talked about first and foremost, as we always do,
12 number one, is this a matter that should be in our
13 Constitution? That has been the threshold question that
14 we have asked each other on just about every issue that's
15 come up, unless it was just fundamentally clear that it
16 had to be in the Constitution and some of the ones that
17 were even fundamentally clear, the question still was
18 asked and we challenged the proponent of the proposal to
19 articulate the reason.
20 Let me also rise to say that I too join Commissioner
21 Evans and Commissioner Connor in stating that this
22 procedure is a barbaric procedure. Nonetheless, I believe
23 that the reason that the committee voted to recommend this
24 unfavorably was as follows: First, there were committee
25 members who were persuaded that notwithstanding personal
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1 feelings about this procedure or any other procedure that
2 ultimately results in the same ending -- and so whether
3 we're talking about this procedure or whether we're
4 talking about lethal injection, electric chair, being shot
5 by a gun or whatever, there were those that felt that a
6 medical decision should be made between the physician and
7 the patient. And that government should not intervene
8 with that particular physician/patient relationship.
9 Secondly, while it is of some consequence that -- the
10 statistics indicate there are about 8,000 abortions, 6,000
11 second and third-term abortions. We know of one doctor
12 that performs this procedure in Florida. I think that
13 there are those who agree with you, Commissioner Connor,
14 that the majority of Floridians and the majority of people
15 that feel, based upon the polling, that one is enough or
16 too many.
17 However, with regard to this particular issue, I
18 think it was also the feeling of the committee that
19 statutorily it was fair that we not only have the same --
20 that it's important that we do have the same concern,
21 compassion for the life and health of the mother as we do
22 or should do as so eloquently articulated by Commissioner
23 Connor for the unborn child. We know that both of the
24 veto messages from the Governor of the state of Florida
25 and from the President of the United States, whether
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1 rightly or wrongly from your particular perspective, dealt
2 with the issue of ensuring that within the decision that
3 the life of the mother was one that was taken into
4 consideration.
5 Now, I for one said then and said now that that alone
6 would not make me vote against this proposal. I differ
7 with my Governor and my president on that. However, I'm
8 expressing to you the panoply of reasons that were
9 expressed as we debated the issue in committee.
10 The statistics now show, based upon information
11 brought to our attention, that this nation is divided
12 45 percent, 45 percent, allegedly people who claim to be
13 pro life and pro choice. And while it is said that this
14 issue is not a pro life and pro choice debate, clearly to
15 the mother and the physician who, by the way, based upon
16 the testimony, the testimony indicates that this procedure
17 is performed in situations where the child, or giving
18 birth of the child, is expected the child will have
19 deformity like Down's syndrome, et cetera, the proponents
20 of the proposal say it's the responsibility of the parent
21 to carry the child to term.
22 Those of us who take the other point of view say this
23 is a decision that's between the mother and her physician.
24 I understand and appreciate the passion and I appreciate
25 the civility with regard to this discussion both in the
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1 committee and here. It is one that you should expect
2 people to feel passionately about. We are talking about
3 life and death, both of the unborn child and of the
4 mother.
5 And I think when we put that on the ballots and we
6 think about all of the proposals that we have to deal with
7 and we think about what our ultimate objective is to
8 advance the State and not to necessarily divide the State
9 with an issue that's going to bring the issue down, I
10 really believe that you will vote and concur with the
11 Declaration of Rights committee to recommend this
12 unfavorably. Thank you.
13 CHAIRMAN DOUGLASS: Commissioner Evans-Jones.
14 COMMISSIONER EVANS-JONES: I have a question for
15 Commissioner Evans.
16 CHAIRMAN DOUGLASS: All right. Commissioner Evans,
17 she's going to address a question to you.
18 COMMISSIONER EVANS-JONES: As I read this,
19 Commissioner Evans, you have put in that there is an
20 exception for the life of the mother; is that in the bill?
21 COMMISSIONER EVANS: Yes.
22 COMMISSIONER EVANS-JONES: Beg your pardon?
23 CHAIRMAN DOUGLASS: It's in there.
24 COMMISSIONER EVANS-JONES: But so you do have an
25 exception for the life of the mother. Was that the reason
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1 President Clinton gave, the reason he vetoed the bill,
2 because it did not have that in there?
3 CHAIRMAN DOUGLASS: We need to turn her microphone on
4 if we could, please. Commissioner Evans.
5 COMMISSIONER EVANS: Yes, my understanding is the
6 problem with the Governor as well as with the President is
7 there is not a health of the mother exception in here.
8 We've got life of mother exception. But if you look at
9 the follow-up language there whose life is endangered by a
10 physical disorder, illness or injury. So, as far as the
11 physical health of the mother is concerned, that is in
12 there, the physical life, the physical health is the same
13 thing.
14 The problem, however, is that there is no mental
15 health of the mother in here. That's my understanding was
16 the President's problem as well as the Governor's problem,
17 no mental health provision. With mental health, the
18 reason that I didn't put it in here is because with mental
19 health there is no reason to have the entire amendment
20 because mental health means all of a sudden I'm seven
21 months' pregnant and I've decided I don't want to give
22 live birth. You know, it doesn't mean I don't want to go
23 into labor, I'm scared of labor or something like that.
24 It means, I don't want to give live birth, I don't want
25 to, it's a mental condition. So why even worry about the
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1 entire amendment if we put mental health in here.
2 Now the mother, mind you, in a late-term abortion is
3 going to go into labor no matter what. The question is
4 simply which way will the baby come out and at what point
5 in the baby's life will the baby be killed. Will the baby
6 be killed the nanosecond before birth with the feet first
7 coming out, a very dangerous position for the woman, or
8 will the baby be killed with an injection to stop the
9 baby's heart, induce labor and the baby comes out head
10 first. So you've got labor either way, you've got visible
11 pregnancy either way. It's just a question of are we
12 going to deliver -- how are we going to do the delivery.
13 To me, they both are heinous and barbaric but certainly
14 this one is just outrageous.
15 COMMISSIONER EVANS-JONES: Would you believe -- I
16 have another question. Would you believe that a lot of my
17 friends who believe in freedom of choice also believe in
18 the bill that you are presenting here today?
19 COMMISSIONER EVANS: I would believe it. I know that
20 there is a great, great public outcry against this
21 particular procedure.
22 CHAIRMAN DOUGLASS: Commissioner Zack?
23 COMMISSIONER ZACK: This has been an extremely
24 enlightening discussion to me and I can tell you as I
25 stand here, I'm confused. I do not sit on Declaration of
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1 Rights and I do not believe that I probably have the
2 medical background necessary to understand some of these
3 issues. So I don't know who would be the best to address
4 this to and I'll address it to the chairman to see if it
5 came up during the course of your deliberations.
6 The first thing I don't understand is why a woman
7 would carry a child to the point where this kind of birth
8 would occur. And the second question is, and I gathered
9 some portion of it from something Ms. Evans just said, is
10 there a certain point in time during the pregnancy where
11 if you have an abortion, that it becomes a partial life
12 abortion regardless of anything else? I mean, if you are
13 carrying up to let's say six months or seven months or
14 eight months, if you choose to have an abortion at that
15 time, is this what occurs, period, every time there is an
16 abortion after a certain date?
17 I don't have the information necessary for me to
18 understand the medical aspects of what's being discussed
19 here because it just logically doesn't make a whole lot of
20 sense why somebody -- I mean, from listening to Mr. Connor
21 and Ms. Evans, it sounds like on the ninth month when
22 someone is getting ready to have a child, all of a sudden
23 they have a decision, you know, a millisecond before the
24 child is to be born that they don't want this child,
25 that's what it sounds like from listening to the
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1 discussion.
2 That doesn't make any sense and I respect our
3 Governor and I respect our President enough to know that
4 unless there is another side we haven't heard very much
5 about, there wouldn't have been this veto by both of them.
6 And I'd like you, Mr. Chairman, to the extent you can to
7 answer all those questions before I have to vote on this
8 issue so that we can make an informed decision on this
9 question.
10 COMMISSIONER SMITH: Thank you very much,
11 Mr. Chairman. First of all, I'm sure from your question
12 you realize there's conflicting testimony that has been
13 presented both to our Legislature and in Congress and to
14 the committee with regard to either what is considered or
15 called medical necessity for it or why the procedure is
16 utilized and if it's necessary.
17 What we have heard is, first, that with regard to the
18 procedure, they induce labor. It is not like someone
19 works up to nine months necessarily. Labor is induced for
20 the purpose of initiating this procedure. We've heard
21 testimony on the one hand, obviously, that most times this
22 is done because women just for some reason, because they
23 are being pressured by a boyfriend, or pressured by
24 someone or mentally can't deal with having to care for the
25 child, makes a decision late and it's real now, it's seven
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1 months, I'm not going to have the child.
2 So at this point, either this type of procedure or
3 another late-term abortion procedure. But obviously this
4 procedure can't be used that much based upon the
5 statistical data. We can extrapolate that although we
6 have been told that there are about 12 of the procedures
7 that were done in the last reporting year, I think we can
8 assume intelligently that there were some that weren't
9 reported. So you multiply it times five if you want to
10 and let's say about 60.
11 But since there are 6,000 late-term abortions that
12 have been reported, even if there were 60 of these
13 procedures, we know 60 partial birth abortions, we know
14 that there were 5,940 late-term abortions that were not
15 done as partial birth abortions. And I'm not saying those
16 figures are accurate, I'm just trying to put it in
17 context.
18 Secondly, with regard to both what the Governor did
19 and what the President did, clearly there is tremendous
20 controversy about the rightness or wrongness of their
21 positions. How do we know that? Both houses of Florida
22 Legislature passed it, both houses of Congress passed it
23 and the President and the Governor vetoed it.
24 As Commissioner Evans-Jones tried to indicate, the
25 polls show about 75 to 78 percent of Americans, pro life
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1 and pro choice, oppose this procedure. As I said in
2 committee, to the congregation of some of my, quote,
3 progressive friends, if there was a statutory provision, I
4 would vote yes without a doubt. I would vote yes.
5 As is, however, because it is a constitutional
6 provision, I voted no. Now with regard to the medical
7 testimony that was presented, there's a tremendous amount
8 of other medical testimony, Mr. Zack, and I'm sure that
9 Ms. Evans' answer and Mr. Connor have a lot of information
10 they can provide to you about it. We didn't have a lot of
11 doctors to appear before us with regard to this particular
12 procedure, so we didn't have a tremendous amount of
13 medical testimony.
14 COMMISSIONER ZACK: If I can ask Commissioner Connor
15 to yield to a question. I'm trying to understand, and I
16 believe other commissioners here have the same question,
17 what the effect -- what is the effect on the mother of
18 passing this? Does it mean that the mother has to come to
19 a decision earlier in the pregnancy as to whether to have
20 an abortion? Is there some medical effect that says, If
21 we pass this that would say after seven months you
22 couldn't have an abortion because by definition it would
23 always be a partial birth abortion? And I'm trying to
24 understand the medical effect on the mother and the fetus
25 if we adopt this.
133
1 COMMISSIONER CONNOR: As far as the outcome of the
2 fetus, as far as the outcome for the baby, you can count
3 on getting a dead baby in all events. In other words, if
4 you can't kill it through the means of the partial birth,
5 you'll be permitted to kill it through another vehicle of
6 abortion.
7 My recollection, Mr. Zack, is that the American
8 Medical Association who has come down on record in favor
9 of abortion, has come down on record before the Congress
10 in opposition to this procedure indicating that there is
11 no medical justification for the procedure.
12 COMMISSIONER ZACK: I'd like to yield for a question
13 on that particular statement.
14 CHAIRMAN DOUGLASS: That's true. I didn't call him
15 out of order but it was a question.
16 COMMISSIONER ZACK: And it is a question. Why if the
17 end result is the same, you have a dead baby or fetus,
18 depending on how you look at it? Why would you ever use
19 the partial life abortion? Why? I mean, there's got to
20 be some reason. Either someone is lazy or insensitive or
21 ignorant. I mean, there's got to be some reason people do
22 things, I assume. And I'm sure that you can tell us what
23 is the basis that those people who do it say they do it
24 for.
25 COMMISSIONER CONNOR: I'll be candid. It's
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1 impossible for me to conceive of any justification for
2 this kind of procedure. Now, what we know about the
3 nature of the procedure, in the early going, is that in
4 the early stages of gestation, the baby's body is much
5 more pliable. So there are a variety of techniques that
6 are used to dismember the baby and extract the baby from
7 the womb. We have the suction curettage, we have the
8 dilation curettage, et cetera.
9 Sometimes the suction machine, because of the
10 pliability of the child, is so powerful that you can
11 literally pull the baby apart through the vacuum pressure
12 that's generated in that connection. With a dilatation
13 and curettage, you expand the uterus and go in --
14 CHAIRMAN DOUGLASS: Commissioner Connor, the question
15 didn't go into the procedure. The question went why
16 somebody would do it. Or why somebody would not do it.
17 COMMISSIONER CONNOR: Well, my point -- no, my point
18 is because these methodologies become increasingly
19 difficult to use for a later term baby because the baby
20 does not yield to that kind of destruction.
21 CHAIRMAN DOUGLAS: I'm not trying to cut you off, but
22 I think the discussion of the procedure is not what we're
23 involved with.
24 COMMISSIONER ZACK: Let me try and restate it in case
25 there is any question. I want to know why at the time
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1 that this procedure is employed another less barbaric
2 procedure is not employed if they are both equally as
3 effective?
4 COMMISSIONER CONNOR: Well that's what I'm trying to
5 suggest is that they are not -- these other procedures are
6 not equally effective at this late stage in the pregnancy.
7 That's what I am trying to establish. And so what happens
8 is, the later you go in the pregnancy, the more reason
9 that you would wind up going through a vaginal delivery,
10 but remember the goal is to produce the ultimate death of
11 the baby and so the way you do that is through the partial
12 delivery of the baby and then the procedure as I have
13 discussed it.
14 COMMISSIONER ZACK: Well, I'd like to yield to one
15 more question. You started the statement that you made
16 previously with this comment, That in either case, you end
17 up with a dead baby. So under your statement, they are
18 equally as effective, under your first statement. On your
19 second statement, you are saying they're not equally as
20 effective.
21 I just want to know, I'll tell you, I want to vote on
22 this and it's an issue that causes each of us, I'm sure,
23 great concern here. And you want to do the right thing
24 for all the right reasons. And to do the right thing, you
25 have to understand what the facts are. And I'm still
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1 waiting for, I would hope you or Ms. Evans or anybody else
2 who has any knowledge about this, to speak up and as to
3 why -- it just, to me, is illogical that someone would
4 want to perform a barbaric procedure by any definition --
5 COMMISSIONER CONNOR: And my --
6 COMMISSIONER ZACK: -- when an alternative is
7 available that is as equally effective. And that's pure
8 logic --
9 COMMISSIONER CONNOR: -- my understanding of it is
10 that, A, it may have to do with the point in time during
11 the gestation at which the decision is made to abort the
12 baby. No. 2, the point in time in which it may be
13 discovered that there are physical defects within the baby
14 where the decision has been made to abort the baby because
15 the baby is handicapped. Or 3, because one or the other
16 alternatives such a saline abortion, or one of these other
17 abortions, may be more difficult for the mother to endure
18 than this particular form.
19 There are a variety of different forms of abortion,
20 all of which are efficacious in terms of the end goal
21 which is the extinction of the baby's life. But this has
22 to do, as I understand it, in large part with the point in
23 time within the gestational period that the decision is
24 made to abort the baby.
25 When you make that decision later, rather than
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1 earlier, your range of options becomes increasingly
2 narrow. But all I can revert to frankly is that the AMA
3 position is simply that from a medical standpoint, there
4 is no medical justification for this kind of procedure.
5 There are other procedures which will yield a dead
6 baby when the procedure is applied later in the pregnancy.
7 This particular procedure we deem to be such a blight on
8 the face of civilized society that we just believe that it
9 ought not to be permitted and I hope you will feel that
10 way too.
11 CHAIRMAN DOUGLASS: Before we go further on this, we
12 are going to read this again because we have left the
13 subject to the constitutional provision. The provision
14 says, A physician shall not knowingly perform a partial
15 birth abortion unless the procedure is necessary to save
16 the life of a mother whose life is endangered by physical
17 disorder, illness, or injury and no other medical
18 procedure would suffice for that purpose. So therefore,
19 the answer to the questions that have been going around,
20 there is a time when this would be legal under this
21 provision, which is when the life of the mother is in
22 danger and that no other procedure would suffice.
23 So in spite of all the barbarism and so on, this
24 would still allow it in those instances. And where the
25 Governor's veto occurred was that he, in his message,
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1 stated that this did not consider the health of the mother
2 as a reason, only her imminent threat of life. And that
3 was why he said he vetoed it, as I recall, because I was
4 there and I did not support the veto myself personally,
5 but I understood the reason.
6 If the language had been to -- and also to protect
7 the health of the mother, none of the business about
8 mental and so on health but the health, he would not have
9 vetoed it.
10 Now the issue you have stated so eloquently is number
11 one, the only time this should be done is when the life of
12 the mother is imminently threatened. Is that a fair
13 statement of what this says?
14 COMMISSIONER CONNOR: I think so, although I think
15 Ms. -- Commissioner Evans was of the view that there was a
16 physical -- that where the mother's life was in danger or
17 threatened, that that would address the health issues.
18 Let me simply, if I may with respect to the health issue,
19 tell you why historically those of us who have been
20 advocates of the pro life position have opposed the
21 so-called health exception and that is because on the same
22 day that Roe vs. Wade was decided the case of Doe versus
23 Bolton was decided.
24 And that case construed the term "health" so broadly
25 as to include psychological health, familial health, et
139
1 cetera. And the construction that has been given to that
2 provision has been so broad that the practical effect of
3 the ruling was that we permit abortion on demand for any
4 reason or no reason at all through all nine months of the
5 pregnancy.
6 And so there has been sharp dispute about the scope
7 of what health means and the concern that people such as
8 myself have had is that when you create the so-called
9 health exception, as construed by the Supreme Court in the
10 case of Doe versus Bolton, there are no restrictions to
11 abortion, period.
12 CHAIRMAN DOUGLASS: Commissioner Morsani?
13 COMMISSIONER MORSANI: Mr. Chairman, ladies and
14 gentlemen, I was going to try to stay out of this, but as
15 I listened I think I have to say something and it is
16 personal. So I'll say it. I don't know how many of you
17 were -- my wife and I were married when we were 18 years
18 old. Been married for 47 years about a week from now.
19 And our first child was born and -- wasn't born. As
20 a matter of fact, my wife got the measles and she carried
21 the baby to almost term and it was determined that it was
22 a Downs' syndrome child and many, many, many -- all the
23 problems you can possibly probably conjure up were going
24 to be with this child.
25 And we did not know what to do. Obviously you are a
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1 kid, 21-years old, whatever we were at that time. And so
2 when she went to -- and she carried the baby almost to
3 term and then we told the doctor, she told the doctor,
4 what do you want to do, whether to terminate this, baby or
5 have the baby.
6 And we collectively made a decision, I don't know
7 what the procedure was, whether the baby was, they said it
8 was born dead, we accepted that, because I don't think we
9 wanted to know and I would dare say that young people, you
10 know, I was making $90 a month so I was really well off, I
11 would say that we would make that same decision today.
12 And that may not agree with some in this room.
13 But I would, I still think that this is a very
14 certain procedure, I guess there's probably other
15 procedures that are just as bad, we just don't know what
16 they are, I don't know anything about the medical
17 profession. I understand very little. I understand what
18 you have said here today.
19 But I am afraid that this is the proverbial camel's
20 nose under the tent situation. I would discourage us from
21 passing this legislation or proposing this because as I
22 look back to young people in ourselves as I have
23 explained, I think we made the right decision. It was a
24 very hard decision, very difficult decision, but I would
25 make the same decision again.
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1 And I know my wife would and I think it is terrible,
2 no question about that, meaning this partial birth as
3 described hereby so eloquently by you presenters, but I
4 think it was the right decision in our family and I think
5 it might be the right decision for a lot of other families
6 and I would urge you to vote against this proposal.
7 CHAIRMAN DOUGLASS: Commissioner Mathis?
8 COMMISSIONER MATHIS: I think a lot of the issues
9 have been discussed and since we are going to get
10 personal, a little personal here, I wasn't alive during
11 slavery. I wasn't alive during the Holocaust. And I
12 didn't have much to do with Apartheid in South Africa.
13 But I am here in this commission debating this issue about
14 partial birth abortions. And I remember reading about an
15 argument that said, The government should not intervene
16 between private property and its owner. And it was part
17 of an argument made in support of slavery.
18 Now we have come as a society from that argument to
19 maybe enlightenment, I don't know, the times bought us
20 there. But we are talking about, I think, a core value of
21 our society, this particular procedure is heinous to say
22 the very least.
23 And I, as a person sitting here in light of what I
24 know about history, and I am not a historian, could not
25 support moving forward in this commission and voting
DIVISION OF ADMINISTRATIVE HEARINGS (850) 488-9675
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1 against this proposal. We are not voting this proposal up
2 or down. We are saying rather than us listening to polls,
3 to presentations before legislative bodies, to lobbying
4 groups before elected officials, we are saying let the
5 people speak directly to this issue in putting it on the
6 ballot. And I for one fully support letting the people
7 speak and letting them speak clearly on this issue.
8 CHAIRMAN DOUGLASS: Any further discussion? Ready to
9 vote. Okay. I thought you had already closed but you can
10 close if you like.
11 COMMISSIONER EVANS: Will banning this procedure
12 outlaw late-term abortions? No, it won't. There is
13 another method that can be used. Sure, the number of
14 methods get more limited as the pregnancy proceeds, but
15 there still are other methods and I have described the
16 other method.
17 On the federal level there was a caucus of over 300
18 OB-GYNs who felt that they had stayed silent long enough
19 on this medical issue. And they came out in writing as
20 well as in live testimony saying that there was no reason
21 ever to use this procedure. No OB-GYN who has an ongoing
22 physician/patient relationship with a woman would do this
23 procedure or at least none have admitted to it. They will
24 use another procedure. Another procedure is available.
25 Now addressing would you make the same decision today
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1 about not wanting to know the procedure, if you knew that
2 this procedure would kill you, would you make that
3 decision to use this procedure? If you knew that this
4 procedure would render you infertile, would you use this
5 procedure? If you knew that there was a different
6 procedure that is much more commonly used, and you had to
7 choose between the two, perhaps you would choose the less
8 dangerous, it is not as if you could no longer have the
9 choice in a crisis pregnancy. It is simply, let's not
10 allow such a dangerous procedure be inflicted upon
11 unsuspecting women.
12 As far as maintaining the doctor/patient
13 relationship, I agree with that. Let the doctor and his
14 patient discuss it. Let the doctor and his patient
15 continue with follow-up visits. We are not preventing
16 that at all. The problem here though is that there are
17 doctors who perform this procedure who have no
18 doctor/patient relationship beyond the woman coming in,
19 getting the drug to induce labor over this three-day
20 period.
21 She finally goes into labor, she goes back into this
22 total stranger, has the procedure, it is my understanding
23 she has to be out within 50 minutes, otherwise it is not a
24 clinic anymore, and there are different guidelines if you
25 are not a clinic.
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1 So let's not get confused between the doctor/patient
2 relationship and the relationship between a clinic and a
3 woman. So remember, we are not doing anything to hinder
4 the doctor/patient relationship, an ongoing doctor/patient
5 relationship with follow-up visits.
6 So again, try not to muddy the waters with are we
7 really outlawing late-term abortions, we are not. Are we
8 really interfering with the privacy of the doctor/patient
9 relationship, we are not. Thank you.
10 CHAIRMAN DOUGLASS: All right. We're ready to vote.
11 Open the machine.
12 (Vote taken and recorded electronically.)
13 CHAIRMAN DOUGLASS: Everybody voted? Lock the
14 machine.
15 READING CLERK: 12 yeas, 16 nays, Mr. Chairman.
16 CHAIRMAN DOUGLASS: Proposal fails. We will move to
17 the next proposal. Let's take about a five-minute recess.
18 I think everybody might be a little -- need a little
19 emotional restoring there. We don't need a motion on
20 that. We will come back in the room and gavel to order at
21 4:25, all right? Leave the chamber sealed, please, closed
22 please.
23 (Brief recess.)
24 CHAIRMAN DOUGLASS: Come to order. All right. If
25 everybody will take their seats, please.
145
1 All right. Commissioner Rundle, can you wait just a
2 second or do you have something? Wait a minute. We're
3 going to have to readjust your mike so we can hear you.
4 COMMISSIONER RUNDLE: Mr. Chairman, there is a matter
5 that is on the calendar for reconsideration, it is the
6 Proposal No. 1 dealing with forfeiture and I would ask --
7 I know that there are a lot of other issues we need to get
8 to today, if we could set it over to tomorrow's calendar,
9 I would ask that we be able to do that.
10 CHAIRMAN DOUGLASS: All right. Without objection, it
11 will be done. Now we will move on. Do we need to ask for
12 a quorum, put everybody here that's here? Okay. We have
13 a quorum. We'll proceed. The next proposal by
14 Commissioner Connor, Proposal 107, was disapproved by the
15 committee on Declaration of Rights. Would you read it,
16 please?
17 COMMISSIONER CONNOR: Mr. Chairman, this is the
18 proposal that I indicated to you earlier that I desire to
19 temporarily pass and would so move.
20 CHAIRMAN DOUGLASS: All right. And you are going to
21 temporarily pass it until it is rescheduled on special
22 order tomorrow or the next day?
23 COMMISSIONER CONNOR: Yes. Thank you.
24 CHAIRMAN DOUGLASS: All right. Without objection, it
25 is temporarily passed.
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1 Committee substitute for Proposal 157 by Committee on
2 Education and Commissioner Mills recommended as a
3 committee substitute by the -- and approved by the
4 Committee on Education. Would you read that, please?
5 READING CLERK: Committee substitute for Proposal
6 157, a proposal to revise Article IX, Section 1, Florida
7 Constitution defining the term adequate provision as
8 applicable to the system of public education.
9 CHAIRMAN DOUGLASS: Commissioner Mills, you are
10 recognized.
11 COMMISSIONER MILLS: Mr. Chairman, thank you. As you
12 stated, this was a bill that came out of the education
13 committee with a couple of amendments and was favorably
14 reported. The background to this concept is the Florida
15 Constitution has a specific article on education which is
16 something -- which is emblematic of how important the
17 education concept is. There are very few other public
18 functions, even criminal justice, et cetera, doesn't have
19 its own article. Education is a major function of state
20 government.
21 As a matter of fact, the 1868 Constitution said
22 education was the paramount function of state government
23 and it was the obligation of the State to amply provide
24 for education.
25 Currently, Article IX says it is required that
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1 education be provided for adequately. Now, there are a
2 couple questions. What does adequate mean? As a matter
3 of fact, there was a court case which attempted to define
4 the term "adequacy." The court was split. As a matter of
5 fact, it was split right down the middle. Three of the
6 members of the Court said, We find that Florida's
7 educational system is inadequate.
8 Three members of the Court said, We find it is too
9 difficult to define adequacy and therefore it is a
10 question for the Legislature. The concurring justice,
11 Justice Overton, said it is possible for it to be
12 inadequate. I do not have enough information before me at
13 this point to determine if it is inadequate. But it is
14 possible for it to be an unconstitutional system.
15 What this is an attempt to do is to define what
16 adequate education should be in the state of Florida with
17 common terms that are used in other Constitutions.
18 Interesting, in 1868 Florida said education was the
19 paramount duty of state government. I don't know what's
20 changed. It seems to me that in 1998 we all understand
21 what, just as Thomas Jefferson said, Democratic systems
22 are based on an educated populous, it is important to make
23 this state run as a democracy. It is important to make
24 this state successful as an economy. There is no more
25 important issue than you here businesses talk about than
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1 the educational system of the state of Florida.
2 And thirdly, how about our individual kids who have
3 to live here. Those three issues are important enough to
4 me. Then the question is, is this a problem. Well there
5 was, if you happen to read the papers the other day or be
6 a C-Span junkie, there was a report on the state of the
7 state in terms of education. Now these terms aren't
8 defined exactly the same, but this is by -- this ranks the
9 50 states.
10 They used the term "adequacy," they didn't define it
11 the same way, but they say adequacy in funding. Florida
12 is ranked 33rd. And then they said -- then they have a
13 ranking based on the amount spent on instruction. Florida
14 ranks 46th. Then they have a rating based on equity, that
15 is, do we have a fair funding formula. Florida is 4th.
16 So the good news is we have an equal system, the bad news
17 is we are equally bad.
18 I suggest to you that adequacy of education and
19 providing a definition, which would give guidance to
20 either the Legislature or the courts, is one of the most
21 important things we can do. I think the terms used here
22 are understandable, they are derived as we discussed in
23 committee, from other states that have a higher standard,
24 and they give the Court and any future Legislature an
25 opportunity to meet a standard of adequacy.
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1 And don't be confused that I think or I think even
2 the most rabid education advocate, that just more money
3 would make education work. The term "efficiency" is in
4 this list. An education system can't be adequate just by
5 being -- just by having more money. And there isn't an
6 attempt to suggest that that is the only answer. I do
7 suggest that we need to restate that Florida has a
8 commitment to quality education, rather than a commitment
9 to adequate education in which case it has already scored
10 in the bottom third of the country, according to at least
11 some folks.
12 Again, this to me is one of the most important things
13 we can do. If you think education is important, this is a
14 sensible approach, it sets a reasonable standard that is
15 understandable to the Legislature and the courts and,
16 Mr. Chairman, I'd be glad to try to address any questions.
17 CHAIRMAN DOUGLASS: Commissioner Barkdull?
18 COMMISSIONER BARKDULL: Commissioner Mills, as I read
19 this, it means the provision of financial resources. It
20 occurs to me that this is going to boil down to a Court
21 determining what is adequate and then a Court directing, I
22 guess, how financial resources would be addressed and I am
23 concerned about that situation of the courts trying to
24 raise revenue.
25 COMMISSIONER MILLS: Well, as you know, the courts
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1 can't raise revenue. But if the question is -- there was
2 a really, an excellent question in the committee that
3 said, Commissioner Mills, do you think this will cause
4 litigation and the answer to that is absolutely not.
5 There is going to be litigation anyway. What this will do
6 is provide a standard by which to -- for a Court to judge.
7 Now, in other words, you look at the Supreme Court
8 opinion and this is an important thing to do. There are
9 four members of that Court that are prepared to declare
10 the public school system of Florida inadequate, being
11 provided with the right evidence.
12 So that means, that means it is possible. It doesn't
13 mean it necessarily is, and then I guess I would turn to
14 these list of definitions. Do we not want a system that's
15 thorough, efficient, which do we not want it to be? Do we
16 not want it to be safe and secure? And actually -- I
17 mean, the safe and secure part of this is one of the
18 things that really bothers me. I mean there are a lot of
19 statistics on firearms in the schools, on health problems.
20 So if you are concerned about litigation, whether
21 this will generate litigation, I genuinely don't think so.
22 I think there will be litigation irrespective of what we
23 do. Will it make that -- the resolution of that
24 litigation more acceptable, probably.
25 COMMISSIONER BARKDULL: Let me ask you this, sir.
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1 This requires, in effect, the Legislature to have a
2 provision of financing for these items you have defined.
3 Isn't it true, sir, that recently in the Midwest, I
4 believe in Missouri, the Court took over and ordered
5 revenues to be raised for a school system?
6 COMMISSIONER MILLS: Well, as a matter of fact, in
7 Ohio, in North Carolina and in, Ohio -- North Carolina --
8 well, actually, Ohio is in the process of ordering for its
9 school system. North Carolina has remanded for a factual
10 determination. So the question would litigation possibly
11 result in compelling expenditures, maybe, if it is
12 inadequate.
13 COMMISSIONER BARKDULL: Well, my point that I'm
14 trying to get to, sir, is if this is passed the courts
15 will then take over or have the authority to direct the
16 raising of revenue to support education directly.
17 COMMISSIONER MILLS: As I recall my experience in
18 corrections, as I sat in my office as criminal justice
19 chairman and a federal judge sent their magistrate in, the
20 courts are capable of telling you you have to --
21 COMMISSIONER BARKDULL: Oh, sir, I don't doubt that.
22 But all I want to do is point out that they have
23 undertaken to do that at times and this will give them
24 another vehicle to do that and I don't think the courts
25 should be the ones that are raising revenues.
152
1 COMMISSIONER MILLS: Well, you know, I absolutely
2 agree with you. I hope there is no litigation and I hope
3 this is a great public school system, but whether we pass
4 this or not, the courts are going to be a possible
5 vehicle. Whether we pass this or not is not going to
6 determine whether or not there is litigation. If you want
7 to have something to say about the outcome, then you might
8 want to say something about what you want to define as
9 adequate.
10 I meant to say that I think that the title of this
11 says, Education is a fundamental right. There was a
12 sentence at the beginning of this that said that education
13 was a fundamental right. Some of the folks in the
14 Education Committee were concerned about how that might
15 create an additional opportunity for litigation as opposed
16 to defining adequacy.
17 I will say that Commissioner Brochin has a proposal I
18 think will be coming along that includes fundamental right
19 and some distinct properties from this proposal.
20 CHAIRMAN DOUGLASS: Commissioner Butterworth?
21 COMMISSIONER BUTTERWORTH: Thank you, Mr. Chairman.
22 Commissioner Mills, I guess the sentence that gives me the
23 most trouble, even though I agree with what you are
24 attempting to do and I would love to have a safe school
25 for everybody and a good school I think we all want that.
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1 Where it says, This section shall be self-executing,
2 that's the way I read it in mine, This Section shall be
3 self-executing.
4 COMMISSIONER MILLS: Okay. Well, you know, actually
5 I understand your point. And I think that --
6 CHAIRMAN DOUGLASS: Let us in on it. It seems to
7 me --
8 COMMISSIONER MILLS: Do we have to?
9 (Laughter.)
10 CHAIRMAN DOUGLASS: It seems to me from what you just
11 said, if it is self-executing, you go to court and as a
12 matter of course if you don't have safety, they don't give
13 enough financial stuff.
14 COMMISSIONER MILLS: And based on that interpretation
15 and my interpretation, and a court that's willing to do
16 it, then you are right, you wouldn't need it. And to put
17 in the fact that it's self-executing would be candidly a
18 difficult thing to do. Because it is not, you can't self
19 execute. So my colleague, Commissioner Brochin, I can see
20 would like to leap up and write an amendment that would do
21 that for me.
22 CHAIRMAN DOUGLASS: On the other hand, self-executing
23 here does not mean the same thing as suicide; is that
24 correct?
25 COMMISSIONER MILLS: That is correct.
154
1 CHAIRMAN DOUGLASS: It may be close.
2 COMMISSIONER MILLS: Some of the presentations I had
3 this morning were fairly self-executing. At least in --
4 CHAIRMAN DOUGLASS: All right. Commissioner
5 Evans-Jones?
6 COMMISSIONER EVANS-JONES: I had a question for
7 Commissioner Mills. I share your concern about the lack
8 of proper education for all the citizens here in Florida.
9 I don't know whether this is the way to do it or not but I
10 do agree that something needs to be done and I guess one
11 of the things that I have never understood is why the
12 Legislature doesn't set true class size standards.
13 Would this sort of thing be considered, would they be
14 allowed to just throw more money in and then still give
15 false numbers? How can a teacher in the first grade or
16 the second grade with 35 students and no help teach no
17 matter how much money is in that school system? And, you
18 know, those are very specific, small things, but that
19 certainly does need to be considered as well.
20 COMMISSIONER MILLS: Mr. Chairman, Commissioner
21 Evans-Jones, class size is a continuing issue under which
22 Florida struggles and urban schools with 40 or 50
23 students, and it's impossible to teach. I know there are
24 teachers in your family. My mother and grandmother were
25 both teachers. I think they taught classes of 15
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1 probably. I believe the specificity provided with these
2 words would give an opportunity to hold all of us in the
3 state, not blaming the Legislature, to a higher standard.
4 If we can show that 40 people in a classroom is
5 inadequate, in terms of the quality of the education and
6 the results, then there should be an institutional system.
7 We all prefer that it just be a better system. But at the
8 moment, there are questions. If these standards are
9 there, it would give us something against which to hold
10 the Legislature.
11 In the adequacy case, there was a discussion of the
12 degree of specificity and the elevation of standards in
13 state constitutions. In 1868 Florida was the highest, it
14 was the highest category. In 1998, Florida is the lowest.
15 This doesn't even return us to the top.
16 CHAIRMAN DOUGLASS: You mean in terms of the
17 constitutional --
18 COMMISSIONER MILLS: In terms of the constitutional
19 standards contained in state legislative provisions
20 dealing with education.
21 CHAIRMAN DOUGLASS: In 1868 we didn't have a public
22 school, they just put in the Constitution.
23 COMMISSIONER MILLS: Well our standard was higher.
24 And the reference being -- we have the amendment?
25 CHAIRMAN DOUGLASS: The amendment is on the table.
156
1 COMMISSIONER MILLS: Thank you.
2 CHAIRMAN DOUGLASS: Offered by Commissioner Brochin.
3 Would you read it, please?
4 READING CLERK: By Commissioner Brochin.
5 CHAIRMAN DOUGLASS: It's an amendment.
6 READING CLERK: After the period on Line 23, strike
7 the remaining language.
8 CHAIRMAN DOUGLASS: All right. Do you want to
9 explain it, Commissioner Brochin?
10 COMMISSIONER BROCHIN: Yes. This amendment strikes
11 the last sentence or the second sentence in the proposal
12 that says, This section shall be self-executing. Strikes
13 that from the proposal.
14 CHAIRMAN DOUGLASS: All in favor of the amendment say
15 aye, opposed?
16 (Verbal vote taken.)
17 CHAIRMAN DOUGLASS: It is adopted. Now we proceed to
18 the proposal as amended which strikes, The executed, is
19 now executed. And Commissioner Zack rises.
20 COMMISSIONER ZACK: I am very much in favor of this
21 concept and I was very much in favor of the concept of
22 providing medical care to children, but withdrew that
23 based on the obvious inability to fund such a mandate. I
24 have the same concerns when it comes to this proposal. I
25 note that and I think this was a very accurate summary at
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1 the bottom of Page 2, where it says, If adopted, this will
2 shift from the Legislature to the courts the final
3 authority of determining the adequacy of the public school
4 system. And the adequacy of access to postsecondary
5 institutions.
6 So the real -- and I think that absolutely is
7 correct. I will tell you as a trial lawyer that anybody
8 who doesn't see this as litigation unlimited, I don't
9 think has an accurate view of the number of definitions
10 that can be generated from the language contained in this
11 proposal.
12 My reason for not voting for this is that I think it
13 is the Legislature's responsibilities to decide these
14 issues and I am hopeful and I guess as Chair and a great
15 Chair of the House, you feel the Legislature is incapable
16 of acting. Well, you know, to me that is why they are
17 elected. And if they can't act, we ought to elect new
18 legislators.
19 I also believe that you have a situation where when
20 the courts get involved in the school system and issues of
21 public policy, you immediately have the kind of conflict
22 that frankly we have enough of without this additional
23 responsibility for the Court to make these decisions. You
24 know, as I see it, the state of Florida has many, many,
25 needs and a finite amount of resources.
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1 And it is easy for us to say that all the needs
2 should be met but we shouldn't discuss where the money
3 comes from. Because if you are suggesting that the courts
4 should be required to impose a tax, whether a personal tax
5 or some other kind of -- a personal income tax or some
6 other kind of tax on the citizens, which would be a
7 possible result of this kind of procedure, I think it
8 would be the worst possible situation for the division of
9 powers that have to exist between the Legislature and the
10 executive and the judiciary.
11 I just don't believe that you are putting this where
12 it belongs. And frankly, you know, any legislator who
13 doesn't want to deal with this issue needs to look at why.
14 But, you know, when we go to the different needs, at times
15 it is prison overcrowding, at times it is crime, at times
16 it is -- by the way, I think that education has for way
17 too long been the stepchild of the concerns of the
18 Legislature.
19 So I believe, again, very strongly in what you are
20 trying to do. I just think you are misguided in how you
21 are trying to do it. And that's the reason I am going to
22 vote against it.
23 CHAIRMAN DOUGLASS: Commissioner Brochin, excuse me,
24 Commissioner Nabors, I keep overlooking this left wing
25 over here.
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1 COMMISSIONER NABORS: Let me --
2 CHAIRMAN DOUGLASS: Commissioner Evans, I take it
3 back. It is your right wing but it is my left wing.
4 Commissioner Nabors?
5 COMMISSIONER NABORS: Actually, probably Ms. Evans is
6 the right wing and I'm the left wing. We're both going to
7 fly away any minute. Commissioner Zack, let me respond to
8 why I'm going to vote for this and having some of the same
9 concerns that you have in terms of who shares the funding
10 responsibility and what we do here in terms of impressing
11 on that.
12 In my mind, I can distinguish between temporarily
13 passing an issue dealing with universal health care for
14 children. And the reason I can is because I don't think
15 that we as a state with our resources have made that
16 commitment as yet. On the other hand, I think we as a
17 society both constitutionally have made that commitment in
18 education just as the other day, yesterday we voted in
19 terms of public safety, providing a standard in the
20 Constitution which would have an impact on state funding.
21 As I see this provision, it just reinforces what is
22 this fundamental provision that's been pervasive in our
23 Constitution to basically say, we are going to say some
24 definition, some flesh as to what adequate means. I don't
25 think that means the courts are going to jump in and take
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1 over the schools. I think the courts will look at that
2 standard and say, Yes, based upon this new meaning, either
3 it is adequate or it was not adequate and the Legislature
4 would have to respond.
5 So I see a fundamental difference between trying to
6 put some flesh in terms of the meaning of adequacy in
7 education than I do in undertaking a new initiative which
8 I may be sympathetic to but concerned about the resources.
9 CHAIRMAN DOUGLASS: Commissioner Zack?
10 COMMISSIONER ZACK: If the Commissioner would yield
11 for a question.
12 CHAIRMAN DOUGLASS: He yields.
13 COMMISSIONER ZACK: Do you disagree with the summary
14 that says if we adopt this it is going to shift from the
15 Legislature to the courts the obligation to determine the
16 adequacy of education in the state?
17 COMMISSIONER NABORS: I disagree with that stark
18 statement. I disagree with Commissioner Mills. I read
19 the coalition case and I've taught that case and that
20 litigation is going to occur in any event. So what I'm
21 saying is, it doesn't bother me for us to attempt to put
22 some meaning, let the people put some meaning, in terms of
23 what the provision of adequacy is.
24 COMMISSIONER ZACK: Do you disagree with the
25 statement that if the Legislature did what it was supposed
161
1 to do, there would be no need to have this provision?
2 COMMISSIONER NABORS: Well --
3 COMMISSIONER ZACK: And it presently has the power to
4 adequately fund education and it just chooses not to.
5 COMMISSIONER NABORS: Well, what I think that we're
6 talking about is constitutional principles. Yes, I agree
7 the Legislature could fund a world-class educational
8 system if it wanted to. It would have to have the
9 resources to do that. I don't think this amendment
10 requires this. It is an attempt to put some flesh and
11 meaning to what is meant about the adequate system of free
12 public school.
13 (Commissioner Thompson assumes the Chair.)
14 COMMISSIONER THOMPSON: Commissioner Evans, for what
15 purpose?
16 COMMISSIONER EVANS: I rise in support.
17 COMMISSIONER THOMPSON: You are recognized.
18 COMMISSIONER EVANS: I too have the concern about the
19 tax increase. I think a rose by any other name is still a
20 rose as is a tax increase by any other name still a tax
21 increase. Nonetheless, I kind of like the word "thorough"
22 in here where our children are provided a thorough
23 education. I have a concern and have had for a long time
24 that our public education is rather one-sided. The tenets
25 of one religion are being taught regularly in our public
162
1 education. We do spend money to promote this religion.
2 This religion has been found to be a religion by the U.S.
3 Supreme Court and that is the religion of secular
4 humanism.
5 The biology of secular humanism is taught as fact.
6 The biology of course is evolution which has no foundation
7 whatsoever in scientifically proven fact. It is a theory
8 and it is taught as a fact and it promotes this religion.
9 Sex education is taught in our public schools from --
10 to promote the tenet of secular humanism and that is our
11 children should have safe sex. They should accept sex
12 outside the confines of a monogamous marital relationship.
13 They should accept sex with other people of different
14 sexes, people of same sexes. I don't know if they
15 actually get into bestiality or not, but thorough should
16 include that of course.
17 Now ethics, they are taught situational ethics, that
18 is there is no absolute right and no absolute wrong, the
19 situation determines what -- how you will react.
20 Something could be right in one situation and wrong in
21 another because there are no guidelines, we have seen that
22 here, situational ethics.
23 Critical thinking, our teachers are taught to teach
24 other children critical thinking versus logical thinking
25 and that is you have the -- my mind just went blank. You
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1 have the thesis, the antithesis and then what's the last
2 word, the synthesis, right. And things are always
3 changing. That goes back of course to the fact that there
4 are no rights and wrongs. You are always changing in this
5 constant influx.
6 So I would like to see our children get a thorough
7 education. I would like to see Judeo-Christian tenets be
8 taught again in our public schools. I would like to see
9 the biology of creation science be taught. I would like
10 to see logical thinking be taught, that is, there are
11 absolute rights and wrongs, and all logic flows from that.
12 I would like to see the ethics that are involved in
13 the logical thinking, the absolute rights and wrongs be
14 taught again. So I like this provision because it will
15 allow our children to indeed have a thorough education
16 again. Thank you.
17 COMMISSIONER THOMPSON: Commissioner Zack, for what
18 purpose?
19 COMMISSIONER ZACK: I rise to ask Commissioner Evans
20 a question.
21 COMMISSIONER THOMPSON: Does the lady yield?
22 COMMISSIONER EVANS: I yield.
23 COMMISSIONER ZACK: You outlined, just from my quick
24 count, about 20 things you would like to see taught as
25 part of a thorough education. Would you agree that there
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1 are probably people who would not like to see those same
2 things taught or maybe see them taught in a different way
3 and that each one of those issues would result in a
4 lawsuit that would probably -- well, I guess it would have
5 enough work for lawyers to do until definitely into the
6 year 2020, sounds better by the minute to the lawyers in
7 here. This is, is it not, a litigation field day?
8 COMMISSIONER EVANS: You bet.
9 COMMISSIONER ZACK: Thank you.
10 COMMISSIONER THOMPSON: Further debate? Further
11 debate? Commissioner Connor and then Commissioner
12 Douglass and then Commissioner Brochin.
13 COMMISSIONER CONNOR: Mr. Chairman, I believe that
14 the staff analysis that the judicial branch will basically
15 wind up taking charge of the schools is precisely correct.
16 I believe that Commissioner Zack's observation in that
17 regard is also eminently correct.
18 Article II, Section 3 of the Florida Constitution
19 states as follows: The powers of the state government
20 shall be divided into legislative, executive, and judicial
21 branches. No person belonging to one branch shall
22 exercise any powers pertaining to either of the other
23 branches unless expressly provided herein.
24 The problem, as I see it, with the goal, which is
25 certainly a laudable goal, ultimately it goes back to a
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1 common refrain we heard, who decides in a different
2 context. And in this case, I would submit to you, that
3 who decides what it is is the judiciary.
4 In my estimation, the judiciary is the least equipped
5 of the three branches of government to take charge of the
6 public school system. The Florida Supreme Court is not
7 elected, they are appointed. And then they are retained
8 or not through the process of merit retention. And the
9 net effect of adopting this proposal will be to assure, to
10 guarantee, that the least accountable branch of government
11 in Florida is the one who calls the shots with respect to
12 this decision.
13 Now, ladies and gentlemen, I would submit that that
14 is bad public policy. It is a laudable goal to seek to
15 achieve what Commissioner Mills has proposed. But the
16 processes of our democratic republic, I would submit to
17 you, in maintaining the integrity of those processes is
18 every bit as important as maintaining the integrity of the
19 product.
20 Because if we allow the institutional limitations to
21 erode, and we allow the lines to blur, then we are in
22 danger of losing our form of government. We have a
23 constitutional republican form of government. It was
24 never intended by the citizens of the state of Florida
25 under their constitution that the courts would direct
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1 public education in Florida. Our chief justice, our
2 justices on the Supreme Court are brilliant, able, and
3 well equipped to do many things but they were not selected
4 by the people of Florida to run the school system and to
5 call those shots.
6 The Legislature has a funding responsibility. The
7 executive has an executive responsibility. Let's make the
8 various branches of government, Commissioner Mills, pony
9 up to their responsibilities. We can hold the Governor
10 accountable more easily than we can hold the members of
11 the Supreme Court accountable. We can hold the members of
12 the Legislature accountable, more so than we can the
13 members of the Supreme Court. We don't know who we are
14 going to get if we un-retain somebody.
15 But when someone runs against a legislator, we have a
16 choice. When Buddy McKay and Jeb Bush square off and they
17 have divergent views on education, we have a choice.
18 Please do not be sucked into the naive assumption that by
19 adopting this laudable goal we will achieve the desired
20 result. I will submit to you that education in Florida
21 will become the biggest morass you have ever seen and that
22 we will not accomplish the goal however desirable and
23 however laudable, and it is laudable, it may be.
24 COMMISSIONER THOMPSON: Commissioner Douglass, for
25 what purpose?
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1 CHAIRMAN DOUGLASS: I rise to make a suggestion to
2 the sponsor. If he would rise. It seems to me that you
3 could meet all these objections and still achieve the
4 major goal that you seek which is, I think, what we want
5 to put in the Constitution is matters of public policies
6 or statements of public policy for the most part and allow
7 the implementation to be done by the branches of
8 government that are properly charged with that, the
9 executive as well as the legislative and the judicial
10 branches, then we don't have to deal, I don't think, with
11 the idea of a court system running the school system or
12 the Legislature micro-managing the school system.
13 We have before us, if we have a statement of policy
14 as opposed to anything quite so specific, and I would
15 propose that you consider amending this or making this
16 read something like this: As used in this section, the
17 term "adequate" provision means an efficient, safe, and
18 secure system of public education in all public schools to
19 achieve the highest educational level possible and access
20 to public institutions of higher learning under reasonable
21 rules.
22 It is not quite worded right, but it would be an
23 access to attend under reasonable rules public
24 institutions of higher learning or education, period.
25 Then that would give the result you achieve as public
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1 policy and would direct, as the Constitution does in many
2 instances, which are not carried out, they are not
3 self-executing but they are directed as are the courts and
4 the executive, to at least work to achieve those high and
5 lofty goals.
6 I think that if you could craft your proposal, as I
7 have tried to do it very rapidly here, that the objections
8 raised certainly by Commissioner Connor would evaporate
9 because he's concerned with the courts, and most of us
10 are, we don't want the courts running the school system
11 and the courts don't want to run the school system either.
12 But we do want to let the Legislature know -- to let
13 the public let the Legislature know that we need to do
14 something to upgrade our schools and that this is what
15 adequate really means and that's what you are trying to
16 say.
17 And I think with that tool, that those people who all
18 want to reach the same goal, we may have different ideas
19 about how to get there, but we are not trying to tell them
20 how to run the school system, what they can teach and what
21 they can't teach, we are not trying to tell them anything
22 other than, get it together and get our school system
23 straightened out.
24 We all know that it is far down the list from where
25 we want it and despite the fact that we produced some
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1 well-educated and brilliant students that go forward to do
2 great things including astronauts, even United States
3 Senators and Governors and members of the Supreme Court,
4 we need to do better and get better members of the Supreme
5 Court, Governors and astronauts, educated in this state
6 for the future.
7 And I think we have people in here on this commission
8 and one I can point to that spent his entire life working
9 for this goal, Commissioner Marshall, who started in the
10 educational process at probably the lowest levels and
11 built him up to the point where you became president of a
12 university. And I know that these were goals that he
13 sought and did achieve within the framework of what was
14 there.
15 Let's give them a statement that we can all go
16 forward to the people with without having to argue about
17 secular humanism and whether or not we are teaching
18 religion and whether or not the courts -- we are turning
19 it over to the courts. And if you can do that, I suggest
20 that we can almost unanimously support it.
21 COMMISSIONER THOMPSON: Commissioner Mills to
22 respond.
23 COMMISSIONER MILLS: Mr. Chairman, as I understood
24 that suggestion, fundamentally what we are looking for is
25 a statement of principle. A statement of principle about
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1 education in Florida and really that's what the older
2 constitutions that we refer to have. And if the inclusion
3 of references to financial resources is confusing, which I
4 think it clearly is, then we should remove that. And if
5 your wording is prepared, we have lots of good people
6 who --
7 CHAIRMAN DOUGLASS: I'll have to get somebody to
8 prepare it. I mean to get it so we can --
9 COMMISSIONER THOMPSON: We could temporarily pass
10 this measure and let you-all work on it.
11 COMMISSIONER MILLS: That will be fine. That will be
12 fine.
13 COMMISSIONER THOMPSON: Commissioner Brochin, you are
14 working on this, okay. Take up and read the next
15 proposal.
16 READING CLERK: Proposal 63, a proposal to revise
17 Article II, Section 8, Florida Constitution, strengthening
18 the powers of the Florida Commission on Ethics.
19 COMMISSIONER THOMPSON: Okay. Whose proposal is
20 this? Commissioner Connor, you are recognized.
21 COMMISSIONER CONNOR: Ladies and gentlemen, I was
22 privileged along with Commissioner Zack and Commissioner
23 Barnett and perhaps others to serve for a period of time
24 on the state of Florida Commission on Ethics and felt that
25 I was enriched and benefited by the opportunity of that
171
1 experience.
2 One of the things I discovered as a member of the
3 commission was to my frustration and that of my colleagues
4 on the commission was that when we would read about
5 conduct in the paper that was -- by public officials or
6 public officers -- that was questionable in nature about
7 whether or not it involved a violation of the ethics laws,
8 we were powerless to investigate the possibility of a
9 violation or do anything about it in the absence of a
10 complaint having been filed.
11 Now the Ethics Commission was an outgrowth of the
12 post-Watergate mentality. And the aftermath of the
13 problems that were experienced and that came to light
14 during the Watergate period, the people of Florida
15 determined in their Constitution to include provisions for
16 a state Ethics Commission.
17 There are many, and I myself am one, who feel that
18 the Commission on Ethics in many respects is a toothless
19 tiger and was intended to be from the outset. And one of
20 the examples of its teeth having been pulled was the
21 failure to include the power to initiate investigations.
22 We have all read at great length in recent weeks
23 about conduct of questionable -- of a questionable nature
24 on the part of public officials with respect to their
25 activities while members of public office. And yet the
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1 Ethics Commission was and has been powerless to conduct
2 any sort of investigation of its own, to initiate any sort
3 of investigation on its own. And would remain powerless
4 to do so in the absence of someone filing a complaint.
5 I will submit to you that it is time to empower the
6 commission to do the job that the people of Florida
7 believed was being conferred upon that commission when
8 this commission was given constitutional standing within
9 the state of Florida. You may recall that Commissioner
10 Rundle withdrew this proposal and made the statement that
11 it was her understanding that neither the chairman nor the
12 executive director of the commission was desirous of
13 seeing that go forward.
14 I was surprised at that and I talked to the -- and
15 I -- frankly, that was a statement made in error at least
16 from my perspective having talked with the executive
17 director of the state of Florida Commission on Ethics who
18 assured me that as executive director she favored and she
19 was confident that the commission favored this grant of
20 power.
21 I believe that we ought to give this grant of power
22 to the commission so as to enable it to do its job. Now I
23 will tell you that the Legislature likely would not give
24 this grant of power and historically, frankly, our
25 legislators have had a dynamic tension with the Ethics
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1 Commission and the Ethics Commission has been viewed as,
2 frankly, a pain in the neck because of its
3 responsibilities. And because of the accountability
4 associated with that.
5 So all this proposal does is simply, at Page 91 of
6 your packets, all it does is add the language "initiate
7 and"; in other words, the language presently reads: There
8 shall be an independent commission to conduct
9 investigations. It says, There shall be an independent
10 commission to initiate and conduct investigations.
11 I will submit to you, ladies and gentlemen, if you
12 want to empower the appropriately charged commission who
13 has the responsibility for the investigation and
14 enforcement of our ethics laws, that this amendment should
15 be adopted by this body and be put forth to the people of
16 Florida. Thank you.
17 CHAIRMAN DOUGLASS: Debate? Commissioner Zack, for
18 what purpose?
19 COMMISSIONER ZACK: I rise to support the motion.
20 COMMISSIONER THOMPSON: You are recognized.
21 COMMISSIONER ZACK: The hour is late and I am not
22 going to reiterate what Mr. Connor has said in any
23 particular way other than to join with him in his
24 comments. I agree with each and every one of the
25 statements he made. I would like to remind us that
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1 originally there were criminal charges that can be brought
2 on these ethical violations and that was -- we
3 decriminalized the ethical process and put it into the
4 Ethics Commission and then made the ethics commission
5 totally impotent.
6 We sat there having a wonderful experience; however,
7 as wonderful as it was, it was often extremely frustrating
8 to be in a situation where we could do nothing regarding
9 matters that were on the front pages of many newspapers.
10 When I was president of the Florida Bar, we had the
11 same procedure where we couldn't comment for many years on
12 investigations that were going on and it just made us look
13 horrible. And fortunately, we were able to change that.
14 We need to regain whatever modest respect we can regain
15 from the public as to the ethical propriety of what
16 government is doing.
17 And the only way we can do it is by having this
18 amendment go forward. I would also remind you that
19 because of separation of powers issues, when the Ethics
20 Commission finds that a legislator did something wrong,
21 violated an ethical rule, and then finds that individual
22 in some particular way with either a fine or some other
23 kind of punishment, that it is not self-executed. It goes
24 back to the President of the Senate or the Speaker of the
25 House because it is within their purview to reprimand
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1 their members.
2 So there are a lot of protections that the
3 legislators have anytime that the public has some
4 protections that this will begin to provide them.
5 COMMISSIONER THOMPSON: Commission Barkdull, for what
6 purpose?
7 COMMISSIONER BARKDULL: To ask Commissioner Zack a
8 question.
9 COMMISSIONER THOMPSON: Does the gentlemen yield? He
10 yields.
11 COMMISSIONER BARKDULL: Commissioner Zack, how are
12 the members of this commission appointed?
13 COMMISSIONER ZACK: Well, I believe last time I
14 looked, there were several who were named specifically by
15 the statute. And then the Governor, of course, the
16 Speaker, and the President name other members.
17 COMMISSIONER BARKDULL: They are all appointed
18 people?
19 COMMISSIONER ZACK: All appointed.
20 COMMISSIONER BARKDULL: At the present time, for them
21 to make an investigation it takes, as I understand it, a
22 sworn complaint; is that correct?
23 COMMISSIONER ZACK: That is correct.
24 COMMISSIONER BARKDULL: And therefore somebody that a
25 complaint is made against knows who the individual was
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1 that started the proceeding.
2 COMMISSIONER ZACK: That is also correct.
3 COMMISSIONER BARKDULL: Under this proposal, I assume
4 that a majority of the commission or maybe less, I don't
5 know, it would depend on the rules, they could investigate
6 anything that he wanted to.
7 COMMISSIONER ZACK: That is correct.
8 COMMISSIONER BARKDULL: Thank you.
9 COMMISSIONER THOMPSON: Commissioner Barnett, for
10 what purpose?
11 COMMISSIONER BARNETT: To speak in opposition to this
12 proposal.
13 COMMISSIONER THOMPSON: You are recognized.
14 COMMISSIONER BARNETT: As Commissioner Connor
15 indicated, I had the privilege of serving on the
16 commission and, in fact, chaired the commission during my
17 tenure and found it to be a challenging and rewarding
18 experience and I do not want my comments opposing this
19 proposal to in any way be a reflection on what I think is
20 one of the more valuable commissions in the state nor the
21 dedication of the staff or the people who serve on the
22 commission because I think that perhaps that staff,
23 executive director and the staff, they are long-standing
24 public employees and servants and they have done a
25 marvelous job.
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1 But I always felt that the commission did its job
2 appropriately and responded appropriately. I think the
3 scope of authority that has been granted to the commission
4 is an appropriate scope of authority under the
5 circumstances. And that is as Commissioner Barkdull just
6 said, to investigate and respond to sworn complaints
7 against -- about a possible misconduct or a violation of
8 the public trust by a public official.
9 I have always been concerned, this has been an issue,
10 this issue about giving the commission the authority to
11 initiate complaints, has been around for a long time, it
12 has been a legislative proposal. And for whatever reason,
13 I think for the right reasons, the Legislature has chosen
14 not to expand the authority of the commission. And I
15 think that it is problematic to constitutionally empower a
16 commission to begin to investigate public officials based
17 on something like a newspaper article or a story that
18 appears in the press or a tip that comes across the
19 telephone.
20 I do think when you are going to have
21 investigation -- and these are not casual investigations.
22 You need to understand these are full-blown investigations
23 with investigators, into conduct, alleged conduct by
24 public officials. There needs to be more than simply, I
25 read an article, I heard about something, it appears there
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1 is a problem here. I think when we have a private body,
2 really a semi-private body of citizens, a commission
3 looking into public officials there needs to be the
4 protections and sworn complaint.
5 So while I respect and admire the commission's work
6 and think it is a critical component, I think its
7 authority jurisdiction and authority has been
8 appropriately defined and I have some concern about
9 expanding that ability to initiate complaints against
10 citizens.
11 COMISSIONER THOMPSON: Further debate? Further
12 debate? Commissioner Smith?
13 COMMISSIONER SMITH: Thank you. I rise to ask a
14 question of the sponsor --
15 COMISSIONER THOMPSON: Does the lady yield --
16 COMMISSIONER SMITH: No, the sponsor.
17 COMISSIONER THOMPSON: Oh, the sponsor. Let's do
18 this. Let's wait until he closes and then you ask it,
19 he'll have the floor then; is that all right?
20 COMMISSIONER SMITH: Be happy to, yes, sir.
21 COMISSIONER THOMPSON: Okay. Is there further debate
22 before Commissioner Connor takes the floor?
23 Commissioner Morsani, for what purpose?
24 COMMISSIONER MORSANI: I'm not sure. As a citizen.
25 I say that in this context. I'd like to ask
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1 Ms. Barnett -- Commissioner Barnett.
2 COMISSIONER THOMPSON: Does the lady yield? A
3 question by Commissioner Morsani. She yields.
4 COMMISSIONER BARNETT: Can I wait until I hear the
5 question?
6 COMISSIONER THOMPSON: No.
7 (Laughter.)
8 COMMISSIONER MORSANI: How do we address -- in our
9 public hearings around the state we had a couple of major
10 areas of concern by citizenry and I think this is one of
11 them in ethics. I have a problem and I don't understand
12 it obviously. But why shouldn't something be initiated by
13 the Ethics Commission?
14 It appears we talk about perception out here by the
15 public. I think there is a perception that they don't
16 investigate themselves. That the Ethics Commission, in
17 the public's eye, is a paper tiger. If it's even -- it's
18 not really articulated to the public and yet when -- and
19 so maybe no one has done a good job of selling the Ethics
20 Commission to the 14 million people of our state. But we
21 heard this continuously in our 13 meetings around the
22 state.
23 So I really think the public is looking for more
24 teeth in this tiger to tell them what's going on. I
25 certainly agree with you we shouldn't take a telephone
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1 call or a newspaper because all of us can get tarred with
2 that brush and that doesn't accomplish anything. But I
3 would hope that from the stature of the people that serve
4 on this Ethics Commission that that would never be a part
5 of the criteria for an investigation.
6 But how do you address the public that they're
7 wanting more emphasis and have initiatives and not make it
8 available to them?
9 COMMISSIONER BARNETT: The way I perceive the public
10 testimony that I heard, it reflects the general
11 frustration that our citizens at large have with people
12 in -- elected public officials. I think there is a large
13 dissatisfaction and trust of people based largely upon --
14 isolated in instances that don't reflect, I believe, the
15 contribution elected officers make to this country. But
16 there is, everybody knows, a high level of concern about
17 elected officials.
18 And I think it reflects more that frustration than
19 just the Ethics Commission per se and the Ethics
20 Commission's inability to initiate investigations, that
21 somehow people in public life, you know, hold themselves
22 above or outside of the rules that apply to the other
23 citizens.
24 I do not think that the right of this commission to
25 investigate would solely be based -- I mean to initiate
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1 investigations, would solely be based on information that
2 came in a casual way such as newspaper article or an
3 unanonymous tip. But clearly the people that propose it
4 and certainly the frustration Commissioner Connor talks
5 about is you do read the newspaper, you do hear about
6 things, you are frustrated that you can't get to it.
7 But, you know, there are citizens who could propose
8 that -- who have that ability to file that complaint if
9 they read that and they have information, a sworn
10 complaint with information. So there is a frustration, no
11 doubt. But I don't think it is appropriate to -- and I
12 hesitate to use this world -- but it may capture a little
13 bit that my concern is to give the people the right to do
14 witch hunts, to give a commission the right to go initiate
15 an investigation.
16 Certainly that wouldn't happen or I would hope it
17 wouldn't, that there would be a legislative structure set
18 up to define how you initiate it. But I have a concern
19 about that. I think the original Constitution intent
20 adopted by the people -- maybe it was an initiative
21 process -- was to respond to complaints and then to
22 investigate them. This goes beyond the initial intent of
23 what the people adopted and now empowers the commission in
24 a way at that time that was not before the commission.
25 For me, that's an expansion that I think is too broad. It
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1 may not be for others, but for me it is.
2 COMISSIONER THOMPSON: Mr. Anthony, what purpose?
3 COMMISSIONER ANTHONY: Mr. Chair, I rise in
4 opposition of this proposal.
5 COMMISSIONER THOMPSON: You're recognized.
6 COMMISSIONER ANTHONY: Hesitantly I do because many
7 members of the commission would probably say that every
8 public official, elected official, would be in opposition
9 to this proposal. But that's really not the reason.
10 I agree with Commissioner Barnett in that this does
11 cause a lot of concern when members who are appointed, not
12 elected, have the ability, as Commissioner Zack noted,
13 that he could be in Miami, Florida, Tampa, Florida,
14 anywhere in the state of Florida, and see an article that
15 alleged some misbehavior and then in his role as an Ethics
16 Commission member, then go back to the next meeting and
17 start an investigation based upon something that he heard
18 or read in a local newspaper. Or heard at some meeting of
19 the Constitution Revision Commission or perhaps he heard
20 at some Florida Bar meeting, or better yet, perhaps he
21 heard it on his way walking to an establishment such as
22 Clyde's, perhaps he heard something and then as a member
23 of the Ethics Commission I think that I'm going to be
24 aggressive and I think I'm going to save Florida from this
25 person that I heard a rumor about on my way to South Beach
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1 in my convertible as I was at the red light and heard two
2 people walking by talking.
3 Those examples may seem extreme but, in fact, that's
4 what we will be giving a commission appointed holier than
5 thou, that those elected officials, that the citizens of
6 that community has so elected. I say to you that the
7 greatest concern of the number of you from running for
8 office that stops you from running for office are those
9 allegations that can destroy not only your personal life,
10 allegations that cannot only destroy your personal life,
11 but can also destroy your professional life and your
12 family, allegations that are not accurate that end up
13 being witch hunts on folk's professional and personal
14 lives.
15 That would stop a number of you from even running for
16 office. And now we're going to give you more opportunity
17 by giving some appointed body that may perhaps again may
18 hear a rumor on its way to some meeting. It concerns me,
19 members of the commission. This really does concern me.
20 The voters in the local community have an opportunity
21 by way of election and through the safeguards of the press
22 and through the safeguards of the existing Ethics
23 Commission to gauge the behavior of those elected persons.
24 And I think we do have the safeguards right now in our
25 present system and I don't think that we should give some
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1 group who is an appointed group the authority to go on
2 witch hunts based upon a phone call that they may get
3 based upon some rumor that they may hear.
4 And I'm very concerned that we in this room we're not
5 looking at the factual and realistic implementation of a
6 commission that does not have truly the right and ability
7 to judge the elected body and persons of this state.
8 COMISSIONER THOMPSON: Commissioner Barkdull, for
9 what purpose?
10 COMMISSIONER BARKDULL: To ask the gentleman a
11 question.
12 COMISSIONER THOMPSON: Does the gentleman yield? He
13 yields.
14 COMMISSIONER BARKDULL: Commissioner Anthony, would
15 you believe me that if this would pass, this would permit
16 the Ethics Commission to be both the investigative body
17 and the adjudicatory body as to whether somebody had
18 violated the Code of Ethics?
19 COMMISSIONER ANTHONY: If this passed?
20 COMMISSIONER BARKDULL: Yes.
21 COMMISSIONER ANTHONY: Yes.
22 COMMISSIONER BARKDULL: Thank you.
23 COMISSIONER THOMPSON: Commissioner Zack, for what
24 purpose?
25 COMMISSIONER ZACK: Ask the commissioner a question.
185
1 COMMISSIONER THOMPSON: Gentleman yield? He yields.
2 COMMISSIONER ZACK: Would you be in favor of
3 abolishing the Ethics Commission so that the state
4 attorney could do the investigation as the state attorney
5 used to investigate claims without requiring someone to
6 file an affidavit, is my first question. Or do you like
7 the fact that it is not a criminal charge now that -- for
8 a public official to be charged with an ethics complaint?
9 COMMISSIONER ANTHONY: I don't have a problem with
10 the existing system that we have. What I have a problem
11 with, Commissioner Zack, is an appointed body, at least
12 the state attorney is an elected body. But an appointed
13 body to aggressively go out and seek investigations of
14 people who are elected or appointed to office --
15 COMMISSIONER ZACK: But that wasn't my question.
16 Would you be in favor of abolishing the Ethics Commission
17 and having the state attorney conduct the investigation as
18 was previously the case?
19 COMMISSIONER ANTHONY: No.
20 COMMISSIONER ZACK: And how long do you think an
21 investigation would last if there were no witnesses who
22 came forward to substantiate any charge that the
23 commission was investigating?
24 COMMISSIONER ANTHONY: If there are no witnesses and
25 if I made an allegation based on you, if I heard something
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1 or saw something, how long would it last? How long should
2 it last?
3 COMMISSIONER ZACK: Right. If someone whispered in
4 your ear that someone else had done something wrong but
5 there were no witnesses to it, do you think that
6 investigation would be of short order?
7 COMMISSIONER ANTHONY: Mr. Zack, it should be of
8 short order. But the problem is right now we have people
9 in our communities and there have been cases right before
10 the Ethics Commission out of Palm Beach County, out of
11 Lauderhill, Florida that citizens or individuals have
12 gotten mad at county commissioners or mayors and made
13 allegations, those allegations have made it to the paper
14 and they have been found with no cause to proceed and yet
15 those peoples' lives were almost disrupted and destroyed.
16 Their political career was almost destroyed. And I think
17 that that is wrong.
18 COMMISSIONER ZACK: I agree with you. And are you
19 aware of the fact that the Ethics Commission -- I know --
20 well, I was there and I believe Commissioner Connor was
21 there, I'm not sure during Commissioner Barnett's term,
22 has actually chastised people for filing complaints that
23 were of a political nature where they attempted to use and
24 misuse the Ethics Commission and were, in fact, fixed and
25 fees were recovered from those individuals for a misuse of
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1 the Ethics Commission?
2 COMMISSIONER ANTHONY: I am familiar with that. But
3 the allegation that was made, made the front page of the
4 Palm Beach Post. But yet, the fact that you did all of
5 the -- the making of payback, the attorneys' fees, that
6 made the what's-about-town section and that's the problem.
7 That is the problem, Commissioner Zack.
8 COMMISSIONER ZACK: And are you aware that voting in
9 opposition to this would not change that at all? The only
10 thing that would change that is to abolish the Ethics
11 Commission --
12 COMMISSIONER ANTHONY: Mr. Chairman, I will not yield
13 to any more questions by Commissioner Zack.
14 COMISSIONER THOMPSON: Commissioner -- point of
15 order. Why don't you-all just lean over and whisper to
16 one another like the rest of us do?
17 (Laughter.)
18 CHAIRMAN DOUGLASS: I want you to know, you stated it
19 much better than I was going to. But I think we went
20 beyond the bounds of this afternoon here. It's getting
21 late.
22 COMISSIONER THOMPSON: Commissioner Smith, for what
23 purpose?
24 COMMISSIONER SMITH: I rise to ask a question. And I
25 want to get my question in now because I have to make a
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1 telephone call home. Instead of asking the question of
2 Commissioner Connor because we're out of time, I want to
3 ask a question of Commissioner Zack.
4 COMISSIONER THOMPSON: Let's try it for a few minutes
5 and see how it works out.
6 COMMISSIONER SMITH: Commissioner Zack, how many
7 members make up the Ethics Commission?
8 COMMISSIONER ZACK: Nine.
9 COMMISSIONER SMITH: Okay. Is it possible for their
10 to be five persons of one political party and four of
11 another political party?
12 COMMISSIONER ZACK: That's always possible.
13 COMMISSIONER SMITH: Under this procedure, is it
14 possible, let's say maybe ten days before an election of
15 November of 1998, for the five of a dominant party,
16 whatever that may be, to be based upon political
17 motivation, ten days before the November 1998 election to
18 initiate a politically-inspired investigation for the
19 purpose of the public just learning that there's an
20 investigation of a lieutenant governor or gubernatorial
21 candidate not caring what the outcome will be because in
22 the ten days, it will be too late to respond, the election
23 will be over. Is that possible?
24 COMMISSIONER ZACK: I can only tell you in the six
25 years that I served there I had no idea what the political
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1 affiliation was of any person who served on that
2 commission, number one. And, number two, that is possible
3 by, and is done, and the Ethics Commission is used and
4 misused, by political operatives regularly and that could
5 be done regardless of this being passed or not passed.
6 COMMISSIONER SMITH: But if this -- isn't it true
7 that if this is passed, it is done under the guise of
8 anonymity because no one is the single initiator because
9 it's by a majority vote, that's number one, and no one
10 does it under penalty of perjury by swearing to it; isn't
11 that a fact?
12 COMMISSIONER ZACK: That is a fact and I go forward
13 with the assumption that every person as appointed to that
14 position has acted properly and in good faith and I have
15 no reason to have ever seen it to the contrary. And you
16 can suggest bad motives was to any person at any time for
17 any reason. But you have to start off with the assumption
18 that these individuals are going to act in the best
19 interest of the state and that's why they are appointed.
20 And from my experience, and I think Commissioner
21 Connor and Commissioner Barnett would agree, in our
22 experience on that board, I've never seen the commission
23 act in any other way.
24 COMMISSIONER SMITH: And a final question. With an
25 understanding that is reasonable to impute honorable
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1 motives to those who serve, you would agree that sometimes
2 there's a fine line that's difficult to be able to
3 identify between political motivation and honorable
4 service; would you not agree with that?
5 COMMISSIONER ZACK: There is no question that is the
6 case. But the alternative to not passing this is to do
7 absolutely nothing and to allow people who have violated
8 the ethics of the state of Florida and who common citizens
9 are in fear of because they do not want to tackle powerful
10 people head on, allow those unethical acts to go without
11 any form of remedial action. And that is what we have
12 now. And by voting against this, you would just allow
13 that situation to continue.
14 COMMISSIONER SMITH: Okay. Honestly, this is the
15 last question.
16 COMMISSIONER THOMPSON: One final, final question.
17 COMMISSIONER SMITH: One final, final question. And
18 I'm glad a lawyer is chairing because you understand that.
19 Isn't it a fact that whether we're talking about
20 crimes that are committed or ethical violations, there
21 will always be some crimes that people will not come
22 forward to press charges on and there will always be some
23 ethical violations that people will not come forward to
24 press on and so we will never ever be able to have a
25 situation where every ethical violation is investigated
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1 and punished nor every crime investigated and punished.
2 And in the balance of things, we at least want public
3 officials to be able to know their accuser, face their
4 accuser and be able to fairly defend themselves; isn't
5 that a fact?
6 COMMISSIONER ZACK: If every commissioner in this
7 room voted in favor of this proposal, it is true we would
8 not live in a perfect world.
9 COMISSIONER THOMPSON: Commissioner West, for what
10 purpose?
11 COMMISSIONER WEST: I rise to speak against the
12 proposal.
13 COMISSIONER THOMPSON: You're recognized.
14 COMMISSIONER WEST: It came to -- this proposal came
15 to our committee and we heard extensive testimony. We
16 heard testimony from staff who was well respected by
17 everybody that was there. And I think some of the
18 concerns that Commissioner Anthony brought up were of
19 paramount importance. And we as a committee looked at all
20 of it, we listened to testimony. We listened to testimony
21 from the staff of the Ethics Commission and we voted to
22 present this proposal with a disfavorable recommendation.
23 And would urge every commissioner to oppose it.
24 COMISSIONER THOMPSON: Further debate?
25 Commissioner Barton, for what purpose?
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1 COMMISSIONER BARTON: I rise in opposition to the
2 proposal.
3 COMISSIONER THOMPSON: You're recognized.
4 COMMISSIONER BARTON: In committee when we discussed
5 this, I had a concern that I still have and that is if the
6 committee itself was to be able to initiate
7 investigations, then people in communities, et cetera,
8 would -- all they would have to do is to call the
9 committee to complain, to send things to the committee so
10 that the committee would initiate rather than them having
11 to make the complaint. And I liken it to something like
12 the child abuse hotline. I can just see all sorts of
13 calls and requests for investigations to be initiated
14 coming in and a real difficulty imposed upon the
15 committee. I have that concern.
16 COMISSIONER THOMPSON: Commissioner Crenshaw, for
17 what purpose?
18 COMMISSIONER CRENSHAW: Mr. Chairman, members, I just
19 thought I'd stand up and admit that I was on the Ethics
20 Commission too and I think it's a bad idea, so now it's
21 two to two against former Ethics Commission members. But
22 I think if you look at this, and I just started reading
23 the constitutional provision, and that's -- I think this
24 is part of that Sunshine Amendment that was passed through
25 a petition drive that Governor Askew started back in 1976
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1 and it has financial disclosure and all those kinds of
2 things and it set up an Ethics Commission. It said it
3 would, you know, if somebody filed a complaint, they would
4 investigate it. And it's all worked pretty well.
5 I'm kind of interested in the fact that the committee
6 voted against it. The sponsor withdrew it because she
7 said that the Ethics Commission itself didn't see any
8 great need -- I can't remember what Commissioner Connor
9 said about whether they came back and said, we really do
10 think we need this, whatever, I'd like to hear a little
11 more about that.
12 But I think it's been adequately debated. But I just
13 clearly think that my experience on the commission was an
14 awful lot of people walked down and filed complaints. If
15 there's a lot of things in the newspapers that never found
16 their way to the Ethics Commission, then what does that
17 say about the people we're trying to help and protect? If
18 they read something bad in the newspaper and they don't
19 care enough to go down and file a complaint or whatever,
20 something is wrong. I think we're trying to protect from
21 sales. It's another bureaucracy to make it a little
22 bigger. And I think it's a bad idea.
23 COMMISSIONER THOMPSON: Commissioner Connor to close.
24 COMMISSIONER CONNOR: I think the real issue here is
25 whether we're going to be serious about enforcing ethics
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1 laws or not in this state. And I will tell you from
2 having served as chairman of the Ethics Commission the
3 commission has been largely emasculated in its
4 responsibility and in many respects it is little more than
5 eyewash and all show and no-go with respect to the
6 enforcement of ethics laws in the state of Florida.
7 Now how many people do you think would swallow hard
8 and think twice before filing a complaint against the
9 Governor of the state of Florida or against the Attorney
10 General of the state of Florida particularly in a climate
11 when we've recognized and learned most recently that
12 people have had the temerity to oppose certain nominations
13 while the inspector general of the state has conducted
14 background investigations on these people?
15 Do you think that has a chilling effect on the
16 willingness of the public to file complaints against
17 powerful people in the government? Of course it does.
18 Let me tell you, Mr. Anthony, about the abuse of the
19 commission. The principal abuse of the commission comes
20 from political malcontents who did not like the outcome of
21 election and then who seek to use the commission as a
22 vehicle for meeting out punishment on their opponent.
23 That happens every day. The business of the commission is
24 filled with those kinds of trivial nanny, nanny, boo, boo,
25 I found a way to get you, embarrass you.
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1 I would submit to you that the weightiness of the
2 matters investigated by the commission will go up
3 significantly if the commission is granted power to
4 initiate investigations. I dare say the business of the
5 Ethics Commission will not be as trivial as it is in many
6 respects. And the commission will be empowered and the
7 commissioners will use their judgment in making these
8 kinds of decisions.
9 Now, Commissioner Smith has apparently departed the
10 area, but let's be under no illusion, ladies and
11 gentlemen, due process still applies to those who were
12 charged before the Ethics Commission. We don't throw our
13 constitutional protections out the window because the
14 investigation now reposes in the Ethics Commission.
15 The biggest abuses occur in the complaint process.
16 You can mark it down. I dare say that anybody who served
17 on this commission would affirm that to be the case. But
18 it is -- it makes the commission a laughingstock when
19 information is in the public domain and everybody knows it
20 and everybody is aware of what's going on but nobody can
21 do anything about it on the commission because people did
22 not have the temerity to file a complaint against a
23 powerful figure in government.
24 I dare say that you'll reduce the abuses but you'll
25 increase the gravitas of the matters that are investigated
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1 by the commission and you will have a salutary impact on
2 the enforcement of the ethics laws in the state of Florida
3 if you adopt this proposal. Thank you.
4 COMISSIONER THOMPSON: And so the question recurs on
5 approval of Proposal No. 63. The clerk will unlock the
6 machine and the members will proceed to vote. Have all
7 members voted? All members voting.
8 (Vote taken and recorded electronically.)
9 COMISSIONER THOMPSON: The clerk will lock the
10 machine and announce the vote.
11 READING CLERK: 7 yeas, 17 nays, Mr. Chairman.
12 CHAIRMAN DOUGLASS: And so Proposal 63 is not
13 approved.
14 COMISSIONER THOMPSON: Commissioner Douglass, for
15 what purpose?
16 CHAIRMAN DOUGLASS: I'll waited till after the vote,
17 but I did want to rise to appoint a personal privilege,
18 the reference to the inspector general that was made, was
19 made in one of my very good friends, about one of my very
20 good friends, who I stand here to tell you that what you
21 said is a rumor. And I find that to be something that we
22 should not be talking about. What you read in the paper
23 may or may not be true. But there has been no sworn
24 allegations of any kind concerning this gentleman. And in
25 defense of him, who is my friend, and his family, his
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1 children and his wife, I impose this as a point of
2 personal privilege.
3 I don't condemn you for saying it in the heat of
4 debate. But I wanted you to know that one of the points
5 we were talking about were rumors and unsubstantiated
6 allegations and I don't think that those are appropriate
7 even though I know you didn't intend to do anything to
8 harm anyone but I rise to defend my friend.
9 COMISSIONER THOMPSON: Take up and read the next
10 proposal.
11 CHAIRMAN DOUGLASS: Could we revert to the proposal
12 we were on, the education matter?
13 COMISSIONER THOMPSON: Okay. I think that's proposal
14 No. 157. Commissioner Mills, are you ready for that?
15 COMMISSIONER MILLS: Commissioner Brochin or Douglass
16 offers the amendment.
17 COMISSIONER THOMPSON: All right. We're on Proposal
18 No. 157. There's an amendment on the desk sponsored by
19 Commissioner Barkdull?
20 COMMISSIONER BARKDULL: No, sir. Brochin.
21 COMMISSIONER THOMPSON: Brochin, okay.
22 COMMISSIONER BARKDULL: Mr. Chairman --
23 COMISSIONER THOMPSON: Excuse me.
24 COMMISSIONER BARKDULL: Mr. Chairman, may I make a
25 housekeeping motion?
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1 COMISSIONER THOMPSON: Yes.
2 COMMISSIONER BARKDULL: I move so that we extend the
3 time of adjournment until we have concluded debate on
4 this. And also taken up the next item on the calendar
5 which I understand the sponsor is going to move to
6 temporarily pass and that we conclude with a time for
7 motions for withdraw, motion for further committee
8 assignments and announcements.
9 COMISSIONER THOMPSON: Is there an objection to the
10 motion by the rules chairman? Hearing none, show it
11 adopted now. We are on 157, the amendment by Commissioner
12 Brochin.
13 Commissioner Brochin, just explain your amendment.
14 Read amendment.
15 READING CLERK: On Page 1, Lines 19 to 24, delete
16 those lines and insert, As used in this section, the term
17 adequate provision means an efficient, safe, secure and
18 high quality system of public education and all public
19 schools for the purpose of allowing students to achieve
20 the highest possible educational level and for providing
21 access to attend, under reasonable policies, public
22 institutions of higher learning or education.
23 COMISSIONER THOMPSON: Commissioner Brochin is
24 recognized to explain the amendment.
25 COMMISSIONER BROCHIN: The amendment strikes the term
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1 that was in the initial proposal. Strikes the -- means
2 the provision of financial resources. And it says, it
3 gives the definition to mean simply an efficient, safe,
4 secure and high quality system of public education. We
5 would probably ask that where it reads "in all public
6 schools for the purpose of allowing students the
7 opportunity," which is not in there, but the opportunity
8 to achieve the highest possible educational level and for
9 providing access to attend, under reasonable policies,
10 public institutions of higher learning for education.
11 COMISSIONER THOMPSON: Further debate on the
12 amendment as offered by Commissioner Brochin? Further
13 debate? Commissioner Marshall, for what purpose?
14 COMMISSIONER MARSHALL: Mr. Chairman, to speak as a
15 proponent, I think.
16 COMISSIONER THOMPSON: You're recognized.
17 COMMISSIONER MARSHALL: It's a question -- well, I
18 speak as a person who would have been a reluctant opponent
19 of a reasonable measure for reasons well, well presented
20 by other speakers. I was fearful of the greater intrusion
21 of the courts into matters of education which I think
22 would have been very unfortunate. Commissioner Barkdull
23 made a reference to the situation in Kansas City where the
24 federal courts have really taken over the school system to
25 the detriment of the students, the teachers and everybody.
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1 So having taken out of this earlier statement,
2 earlier -- the proposal, the reference to adequate
3 financial resources, I'm considerably more comfortable.
4 But if I'm a legislator, let me ask either Commissioner
5 Brochin or Mills or maybe Commissioner Douglass who's the
6 father of this idea, what I will do about this. What is
7 the message to me as a legislator who has the
8 responsibility for legislating, for enacting legislation
9 to ensure the quality, high quality, of our schools.
10 CHAIRMAN DOUGLASS: Well, of course, you never know
11 what the message -- how it will be received. But the
12 message would be that if it's passed by the public, that
13 the high priority of the public for the Legislature to
14 deal with and obtain are these purposes, and it's like
15 other provisions in the Constitution, it's there to state
16 the public policy.
17 And if the people of the state state this is their
18 public policy, every legislator, when he takes the oath of
19 office to uphold and defend the Constitution, has, in
20 effect, undertaken a contract to do his best to achieve
21 these purposes.
22 Now, I can't tell you how each one of them will
23 respond to individual matters because they have many other
24 things to consider as well. But I think it would elevate
25 education to the level where it should be in the
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1 Constitution and tell all of our people, including the
2 Legislature, that we want this to be done if it can
3 possibly be done by them and put this on the front burner
4 for action.
5 I know a lot of members of the Legislature. I do
6 know, including probably those serving on this body, would
7 feel very comfortable being armed with this to make their
8 arguments that they all support it, which is to do what
9 we're asking to be done here. And so I think from that
10 standpoint, this would be a very, very strong tool and
11 statement of public policy which would result in a more
12 responsive thing on the part of the Legislature, that's my
13 hope.
14 COMISSIONER THOMPSON: Commissioner Riley, for what
15 purpose?
16 COMMISSIONER RILEY: To speak in favor.
17 COMISSIONER THOMPSON: You're recognized.
18 COMMISSIONER RILEY: I strongly support the idea, the
19 concept, the words. In fact, I am very pleased to see the
20 word "high" reintroduced in front of the word "quality,"
21 which we eliminated at committee level because of what
22 outcomes that might have in the courts.
23 So if we have eliminated that outcome of the problem
24 with the courts, I'm very pleased with that and I support
25 this. My only question is, I'm uncomfortable with the
202
1 term "reasonable" in front of policies. As a landlord in
2 leases, I don't like the term "reasonable" at all. It
3 makes me very nervous because anybody can define it.
4 And I'm wondering if legally or legislatively there
5 is an intent in this that is clear because the point of
6 this, as I understand it, is to take a previous term of
7 "adequate" and define it. Are we then opening up
8 something else by putting in the term "reasonable"? So
9 perhaps that's a question to the maker of the amendment.
10 COMISSIONER THOMPSON: Further debate on the
11 amendment? Further debate on the amendment? Commissioner
12 Brochin, you're recognized to close on your amendment.
13 And in doing so, you might respond to the questions that
14 have been raised by Commissioner Riley.
15 COMMISSIONER BROCHIN: I, first of all, reject this
16 notion that this amendment of this proposal shifts
17 responsibility from the Legislature to the courts. Under
18 our system of government, all three branches have an
19 obligation to follow the dictates and the mandate of the
20 Constitution, whether you're in the legislative branch,
21 the judicial branch or the executive branch because the
22 Constitution is supposed to be the document for the people
23 and the policy set by the people of this state.
24 And what this proposal does is, it tell us all three
25 branches of government, not just the judicial and not just
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1 the legislative, but all three that this is the minimum
2 level of education that the people of this state demand
3 from its government. And if you're going to provide us
4 with an educational system, this is the sort of quality
5 and minimum level of education we have. And if the
6 legislative branch fails to do so, then the judicial
7 branch, as it's done in all so many other cases, will
8 enforce it until the Legislature complies. If the
9 Legislature does not meet -- it does meet the minimum
10 standards set out by this proposal, then the judiciary
11 will never get involved.
12 So I think it's a little convenient to suggest that
13 this is simply a shifting of responsibility from the
14 Legislature to the courts. I also find it a little bit
15 disturbing that the fear of litigation is a reason we will
16 not support this. We are talking about the education of
17 our children. And I do not want to go back and tell them
18 that the education of their children was not raised
19 because we feared extensive litigation.
20 In a constitutional sense, there are four categories
21 that Commissioner Mills referred to. We, the state of
22 Florida, is at the lowest level of those categories. I
23 happened to read every state Constitution and what it says
24 in the United States and each and every state about
25 education. And ours is willfully inadequate. In every
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1 state, almost universally, has stronger language about its
2 fundamental value of education. And as I read the staff
3 analysis, which I do disagree shifts the responsibility,
4 it points out all of the explicit fundamental rights in
5 this state.
6 You have a fundamental right to work, you have a
7 fundamental right to complain to your government. You
8 have a fundamental right to unreasonable search and
9 seizures. You have a fundamental right to not have
10 compulsory process unreasonably. You have a fundamental
11 right to bear arms. You have a fundamental right for
12 self-defense. You ought to have a fundamental right to
13 education.
14 Now, that's not what this says. But what this does
15 do is raise the bar constitutionally for our children.
16 And the Legislature will comply, and if they don't, the
17 judiciary will enforce it. And I think that's the purpose
18 of this amendment. And I think that's what the intent of
19 Commissioner Mills' proposal was.
20 COMISSIONER THOMPSON: Commissioner Brochin having
21 closed, the question recurs on the adoption of his
22 amendment. All those in favor of the amendment say aye.
23 Those opposed, say no.
24 (Verbal vote taken.)
25 COMISSIONER THOMPSON: The amendment is adopted. Now
205
1 we're on the bill. Any further amendments on the desk?
2 No further amendments on the desk. Is there further
3 debate? Do you have an amendment? You better get it on
4 the desk. Is it on the desk so she can read it? Let's
5 put it on the desk and let it be read.
6 Commissioner Douglass, for what purpose?
7 CHAIRMAN DOUGLASS: I think you can perceive of this
8 orally because what he is proposing, he just showed me, is
9 on Line -- 1, 2, 3 -- 4, to change the "highest possible"
10 to a "quality." And so it would read, "to achieve a
11 quality educational level" is what he's offering.
12 COMISSIONER THOMPSON: Okay. Why don't we at least
13 have it up here?
14 CHAIRMAN DOUGLASS: I think if he'd write it down,
15 we'd have it.
16 COMISSIONER THOMPSON: Okay. We don't have it on the
17 desk at this point. So we want to make sure everybody is
18 comfortable and knows what the amendment does. So what
19 we'll do now, we have in our possession, let's ask it to
20 be read, please. Okay. Now, let's pay attention. She's
21 going to read it.
22 READING CLERK: On Line 16 after the word "secured"
23 strike "and high quality." On Line 18, after the word
24 "achieve," add "a high quality."
25 COMISSIONER THOMPSON: Okay. Now we're on the
206
1 amendment as offered by Commissioner Zack. Commissioner
2 Zack, you're recognized.
3 COMMISSIONER ZACK: What that does is, you know, the
4 highest possible, does that mean that every student has to
5 go to Harvard, does it mean that every professor, teacher
6 in high school has to have a doctorate? This is a
7 language that is reasonable, that is subject to reasonable
8 interpretation and it states the purpose that we're all
9 trying to achieve here and a statement as to our desire
10 that the students have a high quality education in our
11 state.
12 But the highest possible terminology is one that is
13 not able to be achieved under any circumstances. And,
14 again, the fact that you litigate something doesn't mean
15 you shouldn't do it. But I think to provide additional
16 further grounds for litigation where we can avoid it makes
17 a lot of sense.
18 COMISSIONER THOMPSON: Commissioner Mills, for what
19 purpose?
20 COMMISSIONER MILLS: To ask a question.
21 COMISSIONER THOMPSON: Does the gentleman yield? He
22 yields.
23 COMMISSIONER MILLS: Now, as I understand it, the
24 only part you've changed is highest possible educational
25 level?
207
1 COMMISSIONER ZACK: And I struck, just for drafting
2 purposes, a couple of words above it so that it made
3 sense.
4 COMMISSIONER MILLS: Well, not exactly.
5 COMMISSIONER ZACK: If you read it, it will say
6 exactly that.
7 COMMISSIONER MILLS: Did you strike "high quality" on
8 Line 16?
9 COMMISSIONER ZACK: Yeah, because we put in "high
10 quality" below. It's redundant by having it in both
11 places.
12 COMMISSIONER MILLS: No, it's not. One is "high
13 quality" system and one is "high quality" --
14 COMMISSIONER ZACK: I have no objection to it if you
15 want to have them both. I thought that they were
16 redundant.
17 COMMISSIONER MILLS: I don't think they are.
18 COMISSIONER THOMPSON: Okay. What do you say --
19 COMMISSIONER ZACK: I'll change it to adopt your
20 language, I have no problem with that whatsoever.
21 COMISSIONER THOMPSON: Well, I tell you, I think
22 before the members out here vote on something, we ought to
23 have it as correct as we can get it, which, no more words
24 than we're dealing with here, it shouldn't take too long.
25 So if y'all got a deal, you better walk up here and start
208
1 doing that while I recognize somebody else or we're going
2 to move on.
3 Commissioner Douglass and then Commissioner Scott.
4 CHAIRMAN DOUGLASS: All I was going to say is that I
5 think that what this will do is improve what we did as
6 long as he leaves the first "high quality" in there which
7 he's now doing and changing the "highest possible" to a
8 "quality" would cut down on the probability of unending
9 litigation and he raised that point and he's correct.
10 It does mean in that sense reasonable and I think the
11 Legislature would be able to operate within this without
12 undo restrictions on their powers for which they are
13 elected which includes appropriating funds. I think this
14 would make it a better proposal and I would urge that we
15 go forward with it.
16 COMISSIONER THOMPSON: Commissioner Scott?
17 COMMISSIONER SCOTT: Mr. Chairman, commissioners, I
18 haven't said anything, it's getting better and better,
19 this proposal. I had some concerns originally about it.
20 Not only just from the litigation aspect, but mandating
21 the finances and all the arguments you've heard here. But
22 I am more concerned now that we're redrafting and here
23 it's 6:05, changing words and whatever. I mean, we're
24 going to be here tomorrow. I'm wondering if we couldn't
25 maybe get it in front of us and finish it up tomorrow
209
1 rather than trying to --
2 COMISSIONER THOMPSON: The clerk is insisting on
3 something that's absolutely reasonable and that is maybe
4 you-all would want to see a copy of it. Commissioner
5 Douglass?
6 CHAIRMAN DOUGLASS: I think that can be handled by
7 you voting with a majority and then making a motion to
8 reconsider if you don't like it.
9 COMISSIONER THOMPSON: Commissioner Zack?
10 COMMISSIONER ZACK: I think we have a consensus on
11 the wording. There's not many changes, we're just trying
12 to fine-tune it slightly. If there was any major change,
13 I would agree with putting it over to tomorrow. But I
14 think we can deal with this now. If anybody wants to wait
15 until tomorrow, I have no objection to that obviously.
16 COMISSIONER THOMPSON: Well, let me ask you this. Is
17 the version that you-all want us to vote on on the desk
18 now?
19 COMMISSIONER ZACK: I understand it's being copied
20 right now.
21 COMMISSIONER MILLS: Mr. Chairman?
22 COMISSIONER THOMPSON: Commissioner Mills.
23 COMMISSIONER MILLS: Let me just discuss it while
24 you're getting it on the desk. I mean, if people aren't
25 comfortable with it, we won't do it. I'm with
210
1 Commissioner Zack and Commissioner Douglass. But if you
2 have in front of you the version proposed by Brochin and
3 Douglass then I have probably talked long enough to get
4 this done.
5 The only change that Commissioner Zack has proposed,
6 which is a good change, says on Line 18, if you look at
7 Line 18 on your version, it says, Allowing students to
8 achieve a high quality, rather than the highest possible,
9 the opportunity to achieve, I'm sorry. Inserting the
10 opportunity to achieve a high quality educational level.
11 And Commissioner Zack makes a good point. Highest
12 possible, is -- who knows. So high quality is a
13 reasonable definition and it's a good suggestion and I
14 would certainly endorse it.
15 COMISSIONER THOMPSON: Okay. Technically, here's
16 where we are. We need Commissioner Zack to move, without
17 objection, to withdraw his previous amendment because it
18 was read into the record. Is there objection to that
19 motion? Hearing none, show that motion adopted.
20 Now Commissioner Zack is offering the amendment and
21 I'm going to ask her to read this one into the record and
22 that's what we'll be voting on. Okay. Read the
23 amendment, please.
24 READING CLERK: On Line 18, after the word
25 "students," insert "the opportunity." After the word
211
1 "achieved," strike the "highest possible" and insert "a
2 high quality."
3 COMISSIONER THOMPSON: Okay. Everybody have that
4 amendment in front of them now? Okay. Is there further
5 debate on the Zack amendment? Commissioner Zack to close.
6 COMMISSIONER ZACK: No further comments.
7 COMISSIONER THOMPSON: Okay. No further comments.
8 Then all those in favor of the Zack amendment say aye.
9 Those who oppose it say no.
10 (Verbal vote taken.)
11 COMISSIONER THOMPSON: Okay. That amendment is
12 adopted. Now we're on the proposal as amended. Are there
13 further amendments on the desk? None on the desk, okay.
14 Is there further debate on the proposal as amended?
15 Commissioner Mills, do you wish to close?
16 COMMISSIONER MILLS: No. I think the amendatory
17 process has worked very well and we achieved the purposes
18 and improved the quality of the bill. Thank you, Mr.
19 Chairman.
20 COMISSIONER THOMPSON: Commissioner Mills moves final
21 adoption of Proposal No. 157. The clerk will unlock the
22 machine and the members will proceed to vote.
23 Have all members voted? Have all members voted? The
24 clerk will lock the machine and announce the vote.
25 (Vote taken and recorded electronically.)
212
1 READING CLERK: 23 yeas, 1 nay, Mr. Chairman.
2 COMISSIONER THOMPSON: Okay. And so Proposal No. 157
3 is approved. Now Commissioner Barkdull is the next -- do
4 you want to take up -- oh, No. 64 was TP'd.
5 COMMISSIONER BARKDULL: No. 64 by Commissioner
6 Nabors -- he's got a motion I believe he wants to make in
7 reference to it.
8 COMMISSIONER THOMPSON: Commissioner Nabors, you're
9 recognized.
10 COMMISSIONER NABORS: Mr. Chairman, I would like,
11 after conferring with the rules chairman, TP this proposal
12 until such time as is placed on the calendar, proposals
13 dealing with the use of Lottery proceeds. The reason for
14 that is the first part of this proposal has been rendered
15 moot on the bonding because of the Preservation 2000.
16 There mainly was some language dealing with the funding of
17 schools which we may or may not need when we get to the
18 excess Lottery uses.
19 COMISSIONER THOMPSON: Okay. Without objection, show
20 that matter deferred on the motion of its proposer.
21 COMMISSIONER BARKDULL: Mr. Chairman?
22 COMISSIONER THOMPSON: Commissioner Barkdull.
23 COMMISSIONER BARKDULL: At the request of the
24 chairman of the finance and tax committee, I would like to
25 extend the time for them to consider the matters before
213
1 them until the conclusion of the next meeting of the
2 commission, the 27th through the 29th of January.
3 COMISSIONER THOMPSON: You heard the motion. Is
4 there objection? Hearing none, show it adopted.
5 COMMISSIONER BARKDULL: I wanted to alert all members
6 to be sure and save your orange and blue books that have
7 proposals in them because some of these that have been
8 temporarily passed are going to recur on the special order
9 throughout the balance of this week and you will need them
10 to look at.
11 Immediately following adjournment, the Rules
12 Committee is going to meet in Room 309 which is down one
13 floor and right behind where the chamber would be. Some
14 of you mentioned to me that you had items that you wanted
15 to withdraw. If you have not already done that, I would
16 suggest you do. Some others of you have suggested that
17 you wanted to make motions to reconsider. If you've not
18 already done that, I suggest you do it. Otherwise, I'm
19 prepared to make a motion to recess until tomorrow.
20 (Chairman Douglass resumes the Chair.)
21 CHAIRMAN DOUGLASS: First I want to recognize
22 Commissioner Scott. Commissioner Scott, you're
23 recognized.
24 COMMISSIONER SCOTT: I move to reconsider Proposal
25 123 that was adopted yesterday, relating to the Budget and
214
1 Tax Commission.
2 CHAIRMAN DOUGLASS: 123. That's the Tax and Budget
3 Commission proposal, Commissioner Scott?
4 COMMISSIONER SCOTT: Yes.
5 CHAIRMAN DOUGLASS: Okay. I presume you voted with
6 the majority.
7 COMMISSIONER BARKDULL: Everybody did.
8 COMMISSIONER SCOTT: Judge Barkdull voted against his
9 own proposal so I'm helping him out here. I voted on the
10 prevailing side, yes, sir.
11 CHAIRMAN DOUGLASS: All right. Commissioner Barkdull
12 do you have anything further -- oh, Commissioner
13 Evans-Jones, excuse me.
14 COMMISSIONER EVANS-JONES: I'd like to withdraw
15 Proposal 101 pertaining to cabinet reform and Proposal
16 113, duties of the lieutenant governor.
17 CHAIRMAN DOUGLASS: Without objection, they are
18 withdrawn.
19 CHAIRMAN DOUGLASS: Anybody else? Anything else,
20 Commissioner Barkdull?
21 COMMISSIONER BARKDULL: I move we recess until 8:30
22 tomorrow morning. We have a full morning session and
23 committee meetings tomorrow afternoon.
24 (Session adjourned at 6:15 p.m., to be continued on
25 January 14th, 1998.)
215
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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