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1 STATE OF FLORIDA
CONSTITUTION REVISION COMMISSION
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4 COMMISSION MEETING
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8 DATE: February 12, 1998
9 TIME: Commenced at 9:00 a.m.
Concluded at 1:00 p.m.
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PLACE: The Senate Chamber
11 The Capitol
Tallahassee, Florida
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REPORTED BY: KRISTEN L. BENTLEY
13 JULIE L. DOHERTY, RPR
MONA L. WHIDDON
14 Court Reporters
Division of Administrative Hearings
15 The DeSoto Building
1230 Apalachee Parkway
16 Tallahassee, Florida
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1 APPEARANCES
2 W. DEXTER DOUGLASS, CHAIRMAN
3 CARLOS ALFONSO (EXCUSED)
CLARENCE E. ANTHONY
4 ANTONIO L. ARGIZ (ABSENT)
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 (EXCUSED)
8 SENATOR ANDER CRENSHAW
VALERIE EVANS
9 MARILYN EVANS-JONES
BARBARA WILLIAMS FORD-COATES
10 ELLEN CATSMAN FREIDIN
PAUL HAWKES (ABSENT)
11 WILLIAM CLAY HENDERSON
THE HONORABLE TONI JENNINGS
12 THE HONORABLE GERALD KOGAN
DICK LANGLEY (ABSENT)
13 JOHN F. LOWNDES
STANLEY MARSHALL
14 JACINTA MATHIS
JON LESTER MILLS
15 FRANK MORSANI
ROBERT LOWRY NABORS
16 CARLOS PLANAS (EXCUSED)
JUDITH BYRNE RILEY
17 KATHERINE FERNANDEZ RUNDLE
SENATOR JIM SCOTT
18 H. T. SMITH
ALAN C. SUNDBERG
19 JAMES HAROLD THOMPSON
PAUL WEST (EXCUSED)
20 JUDGE GERALD T. WETHERINGTON (ABSENT)
STEPHEN NEAL ZACK
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IRA H. LEESFIELD (ABSENT)
22 LYRA BLIZZARD LOGAN (ABSENT)
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1 PROCEEDINGS
2 (Quorum taken and recorded electronically.)
3 SECRETARY BLANTON: Quorum call, quorum call. All
4 commissioners indicate your presence. All unauthorized
5 visitors please leave the chamber. Quorum present,
6 Mr. Chairman.
7 CHAIRMAN DOUGLASS: All right. If everybody will
8 take your seats, we'll have the morning prayer. Would you
9 please take your seats. All right. Would everybody
10 please rise for the morning prayer.
11 This morning we're happy to have again Reverend Emory
12 Hingst, pastor of St. Stephen's Lutheran Church in
13 Tallahassee. Reverend, if you can get them to move, you
14 can say our prayer.
15 REVEREND HINGST: Let us begin our prayer in silence,
16 perhaps taking a breath to consider who we are, for what
17 purpose we are here and to continue to let God's presence
18 be known.
19 Almighty yet loving Lord God, the beginning and end
20 of all that we are and all that we have you create,
21 preserve, forgive, replenish, renew and continue to create
22 as the love of the world. You give society the privilege
23 and responsibility to wisely use our resources, to be
24 responsible to structure our society in striving for
25 justice for all citizens particular in your revelation to
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1 the Judeo-Christian tradition, justice for those who are
2 the most vulnerable.
3 Thank you for this awesome freedom and
4 responsibility. In that light, we ask you to give these
5 commissioners the eyes to see your presence in the
6 citizens and the environment they serve. Give these
7 commissioners the ears to hear your voice in the voices of
8 the people and to see clearly the public they are asked to
9 support. Give them wisdom, knowledge, patience, kindness,
10 gentleness, humility in affirmations and negations and
11 deliberations.
12 And, lest we forget others, we ask for your peace and
13 health for all communities of our world. Hear our
14 petitions in your grace. Amen.
15 CHAIRMAN DOUGLASS: Commissioner Riley, would you
16 lead us in the pledge of allegiance to the flag?
17 (Pledge of Allegiance.)
18 CHAIRMAN DOUGLASS: All right. Order, please.
19 Commissioner Barkdull.
20 COMMISSIONER BARKDULL: Yes, sir, Mr. Chairman.
21 CHAIRMAN DOUGLASS: Just a moment. Okay. We're
22 starting off this morning like we did yesterday and we
23 couldn't get anything done. I would hope everybody could
24 sort of stay in their seats and resist too much talking
25 back and forth while people are on the floor today.
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1 And I want to congratulate you, Commissioner
2 Henderson. You were in your seat all day yesterday and
3 I'm proud of that.
4 COMMISSIONER HENDERSON: Mr. Chairman, do I need to
5 ask permission to go to the bathroom?
6 CHAIRMAN DOUGLASS: Just raise your hand.
7 (Laughter.)
8 CHAIRMAN DOUGLASS: Commissioner Barkdull will give
9 you permission. Commissioner Barkdull.
10 COMMISSIONER BARKDULL: Mr. Chairman, Members of the
11 Commission, you have a proposed special order calendar in
12 front of you today. There are a number of items on
13 reconsideration and then the special order starts with
14 Proposition No. 58, which I'm not sure is in the packet
15 but I believe is over at the desk and is going to be
16 distributed now. This is the one we had to withdraw from
17 Declaration of Rights yesterday and place on the calendar.
18 It concerns age in the nondiscriminatory section of the
19 Declaration of Rights.
20 One of the items on reconsideration is number six,
21 which was there -- I placed on reconsideration. I'd like
22 to withdraw that motion at this time with the concurrence
23 of the body.
24 CHAIRMAN DOUGLASS: All right. Without objection the
25 motion for reconsideration, that one, incidentally, is the
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1 Nabors' proposal on finance and taxation.
2 COMMISSIONER BARKDULL: That's correct, sales tax
3 sunset.
4 CHAIRMAN DOUGLASS: The sunset of the sales tax. And
5 you're moving to -- you're actually moving to withdraw
6 your motion to reconsider.
7 COMMISSIONER BARKDULL: Yes, sir.
8 CHAIRMAN DOUGLASS: Everybody understand? All those
9 in favor say aye; opposed?
10 (Verbal vote taken.)
11 CHAIRMAN DOUGLASS: Without objection it is --
12 COMMISSIONER BARKDULL: Now, Mr. Chairman, all the
13 remaining motions to reconsider that are on the first --
14 CHAIRMAN DOUGLASS: By unanimous consent it is
15 withdrawn. I'm reminded that that's what it takes to
16 withdraw a motion to reconsider.
17 COMMISSIONER BARKDULL: Now, Mr. Chairman, I move you
18 that we temporarily pass all the other motions for
19 reconsideration on the calendar. I see some of the
20 people's proposals that are involved are not here and some
21 of the makers of the motions to reconsider are not here
22 until later on in the day.
23 CHAIRMAN DOUGLASS: And some of those we may have to
24 carry over to the next meeting.
25 COMMISSIONER BARKDULL: The first item then would be
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1 No. 58 which should be being given out right now. And I
2 think Commissioner Anthony wants the floor.
3 CHAIRMAN DOUGLASS: This is the age matter. And I
4 would hope we could take up next, early or the first thing
5 the Article V cost report. That's the next item on the
6 calendar. Commissioner Smith.
7 COMMISSIONER SMITH: I'm just asking a question.
8 With regard to the motion made by Commissioner Barkdull to
9 temporarily pass all the items that are on
10 reconsideration, what does it take to pass that? Because
11 I --
12 CHAIRMAN DOUGLASS: Pass that motion, you want to
13 take them up?
14 COMMISSIONER SMITH: Not all of them up, but I
15 think -- Commissioner Barkdull moved to reconsider
16 Proposition 2 and the proponents, key proponents, Sundberg
17 and Smith, are here.
18 CHAIRMAN DOUGLASS: Well there are a lot of the
19 opponents that aren't here, which that may be why you want
20 to take it up.
21 (Laughter.)
22 COMMISSIONER SMITH: There is nothing like a good
23 clear answer. Thank you, very much.
24 CHAIRMAN DOUGLASS: I tell you, we're going to have
25 to quit acknowledging people aren't here, aren't we,
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1 Commissioner Smith, on both sides of the issues I guess.
2 We'll proceed with the age.
3 COMMISSIONER ANTHONY: Mr. Chairman.
4 CHAIRMAN DOUGLASS: Commissioner Anthony.
5 COMMISSIONER ANTHONY: Mr. Chairman, I'd like to make
6 a motion that we take up Proposals 59, 76 and 77 after the
7 Proposal 58 this morning.
8 CHAIRMAN DOUGLASS: All right. Commissioner
9 Barkdull.
10 COMMISSIONER BARKDULL: Those were the sovereign
11 immunity matters and it was my understanding that all the
12 parties involved are not in agreement yet.
13 COMMISSIONER ANTHONY: That's why we have debate on
14 the floor, Commissioner Barkdull, so we can come to
15 consensus on these matters. I think that yesterday we
16 started this discussion at around 11:30. Chairman
17 Douglass then came on the floor, started debate on this
18 issue at 11:45, went to 12:00, and then we came back after
19 lunch and did not continue the discussion on this matter.
20 I think I request a consideration of the Chair and
21 the membership of this commission, let's take up this
22 matter and I made this request in January. So I ask that
23 we take up this matter this morning so that we can have a
24 discussion that the people want on sovereign immunity.
25 CHAIRMAN DOUGLASS: Commissioner Connor.
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1 COMMISSIONER CONNOR: Mr. Chairman, respectfully, and
2 appreciative of Commissioner Anthony's concerns, and I'm
3 not sure what the appropriate order is, I would, in
4 arguing against that, would simply request that we be
5 permitted to temporarily pass those proposals for this
6 reason: As you know, the select committee on sovereign
7 immunity was a creature that came rather late in the game.
8 We had three proposals that came before us and then
9 literally at the 11th hour we had a new, unique proposal
10 which was altogether different from the proposals that
11 were put on the table that came to us.
12 And much of the time yesterday was spent on the floor
13 in an attempt to scurry around and draft something and
14 satisfy different people's considerations and concerns.
15 And I am one of those, frankly, who have grave concerns
16 about that. Both from a philosophical standpoint and from
17 a public policy standpoint.
18 My sense is, however, from talking with various
19 partisans who are involved in this, that they would like
20 additional time, particularly in light of the new proposal
21 that came to the floor late in the game, to have an
22 additional opportunity to continue to try to refine that
23 language. We met as late as yesterday at lunch with our
24 committee and heard from different people about these
25 matters.
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1 And I frankly think the quality of the product, and
2 as a consequence the quality of the debate would likely be
3 enhanced if additional opportunity were given to have
4 input on the various proposals. And our committee either
5 could meet further or perhaps the various folks that are
6 involved could meet further, but I think we might have the
7 product enhanced so that our debate would sharpen when
8 those matters came up.
9 CHAIRMAN DOUGLASS: Commissioner Connor, I think
10 Commissioner Langley had spoken and he wanted to be on
11 that, I think he was working with the group on that.
12 COMMISSIONER CONNOR: He met with our committee
13 yesterday, he did indeed.
14 CHAIRMAN DOUGLASS: And that I think is one reason I
15 feel that we ought to TP it until you have an opportunity
16 in the committee to come up with something. I don't think
17 you have come up with anything.
18 COMMISSIONER ANTHONY: Mr. Chairman.
19 CHAIRMAN DOUGLASS: Commissioner Scott.
20 COMMISSIONER SCOTT: Mr. Chairman, he has a motion on
21 the floor which is a majority vote, simple majority vote,
22 to amend the special order calendar. I don't even know
23 what's going on with this issue or which way I would vote
24 on it.
25 But I want to start expressing right now a concern
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1 that this is an issue of major import, a higher level,
2 obviously, than probably some percentage -- I don't want
3 to be mean about it, 70 percent of the stuff we've been
4 debating in here -- and I think that if Commissioner
5 Anthony wants to have this advanced that we ought to do
6 it.
7 I want to express the concern that we've got to get
8 finished here, you know. And we've now got one more week,
9 there's going to be discussions from the leadership and
10 Style and Drafting and Rules about that, but, I mean, one
11 more week in February. I think we ought to do it and I'm
12 in favor of his motion.
13 CHAIRMAN DOUGLASS: If you want to be heard on the
14 motion, I don't believe it's a motion to amend, is it,
15 Commissioner Barkdull?
16 COMMISSIONER BARKDULL: I took it as a motion to
17 amend the calendar to place this on after the
18 consideration --
19 CHAIRMAN DOUGLASS: That's what I mean. It was a
20 motion to amend, not a motion --
21 COMMISSIONER CONNOR: Then, Mr. Chairman, my position
22 simply is in opposition to the motion only because, as I
23 understand it, deferring this would not be the
24 precipitating cause of our coming back. My understanding
25 is we're coming back in any event.
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1 And that because of the very thing that Commissioner
2 Scott has pointed out, that this is a matter of
3 extraordinary importance, I think, and would have
4 significant and far-reaching implications. My own
5 estimation is, particularly in light of the Senate
6 President's comments yesterday and the struggle the
7 Legislature has had, that we would do well to refine our
8 thinking and sharpen the issues more carefully before
9 putting it to the body.
10 And I say that, frankly, without having a commitment
11 either way on these issues. I have a lot of sympathy, I
12 know and you can talk with folks who have been in the
13 committee, I have a lot of sympathy for the concerns that
14 Commissioner Anthony has raised. My desire simply is to
15 afford us the best opportunity to produce the best product
16 that will result in the most clear and careful
17 consideration.
18 CHAIRMAN DOUGLASS: So you oppose the motion to
19 amend?
20 COMMISSIONER CONNOR: Yes.
21 CHAIRMAN DOUGLASS: Commissioner Ford-Coates.
22 COMMISSIONER FORD-COATES: It seems to me that I
23 think Commissioner Anthony has expressed quite clearly
24 that this is an issue of prime importance to him. And the
25 fact that he happens to be getting married this week is
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1 going to interfere with the minor detail of, you know, his
2 honeymoon is coming up and he's not going to be here the
3 week that this is discussed.
4 I would suggest that we go ahead and debate some of
5 the pros and cons and problems of the issue, finish our
6 debate and then perhaps entertain a motion to temporarily
7 pass it. If we don't want to have the final vote, I think
8 we should at least be allowed to sufficiently hear
9 Commissioner Anthony's information on the process and
10 other issues. And I support his motion.
11 CHAIRMAN DOUGLASS: I'm looking for some compromise
12 that might accommodate. Would it be appropriate to go
13 ahead with the special order as set and then have
14 Commissioner Anthony make his debate on, actually on
15 something that's not really before us and probably won't
16 be until the next meeting, as Commissioner Connor pointed
17 out.
18 I have no objection to that. And I'm sure most
19 others don't have any objection to him making his debate.
20 On the other hand, I don't think we can control the
21 special order based on that altogether. We do accommodate
22 all the time but not for the next meeting. It's going to
23 be the most important meeting we have. And it's very
24 essential that everybody be here and at that point I feel
25 sure that everybody will be here that can.
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1 And I don't have -- as an accommodation I don't have
2 any problem with Commissioner Anthony making his remarks.
3 They are generally addressed to the subject I think.
4 COMMISSIONER ANTHONY: Mr. Chairman, thank you very
5 much for that consideration, but I'm not requesting that
6 consideration. I'm requesting that we move the items and
7 that I be given a chance to have some input on the
8 proposals that are before us and that would be in order
9 once we approve, hopefully we approve this motion.
10 Mr. Chairman, I am not one that misses meetings and I
11 have been here during the process and having input on
12 proposals throughout this process. If we're going to hold
13 up this item because of Commissioner Langley not being
14 here, I ask you to compare my voting record and
15 attendance. And I would beg to say that my attendance
16 here at these meetings has been more than 80 percent at
17 these meetings.
18 And all I'm doing is requesting, as I requested of
19 you, that we put this item up to when I am here, because I
20 have been waiting to provide input to the members of this
21 commission on this item. And that's the consideration
22 that I'm asking of the commission, that you give me this
23 opportunity and give Commissioner Zack this opportunity,
24 and Freidin, who have proposals on this issue to have an
25 opportunity to talk to you about the pros and cons.
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1 Whichever way you will fall on this item, it's just
2 the pros and cons that I'd like you to be able to hear
3 from me while I'm here. And I ask your consideration.
4 CHAIRMAN DOUGLASS: Anybody else want to be heard on
5 the motion? All in favor of the motion, say aye; opposed?
6 (Verbal vote taken.)
7 CHAIRMAN DOUGLASS: All right. The motion carries.
8 Where does that leave us, Commissioner Barkdull?
9 COMMISSIONER BARKDULL: Proposition 58, and then we
10 go to Article V costs and then we go to the sovereign
11 immunity three that Commissioner Anthony had in his
12 motion.
13 CHAIRMAN DOUGLASS: Is that agreeable to you now,
14 Commissioner Anthony? We'll be going to it third on the
15 order. That will be this morning.
16 Fifty-eight, read 58.
17 COMMISSIONER BARKDULL: Mr. Chairman, I may have
18 misstated. He asked that it be taken up after 58 and
19 ahead of the Article V costs.
20 CHAIRMAN DOUGLASS: All right. It will be taken up
21 after 58. Fifty-eight. We called 58 yesterday, I think.
22 Read the Proposal 58 by Commissioner Zack.
23 READING CLERK: Proposal 58, a proposal to revise
24 Article I, Section 2, Florida Constitution; providing that
25 a person may not be deprived of any right because of age.
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1 CHAIRMAN DOUGLASS: Commissioner Zack, you're
2 recognized on the proposal.
3 COMMISSIONER ZACK: We've withdrawn that and
4 submitted a substitute that should be before the body at
5 this time.
6 CHAIRMAN DOUGLASS: All right. Is the substitute --
7 COMMISSIONER ZACK: It's an amendment.
8 CHAIRMAN DOUGLASS: It's an amendment?
9 COMMISSIONER ZACK: Yes.
10 CHAIRMAN DOUGLASS: Is the amendment on the table?
11 COMMISSIONER ZACK: Yes, it is.
12 CHAIRMAN DOUGLASS: Would you read the amendment?
13 READING CLERK: By Commissioner Zack, delete
14 everything after the proposing clause and insert
15 Section 1, Section 21 of Article I, of the Florida
16 Constitution is revised by amending the section to read,
17 Article I, Declaration of Rights; to access courts, the
18 courts shall be open to every person for redress of any
19 injury and injustice -- excuse me, and justice shall be
20 administered without sale, denial or delay.
21 CHAIRMAN DOUGLASS: Commissioner Zack on the
22 amendment which is really sort of a substitute; isn't it?
23 COMMISSIONER ZACK: Yes, it is.
24 CHAIRMAN DOUGLASS: Would you explain what you are
25 now asking us to do on this amendment?
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1 COMMISSIONER ZACK: First let me explain the reason
2 for the amendment. The concern that was expressed in
3 committee, the Declaration of Rights Committee, about just
4 adding age to Section 2 was that we really weren't sure
5 where that would lead us.
6 There were a number of concerns vis-a-vis adding
7 rights to minors. In fact, you could argue that anybody
8 at any age could drive, anybody at any age could do many
9 things, drink, et cetera, that presently they are not
10 allowed to do. Also, there are concerns about, on the
11 other end of the spectrum, on the long in the tooth, where
12 I'm on that side of that spectrum, about the mandatory
13 retirement ages and things of that nature.
14 So the reason for the original proposal and for the
15 amendment, and the amendment actually has a laser effect
16 of curing a problem as opposed to a more broad-based,
17 uncertain effect. And the problem was one that was
18 addressed to us at every single meeting that we had around
19 the state. And I'm proud to say that I attended every
20 single one of those meetings.
21 And there wasn't any issue that was more debated,
22 more passionately debated, than the rights of people over
23 25 years of age to receive remuneration in the event of
24 the wrongful death or injury to their parents.
25 And we've heard, and I'm not going to take the time
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1 of this body which has a very full agenda today, to
2 reiterate each of the horror stories, and that's the only
3 way to describe them, as horror stories, that we heard at
4 those public hearings.
5 I was thinking last night that -- when I was thinking
6 about this matter coming up first thing this morning, I
7 happen to have a 25-year-old son and a 23-year-old
8 daughter. I happen to think they love me both equally, I
9 hope they do at least. They were raised in the same
10 household with the same affection. And if this afternoon
11 I'm walking across the street and I'm hit and killed by a
12 bus with a -- a bus with an intoxicated driver and, a
13 private bus most certainly, and tomorrow they find out
14 that I had died, that each of them would have the same
15 pain and each of them would have the same loss.
16 And there is no intellectual justification that can
17 be expressed, I believe, in this chamber. And there are
18 very few things where we cannot honestly disagree and we
19 have honestly disagreed on many, many of those. But on
20 this issue, frankly, there is no intellectual or logical
21 reason that my daughter should recover and my son
22 shouldn't. And I ask you to support this motion.
23 CHAIRMAN DOUGLASS: Commissioner Connor.
24 COMMISSIONER CONNOR: Mr. Chairman, I rise to speak
25 in favor of the proposed amendment. And I'm very
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1 appreciative of Commissioner Zack and others for being
2 sensitive to the concerns that I had raised about
3 potential unintended consequences. And I agree with
4 Commissioner Zack that this is a very targeted, laser-type
5 way to address the concern.
6 I do think it's appropriate to be in the Constitution
7 because we're talking about either the denial or
8 impairment of people's rights. And I believe it to be the
9 role of the Constitution to protect the rights of the
10 people. I would make this observation with respect to age
11 23 versus 25 or older. That this proposal would not in
12 any way impair the ability of the jury to determine the
13 amounts to be awarded a decedent's survivor based on their
14 age. In other words, a 45-year-old child, the jury, with
15 respect to the amount of the recovery, could take into
16 account the facts at issue and make rationally-based
17 distinctions on how much should be recovered.
18 What this does is simply to say that the right to
19 make a recovery can't be denied or abridged in any way.
20 So the jury still has the opportunity to take into account
21 those kinds of factors that would be appropriate in
22 assessing the amount that ought to be awarded. And I dare
23 say, I dare say, that a jury could well find that a
24 30-year-old child and a 3-year-old child ought to be and
25 should be treated differently with respect to the loss of
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1 a parent, for example.
2 So I encourage your favorable consideration. I think
3 it's properly within our purview. I think it does not
4 open the door to the unintended consequences that I was
5 concerned about, and I think it does remedy a gross
6 injustice that is present in the law.
7 CHAIRMAN DOUGLASS: Commissioner Smith?
8 COMMISSIONER SMITH: Thank you, Mr. Chairman. As the
9 Chair of the Declaration of Rights Committee, I rise just
10 for a brief point of information.
11 As was said, this matter was withdrawn from the
12 Declaration of Rights Committee. I would ask that none of
13 you take any adverse inference from that. Basically there
14 was a miscommunication as to what the status of this
15 proposal was, as to whether it was withdrawn, whether it
16 was going to go in Article I, Section 2, Article I,
17 Section 21.
18 And once we found out that it fell through the cracks
19 and the Declaration of Rights Committee had closed shop
20 and was not taking up any other proposals, and since it's
21 so laser-like and so specific and deals with one specific
22 issue, we felt it was appropriate, especially with time
23 running out, to bring it to the body, debate it, hopefully
24 a very, very small period of time, and vote it up or down.
25 Thank you.
21
1 CHAIRMAN DOUGLASS: Commissioner Freidin? Did you
2 rise for a question?
3 COMMISSIONER BARKDULL: I was going to ask
4 Commissioner Zack to take the floor, but I'll yield to
5 Commissioner Freidin.
6 COMMISSIONER FREIDIN: I also rise to speak in favor
7 of this, in fact, because I was very impressed, sadly
8 impressed, with the testimony that we heard at our public
9 hearings uniformly.
10 I only wanted to raise one additional point and it
11 will be very brief and that is that this will also apply
12 in cases where parents lose children. Because if a parent
13 loses a child over 25, this will apply. You know, you
14 could have a child who just, unfortunately, is killed on
15 their 25th birthday and that would presently defeat the
16 right, there would be no right to recover. So I just
17 wanted to make that clarification.
18 CHAIRMAN DOUGLASS: All right. Commissioner
19 Evans-Jones.
20 COMMISSIONER EVANS-JONES: I have a question please
21 of Commissioner Zack. Commissioner Zack, does this simply
22 apply to the wrongful act or does it apply to everything
23 like Supreme Court judges? Do they now have to retire at
24 a certain age?
25 COMMISSIONER ZACK: The reason has nothing to do with
22
1 retirement whatsoever.
2 COMMISSIONER EVANS-JONES: That's what I wanted to
3 clarify.
4 CHAIRMAN DOUGLASS: The substance of your amendment
5 is that you have moved it over to the access to the courts
6 section.
7 COMMISSIONER ZACK: That's right. It's now in
8 Section 21.
9 CHAIRMAN DOUGLASS: Correct. Commissioner Barkdull.
10 COMMISSIONER BARKDULL: Commissioner Zack, at the
11 present time the 25 and the wrongful death cause of action
12 is a creature of the Legislature; isn't it?
13 COMMISSIONER ZACK: That is correct.
14 COMMISSIONER BARKDULL: The whole wrongful death
15 action is a creature of the Legislature.
16 COMMISSIONER ZACK: That's also correct.
17 COMMISSIONER BARKDULL: So you're moving a cause of
18 action into the Constitution.
19 COMMISSIONER ZACK: That is one of the ways of
20 looking at it. I don't look at it quite that way. I look
21 at it as not a cause of action but providing the same
22 rights for, as I said, my son and daughter.
23 COMMISSIONER BARKDULL: I understand, but if the
24 Legislature had made the age 21 then there wouldn't be any
25 difference.
23
1 COMMISSIONER ZACK: I still would put it in the
2 Constitution because the Legislature can change their mind
3 tomorrow.
4 COMMISSIONER BARKDULL: I understand that. But what
5 I'm trying to get to is this is a right that was created
6 by statute. And now we want to enlarge -- we want to set
7 it in concrete for 20 years in the Constitution.
8 COMMISSIONER ZACK: I want to set it for longer than
9 20 years. I don't believe there is any reason to
10 differentiate between somebody 25 and 24.
11 COMMISSIONER BARKDULL: Twenty-five and 24 is a
12 statutory number that was put in there. They can change
13 it to 21, they can change it to 30 or they can change it
14 to 50.
15 COMMISSIONER ZACK: Not once it's in the
16 Constitution.
17 COMMISSIONER BARKDULL: I understand what you are
18 trying to do, but you're really trying to take what's a
19 statutory cause of action and put it in the Constitution.
20 COMMISSIONER ZACK: I don't agree with that
21 characterization of it.
22 COMMISSIONER BARKDULL: Well the cause of action is
23 created by statute; isn't it?
24 COMMISSIONER ZACK: We have already said so.
25 CHAIRMAN DOUGLASS: Commissioner Zack, to clear up
24
1 the confusion, you're saying the Legislature could repeal
2 the whole thing because you say in any action for personal
3 injury or wrongful death if they repeal the entire
4 wrongful death statute then --
5 COMMISSIONER ZACK: Of course if it applies to
6 everybody and all the citizens in the state of Florida,
7 they can take away every right. They can take it away for
8 everybody. I don't think the citizens of the state of
9 Florida will allow that to occur.
10 CHAIRMAN DOUGLASS: My point is you're not trying to
11 write the statute, you're just saying if there is one that
12 you're not going to discriminate on age.
13 COMMISSIONER ZACK: I agree, Mr. Chairman.
14 CHAIRMAN DOUGLASS: Commissioner Riley.
15 COMMISSIONER RILEY: I have a question for
16 Commissioner Zack and a comment on Commissioner Barkdull's
17 comment that this is a right in statute.
18 I would say it's a wrong in statute that's trying to
19 be righted by this. So getting back then to that and
20 reading the first part of Section 21, as it is currently
21 in the Constitution, how then could statute put into --
22 how could the Legislature put into statute something that
23 limits redress based upon age, as it has, given the first
24 sentence as I read it?
25 Do you understand my question? I mean, how is
25
1 that -- how is that correct what the Legislature did, the
2 limits because of age that they put on --
3 COMMISSIONER ZACK: Section 21 has been reviewed many
4 times by the courts and it happens to be one of the most
5 fundamental rights, as I look at it, that we have in our
6 Declaration of Rights. But it has been determined
7 previously that what the Legislature did in this regard,
8 as I understand it, is constitutional. And unless we make
9 this change, it will not occur otherwise.
10 COMMISSIONER RILEY: I guess that's my question.
11 What it says is that the court shall be open to every
12 person for redress of any injury. It doesn't say anything
13 about the age of 25. So how can that be right if it's
14 already in here? Maybe I should be asking Commissioner
15 Kogan this.
16 COMMISSIONER ZACK: I always will defer to our Chief
17 Justice in responding to any legal question, if he wants
18 to.
19 CHAIRMAN DOUGLASS: It's a simple answer. The court
20 held it was constitutional for the Legislature to create
21 the cause of action in any manner they saw fit. And they
22 didn't take the issue to deny equal access to the courts.
23 So what he's trying to do is put it in the Constitution as
24 if you have it, then the court has to recognize this. I
25 think that's what he's doing.
26
1 COMMISSIONER ZACK: That is correct.
2 CHAIRMAN DOUGLASS: Commissioner Thompson.
3 COMISSIONER THOMPSON: I just wanted to ask a
4 question or two seriously for information that might help
5 us all. And I'm sincere in asking these. I'm going to
6 vote against this, but I'm not asking these to be
7 unfriendly. I just want to try to understand it.
8 The way I understand it, this whole cause of action
9 for wrongful death for people who are not dependent on
10 someone had to be created by the Legislature because it
11 was not a common law right nor is it a right under our
12 Constitution, obviously; is that correct?
13 COMMISSIONER ZACK: You know, I cannot tell you for
14 sure. It sounds basically -- I don't know if it was a
15 common law right or not. And I have not reviewed it from
16 that point. And Mr. Connor may be aware.
17 COMMISSIONER CONNOR: There was no common law right
18 to wrongful death. Wrongful death actions were purely
19 creatures of statute.
20 COMMISSIONER ZACK: The wrongful death statute
21 itself?
22 COMISSIONER THOMPSON: Pardon me?
23 COMMISSIONER ZACK: Are you referring to the wrongful
24 death statute itself?
25 COMISSIONER THOMPSON: Yeah, that's what you're
27
1 addressing this to, aren't you?
2 COMMISSIONER ZACK: Well, you know, going back to I
3 guess Torts 101, my professor used to talk about how the
4 acts on the train that we have today goes back to England
5 many, many years ago. That as long as the person died in
6 an accident, there was no problem, but if they became
7 injured or maimed, there was. So they just made sure that
8 nobody survived those accidents. This is a legislative
9 way of making sure nobody survives those accidents.
10 COMISSIONER THOMPSON: Well I guess what you're
11 saying is Commissioner Connor is right, that it's a
12 creature of the Legislature, the wrongful death act.
13 COMMISSIONER ZACK: It is. I didn't understand that
14 that was your question, that you were limiting it to
15 wrongful death.
16 COMISSIONER THOMPSON: And the logic for sometimes
17 children in particular and other people who are not
18 dependent on the person who has died for support is really
19 the crux of the problem you're trying to address here.
20 COMMISSIONER ZACK: That is, correct. It's the
21 emotional loss, the pain and suffering that exists.
22 And again, I thought the interesting statement by
23 Commissioner Connor about a birthday, actually my son
24 turned 25 about a week ago. So one week before he had all
25 those rights. It just doesn't make any sense to take that
28
1 away based on one week.
2 CHAIRMAN DOUGLASS: Commissioner Morsani.
3 COMMISSIONER MORSANI: Before I can vote I have to
4 ask my colleague and expert and advisor, Commissioner
5 Thompson.
6 CHAIRMAN DOUGLASS: His fees are very large in this
7 area. I understand he's working very hard in this area.
8 (Laughter.)
9 COMMISSIONER MORSANI: He has told me not to vote
10 until I talk to him, so here I am.
11 Tell me why -- I heard this and I don't know -- why
12 did the Legislature address this and why is it a
13 legislative statute? What is the reasons for the
14 Legislature taking this action and if -- and why didn't
15 they undo this action if it's not just?
16 COMISSIONER THOMPSON: I don't know a full answer to
17 that, just like I don't guess any of us know a full answer
18 to anything. Let me give you my best shot and I'm
19 certainly subject to being corrected and augmented by
20 others that are more informed than I am.
21 But as Commissioner Connor said, the right to a
22 wrongful death action was not something that people had at
23 common law. And particularly some of the elements of
24 that, if you weren't dependent on somebody, then you
25 couldn't get money that you weren't going to get if they
29
1 were alive. And so the other thing you couldn't get is
2 being compensated in some way for the speculative damages
3 of how you felt about it, which is pain and suffering.
4 So the Legislature over a period of time did go ahead
5 and enact a wrongful death statute that allows, in certain
6 circumstances, people who are not dependent, and
7 otherwise, to collect through a wrongful death action.
8 They made certain exceptions for age and so forth. In
9 other words, if you were 50 years old and your parent was
10 70 years old and you weren't dependent, they might have
11 been dependent on you at that stage in your life, then
12 they made certain exceptions. And I'm not at all positive
13 what the exceptions are today.
14 But all legislation, as we all realize, is a product
15 of compromise, just about what we're doing here. He filed
16 this proposal in one form, got concerned about the
17 far-reaching impacts of that, and decided to change his
18 form until he got something that he thought would be
19 palatable to us. And that's certainly the way the
20 legislative process works.
21 This is a rifle shot, as he says, at trying to get to
22 a specific statute that the Legislature, as Commissioner
23 Barkdull has pointed out, can change up and down and in
24 and out and in fact was not a common law right. So the
25 Legislature has exercised its discretion in that area. We
30
1 certainly have a right to exercise our discretion in that
2 area also if we think that's right and we think we
3 understand the implications of this.
4 CHAIRMAN DOUGLASS: Commissioner Connor.
5 COMMISSIONER CONNOR: Mr. Chairman, I'd like, if I
6 might, to respond further to that question.
7 Commissioner Morsani, I think Commissioner Scott can
8 attest to this, that the very issue that came to us in the
9 context of medical malpractice cases and people who are
10 over age 25 couldn't make a recovery for mental pain and
11 suffering and the like, really came as a result of a
12 compromise that was reached in large measure, as I
13 understand it, probably between Senator Scott and Senator
14 Myers.
15 Senator Myers being a physician and the FMA being a
16 very powerful and influential lobby within the
17 Legislature, they had enough clout to get it through,
18 plain and simple.
19 Now what is typically recoverable on behalf of a
20 child under the wrongful death act is the following:
21 First of all, loss of support and services. Those are the
22 economic losses. Then in addition to that, a child may
23 recover for mental anguish associated with a parent's
24 loss, together with what's called the loss of parental
25 guidance, companionship and instruction.
31
1 And what this amendment to the Constitution will do,
2 would say that when the Legislature recognizes within its
3 inherent authority that certain elements of damages are to
4 be recoverable, the Legislature may not restrict the
5 elements of damage differently based on age. But take
6 into account, if you will, sir, that the jury may take
7 into account the distinctions of age in arriving at its
8 award.
9 For example, one would scarcely expect that a
10 26-year-old child who is out of the home, who has a job
11 and is not dependent at all upon their parent for support
12 whom they lost in the accident would be awarded by the
13 jury consideration for loss of support and services. But
14 they could recover for mental pain and suffering, which
15 they cannot now do, in proportion to what the jury felt
16 was factually justified.
17 So what this does, it retains to the jury the ability
18 to make distinctions based on the evidence. But it just
19 simply says in terms of a right itself, the Legislature
20 may not discriminate on the basis of age. I have, in my
21 experience, I have tremendous confidence in juries and
22 know that juries are very capable of making those kinds of
23 rationally-based distinctions based on the law that the
24 court instructs them to take into account and based on the
25 evidence that's before it.
32
1 But this does, in effect, level the playing field in
2 a very real sense. And rather than eliminating rights,
3 which the Legislature historically has had the power to
4 do, based on special interest legislation or whatever, it
5 just says, hey, we're not going to allow discrimination on
6 the basis of age, but the jury clearly can make
7 distinctions on the basis of age based on the evidence
8 before it.
9 CHAIRMAN DOUGLASS: Commissioner Smith.
10 COMMISSIONER SMITH: Thank you, Mr. Chairman. I have
11 a very brief example of a real-life situation I just
12 handled, Commissioner Morsani, that might amplify just how
13 you know justice is. And although Commissioner Barkdull
14 is right, that the Legislature does -- this is a creature
15 of statute, one, and two, they have the right to determine
16 whether it should be 21 years of age, 25. Wherever you
17 stop, somebody is going to say it's arbitrary. If they
18 set it at 29 and you are 30, they are going to think it's
19 arbitrary.
20 I just handled a case where my 27-year-old male
21 client was waiting for his mother and father at the altar
22 to get married. His mother and father were killed on the
23 way to the wedding of their 27-year-old son. It was so
24 devastating; the only thing in the car recognizable was
25 the wedding present, and it didn't have a scratch on it.
33
1 Nothing else you could identify as a particular item,
2 ashtray, you couldn't tell that it was.
3 Twenty-seven was able to recover for what
4 Commissioner Thompson described as speculative damages,
5 but what I would describe as the pain and suffering of
6 losing both of his parents as he stood at the altar
7 waiting for them so that the wedding could start and all
8 of the other loss that comes with losing a parent.
9 Now, if they had been killed as a result of wrongful
10 death, he gets nothing. What this is trying to do is say
11 to the Legislature, Yes, you have the authority because it
12 is a creature of statute to set the guidelines with regard
13 to this. But whatever it is, we are not going to
14 discriminate against age. We are not going to allow you
15 to discriminate against age. So, that's the purpose we
16 are trying to -- what we talked about yesterday in
17 leveling the playing field, the issue of ports or
18 seaports, owned by a city or county, just level the
19 playing field. That's what we are trying to do here.
20 I hope that example showed you why people out in the
21 community wherever we went were so passionate about this
22 because it's inherently unfair. I understand the purist
23 standpoint that certain things should be left to the
24 Legislature, but the only way that we can make these
25 things fair, in my judgment, to right a wrong is to enact
34
1 this constitutional provision. Thank you.
2 CHAIRMAN DOUGLASS: Commissioner Sundberg.
3 COMMISSIONER SUNDBERG: Commissioner Zack for a
4 question, please.
5 CHAIRMAN DOUGLASS: He yields.
6 COMMISSIONER SUNDBERG: Commissioner Zack, is it your
7 considered legal opinion and the intent of this proposal
8 that it would not deprive the Legislature from, in its
9 next sessions coming up, eliminating actions for wrongful
10 death or survival all together, is that correct?
11 COMMISSIONER ZACK: I've already indicated that, as
12 long as they do it uniformly and it applies to everyone in
13 the State of Florida, they can do what they choose to do.
14 COMMISSIONER SUNDBERG: And this measure simply says,
15 If there's to be a cause of action for wrongful death or
16 other action of personal injury, that the Legislature
17 would be limited in its ability to build-in any sort of
18 convictions that relate to age that discriminate against
19 anyone on the basis of age; Is that accurate?
20 COMMISSIONER ZACK: That is absolutely accurate.
21 COMMISSIONER SUNDBERG: Thank you.
22 CHAIRMAN DOUGLASS: Commissioner Scott.
23 COMMISSIONER SCOTT: Mr. Chairman, Commissioners, I
24 was in the forefront of passing this wrongful death
25 statute in the year after Dempsey Barron left the
35
1 Legislature. I never succeeded before that. But I have
2 advocated this issue in the Legislature. Having said
3 that, however, I do not think that we should put this in
4 the Constitution. It is another example of something
5 where there may be, not that there should be, but there
6 may be at least an argument someone could make at a
7 certain age that, you know, that this right terminates.
8 It is true that the Legislature could do, could do --
9 repeal it uniformly and so forth. But to go in and pick
10 one phase of it, I don't think, is something that we
11 should do here.
12 Now, I had -- last session, as recently as last
13 session, I mean, I spoke extensively on this, and
14 committee, about the medical malpractice issue, why should
15 there be a difference between what could be recovered and
16 whatever by an adult child regarding a medical malpractice
17 action. But I'm not positive, but I'm probably going to
18 vote against this because I think it should be left to the
19 Legislature, like every other right, including the basic
20 right of even having a wrongful death action.
21 (Commissioner Jennings assumes the Chair.)
22 COMMISSIONER JENNINGS: Further, Chairman Douglass.
23 CHAIRMAN DOUGLASS: I just wanted to add this. It
24 will be very short. Those of you that were at our public
25 hearings, this has been mentioned, but this is an issue of
36
1 fairness, that's all it is. And it's proper that
2 discrimination be rooted out everywhere that it exists.
3 It's proper that it be in the Constitution when this has
4 occurred over a period of time. It didn't used to be this
5 way. What happened was, we got an older population, and
6 when I get killed, it was the will of those who influenced
7 legislation to reduce it so that my children couldn't
8 recover from my death.
9 That's not only true, it could be the Nursing Home
10 Relief Act, it could be any number of things that you
11 could call it. And we have heard that, and we heard the
12 great impact that it made on these people, that they were
13 denied access to the courts. And that's what this has
14 done, Commissioner Zack's amendment has done, it has
15 guaranteed access to the courts if there's a wrongful
16 death action.
17 Now, the powerful interests in this state that don't
18 want people to recover for the wrongful death at all
19 cannot repeal this statute, but they were successful in
20 getting this wonderful compromise, and they have kept it
21 for years, and they kept people like those we heard at our
22 public hearings.
23 Now, if you are for fairness and if you are for equal
24 access to the court by everyone in the state, then you
25 should support this because it doesn't -- to those of you
37
1 that aren't lawyers, this argument about, well, the
2 Legislature can do this, the Legislature can do that, that
3 does not apply in a case like this because all you are
4 saying is, If you have this cause of action, it will be
5 fair and it will result in people not being discriminated
6 against because of their age or even because of the age of
7 their parents.
8 We have an aging population, they know what I'm
9 talking about, and I think and I urge you to support
10 Commissioner Zack's proposal.
11 COMMISSIONER JENNINGS: Further on the amendment?
12 Commissioner Morsani.
13 COMMISSIONER MORSANI: I guess -- I've heard the
14 argument and I certainly was impressed with the difficulty
15 that people had. However, I'm not swayed by the rhetoric
16 to put this in the Constitution. I apologize to some of
17 you ladies and gentlemen who work before the Bar and in
18 these type of situations; however, I think that you -- we
19 are honestly opening the door to additional litigation.
20 But that's not the issue.
21 I happen to think that we talk about the generation
22 of instant gratification, what the underlying thing here
23 is, we want gratification because of something that
24 happened to a loved one. I don't happen to think that's
25 right, it's very unfortunate. It's like war. Mr. Smith
38
1 talks about Vietnam. Some of us can talk about other
2 wars. And that's true. And no one wants to see people
3 killed; it is a messy thing, and it hurts and people do
4 make mistakes.
5 What we are saying, what we are trying to do here is
6 put mistakes, like an accident, they are accidents, people
7 don't run into each other because they want to, they are
8 accidents. And also I think this is directed, basically,
9 at hospitals; there's no question about that. And I have
10 come down on both sides.
11 I think hospitals should be made to do the right
12 thing, that they need to take all precautions. I've been
13 chairman of hospital boards, I know the problem, and that
14 requires continued, continued scrutiny and inspection of
15 the policies and procedures in those entities.
16 But I am going to vote against this proposal because
17 I really don't think it's being presented for all the
18 right reasons, and I would urge you to vote against it.
19 CHAIRMAN DOUGLASS: Would he yield for a question?
20 COMMISSIONER JENNINGS: I'm sure he does.
21 COMMISSIONER MORSANI: Sometimes I say no.
22 CHAIRMAN DOUGLASS: As I understand your argument,
23 and I think I understand it, and it's one that I've heard
24 before, and it's one that's compelling to a lot of people,
25 you would abolish the entire cause of action for death; is
39
1 that correct?
2 COMMISSIONER MORSANI: No, that's not what I said,
3 sir.
4 CHAIRMAN DOUGLASS: Well, you don't support a
5 distinction between older people and younger people, I
6 know, we have discussed that. So, you are not doing away
7 with the whole cause of action, just the part of it that
8 applies to people that happen to be over 25.
9 COMMISSIONER MORSANI: Well, you could construe it
10 that way. That's not what I really mean, but that's all
11 right. You can come to that conclusion.
12 CHAIRMAN DOUGLASS: I came to the conclusion from
13 your statement that you really didn't think this wrongful
14 death cause of action was a very good cause of action
15 anyway; is that right?
16 COMMISSIONER MORSANI: That's right.
17 COMMISSIONER JENNINGS: Further on the amendment?
18 Commissioner Lowndes.
19 COMMISSIONER LOWNDES: Yes, as much as I hate to
20 disagree with my great friend, Commissioner Morsani, the
21 thing that occurred to me during the public hearing, my
22 first impression of this, and we have heard it so many
23 times was, that it was simply an economic issue and that
24 people were chagrined over the fact that they couldn't
25 recover or profit from the death of a loved one. But the
40
1 more important thing that came through to me was the
2 concern that I had that people could, physicians and
3 hospitals, could kind of deal with people's impunity
4 because they didn't have any relatives of a certain age.
5 My sense is that the removal of the age provision in the
6 wrongful death act will have the effect of causing
7 hospitals and doctors to deal much more carefully with
8 people. And you will, in the long run, it's not so much
9 allowing people to recover, but it is to cause people to
10 pay attention to what they are doing, realizing that they
11 are going to be responsible for their acts. Thank you.
12 COMMISSIONER JENNINGS: On the amendment.
13 Commissioner Zack to close.
14 COMMISSIONER ZACK: We have got a very long agenda,
15 so I'm going to be very brief. We have been talking about
16 taking away people's rights, a lot of discussion, we have
17 had a lot of discussion that what we do should not be
18 perceived as taking away anyone's rights. This is truly
19 giving rights to the citizens of the State of Florida who
20 deserve those rights.
21 And Commissioner Thompson, Commissioner Thompson,
22 Commissioner, I just wanted to address Commissioner
23 Thompson for a moment before he makes his final decision
24 on this vote, that Claude Pepper is still watching.
25 (Laughter.)
41
1 COMMISSIONER JENNINGS: Good line. Mr. Chairman, you
2 are back there. I normally take these kind of things --
3 excuse me, Commissioner Thompson.
4 COMMISSIONER THOMPSON: I have a question for
5 Commissioner Zack.
6 COMMISSIONER JENNINGS: Though he's closed, we are
7 sort of loose with the rules.
8 COMMISSIONER THOMPSON: Can I help you with that, my
9 friends, Commissioner Zack, it's come to my attention that
10 you are trying to read the insurance coverage from New
11 York City to California on this matter. (Impersonation.)
12 (Laughter.)
13 COMMISSIONER THOMPSON: In the words of Hugh Taylor,
14 they will pack up their money and go home if you don't be
15 careful.
16 (Impersonation.)
17 COMMISSIONER THOMPSON: Judge Taylor used to tell us
18 that when we got a little too anxious on the Plaintiff's
19 sides. I do want one question answered by you or
20 Commissioner Connor or Commissioner Freidin, or anybody
21 who knows more than I do, which is all of you.
22 COMMISSIONER ZACK: (Inaudible impersonation.)
23 COMMISSIONER THOMPSON: I'll tell you what, you need
24 to practice around the supper table a little bit more.
25 COMMISSIONER ZACK: That's South Miami Beach.
42
1 COMMISSIONER THOMPSON: Oh. Does this proposed
2 change relate only to medical malpractice claims or not?
3 I'm getting differing opinions from differing experts.
4 COMMISSIONER ZACK: It does not. It's universal and
5 it's intended to be universal. It's to give everyone the
6 same rights, whether they are young or old in this state.
7 COMMISSIONER THOMPSON: I know the battle in the
8 Legislature is always over medical malpractice, and in
9 reading it, it looks like it refers back to the damages
10 recoverable for a minor, and a minor then is defined over
11 on the definition side as someone under 25 years of age,
12 but I'm going to take your advice on that and vote against
13 it.
14 COMMISSIONER JENNINGS: Okay. Shall we try a voice
15 vote? No, okay. You all are so picky, my Senators like
16 voice votes. On the motion by -- oh, is that it? On
17 motion by Commissioner Zack to favorably recommend the
18 amendment. Open the machine and record your vote.
19 (Vote taken and recorded electronically.)
20 COMMISSIONER JENNINGS: Lock the machine and announce
21 the vote.
22 READING CLERK: Twenty-one yeas, seven nays, Madam
23 Chairman.
24 COMMISSIONER JENNINGS: And the amendment passes.
25 Further amendments?
43
1 READING CLERK: None on the desk.
2 COMMISSIONER JENNINGS: Okay. Then the original
3 proposal as amended is before us. Commissioner Zack,
4 anything further?
5 COMMISSIONER ZACK: Nothing further.
6 COMMISSIONER JENNINGS: Okay. I keep wanting him to
7 read it another time, but we don't have to do that. Then
8 a motion by Commissioner Zack to favorably recommend the
9 proposal. Open the machine and cast your vote.
10 (Vote taken and recorded electronically.)
11 COMMISSIONER JENNINGS: Lock the machine and announce
12 the vote.
13 READING CLERK: Nineteen yeas, seven nays, Madam
14 Chairman.
15 COMMISSIONER JENNINGS: And the proposal is
16 recommended. Mr. Chairman, you didn't tell me what was
17 next. I thought it was Commissioner Anthony's sovereign
18 immunity. Okay, you wanted to do that? Do you want to
19 come back up here to do it? He's gotten as bad as the
20 rest of us, he's leaving too. That's all right, sir, you
21 are excused.
22 (Laughter.)
23 COMMISSIONER JENNINGS: We are not going to tell
24 them. Proposal 59, pending. Okay, let's get us in the
25 right posture. We are on Proposal 59, which was in one of
44
1 those books, I saw it. The pink book, the pink book. And
2 there is a substitute amendment pending, but for our
3 edification this was the substitute amendment by
4 Commissioner Lowndes that we had the discussion yesterday,
5 as I remember.
6 Commissioner Lowndes, would you like to refresh our
7 memory about the substitute amendment?
8 COMMISSIONER LOWNDES: I believe that there --
9 COMMISSIONER BARKDULL: Madam Chairman.
10 COMMISSIONER JENNINGS: Commissioner Barkdull.
11 COMMISSIONER BARKDULL: Can I interrupt you? Could
12 we have the substitute read in its entirety because the
13 last sentence I'm concerned about, among other things.
14 COMMISSIONER JENNINGS: That's why I wanted
15 Commissioner Lowndes to tell us about it. Okay, let's
16 read the substitute again.
17 READING CLERK: Substitute amendment by Commissioners
18 Lowndes, Zack, Morsani and Hawkes, on Page 1, Lines 11
19 through 28, strike all of said lines and insert, Section
20 1, Section 13 of Article X of the Florida Constitution, as
21 revised by amending that section to read, Article X,
22 Section 13, suits against the state provision may be made
23 by general law, for bringing suit against the state as
24 political subdivisions, agencies, districts and
25 municipalities. As to all liabilities now existing or
45
1 hereafter originating, provided in such a suit a person
2 may recover damages up to a maximum amount of $200,000
3 plus costs, other attorney fees occurred in the suit,
4 unless amount is increased by general law. In any event,
5 the maximum amount of damages shall be increased each year
6 by the same percentage, as a percentage increase in the
7 consumer price index or any successor index published by
8 the federal government.
9 COMMISSIONER JENNINGS: Okay. That was the
10 substitute amendment read in full. Commissioner Lowndes.
11 COMMISSIONER LOWNDES: Yes, I think there was an
12 amendment to the amendment which we were discussing
13 yesterday which was either withdrawn with the idea that a
14 second amendment or a substitute amendment was going to be
15 proposed. The amendment that we were talking about to the
16 amendment yesterday was the mechanism to, in tort claims,
17 to have a solution for those in excess of the caps other
18 than a claims bill by somehow structuring something
19 similar to the Federal Torts Claim Act.
20 And I think that that -- I don't know what happened
21 to my good friend Commissioner Zack, but I think that
22 there is an amendment pending.
23 COMMISSIONER JENNINGS: Well, that is a substitute
24 amendment. Have we got an amendment to the substitute?
25 Oh, the Secretary has it in her hands.
46
1 COMMISSIONER ZACK: That is the arbitration?
2 COMMISSIONER JENNINGS: Madam Secretary, is that what
3 you are passing out, or is that what you are --
4 COMMISSIONER ZACK: I think they have handed out an
5 earlier version and there's been a later version. We have
6 just got to make -- there's been about 22 versions of
7 this.
8 COMMISSIONER JENNINGS: I was going to say.
9 COMMISSIONER ZACK: So I just want to make sure it is
10 the correct one.
11 COMMISSIONER JENNINGS: Okay. Do we have an
12 amendment to the substitute? Okay, that's what you meant,
13 you had our copy of it?
14 (Off-the-record discussion.)
15 COMMISSIONER JENNINGS: Okay, let's read the
16 amendment to the substitute.
17 READING CLERK: Amendment to the substitute amendment
18 by Commissioners Langley, Morsani, Lowndes and Zack. On
19 Page 1, Line 14, after the period, insert, There shall be
20 a waiver for sovereign immunity for excess tort claims,
21 when any tort claim is filed against the state or any
22 political subdivision agency, district or municipality
23 which exceeds a limited waiver of sovereign immunity
24 established by general law, it shall be submitted by the
25 court in which it is filed in lieu of trial to a
47
1 three-person arbitration panel that shall by majority vote
2 render a decision on the claim. The rules that govern the
3 proceedings of the arbitration panel and any appeal taken
4 therefrom shall be determined by the State Supreme Court.
5 COMMISSIONER JENNINGS: Okay. Everybody got the
6 right copy of the amendment to the substitute?
7 COMMISSIONER ZACK: Yes.
8 COMMISSIONER JENNINGS: Okay. And the amendment to
9 the substitute?
10 COMMISSIONER ANTHONY: Question.
11 COMMISSIONER JENNINGS: Commissioner Anthony. Who is
12 the sponsor of the amendment to the substitute?
13 COMMISSIONER ANTHONY: Commissioner Morsani, or
14 Lowndes, or Zack. Would you yield for a question?
15 COMMISSIONER JENNINGS: Ask the question and then
16 we'll find out who wants to answer it.
17 COMMISSIONER ANTHONY: Let me make sure I'm clear, in
18 fact what this amendment does is take away sovereign
19 immunity for governmental entities and place it for
20 resolution in the court system or through an arbitrational
21 panel; is that correct, Commissioner Lowndes?
22 COMMISSIONER LOWNDES: I think that is a little bit
23 of a broad statement. It really deals only with tort
24 claims, number one. And number two, it deals with those
25 tort claims in excess of the cap. And rather than having
48
1 those tort claims in excess of the cap be subject to claim
2 bills, it provides for a judicial way of resolving it.
3 COMMISSIONER ANTHONY: Commissioner, further
4 questions?
5 COMMISSIONER JENNINGS: You are recognized,
6 Commissioner Anthony. Of who, Commissioner Morsani,
7 Commissioner Lowndes?
8 COMMISSIONER ANTHONY: Lowndes.
9 COMMISSIONER JENNINGS: Okay, Commissioner Lowndes.
10 COMMISSIONER ANTHONY: Is this another court system
11 being put in place, and what is the cost of such a process
12 being put in place?
13 COMMISSIONER LOWNDES: Well, to answer those
14 questions in reverse order, I don't know what the cost is.
15 But I don't think it's another court system. What it
16 provides for presumably is, number one, the rules to be
17 promulgated by the Supreme Court. But it provides for an
18 arbitration proceeding with arbitrators appointed by
19 circuit court judges.
20 COMMISSIONER ANTHONY: So, you are proposing -- and
21 further questions, ma'am?
22 COMMISSIONER JENNINGS: Yes. But Commissioner
23 Anthony, I understand that on your desk is the wrong
24 version. So, we can take all of our versions of
25 amendments to Proposal 59 and just hold them for a minute.
49
1 They are bringing the corrected version now.
2 COMMISSIONER ZACK: I understand that Mr. Anthony's
3 question was directed to any of the proposers.
4 COMMISSIONER JENNINGS: Are you answering the
5 previous question, or the one he was about to ask?
6 COMMISSIONER ZACK: The previous one, where
7 Commissioner Lowndes said he wasn't sure of the cost and
8 so forth. The fact of the matter is that this is no new
9 court system. I think I would be opposed to any new court
10 system. I have voted against any new court system in
11 prior votes.
12 All this does is allow the circuit judge in which the
13 case is filed to appoint a three-person arbitration panel
14 which will award a judgment, if in fact that's
15 appropriate.
16 And, no, I don't think this is just, should be viewed
17 just as a waiver of sovereign immunity. I look at it as a
18 better process than the claims bill process that has been
19 previously described in this chamber as a disaster. And I
20 would address that particular aspect of it, Commissioner
21 Anthony, and it reminds me very much of the response of
22 Taltran (phonetic) to the question about the courts of
23 justice. And he said, Yes, the courts of justice are
24 opened to all people, just like the Ritz Hotel. And those
25 people that can afford justice as described to us
50
1 previously in this chamber, who can afford the best
2 lobbyists and can afford to make the political
3 contributions necessary and go through the claims bill
4 process that has been admitted to be one that is not fair,
5 that does not give equal justice, that is capricious, that
6 on a year-to-year basis, depending on the winds, that the
7 Legislature can change.
8 But this is to bring reason and fairness to a process
9 that has been stipulated as being unfair to those who have
10 gone through it. So, no, I don't believe that you have
11 properly described it.
12 COMMISSIONER JENNINGS: Commissioner Scott.
13 COMMISSIONER SCOTT: Thank you. I have a question
14 for Commissioner Lowndes.
15 COMMISSIONER JENNINGS: We'll ask Commissioner
16 Lowndes to yield the floor, take the floor and yield for a
17 question.
18 COMMISSIONER SCOTT: Commissioner, I don't know what
19 version is what, but from what you just described and the
20 one version that I have, this would mean that you would be
21 taking away the right to trial by jury in tort claims
22 against the state?
23 COMMISSIONER LOWNDES: No. As I understand how this
24 would work, and Commissioner Zack could correct me, if you
25 were injured by the state you would have two choices. You
51
1 have got to read this in context with the committee
2 proposal, but you have two choices. One choice is to go
3 into court and have a jury trial. And if you did that,
4 you would be subject to the caps which the Legislature has
5 set and which are adjusted by the main part of this
6 amendment. Your other choice would be to say, is to say
7 to the court, I think my claim is better than the amount
8 of the caps or larger than the amount of the caps and I
9 would like to have it determined by a panel of
10 arbitrators.
11 And if you took the second route, you would give up
12 the right to a jury trial, you would subject yourself to a
13 panel of arbitrators who then would determine the amount.
14 And I think that that's about as best as I could explain
15 it.
16 COMMISSIONER SCOTT: Okay. Further question, Madam
17 Chair. What about the city or whoever is being sued, do
18 they have -- they have the right to a trial by jury. You
19 would be depriving them of that right, then?
20 COMMISSIONER LOWNDES: Yes.
21 COMMISSIONER SCOTT: Thank you.
22 (Chairman Douglass resumes the Chair.)
23 CHAIRMAN DOUGLASS: Commissioner Morsani.
24 COMMISSIONER MORSANI: Mr. Chairman, I think that all
25 of you need to take in context, and Commissioner Lowndes
52
1 alluded to it. You have got to look at the entire thing,
2 and I think we are missing that. And that is the -- this
3 is the amendment to the amendment. Which the amendment to
4 the amendment -- no, the amendment has not been delineated
5 and articulated as yet, so you can't take this in
6 isolation.
7 This portion, as Commissioner Zack said, and
8 Commissioner Lowndes, is only addressing or attempting to
9 address the claims bill process and replace the claims
10 bill process with this process.
11 This is not -- so, this amendment would go to the
12 amendment which, in effect, goes back to the current
13 sovereign immunity as far as caps. So, you can't take
14 this in isolation as the entire sovereign immunity
15 proposal. So, I want to make that perfectly clear, you
16 have got to look at this as strictly, we are attempting to
17 address the claims bill portion of the sovereign immunity
18 problem.
19 CHAIRMAN DOUGLASS: Commissioner Brochin.
20 COMMISSIONER BROCHIN: I think this is an
21 extraordinarily fundamental change that we are considering
22 here. And I actually think that we are doing it a little
23 bit backwards because I think we first need to decide what
24 we are going to do with sovereign immunity before we make
25 a decision on how we are going to implement it.
53
1 I think this is, essentially, Commissioner Anthony,
2 is doing just what you think it's doing, and it's waiving
3 sovereign immunity.
4 COMMISSIONER ANTHONY: It is.
5 COMMISSIONER BROCHIN: Now, if that's the decision
6 that's going to be made, then we should think about how to
7 implement it through a court system. But sovereign
8 immunity principles have to be based on the ability of the
9 Legislature to make the determination of the appropriate
10 caps and; therefore, the appropriate waiver of those caps,
11 if indeed the principle of sovereign immunity is going to
12 remain intact.
13 This fundamentally changes it to the extent that we
14 are taking that decision out of the legislative branch and
15 putting it into the judicial branch, which in my mind
16 could have no other effect but to lift the principle of
17 sovereign immunity. Not necessarily a concept that I'm
18 against, but I just believe we ought to get to the
19 ultimate issue first, and that is, what are we going to do
20 with sovereign immunity, before we can figure out, once we
21 get rid of sovereign immunity, how we are going to
22 implement it. Because the collateral issue is, is there a
23 problem with the claims process in the legislative branch.
24 I think the answer is yes. But if sovereign immunity
25 remains intact, then the process ought to remain in the
54
1 legislative branch, it ought to be fixed in the
2 legislative branch. If sovereign immunity is going to be
3 lifted, then I think it is appropriate to consider
4 implementing it through the judicial branch. So, it's
5 hard to make this decision, in my view, out of that
6 particular context.
7 CHAIRMAN DOUGLASS: Commissioner Nabors.
8 COMMISSIONER NABORS: Mr. Lowndes, let me ask you
9 another question, my good friend, Mr. Lowndes. I am
10 saying a little bit about what Commissioner Brochin is
11 saying, and it has addressed an issue which I'll talk
12 about as we deal with sovereign immunity. My concern is,
13 that the current statutory waiver that we have basically
14 waves tort claims or any action which a private individual
15 would have, and that brings all of the issues, that there
16 is no waiver for governmental-playing type activities.
17 So, anything we do constitutionally, one of the things
18 that you will hear me argue about is to make sure we don't
19 do anything to expand and interfere with those basic
20 concepts that what the Legislature has done, whether
21 200,000 or unlimited, it relates to issues in which a
22 private individual having an action recognizing the
23 distinction for government. So, that's somewhat why I am
24 concerned, and I'll be looking at these for that issue.
25 And I hope the other commissioners understand that.
55
1 That's why language in this one which talks about exceeds
2 a limited waiver of sovereign immunity, we need to make
3 sure it doesn't encompass not only private actions above
4 whatever the Legislature does but those other type of
5 activities. We need to be vigilant if we are going to
6 deal with sovereign immunity that we don't go beyond some
7 unintended consequence.
8 COMMISSIONER LOWNDES: That is a long question, but I
9 think the answer to it is this, is that the provision in
10 the Constitution at this point says that the Legislature
11 by general law can determine suits against the state, and
12 that's not changed by this. The Legislature still has the
13 right to determine the suits against the state.
14 This would deal with those suits against the state
15 that the Legislature has said is okay, which is what you
16 are saying, it's those which a private individual would be
17 liable for.
18 CHAIRMAN DOUGLASS: Commissioner Sundberg.
19 COMMISSIONER SUNDBERG: Respectfully, Commissioner
20 Lowndes, and I have the same concerns that Commissioner
21 Nabors has. And I conclude that this is as opposed to --
22 because what you will have if this is passed, in my
23 judgment, is you will have a constitutional waiver of
24 sovereign immunity to the extent expressed in this, and
25 then you will have the ability of the Legislature to waive
56
1 sovereign immunity with respect to other liabilities of
2 the state. And I think Commissioner Nabors' concern is a
3 real valid concern.
4 Currently, I submit to you that if in fact someone is
5 injured and brings a suit against a municipality or a
6 county asserting that they were injured because of the
7 placement of a traffic control device at a particular
8 intersection or the failure to locate one at that
9 intersection, which is in fact under the current state of
10 the law perceived to be a pure governmental planning
11 function for which there is no waiver of sovereign
12 immunity, that if this in the form in which it is
13 presented passes, we'll now make available a cause of
14 action, certainly to be arbitrated, but nonetheless, it'll
15 create a cause of action where none exists.
16 The person who wrote the opinion respecting the
17 waiver of sovereign immunity said it can't be a tort to
18 govern, and this can make it a tort to govern by making
19 those governmental decisions.
20 So, I suggest to you, that unless you want to
21 significantly change the state of the law with respect to
22 liability, not just the amount -- the recovery of damages
23 in excess of a cap, that you are going to have to limit
24 this back by either using the terms "operational
25 functions" or something that makes it clear that you are
57
1 not waiving -- you are not waiving sovereign immunity for
2 those acts that, from time in memorial, not because the
3 sovereign can do no wrong, sovereigns do wrong all of the
4 time, but because it is a function of separation of
5 powers, that a jury should not be put in a position of
6 second guessing the city council when the city council
7 determines, for whatever reasons, fiscal or otherwise,
8 that a traffic control device is not to be placed at a
9 particular intersection.
10 And I suggest to you that this goes much farther --
11 you know, talk about unintended consequences, I think this
12 clearly could be -- because I don't think that you are
13 trying to do that, but I think that's what the result
14 would be.
15 CHAIRMAN DOUGLASS: Commissioner Anthony.
16 Commissioner Morsani first.
17 COMMISSIONER MORSANI: I would like for Commissioner
18 Zack or Commissioner Lowndes to address it. We talked
19 about that, Commissioner Sundberg; we discussed that,
20 Commissioner Sundberg. And I was told this would not
21 affect the planning and so on and so forth. I understand
22 the concerns, but Commissioner Zack, would you please
23 address that? Because we thought that was covered in my
24 opinion, but --
25 COMMISSIONER ZACK: We agree with Commissioner
58
1 Sundberg. I have addressed it. If you want anything
2 further, I mean, it cannot be a tort to govern; the
3 planning functions were not intended to be dealt with in
4 this manner. There are a number of issues here that need
5 to be fine-tuned, most certainly.
6 CHAIRMAN DOUGLASS: When we didn't have sovereign
7 immunity at all for municipalities, governmental functions
8 were accepted?
9 COMMISSIONER ZACK: Always.
10 CHAIRMAN DOUGLASS: So, from that standpoint,
11 regardless of what you say, the common law was that
12 governmental functions are accepted?
13 COMMISSIONER SUNDBERG: As to municipalities, that
14 was true. That was not true, with respect, I think,
15 Mr. Chairman, with respect to states and counties.
16 Municipalities were always treated differently. They had
17 a proprietary government.
18 CHAIRMAN DOUGLASS: There was no liability for
19 counties in a state.
20 COMMISSIONER SUNDBERG: Absolutely.
21 CHAIRMAN DOUGLASS: In that two-year period, and in
22 that two-year period, they applied the same rule in these
23 courts as they did to municipalities.
24 COMMISSIONER SUNDBERG: I'm sympathetic to this, but
25 I'm not sympathetic to rolling the whole street up, all
59
1 right.
2 COMMISSIONER ZACK: Neither are we, that's not the
3 intent. I'm very impressed with the Chairman's
4 recollection of what happened about 15 years ago,
5 actually, on a year-to-year basis.
6 CHAIRMAN DOUGLASS: I'm better at that than I am what
7 happened last week.
8 COMMISSIONER ZACK: For a long time this was a matter
9 that changed annually, and the interpretation of the
10 courts as to what became a governmental function or
11 proprietary function or what wasn't often depending on how
12 difficult a case they had before them. And this was
13 intended to bring some uniformity to it, the changes were.
14 But we are in agreement, Commissioner Lowndes, I
15 believe would agree, and this was discussed during the
16 course of our deliberation, that this was not intended to
17 change that part of the law, Mr. Chairman.
18 CHAIRMAN DOUGLASS: You have really been wanting to
19 get up, and I want to recognize you. Commissioner
20 Anthony.
21 COMMISSIONER ANTHONY: Thank you. As a matter of
22 fact, it may not be intended, but as a matter of fact, it
23 is, and it does change and it takes away the sovereign
24 immunity of local governments and government entities in
25 toto by giving it to an arbitration panel who in fact will
60
1 place an unfunded mandate, and none of us really want an
2 unfunded mandate, unlimited, runaway arbitration panel.
3 We talk about a jury system, this would be truly, truly an
4 unlimited.
5 And in that regards, because Commissioner Zack has
6 proposed this amendment to the Constitution, I want to
7 give him on behalf of the voters, the citizens of this
8 state, a check, a blank check that is made out to Zack in
9 the amount of unlimited funds that he's cost to the
10 citizens of this Florida, citizens of this state by
11 proposing this.
12 And what it's for, it's for the bankruptcy, the
13 bankruptcy of local government. And in fact, that's what
14 indeed would happen if we continue to dwindle away with
15 sovereign immunity or attempt to get rid of sovereign
16 immunity. I run a very poor community and if this
17 proposal that Freidin is proposing passes, I want to give
18 her a key to the city of South Bay. You deserve a key to
19 my city hall, because in fact, I may as well give the keys
20 to the city -- of our city, of our city governments, all
21 400 local governments, to the proposers of this proposal.
22 In fact, right now, if anything occurs in terms of --
23 and I want to go on record saying that, if anything
24 happens by action of a local government personnel that
25 destroys the life of an individual and their ability to
61
1 make a living, I'm very sympathetic to that. And no
2 assumptions should be made that those officials who are
3 employed by local government intend to cause harm to
4 anyone. I don't believe that. I will not believe that.
5 If they are carrying out their duties as employees,
6 driving a bus and other performed duties that they have, I
7 don't think that they intend to hurt anyone. I will say
8 to you that we provide services that no one else wants to
9 provide. We have risky business that we provide the
10 services for all of us that are in this room. And if we
11 are going to continue to provide those services, we can't
12 allow those people who want to have a blank check to have
13 those blank checks.
14 At every commission meeting, I balance issues related
15 to providing local government services on the record, not
16 in my private, corporate world, on the record, in the
17 Sunshine. Talk about whether or not I should pave a
18 street, or my other priority is whether or not I should
19 hire more police officers.
20 We have been brought into court based upon those
21 matters of discussion, saying that we have not carried out
22 our responsibilities in a deliberate fashion to not harm
23 people by lawyers, by people who are really trying to find
24 a way to recover. If I cannot make those decisions
25 without the cause or the concern of being sued by people,
62
1 then I'm not going to be able to make very good decisions
2 as a local government official.
3 It could be said that people who come before the
4 Legislature are not providing an opportunity -- provide an
5 opportunity to get judgments. We are averaging right now
6 almost a dozen claim bills per year. In the 1980s we were
7 averaging 26, now we are averaging 12. And if you look at
8 the statistics, except last year where the leadership
9 decided that they did not want to take up any claims bills
10 because they wanted to look at the process, they wanted to
11 find ways to improve the process, they wanted to find ways
12 to streamline the process. That is being worked on.
13 Why are we going to put something in the Constitution
14 that the Legislature can deal with? And Chairman Douglass
15 talked yesterday about those strong lobbyists from local
16 government associations. I say to you that I'm proud to
17 be a past president of the Florida League of Cities. We
18 represent the people. We don't give campaign
19 contributions. So, in fact, if nothing has been changed
20 because the people and the representatives of associations
21 such as the counties and the cities have come before the
22 Legislature and have not been -- have been successful in
23 stopping these caps from being increased, that tells me
24 something. That tells me that big money lobbyists have
25 not been able to impact the legislative process, not been
63
1 able to change the process, and that the proud citizens of
2 Florida, and I'm so proud that the citizen associations of
3 Florida have had the strength to hang together and to stop
4 these changes by, and proposed by many members of the
5 legislative or lobbying corps of the private sector.
6 The proposal is unnecessary, it is truly unnecessary
7 to take away something that is legislatively directed and
8 consistently have been used.
9 It also to me can cause a financial impact on local
10 governments that we can't even calculate. It is a blank
11 check, folks. You may as well look at communities all
12 around this state and say to them, You can close your
13 doors right now.
14 And the question is can we buy enough insurance?
15 Yeah. If we do buy enough insurance to cover all of the
16 claims that may occur on local government, something else
17 is going to suffer; police services, housing for the
18 elderly, housing for the poor, fire protection. It may
19 cost us a million dollars or more to get coverage if
20 sovereign immunity is taken away.
21 All these proposals before you -- and I wanted to get
22 to this and I know it may go off a little bit of the
23 amendment that is proposed, just a little -- but I wanted
24 to make sure that you understood that there are people who
25 you are impacting. There are budgets that are being
64
1 impacted. There are lives that are being impacted. And I
2 know there are also lives that are not being brought back
3 in full because of this process.
4 But I say to you, if you want to hurt local
5 government in your communities that you live in, this is
6 the proposal to do so. To take away sovereign immunity on
7 state, counties and political subdivisions, cities they
8 are in, would clearly destroy the substance and the
9 structure of our local governments.
10 CHAIRMAN DOUGLASS: Commissioner Zack, he had his
11 hand up while he was speaking.
12 (Off-the-record comment.)
13 CHAIRMAN DOUGLASS: Absolutely, you have a personal
14 privilege.
15 COMMISSIONER SMITH: I'd like to join as a proponent
16 so I can share in the blank check with Mr. Zack and not
17 have him get all of it himself.
18 CHAIRMAN DOUGLASS: Commissioner Zack.
19 COMMISSIONER ZACK: I'm going to accept on behalf of
20 the people of the state of Florida and the committee, and
21 it was the committee proposal. But I don't think this is
22 a time for show-and-tell. And I don't think it's very
23 funny, frankly.
24 And I also don't think this is a place to make jury
25 arguments and to present props because if it was, I would
65
1 have presented a videotape of a young man who is a
2 quadriplegic who had a city who had rebar on its beach.
3 Rebar is metal sticking up out of the sand.
4 And that city knew about it. As a matter of fact,
5 they got letters from people who walked along the beach
6 every single day. And they wrote letters to the
7 commission. And the commission was told that if you don't
8 get rid of this rebar somebody is going to get hurt,
9 somebody may die, somebody may become paralyzed.
10 And this young man, not knowing the rebar was there
11 because it was high tide, ran into the water, struck his
12 head on that rebar, and became a quadriplegic. He was
13 about 18-years-old. And I would have a videotape here,
14 Mr. Anthony, to show you and I would ask you to present
15 him with that check because he needs that check.
16 He needs that check to live. He needs that check to
17 wake up in the morning and have someone dress him and feed
18 him and move his muscles and change his clothes and get
19 rid of the bedsores and teach him how to speak again. He
20 needs that check real bad. And the fact of the matter is
21 that when the city was told about it, and after the
22 accident, what does an adjuster do? I don't have to pay
23 this, I don't care what you say. Gee, I like those
24 letters, they are pretty good. Actually, they are kind of
25 funny when I read them in retrospect because it's
66
1 $100,000.
2 Somebody else take care of him. Those hospitals you
3 talked about that we pay for have to take care of him. We
4 take care of that person one way or another, but you don't
5 want to.
6 Now the fact of the matter is that that young man
7 received in excess of $100,000 because he came up here and
8 there was a claims bill passed eventually. The only
9 reason it was passed is because that city had a social
10 conscience and understood that it was wrong morally,
11 ethically, and legally to limit his recovery to $100,000.
12 By the way, I wasn't the plaintiff's lawyer in that
13 case. I didn't get any fee as the plaintiff's lawyer. I
14 happened to represent the city in that case. The fact of
15 the matter is that we come here today to right a wrong on
16 behalf of the citizens in the state of Florida.
17 And we know that there are vested interest groups.
18 And I received the same letters, Mr. Anthony, that you
19 have, that you helped draft, from people who I represent,
20 frankly, telling me this is wrong because they don't want
21 to pay any more money. Everything we do in this chamber
22 affects somebody; somebody is happy and somebody is sad.
23 And we keep talking about that it shouldn't be in the
24 Constitution, let the Legislature do it. Let me tell you,
25 the citizens of the state of Florida have this
67
1 Constitutional Revision Commission. It's the citizens'
2 commission.
3 And I believe it was put in place so that once every
4 20 years, not very often, the wrongs of this state and the
5 inability of the average citizen to convince the
6 Legislature that what they're doing is wrong and they have
7 the right to vote on what we put on that ballot and then
8 they'll decide for themselves whether it's a problem they
9 want fixed or not. But that's our obligation here.
10 And no one wants an unlimited check. The only thing
11 we ask here is for what the preacher this morning asked of
12 all of us. And I saw you shaking your head when he said
13 "protect the most vulnerable."
14 And when you go to the court in England of Old
15 Bailey, the oldest courthouse the common law has, and you
16 look at it, on top of it, it says "protect the widow,
17 defend the orphan." That comes from the Bible. The fact
18 is those people are the ones who need protecting. And
19 those people that will benefit from what we do here today
20 are those people that need protecting.
21 And that young man that wakes up everyday as a
22 paraplegic deserves justice. He doesn't deserve justice
23 because it's a free check. He deserves it because there
24 was a wrong committed by someone and that wrong was
25 determined to be a wrong by a jury or by a government
68
1 entity and they are entitled to be compensated for that
2 wrong. And we need to make sure there is a process in
3 place. And we heard what the President of the Senate
4 said.
5 And, Mr. Anthony, had you been present at any of the
6 meetings of this committee where you had presented a
7 proposal, had you been present at any of those meetings,
8 you would have heard the abuses that occur. And you would
9 have heard the claims supervisor for the Senate come and
10 testify about the abuses and what you have to do to go
11 through the process. And why there was no claims bill
12 passed at all because when the President of the Senate
13 looked at what had gone on before found it to be patently
14 unfair and unjust.
15 And after we heard the different people who came and
16 testified before us for hours, we determined that this was
17 a matter that needed to be corrected. And we hope that
18 you, each and every one of you when you vote, protect
19 those who are most vulnerable.
20 CHAIRMAN DOUGLASS: All right. Commissioner Connor.
21 COMMISSIONER CONNOR: Thank you, Mr. Chairman.
22 Commissioner Anthony, I've been a trial lawyer for 25
23 years. I'm a member of the Academy of Florida Trial
24 Lawyers. And it may surprise you to know that I voted
25 against every single proposal that came before our
69
1 committee. I voted against it because I wasn't satisfied
2 that on the strength of what I had seen that we'd come up
3 with the right solution, and that we had done it in the
4 right way. And you know from my comments yesterday that
5 my concern about the process is as grave as my concern
6 about the product.
7 But I do want to help you put this in context, ladies
8 and gentlemen. In 1981 the Florida Legislature, pursuant
9 to the constitutional waiver of limited immunity
10 established statutory caps of liability for governmental
11 entities at $100,000 per person and $200,000 per incident.
12 In the ensuing 17 years, Commissioner Anthony, the
13 real purchasing power of that $100,000 has eroded by about
14 45 percent, according to the Consumer Price Index. In
15 other words, a citizen who would recover $100,000 in 1981
16 because of an injury sustained wrongfully at the hands of
17 government, today would recover only $55,000. Manifestly
18 unfair I think all of you would agree.
19 Imagine if your wages had been frozen at 1981 levels
20 or the employees of your city's wages had been frozen at
21 1981 levels. You would regard that as an administrator as
22 manifestly unfair.
23 When you look at the Medical Price Index you'll see
24 the erosion has been even greater, dramatically greater
25 than the Consumer Price Index. Commissioner Anthony, what
70
1 that means is that with respect to people who are
2 catastrophically injured and who require continuing
3 medical care in the future, that their ability to secure
4 that care is eroded all the more. Manifestly unjust in my
5 estimation.
6 The per incident limitation means that if you have 40
7 children on a school bus and they're in a collision with a
8 train or a tractor-trailer or it goes down an embankment
9 and rolls and there are multiple injuries and you have 40
10 children who are seriously injured, guess what, in the
11 aggregate those 40 can recover only $200,000. Not
12 $200,000 per child, but $200,000 for the whole bus load of
13 children. Again, I would submit to you, that's manifestly
14 unfair.
15 I think all of us would agree that government, no
16 less so than individuals, should be held accountable for
17 its wrongdoing. Why? Because we know that accountability
18 and responsibility run hand in hand. If you don't hold a
19 person accountable for the consequences of their
20 wrongdoing, they are far less likely to be responsible in
21 their behavior in the future. And I think that's
22 particularly important when we talk about governmental
23 entities. We're not -- we don't want to protect
24 government as much as we want to protect the people.
25 But what I would submit to you very simply is this:
71
1 That there are tensions to be balanced. There are
2 tensions to be balanced. And we have to worry about
3 whether or not we bankrupt the City of Palm Bay or Port
4 Saint Joe or Apalachicola as a consequence of a terrible
5 act which was unintended and we have to balance how we
6 deal with the necessity of keeping order and providing
7 essential government services, and at the same time
8 balance that over against the needs of that person who has
9 been wrongfully injured.
10 Now late in this process we began to be exposed to a
11 concept that nobody had thought of before that seemed to
12 resonate with a lot of people in our committee and seemed
13 to, in my estimation, begin to provide the basis for an
14 emerging consensus that had not yet developed because this
15 matter was taken up late in the game and we didn't have it
16 on the table that I think may satisfy the philosophical
17 objections that people like I have about operating outside
18 our purview, and at the same time address a very serious
19 injustice that occurs every day.
20 And we have the President of the Senate, one of the
21 branches of our Legislature who says, Look, I've got to be
22 frank with you, this stinks. The way it works now is not
23 working right. And we need to do something about it.
24 So, Mr. Chairman, with all deference to my dear
25 friend Commissioner Anthony for whom I have the greatest
72
1 admiration and respect and for whom I have the best wishes
2 that may he not look back on what's happening on this
3 commission while he's on his honeymoon, if he does he's in
4 deep trouble, I respectfully move, given the issues that
5 have been raised rightfully by Senator Scott about the
6 issue about jury trial, by Commissioner Sundberg about the
7 issue about the scope of the waiver, governmental versus
8 proprietary and operational versus planning distinctions,
9 that we temporary pass this measure, give us the
10 opportunity to meet in the interim, see if we can forge a
11 consensus that properly balances the concerns that
12 Commissioner Anthony and other representatives of
13 sovereign immunity has against the manifest injustices
14 that occur every day as a sequence of the unfortunate and
15 regrettable wrongdoing of people in government, who are,
16 after all, mere mortals just like everybody else.
17 Thank you.
18 CHAIRMAN DOUGLASS: There's a motion to temporarily
19 pass. Commissioner Barkdull.
20 COMMISSIONER BARKDULL: I wanted to ask Commissioner
21 Connor a question just to be sure that this was included
22 in the discussion assuming the --
23 COMMISSIONER CONNOR: Be all directed to all the
24 proposals, yes.
25 COMMISSIONER BARKDULL: All the proposals.
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1 CHAIRMAN DOUGLASS: And amendments.
2 COMMISSIONER BARKDULL: And amendments.
3 COMMISSIONER CONNOR: And substitute amendments.
4 COMMISSIONER BARKDULL: Commissioner Connor, you will
5 take into consideration, I assume, the impact of possible
6 punitive damages or lack thereof.
7 COMMISSIONER CONNOR: Without question. That's on
8 the table and has been addressed.
9 COMMISSIONER BARKDULL: That's what I wanted to be
10 sure.
11 COMMISSIONER CONNOR: Yes, sir.
12 CHAIRMAN DOUGLASS: All right. There's a motion to
13 temporarily pass. Commissioner Anthony, do you want to be
14 heard on that? Are you all right with that?
15 COMMISSIONER ANTHONY: Yes, Mr. Chairman.
16 CHAIRMAN DOUGLASS: Okay. All in favor say aye;
17 opposed?
18 (Verbal vote taken.)
19 CHAIRMAN DOUGLASS: By unanimous vote it is
20 temporarily passed and we refer to the Select Committee
21 all measures that have been introduced and all amendments
22 and substitute amendments that have been offered for
23 consideration by the committee to report back at our next
24 meeting. And we'll set a meeting today before you leave.
25 Okay. Commissioner Barkdull.
74
1 COMMISSIONER BARKDULL: I request, sir, a 10-minute
2 recess.
3 CHAIRMAN DOUGLASS: Just a minute. Commissioner
4 Evans, I am going to apologize to you. You sit out of my
5 sight. I'm right-eyed.
6 COMMISSIONER EVANS: I know.
7 CHAIRMAN DOUGLASS: And I understand you've been
8 trying to get the floor. And I certainly didn't mean to
9 deprive you of the floor.
10 COMMISSIONER EVANS: I just have a question that does
11 not have to be answered right now, but I would like it to
12 be answered by this committee. I've been confused by what
13 Commissioner Jennings said yesterday and what some of the
14 other commissioners have said today. And I need to know
15 if we are persuaded by Commissioner Anthony, I need to
16 know does the Legislature have the power to fix the claims
17 bill process without us as a body taking any action
18 whatsoever. So I see the answer is yes.
19 CHAIRMAN DOUGLASS: The answer is probably yes. And
20 of course we could abolish the claims bill and we would
21 probably be unanimously supported by the Legislature. All
22 right. We're going to have a 10-minute recess. Not by
23 all the people that are involved, of course.
24 (Pause.)
25 CHAIRMAN DOUGLASS: For the record, the amendment
75
1 that was on the floor was never read; is that right? The
2 wrong one was read. So come to order. We're going to
3 read the amendment you've been discussing. It's never
4 been read. I'm told that we read the wrong amendment. So
5 just listen up. This is the amendment that was on the
6 floor by -- amendment to the substitute by Commissioners
7 Langley, Morsani, Lowndes and Zack, move the amendment
8 which was not read. It's going to be read, but it's all
9 going to the committee, Commissioner Connor.
10 Would you read it, please?
11 READING CLERK: Amendment to the substitute amendment
12 by Commissioners Langley, Morsani, Lowndes and Zack, on
13 Page 1, Line 14, after the period insert, When any tort
14 claim is filed against the state or any political
15 subdivision, agency, district or municipality which
16 exceeds the limited waiver of sovereign immunity
17 established by general law, it shall be submitted to the
18 court in which it is filed in lieu of a trial, to a
19 three-person arbitration panel that shall by majority vote
20 render a decision on the claim.
21 CHAIRMAN DOUGLASS: All right. We're in recess until
22 11:15.
23 (Brief recess.)
24 CHAIRMAN DOUGLASS: I've gone eight minutes too long.
25 Sign in for quorum call. Give us a quorum call.
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1 READING CLERK: Quorum call, quorum call. All
2 commissioners report to the Chair.
3 CHAIRMAN DOUGLASS: All right. There is a quorum
4 present. We'll come to order. And the next proposal is
5 the one on Article V cost, it is Proposal Nos. 31 and 55
6 committee substitute. It's by Commissioners Sundberg and
7 Zack, recommended as a committee substitute and approved
8 by the Committee on the Judicial.
9 It's amended by consideration and deferred to the
10 Select Committee on Article V Cost. It is now time to
11 hear it. And if you would -- do we need to read the title
12 or should we read the title and then the amendment?
13 All right. Read the title.
14 READING CLERK: Committee substitute for Proposals 31
15 and 55, a proposal to revise Article V, Section 14,
16 Florida Constitution; and create Article V, Section 21,
17 Florida Constitution; providing for salaries, costs, and
18 expenses of the judiciary, state attorneys, public
19 defenders, and clerks of the circuit court, and their
20 respective staffs, to be funded from state revenues
21 appropriated by the general law; providing for counties to
22 fund the cost of construction, maintenance, utilities, and
23 security of facilities for the judiciary, public
24 defenders, state attorneys, and clerks of the circuit
25 court, and their respective staffs; requiring the
77
1 Legislature to appropriate funds according to a phase-in
2 schedule established by the general law.
3 CHAIRMAN DOUGLASS: Now read the amendment.
4 READING CLERK: Amendment by Commissioner Sundberg,
5 on Page 2, Lines 3 and 9, delete judiciary and insert,
6 state court system.
7 CHAIRMAN DOUGLASS: All right. First of all, we'll
8 adopt the amendment. The amendment is more of a technical
9 change, I think. It has been adopted, okay. It's part of
10 the proposal. Commissioner Mills, who was chairman of the
11 select committee, you have the floor.
12 COMMISSIONER MILLS: Mr. Chairman, I believe you have
13 an amendment there offered by the committee which is
14 titled I think Mills, Butterworth, et cetera.
15 CHAIRMAN DOUGLASS: All right. There's an amendment
16 on the desk by Mills, Butterworth, et al. Read the
17 amendment.
18 READING CLERK: By Commissioners Mills, Butterworth,
19 Thompson, Ford-Coates and Sundberg, delete everything
20 after the proposing clause and insert lengthy amendment.
21 COMMISSIONER MILLS: Mr. Chairman.
22 CHAIRMAN DOUGLASS: Tell us what the lengthy
23 amendment does, Commissioner Mills.
24 COMMISSIONER MILLS: Yes, sir. This is the work
25 product of your Select Committee on Article V Cost and I
78
1 first want to thank Commissioners Thompson, Butterworth,
2 Ford-Coates and Planas for their diligence in doing this
3 and the diligence of our staff and John Dew and others
4 that spent a lot of time on this.
5 (Off-the-record comment.)
6 CHAIRMAN DOUGLASS: What's the problem?
7 COMMISSIONER HENDERSON: The amendment --
8 COMMISSIONER MILLS: The amendment -- as I recall,
9 the amendment is in your packet. It is in the pink
10 packet. What you had in the special order packet is the
11 amendment.
12 CHAIRMAN DOUGLASS: I think it's the last item in the
13 pink packet; isn't it? Okay, let's all get on the same
14 page. It's the last item in the pink package. And that's
15 a committee substitute which is the amendment that's on
16 the floor, which is a strike everything and start over
17 amendment. So they've rewritten the proposal.
18 (Off-the-record comment.)
19 COMMISSIONER BARKDULL: I have not offered that.
20 COMMISSIONER MILLS: Mr. Chairman, let me suggest a
21 procedure. Let me discuss what everybody has in their
22 packets and then we can have some time for people to sort
23 out these amendments. But what the recommendation of the
24 committee is is in the packets and everybody has that in
25 front of them.
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1 CHAIRMAN DOUGLASS: That's the way we'll proceed.
2 And as I understand it, it may be on the table, but he has
3 not offered the amendment yet. We're going to the
4 committee substitute which will be the proposal that is
5 proposed by the committee; is that correct?
6 COMMISSIONER MILLS: Yes, sir. Mr. Chairman, that is
7 the base proposal. There may be a couple of amendments to
8 the base proposal, but the base proposal is what you have
9 in the packet.
10 CHAIRMAN DOUGLASS: All right, proceed.
11 COMMISSIONER MILLS: Mr. Chairman, as first I said, I
12 want to thank the members of the committee and the staff
13 that worked on this. This is a 25-year issue so it's
14 something that I think both this commission and those that
15 worked on it should both take some pride in if we resolve
16 and take some care in doing and understanding.
17 I talked to Commissioner Barkdull about the history
18 of this. In 1968, the revision commission did propose
19 Article V reforms. I frankly had not recalled that, but
20 they in fact did that, but the Legislature didn't propose
21 it because of controversy. In 1969, there was another
22 Article V reform suggested that failed. In 1972, there
23 was yet another Article V reform which ultimately passed,
24 which created the structure of the court system which we
25 have today.
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1 And I want to place an exclamation point on the
2 importance of what we're doing with the court system here.
3 We've had a lot of discussion and occasional criticism of
4 the courts.
5 But what I'd like to say is for those of us that have
6 done significant work, traveled, et cetera, in other
7 countries, in my case that includes Poland, Haiti, Latin
8 America, in justice systems and in emerging democracies,
9 the one thing about which they are the most jealous is the
10 independent judiciary. The independent judiciary is the
11 baseline of the system that makes our democracy work.
12 I had this discussion also with Commissioner Morsani.
13 He had similar experiences as I've had in other countries.
14 The justice system may be based on who you know, how much
15 you're willing to finance your issue. In our country we
16 have developed a sound judicial process.
17 Another thing, Rubin Askew, who spoke to us when we
18 arrived here, was the driving force behind several of
19 those Article V issues, who other than being in the
20 executive branch, that is, being the governor, other than
21 being in the legislative branch also was at one time an
22 international trade representative for the President and
23 had occasion to travel around the world.
24 The one thing that he said he found, and he believes
25 now the most important element of government is the
81
1 independent judiciary. And I have heard him say that to a
2 class that I teach that he attends occasionally, every
3 time. So what we're talking about is something fairly
4 important.
5 The specific issue that Article V, our committee was
6 asked to address, is how do we share the cost for doing
7 this. This is -- the bottom line is there are only about
8 three areas to draw from; that is, the state taxpayer, the
9 local property taxpayer and the user, that is, the persons
10 who use the court system either through paying their
11 filing fees or through collection of other fines, et
12 cetera.
13 The structure that we have presented you, what you
14 have before you are three paragraphs and each of those
15 paragraphs deals with a separate source of funding.
16 Paragraph A, if you'll look at your proposal, starts off
17 and currently says, all justices and judges shall be
18 compensated only by state salaries fixed by general law.
19 Then add, funding for the state court's system, state
20 attorneys' offices, public defenders' offices, court
21 appointed counsel shall, except as otherwise provided in
22 subsection C, be provided from state revenues appropriated
23 by general law.
24 Now, so subsection A is the state's share. And this
25 definition includes these items that are listed and they
82
1 are each separate. That is, a state court's system, state
2 attorneys' offices, public defenders', et cetera. This is
3 an obligation paid for by the state taxpayers. And the
4 first logical question is how much.
5 When we initially had this discussion, the range of
6 figures was pretty significant, 400, 500, 600 million. So
7 you're going to ask me, how did you get it down to
8 130 million? Wizardry, 130 million -- creative financing.
9 What we have done, and those of you that have --
10 which I hope is everybody at this point -- this package
11 with the scales of justice on the front, the essence of
12 the financial issue is how is the system funded now, which
13 is on Page 3, and how would the system be funded if this
14 proposal were in the Constitution, which is Page 6.
15 I've just described to you the state obligation. As
16 you will see between Page 3 and Page 6 this moves the
17 state's share to approximately 51 percent.
18 Paragraph B deals with the funding of the clerks when
19 operating in the judicial system. What this paragraph
20 does, and we can walk through it, is to say that the
21 Legislature is going to hold accountable the clerks for
22 what they expend and they are going to generate fees to
23 pay for those costs.
24 Now what this does as a source of funding is to put
25 some obligation on users. Again, I told you there are
83
1 three sources we can deal with; the state taxpayers, those
2 people who use the courts, and the local property
3 taxpayers. The second paragraph deals with how we suggest
4 you construct a system whereby clerks would be funded by
5 fees. This entails raising fees.
6 A logical question is, is it possible to raise those
7 fees and still operate effectively? The clerks and others
8 tell us that -- well there was a study several years ago
9 that showed that there is available room in raising these
10 fees. And you have some specific information in there on
11 what those fees are.
12 Paragraph C then describes the county obligation.
13 County obligation, which is paid by county taxpayers, is
14 delineated to include cost of construction, lease,
15 maintenance, utilities and security facilities for those
16 items before. In other words, the facilities' costs are a
17 responsibility of the county.
18 And one additional area. And that is, counties shall
19 also pay reasonable and necessary costs, I think
20 Commissioner Sundberg has an amendment to this, for local
21 requirements as determined by general law. There are some
22 local requirements that are indigenous to the court system
23 at a more local level than the state system. And this
24 remains. And this allows the Legislature to arbitrate or
25 to determine what local is.
84
1 We went to some length of saying, if you just say
2 local -- if you just said local requirements, then
3 apparently it would be a court interpretation as to what
4 local requirements mean, which made some of the folks
5 edgy. If you didn't say that at all, then I suppose you
6 might have the option for a local government determining
7 what they think local options would be, which might have a
8 different result from the courts making the decision.
9 And then the only possible advert of this, which we
10 hope would be fed based on these restrictions and
11 definitions, would be as provided by general law. So the
12 overall effect is to expand the state's share, under this
13 definition of the state court's system, to reduce the
14 obligation of a local property taxpayer where we think it
15 is appropriate.
16 In other words, a state court system is an obligation
17 of state government. And to the extent it isn't, it is
18 paid for in this plan either by the local taxpayers,
19 specifically relating to construction, maintenance, et
20 cetera, or designated local functions, or by clerks' fees.
21 That essentially is we were operating under the basic
22 tenet that the state had underfunded or had not fully
23 funded what would be reasonably defined as a state court
24 system. This includes a definition of state court system.
25 And whereas the associated included some commentary, we're
85
1 talking about $130 million at the time of the phase-in.
2 Now Commissioner Sundberg has worked on this forever
3 and deserves the credit for taking this proposal from
4 birth through its growing-up period, which perhaps we
5 reached the age of majority.
6 CHAIRMAN DOUGLASS: Still in the birth canal.
7 COMMISSIONER MILLS: We'll try to act as good
8 midwives.
9 Commissioner Sundberg, if you wanted to say anything
10 at this point --
11 CHAIRMAN DOUGLASS: Commissioner Mills, I had one
12 thing occur to me.
13 COMMISSIONER MILLS: Yes, sir.
14 CHAIRMAN DOUGLASS: Under the present situation, does
15 the state, through the Legislature, have the power to
16 appropriate the funds that are generated by the state
17 courts from fines and forfeitures, under the Constitution?
18 COMMISSIONER MILLS: I think the answer to that is
19 they have the power.
20 CHAIRMAN DOUGLASS: Right, I'm not saying whether
21 they do. Would this change that? Would they no longer
22 have the power to appropriate the fines and forfeitures?
23 COMMISSIONER SUNDBERG: Under this proposal they
24 clearly will have the ability to appropriate the fines and
25 forfeitures.
86
1 CHAIRMAN DOUGLASS: So what you're saying is this is
2 not a limitation, it is --
3 COMMISSIONER SUNDBERG: And they do now, as a matter
4 of fact.
5 CHAIRMAN DOUGLASS: I know they do, but -- they
6 don't, but they have the power, as I understand it.
7 COMMISSIONER SUNDBERG: Well, they do. They by
8 statute designate the distribution of those funds. All of
9 them do not go to the clerks, all don't go to judicial
10 functions. Some go to law enforcement and the like.
11 CHAIRMAN DOUGLASS: They go back into the local area,
12 I believe, under present law.
13 COMMISSIONER SUNDBERG: That's almost an accurate
14 statement.
15 CHAIRMAN DOUGLASS: Right, because we had a lot of
16 publicity on that, that's the reason I asked. That may be
17 what Commissioner Connor --
18 COMMISSIONER CONNOR: Indeed it was. And you use the
19 term "appropriate" and I want to make sure I understand
20 that because it can mean different things in different
21 contexts.
22 By appropriate you mean to take charge of, take them
23 over? When you say -- usually I think of it in terms of
24 legislation. When you say appropriate I think of them
25 legislating funds out of their budget. I had the sense
87
1 that you meant can the Legislature reach into the counties
2 and take the fines and forfeitures that have been levied
3 in those counties; is that right?
4 CHAIRMAN DOUGLASS: I think that's right. Do they
5 have the power to do it, not whether they do it.
6 COMMISSIONER CONNOR: Exactly. They have the power
7 and you're saying they do.
8 COMMISSIONER SUNDBERG: They do, and they do today.
9 COMMISSIONER CONNOR: And that's not changed in any
10 way under this proposal?
11 COMMISSIONER SUNDBERG: No, I'll be glad to speak to
12 that.
13 CHAIRMAN DOUGLASS: Where do you find that in the
14 appropriations bill, Commissioner Scott? You can run
15 that. The fines and forfeitures in the appropriations
16 bill, if they're appropriating it now, as he said, where
17 is it in the appropriations bill?
18 COMMISSIONER SCOTT: I don't know.
19 COMMISSIONER SUNDBERG: They do it -- by appropriate,
20 that's why I said they have the ability to designate and
21 what they do is by general law designate the uses by
22 formulas as to where these funds will go.
23 CHAIRMAN DOUGLASS: That's not in the general
24 appropriations bill.
25 COMMISSIONER SUNDBERG: No, it is not. No, it is
88
1 not. Now that --
2 COMMISSIONER MILLS: Mr. Chairman --
3 CHAIRMAN DOUGLASS: Yes, sir.
4 COMMISSIONER MILLS: -- my recollection, of course
5 things change in ten years, but this is not an
6 appropriation by the Legislature, it's authorized by
7 general law. And that is not at all changed by this. As
8 a matter of fact, I think it's reemphasized.
9 CHAIRMAN DOUGLASS: Without belaboring the point, you
10 can have an appropriation by specific law as opposed to
11 being in the appropriations bill.
12 COMMISSIONER MILLS: That's correct.
13 CHAIRMAN DOUGLASS: And the Governor has a line item
14 veto on those particular statutes.
15 Commissioner Sundberg.
16 COMMISSIONER SUNDBERG: Thank you, Mr. Chairman. I
17 would like to recognize at the very beginning of these
18 comments the significant contribution of John Dew, who is
19 the senior legislative analyst on the legislative
20 committee on intergovernmental relations. He assisted not
21 only the Select Committee when they were in session, but
22 met at odd hours, odd places, with those of us who were
23 trying to negotiate this issue out. And I found his help
24 to be of inestimable value.
25 If I can just sort of recur to what the theme is
89
1 here. Paragraph A of this amendment does provide for a
2 uniform state court system. It is intended to, and I
3 think it does and if -- I don't think you-all have the
4 benefit of this, it's a document, but basically it talks
5 about the kinds of expenditures that are included in this.
6 And they are basically expenditures necessary to
7 operate a functioning state, uniform state court system.
8 That we all have believed was the promise of Article V in
9 1972, I suggest to you that this now fulfills that
10 promise.
11 Another issue -- and by the way, talking about the
12 numbers, I think figures have been used that the potential
13 for this could be as much as 175 million. But if in fact
14 the state ceases to designate fines and forfeitures, as
15 going to what are -- many of them are county purposes now,
16 that can actually be reduced down to $71 million
17 currently.
18 If it's utilized in year 2004, 2005, which assumes a
19 6.9 inflation factor, which Mr. Dew provides us, then it
20 could be, you know, with the application of those as much
21 as 130 million. Or, assuming no use of the fines and
22 forfeitures to offset, it could be as much as 320 million.
23 But that's in year 2004, 2005 with that inflation factor.
24 Far, far from the figures that were early on suggested as
25 would be the obligation to the state to provide for a
90
1 uniform state court system throughout the state.
2 The paragraph B continues in place and
3 constitutionalizes a fee system for the clerks. Now don't
4 confuse fees with fines and forfeitures, they are
5 different animals. A fee is basically a user fee. The
6 clerks, based on their analysis and their fiscal data,
7 believe that that will be -- that that can be a revenue
8 neutral expense of operating the clerks of circuit court
9 in their judicial function.
10 For those of you who don't know, clerks of circuit
11 court also act as fiscal officers for the county and clerk
12 of the county commission. We're not talking about any of
13 those functions. That's a local government expenditure
14 and function that's paid for. We're only talking about
15 that part of the clerks of circuit court operation that's
16 related to operation of the court system.
17 But they believe -- and they gave us an example. For
18 example in the 17th Circuit, which is Ft. Lauderdale, the
19 filing fee there now is $200. And to my knowledge that's
20 probably the highest in the state.
21 Of that $200 filing fee, only $40 goes to the clerk
22 for performing the clerk's obligations. Their numbers
23 tell you that they actually need $50 to operate the
24 clerk's office in its judicial function, but that leaves
25 $150 of that filing fee that is not necessary, based on
91
1 their figures, to operate the clerk's office. For
2 example, $95 of that filing fee currently goes for court
3 facilities.
4 Under this proposal, because local government will
5 now be totally responsible for court facilities for the
6 state court system, including the state attorneys and the
7 public defenders and the clerks, that $95 figure need not
8 be devoted to those purposes and can be used to reduce
9 those filing fees.
10 In any event, even if it is not, even if it turns out
11 not to be revenue neutral in the sense that their -- that
12 the user fees are sufficient to offset the cost of
13 operating the clerk's office, there is a provision in B
14 that says, in the first instance, that the Legislature
15 will now establish the fee system for the clerk's office.
16 In other words, the fees will be established in the
17 first instance for operation of the clerk's office to
18 cover the cost of that operation. To the extent that
19 those fees are insufficient to cover the cost of the
20 clerk's office in a judicial function, there is a
21 provision for supplemental appropriation by the
22 Legislature, but their income is the $95 in Broward County
23 that would be available for that.
24 Lastly then, and the third paragraph, does deal with
25 the commitment of local government. Local government is
92
1 committed to providing, as they traditionally have, the
2 facilities to house and carry on the judicial function in
3 those local areas, also to provide the facilities for the
4 clerk's, the public defenders and state's attorney. This
5 is not any new obligation, it is something that they have
6 carried on forever.
7 In addition, there is a provision that, as to cost of
8 programs that are not part of a uniform, or the operation
9 of a uniform state court system, and they vary across the
10 state and from circuit to circuit where, because of local
11 conditions, programs have been instituted, some of them
12 out of some selfish motive, in the premise that there's
13 been pre-trial release programs and that sort of thing, to
14 ease up jail overcrowding for which the counties, you
15 know, feel the responsibility because they are responsible
16 for providing jails.
17 It is those sorts of community-based sort of issues
18 that are also left the responsibility of the counties
19 under this proposal. The bottom line of all of this is
20 that there is no overpowering obligation being assumed by
21 the State in providing for a uniform state court system as
22 is constitutionally required.
23 But it provides for tax relief to the counties
24 estimated at $218 million; that is significant tax relief
25 to local governments, it is good government, it is
93
1 appropriate in this day and time to fulfill the promise of
2 Article V.
3 This does it in a fair, in my estimation, a fair and
4 balanced manner. It attempts to address, and I think the
5 select committee has really done an extraordinary job of
6 identifying these costs to get down to actual cost as
7 opposed to myth and to put forward a balanced proposal
8 which will protect a functioning, fair, uniform court
9 system in this state through state funding and at the same
10 time have the county make the contributions which are
11 appropriate for the local interests that are involved
12 here.
13 All the parties I think are probably reasonably
14 unhappy with this product, which means it must be the
15 right thing to do. So I urge upon you that you adopt this
16 amendment. Mr. Chairman, there is a technical amendment
17 to this, if I might offer it now. Is that appropriate?
18 CHAIRMAN DOUGLASS: Is it on the table?
19 COMMISSIONER SUNDBERG: Yes, it's on the table. By
20 Sundberg and Nabors.
21 CHAIRMAN DOUGLASS: Read the amendment, please. That
22 would be amendment number something or other.
23 COMMISSIONER SUNDBERG: Number blank on mine.
24 CHAIRMAN DOUGLASS: 2A.
25 COMMISSIONER SUNDBERG: I beg your pardon?
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1 CHAIRMAN DOUGLASS: Call it 2A.
2 COMMISSIONER SUNDBERG: Do you want to read it?
3 CHAIRMAN DOUGLASS: Let him read it, whatever number
4 comes out.
5 READING CLERK: Amendment to amendment by
6 Commissioners Sundberg and Nabors, on Page 2, Lines 25
7 through 27, delete those lines and insert, Expenses of the
8 state court system to meet local requirements as.
9 COMMISSIONER SUNDBERG: Well, wait just a minute.
10 CHAIRMAN DOUGLASS: All right. Do you want to be
11 heard on the amendment?
12 COMMISSIONER SUNDBERG: Yes, sir, I do because I'm
13 not sure it amends on the right line that we are working
14 from. It should be Lines 20 -- I'm sorry, you are right,
15 I'm sorry.
16 What it does, Mr. Chairman and Members of the
17 Commission, is eliminate on the -- that is on the second
18 sentence of C, which is the county's contribution, talks
19 about facilities. It then talks about the counties being
20 required to fund the cost of -- pardon me, The counties
21 shall also pay reasonable and necessary salary costs and
22 expenses of the state court system to meet local
23 requirements. The original version said Should pay the
24 expense of the state court system, state's attorneys,
25 public defenders, and clerks of the circuit court when
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1 performing court-related functions to meet local
2 requirements.
3 This amendment eliminates state's attorneys, public
4 defenders, and clerks of circuit court on the premise that
5 this has been the traditional and it is the inherent
6 authority of courts. And let me simply add --
7 CHAIRMAN DOUGLASS: Wait a minute, you better explain
8 that a little better. If I'm reading what --
9 COMMISSIONER SUNDBERG: It doesn't look like it does
10 it, but I promise you, it eliminates -- it strikes.
11 CHAIRMAN DOUGLASS: It strikes, Counties shall also
12 pay; is that right?
13 COMMISSIONER SUNDBERG: No. Counties shall also pay
14 reasonable and necessary salaries, costs, and expenses of
15 the state court system to meet local requirements as
16 determined by general law. Because it strikes state
17 attorneys, public defenders and clerks of the circuit
18 court when performing court-related functions. What it
19 did was eliminate, Mr. Chairman, Lines 25 and 27 in their
20 entirety and substituted this language which eliminated
21 those.
22 CHAIRMAN DOUGLASS: Does that mean then the
23 Legislature could do that?
24 COMMISSIONER SUNDBERG: Sure.
25 CHAIRMAN DOUGLASS: I mean, by requiring the counties
96
1 to do that?
2 COMMISSIONER SUNDBERG: No. It is not a requirement.
3 And that's one of the reasons, Mr. Chairman. That, the
4 provision for and, in particular, state's attorneys and
5 public defenders is a part of the constitutional
6 impairment that would fall under A on the premise of
7 having a functional criminal justice system, you must
8 have, you must have prosecutors and defenders; and hence,
9 it would be covered under A.
10 CHAIRMAN DOUGLASS: The reason I asked that, it is
11 not a technical amendment, it is a very substantive
12 amendment to what I was reading, because under the one you
13 gave us, the counties shall also pay those items, state's
14 attorneys, public defenders and clerks of the circuit
15 court when performing court-related duties.
16 COMMISSIONER SUNDBERG: Right.
17 CHAIRMAN DOUGLASS: And you have now struck that,
18 right?
19 COMMISSIONER SUNDBERG: Exactly.
20 CHAIRMAN DOUGLASS: And then now those have to be
21 paid by the State?
22 COMMISSIONER SUNDBERG: They are to be paid by the
23 State in any event.
24 CHAIRMAN DOUGLASS: I know that, but that's not my
25 question.
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1 COMMISSIONER SUNDBERG: Well, what is your question?
2 CHAIRMAN DOUGLASS: My question is, you changed it so
3 that -- you had it where the counties paid those items.
4 You took that out and now you have it where the state does
5 it.
6 COMMISSIONER SUNDBERG: By Paragraph A the State was
7 obliged to pay it, just like it's obliged to pay certain
8 judicial costs. By Paragraph C, if you will hear me out,
9 by paragraph C, there was also some obligation on the part
10 of the counties to pay state court system costs, salaries,
11 et cetera, which were necessary and reasonable and local
12 in nature. There will be no obligation on the counties
13 under the amendment to pay any public defender or state's
14 attorney's or clerk's costs, because they are -- the
15 assumption is that they will, in fact, as a part of a
16 functioning uniform state court system, they will be
17 covered under A.
18 CHAIRMAN DOUGLASS: Well, I wasn't trying to get to
19 the merits, I was trying to understand that you have
20 changed, it is not a technical amendment, it is a
21 substantive change, which is all right, I'm not going to
22 argue that point. But I want it to be clear that we are
23 saying, instead of that language, now that won't apply?
24 COMMISSIONER SUNDBERG: Absolutely. And if I misled
25 anybody with technical change --
98
1 CHAIRMAN DOUGLASS: I don't think you misled, I just
2 think that it wasn't clear.
3 COMMISSIONER SUNDBERG: All right.
4 CHAIRMAN DOUGLASS: Commissioner Thompson, do you
5 have a question?
6 COMMISSIONER THOMPSON: Just a question and a
7 concern. I am on the committee, and you know, this thing,
8 we went over it with a fine-tooth comb, and especially the
9 last sentence. In the first sentence of C it does in fact
10 say that counties won't pay for those offices any expenses
11 except as included in C, and then we go on to talk about
12 the facilities, of course.
13 But then my understanding of that last sentence was
14 when there's local optional programs that the state
15 attorney or the public defender or the clerks or anybody
16 else is pulled into, the state would not be obligated to
17 pay for those expenses. It could, it certainly could, but
18 it would not be obligated to pay for those expenses.
19 So, this appears to me to be going beyond where I
20 thought we were going in the committee. I was satisfied
21 with the way it is, but I think this is certainly far more
22 than a technical amendment, I think it has significant
23 impact if there's a program there that state attorneys or
24 public defenders are involved in.
25 COMMISSIONER SUNDBERG: Commissioner Thompson, I know
99
1 of no programs that impact those offices because they are
2 local in nature.
3 COMMISSIONER THOMPSON: Let's leave it like it is,
4 then, it won't have any impact.
5 COMMISSIONER SUNDBERG: Well, all I say to you is
6 that all of the parties concerned have agreed to
7 eliminating this language.
8 COMMISSIONER THOMPSON: The committee, if that's the
9 case, and I'm one of them. And I think they forgot to
10 tell the Chairman. Plus, you know, I think we all want --
11 COMMISSIONER SUNDBERG: You certainly have the right
12 to take that position, but the Chairman knows about this.
13 COMMISSIONER MILLS: Mr. Chairman, I was given this
14 amendment previously. Now, let me add, let's see, as I
15 understand what it does, and I talked to Mr. Dew about
16 where he's allocated the finances. As I understand it,
17 the finances of these were never allocated to these and
18 they were in the first paragraph.
19 The one issue, I think the issue that Commissioner
20 Thompson raised is what I want just assurance from perhaps
21 staff or otherwise, that the effect of this is not to
22 preclude county commissions from continuing certain
23 programs. I mean, I know they voluntarily do that even
24 without the last sentence, as I read this.
25 But there were at least some expressions, which were
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1 from the state attorneys, and perhaps Commissioner Rundle
2 who is now perhaps going outside to find out, some
3 expression of the state attorneys of this issue.
4 And perhaps Commissioner Sundberg can clarify it for
5 all of us, if there are state attorney functions which are
6 to meet local requirements as determined by general law,
7 the way this read, it would be required to be paid. And
8 that decision would be made by the Legislature in general
9 law.
10 In other words, the Legislature would say, we believe
11 this is a local function, we require you, the County, to
12 pay it. I mean, that's what -- I think that's what the
13 language said and I think it was the intent of the
14 committee, Commissioner Thompson, and you can fill this
15 in, but the counties were obligated. There were two
16 things that the counties were obligated to do under this
17 proposal. One, they were obligated to do facilities and
18 the other attendant issues.
19 Next, the counties were obligated to pay reasonable
20 and necessary salary costs, et cetera, of the state court
21 system, state attorneys, public defenders, et cetera, that
22 are to meet local requirements, which is -- I mean, the
23 distinction to me was clear, that in Paragraph A you are
24 meeting requirements of the state court system. Only,
25 this sentence only deals with local requirements related
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1 to those other expenses.
2 And we had a big discussion, and well enlightened by
3 Senator Silva, I might recall, that what you have here is
4 a potential disagreement on what local requirements might
5 be.
6 Because you might have the county commission saying
7 one thing, it was a local requirement, you might have the
8 court saying other things, so there, this says, as
9 determined by general law.
10 CHAIRMAN DOUGLASS: How should we vote on the
11 amendment?
12 COMMISSIONER MILLS: Well, I'm not exactly sure. I
13 know the impact. The representation has been that there
14 are no -- Commissioner Sundberg has said that there are no
15 local programs for state attorneys that would fall under
16 this. If he's correct, then this doesn't do anything.
17 CHAIRMAN DOUGLASS: Commissioner Barkdull has a
18 question.
19 COMMISSIONER BARKDULL: Commissioner Mills, I wasn't
20 privy to what y'all heard in the Select Committee, and I
21 guess I'm fortunate not having to spend the hours that
22 y'all had to spend, but I do recall from the Article V
23 Task Force, which had a couple of years of hearings around
24 the state here which I was privileged to serve on, but
25 there were programs, and I'm thinking particularly about
102
1 Orange County and about Duval County, that had particular
2 intake programs where they had, as I recall it, 24-hour
3 on-duty state's attorneys, public defenders and so forth,
4 but I don't know that all of the other circuits have that.
5 And this, to me, when I read this language, occurs to me
6 to be a local provision pertaining to a local circuit.
7 I was comfortable, and I want to commend the
8 committee for what they did while I'm on my feet, but I am
9 concerned about the amendment that Commissioner Sundberg
10 has offered because it seems to put the obligation to pay,
11 as I understand it, for the additional work that's done in
12 those two circuits, and there may be others that I'm not
13 aware of, that it's presently picked up by the counties as
14 I understand it, would switch that over to the state if we
15 adopt this amendment.
16 COMMISSIONER MILLS: Mr. Chairman, I'm confident from
17 what Commissioner Sundberg said and from what Mr. Dew
18 (phonetic) said that that's not the intention. We might,
19 in the long-standing tradition of this commission,
20 temporarily pass this for five minutes so -- I think
21 Commissioner Thompson has asked a question, I think he's
22 entitled to be made comfortable on that issue. And if
23 what Commissioner Sundberg represents, and as he
24 understands it, is the way others understand it, I don't
25 think it'll be a problem. It is not a financial problem,
103
1 as I understand it, but since these words are going to be
2 in there for another 20 years, we probably should be
3 fairly careful about what we say.
4 CHAIRMAN DOUGLASS: Well, I want to correct you, it's
5 not a longstanding tradition that we temporarily pass it
6 because somebody can't answer a question. And
7 Commissioner Scott wants the floor.
8 COMMISSIONER SCOTT: Mr. Chairman, if you are going
9 to temporarily pass it I want to be recognized because I
10 have a matter that won't take more than five minutes.
11 CHAIRMAN DOUGLASS: On this?
12 COMMISSIONER SCOTT: No.
13 CHAIRMAN DOUGLASS: We haven't got that far yet. Do
14 you want to temporarily pass it?
15 COMMISSIONER MILLS: I want to temporarily pass it to
16 a time certain, in 15 minutes, I mean, we will take it up
17 because this question can be answered yes or no pretty
18 quickly by a couple of staff people, and I think
19 Commissioner Thompson raised a question and I think he's
20 entitled -- I can't answer the question. I'll tell you, I
21 can't answer the question.
22 CHAIRMAN DOUGLASS: We'll temporarily pass this to a
23 time certain, 15 minutes from now, to 12 -- whatever 7 and
24 15 is. That is the motion. All in favor of the motion
25 say yea. Opposed, no.
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1 (Verbal vote taken.)
2 CHAIRMAN DOUGLASS: Now, Commissioner Scott, we are
3 moving along here.
4 COMMISSIONER SCOTT: Mr. Chairman, we want to
5 conclude the 100 hours that we have spent on this.
6 Yesterday Commissioner Connor and I spoke with him about
7 this, made a motion to reconsider Proposals 49, 103 and
8 185, which was the tax issue, the leasehold. And at this
9 time I would like to call up that motion and hopefully get
10 it disposed of. He's assured me that it wouldn't take no
11 more than a few minutes to discuss this.
12 CHAIRMAN DOUGLASS: Commissioner Barkdull, without
13 objection, we'll call it up, okay.
14 COMMISSIONER CONNOR: Mr. Chairman, I was on my way
15 home yesterday from the CRC meeting and encountered a
16 small businessman on the way and he asked what we are
17 doing, and I told him about this proposal that we have
18 just passed. And he said, Well, what does it do? And I
19 said, Well, it provides tax relief for government. And he
20 said, Excuse me? I said, It provides tax relief for
21 government. He said, What else does it do? I said, Well
22 it ensures that there are a greater number of competitors
23 in the arena against the private business owner who have a
24 leveraged advantage if they are associated with the
25 government.
105
1 Well, this fellow is not a lawyer or a Ph.D. and he
2 was really having difficulty understanding why we would do
3 this. So, he asked me if I would put it in a context --
4 he said, Well, what else have y'all done? I said, Well,
5 we have increased the power of government to restrict the
6 access of law-abiding citizens to buy firearms and protect
7 themselves, I said, But you shouldn't worry because we
8 have also increased the power of government to appoint the
9 judges that will deal with the bad guys that arise out of
10 the mishmash that we have created there.
11 He looked at me and said, Well, let me ask you
12 something, he said, How often do you folks meet? I said,
13 Once every 20 years. He said, Well, that's too often.
14 CHAIRMAN DOUGLASS: Commissioner Thompson, I'm going
15 to assign somebody to go with you when you talk to these
16 people.
17 (Laughter.)
18 COMMISSIONER CONNOR: Mr. Chairman, I would submit to
19 you that that's a rhetorical device to illustrate the
20 point that we ought to be concerned about, which is we are
21 paying way too much attention and according way too much
22 concern to protecting government, we need to be paying
23 more attention to protecting the rights of the people.
24 Now, I voted for this proposal yesterday with the
25 expressed understanding that we were going to level the
106
1 playing field intra-government and we were going to make
2 those adjustments, and I'm the first to tell you that I
3 firmly applaud the Legislature's prerogative and
4 responsibility for making those kinds of exemptions in
5 preference to the courts. I think the Legislature is the
6 proper branch of government to do that.
7 But I am gravely concerned that what we have been
8 doing increasingly as a body is conferring more and more
9 power to government at the expense of the citizens and
10 paying less and less attention to the citizens.
11 And I dare say when somebody has asked before,
12 Mr. Langley, I believe, How am I going to explain this in
13 the coffee shop, people are going to have a hard time
14 understanding those things. We need to be watching out
15 for the interests of the citizens, and thus far in the
16 proposal I would submit to you that we didn't do anything
17 for the citizens of Florida who have to compete now on an
18 un-level playing field by virtue of the benefits that we
19 are according to government at their expense.
20 CHAIRMAN DOUGLASS: All right. Now, we are on a
21 motion to reconsider the proposal that dealt with the --
22 explain it.
23 COMMISSIONER SCOTT: I want to make clear, this is
24 not anything to do with abolishing this commission or us
25 not meeting, I don't want to get it confused with all of
107
1 those other issues.
2 CHAIRMAN DOUGLASS: I started to say, you were losing
3 a lot of support there.
4 COMMISSIONER SCOTT: Yes. At this late date. We
5 voted on this, we discussed it, I would ask you, you are
6 going to get one final chance anyway. I would ask you not
7 to reconsider it, let's go on with what we did. It is
8 not -- if you take that premise that we are giving tax
9 relief to government, then in effect, we are giving tax
10 relief to taxpayers because they are the ones that pay
11 taxes. So, in that sense, I would urge that we defeat
12 this motion to reconsider.
13 CHAIRMAN DOUGLASS: Commissioner Connor has a
14 question.
15 COMMISSIONER THOMPSON: I think Commissioner Smith
16 wishes to speak.
17 COMMISSIONER CONNOR: I would just like to close on
18 my motion, that's all.
19 CHAIRMAN DOUGLASS: Okay. You may close.
20 Commissioner Smith.
21 COMMISSIONER SMITH: Thank you. I just want to give
22 the Chair and the rest of the commissioners some comfort
23 in knowing that after the sharp speaking to Commissioner
24 Connor, that individual stopped by the DoubleTree where I
25 stay and we had a drink together and he asked me what was
108
1 my view and I said that although I was opposed to the
2 issue of tax breaks, what we did really was to level the
3 playing field so that municipalities in effect would be
4 treated the same as counties, and as was stated, a
5 municipality wouldn't have to go to a county and say,
6 Well, you have the airport because we won't get the tax
7 break.
8 And he said, Well, what about the judges? And I
9 said, Well, we listened to the conservative voices among
10 us who told us that we should give the people the option
11 to decide how they want to elect their judges. And
12 finally he said, Well, what did you-all do with that
13 second amendment? I said, Well, we made sure that it's a
14 lot tougher for criminals to get guns. And he said to me,
15 Well, why don't you-all meet every year?
16 (Laughter.)
17 CHAIRMAN DOUGLASS: Commissioner Connor, you have a
18 problem, you don't drink, do you?
19 COMMISSIONER CONNOR: Well, as a matter of fact,
20 Mr. Chairman, I was going to suggest to you that
21 Commissioner Smith has already acknowledged he came to
22 that conclusion after they started drinking.
23 (Laughter.)
24 CHAIRMAN DOUGLASS: All right. Proceed with the
25 discussion on sin.
109
1 COMMISSIONER CONNOR: Actually, I would like to just
2 address the one point that Commissioner Scott made and
3 tell you why I'm concerned, why I remain concerned. I
4 agree with you, Commissioner Scott, that ultimately the
5 tax payor may receive some benefit by, if the tax burden
6 winds up being reduced and is diffused among all of the
7 taxpayers. And I tried to weigh that with respect to the
8 disproportionate impact that the small businessman would
9 suffer in the marketplace.
10 And my conclusion was, very frankly, was that the
11 leverage that the competitors were given by virtue of
12 their association with government in this context, was
13 such as to produce a greater asymmetry in the marketplace
14 on the individual business owner than to diffuse -- than
15 the benefit that resulted from the diffusion among the tax
16 base. And I just remain concerned and I'll register my
17 concerns yet another time, and hopefully in the meantime
18 there may be some way to wind up providing some tax relief
19 for people and not just government. Thank you.
20 CHAIRMAN DOUGLASS: All right. Do you want to close?
21 If not, we'll proceed to vote on -- oh, excuse me,
22 Commissioner Evans.
23 COMMISSIONER EVANS: Okay. I just have a question on
24 this. Commissioner Scott said that we have another bite
25 at the apple, we know we have the 22 vote. My question
110
1 is, when we get to the 22 vote on these issues, do we
2 discuss and debate some more, or is, it's called up and do
3 our thing and that's it?
4 HEARING OFFICER: I think that's to be decided on by
5 the Rules Committee and has not been yet. Probably if we
6 have debate it will be limited, we don't have much time to
7 do it. You know, if you are against this, vote for its
8 reconsideration, if you are for it, you can vote to deny
9 it. Isn't that the way you see it, Commissioner Connor?
10 Okay. Are you ready to vote? All in favor of the motion
11 to reconsider, say yea. All opposed?
12 (Verbal vote taken.)
13 CHAIRMAN DOUGLASS: I believe the nos have it. I
14 would open the machine if you would like. Okay, we are
15 still in recess.
16 COMMISSIONER BARKDULL: We are temporarily passed, we
17 are not in recess.
18 CHAIRMAN DOUGLASS: Excuse me, we are not in recess,
19 we are temporarily passed. Go ahead. Everybody is
20 getting in recess, that's why I said that.
21 COMMISSIONER BARKDULL: I want to move that the time
22 of adjournment be extended until we conclude the debate on
23 Article V, consider the matters on reconsideration and
24 announcements.
25 CHAIRMAN DOUGLASS: All right. Without objection, it
111
1 is done. The motion to reconsider failed.
2 COMMISSIONER SCOTT: Mr. Chairman, I thought a lot of
3 people I know are planning on leaving at 1:00.
4 CHAIRMAN DOUGLASS: Well, you know, we --
5 COMMISSIONER SCOTT: And he just extended us until
6 the conclusion of Article V and --
7 CHAIRMAN DOUGLASS: Well, we can go ahead and do some
8 of the things while we are sitting around here waiting.
9 COMMISSIONER SCOTT: I'm just concerned about --
10 COMMISSIONER BARKDULL: Commissioner Scott, my
11 reasoning is, we have -- and I have no objection to
12 carrying over the matters for reconsideration until we
13 come back on the 23rd, but I want to be sure they stay
14 alive, and that's the purpose of the motion.
15 COMMISSIONER SCOTT: Well, that is a separate motion
16 and that's fine.
17 CHAIRMAN DOUGLASS: Well, his motion at the moment is
18 that we proceed until we finish the debate on the Article
19 V proposal that's now before the body. That is the
20 motion. And announcements and other motions directed to
21 carrying matters over, that is the motion. All in favor
22 of the motion, say yea. Opposed?
23 (Verbal vote taken.)
24 CHAIRMAN DOUGLASS: The yeas have it. Now, the next
25 matter to come before the commission. Do you have
112
1 something to bring forth? You have a proposal that we
2 haven't reached, don't you?
3 COMMISSIONER MATHIS: I guess I have two things to
4 do. I would like to call up the motion for
5 reconsideration on Proposal No. 2.
6 CHAIRMAN DOUGLASS: Well certainly you can do that.
7 Proposal No. 2 is on reconsideration, it is the proposal
8 by Commissioner Sundberg, which has been popularly said to
9 be the affirmative action proposal, which it really isn't,
10 but that's what everybody says it is. And it was approved
11 by the Committee on Declaration of Rights, amended, and
12 then it was adopted on a 23 to 8 vote, and the pending
13 motion to reconsideration of Commissioner Barkdull, the
14 motion to reconsider was deferred. Commissioner Barkdull,
15 it's been called up and you are the person that made the
16 motion to reconsider. You are recognized.
17 COMMISSIONER BARKDULL: Yes, sir, Mr. Chairman, and I
18 am prepared to proceed on it. Commissioners, this is a
19 matter of great importance, like all of the things we have
20 before us. And at the time that it was under debate I had
21 considerable concern about it, I put it on a motion to
22 reconsider for, number one, I was concerned about how the
23 impact of this might be with 144 which we had adopted
24 previously by Commissioner Barnett that also happens to
25 also be on reconsideration about the arbitrary and
113
1 discriminatory sentencing.
2 In the meantime, I have had an opportunity to spend
3 some more time in reviewing this and in discussions with
4 Commissioner Sundberg which were very enlightening to me
5 yesterday.
6 CHAIRMAN DOUGLASS: Now y'all pay attention, this is
7 on a matter that's going to come back time and again.
8 COMMISSIONER BARKDULL: I pointed out the discussion
9 that I had with Commissioner Sundberg, and I want to thank
10 him for his candor in explaining this to me because I was
11 having a great deal of difficulty in determining how this
12 would work.
13 And as I understand it, this provision that we put in
14 the Constitution will be a direction that governmental
15 agencies which include the state, its agencies, the
16 political subdivisions, municipalities, counties, public
17 schools, and universities, community colleges, school
18 districts, special districts, authorities and other
19 governmental instrumentalities.
20 I think they pretty much covered the gamut of every
21 type of government we probably have in the state, may take
22 actions, not including financial reparations, necessary to
23 remedy the present effects of past discrimination.
24 Now, that was amended to put in not including
25 financial reparations, which I believe means no direct
114
1 appropriations to individuals. I may be mistaken in that,
2 but that's my commonplace. Now, it continues and it
3 defines what have been past discriminations, and that is
4 in the areas of publicly-owned housing, public employment,
5 public accommodations, public education, and public
6 procurement of goods and services, and the expenditure of
7 public funds.
8 Now, this is discrimination that occurred in all of
9 those areas, going back I don't know how far, I assume
10 maybe to 1838 when we were a territory as it shows on the
11 Seal, I don't know. There's no definitive definition in
12 that. The example that Commissioner Sundberg gave me
13 yesterday as to what this was to accomplish I thought was
14 very appropriate because I did understand it, I think.
15 And he pointed out to me that if there had been a
16 government subsidy for peanut farmers that had been in
17 existence for quite a while and there was a showing that
18 there had been a group that had been discriminated against
19 that grew peanuts, that in the future that past
20 discrimination could be alleviated by an increase in the
21 peanut allotment to that farmer today.
22 Now, if that's true as to the peanut farmer, we have
23 had discrimination in our colleges in the interval since
24 1838, which I, now with our higher education caps, I
25 assume that there will have to be an adjustment in the
115
1 enrollment to cure the past discrimination. We have had
2 goods that have been bought with public money over a
3 period of years, assumably above a certain level with
4 competitive bidding and under a certain level without
5 competitive bidding. And I don't hazard to doubt that
6 they can show that there has been discrimination in those
7 purchases.
8 Now, as we go forward, if we are going to alleviate
9 that past discrimination, are we going to have to have a
10 set-aside to cure that problem? And that's applicable in
11 all of these categories that I delineated. I don't think
12 there's any of us that are for continuing any form of
13 discrimination, and I certainly am not. But I am
14 concerned about a constitutional statement that we make
15 that opens up all of these governments, your school
16 boards, your municipalities, your flood districts, you
17 name it. If it's government in nature and there can be
18 the showing that is here, which will be a political
19 question, that there's going to be a request that the
20 public treasury today provide programs to alleviate this
21 past discriminatory practice.
22 So, we have got to understand what we are putting in
23 the Constitution. Now, maybe that's what is entirely the
24 will of this body, to submit this issue to the public, and
25 that's fine. But let's be sure that we understand that we
116
1 know what we are doing. I've got to confess that I had
2 not really understood what were the financial
3 ramifications of requiring the taxpayers today to try to
4 eliminate or alleviate a problem that was caused in the
5 past.
6 And I just want to be sure that when we go forward
7 with this program, that the public and this commission
8 completely understands it. And maybe I'm wrong in moving
9 to reconsider it, but I wasn't sure of all of these
10 implications when we voted the other day and I'm not sure
11 that I understand how far these ramifications go today.
12 But I do know that we are making a statement that
13 will open up to political discussion where all of the
14 avenues or all of the legislative departments of the
15 different forms of government that spend money, they are
16 going to be asked to spend money today to remedy problems
17 that have existed at least as far back, I think, as 1838.
18 And I think we should reconsider this matter.
19 CHAIRMAN DOUGLASS: All right. Commissioner Mills.
20 COMMISSIONER MILLS: Point of order, Mr. Chairman, we
21 had a time certain.
22 CHAIRMAN DOUGLASS: Okay. We revert back to the
23 debate where we were. We'll come back to this when we
24 finish Article V. And it survives even a motion to
25 adjourn. Commissioner Riley.
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1 COMMISSIONER RILEY: If I can take a moment of
2 personal privilege.
3 CHAIRMAN DOUGLASS: You may have a moment of personal
4 privilege.
5 COMMISSIONER RILEY: And it will only be a moment.
6 We have a member among us who is going to have the
7 opportunity this weekend to change how he puts down his
8 status, such as marital, Commissioner Anthony. This
9 Saturday, and I am sure that we have all not only bought
10 our gifts, but received our invitations. He is, in fact,
11 getting married, and I think that the record should show
12 that we honor the institution of marriage and we certainly
13 send with all of us best wishes, and also to your
14 wife-to-be.
15 Now, I must admit, Commissioner Anthony, I asked a
16 few people what we might perhaps pool money and get for
17 you and I cannot even mention some of the specifics of
18 what we might buy for you as a going away gift or the
19 rental of certain people that we might consider in the
20 honor of this, so in lieu of that we have a card that we
21 would like to give you that's very mundane and very basic,
22 but certainly expresses our best wishes.
23 CHAIRMAN DOUGLASS: Great. Commissioner Scott, on
24 the subject.
25 COMMISSIONER SCOTT: Well, we also are sending a
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1 sympathy card to the bride-to-be.
2 CHAIRMAN DOUGLASS: Correct. And Commissioner Zack
3 asked me to present this key to the paraplegic ward of
4 Jackson Memorial Hospital to you. Congratulations. Is it
5 congratulations or best wishes, or both?
6 COMMISSIONER SCOTT: Both.
7 CHAIRMAN DOUGLASS: We congratulate the man. The
8 best.
9 (Off-the-record discussion.)
10 CHAIRMAN DOUGLASS: I'm not going to do anything with
11 that, Commissioner Jennings. Commissioner Anthony, you
12 are recognized to a point of personal privilege.
13 COMMISSIONER ANTHONY: She did catch something, the
14 best. Let me thank you on behalf of my future bride, for
15 this card, it really is a blessing and a day I've been
16 waiting on all of my life. And many people are shocked,
17 and so am I that the State of Florida is now noticing
18 this. Your invitations may be at -- also a moment of
19 seriousness, let me thank you-all so much for the wedding
20 gift that you gave me in allowing me to go off this
21 morning. And in going off, let me say that, sometimes the
22 little things that you do you think are in jest or to just
23 get attention, but there's somebody that I have probably
24 bonded with more on this commission than anyone else, and
25 that's Zack, and all I did was in jest, and I'm sorry
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1 if -- I really am sorry because it was in jest and I
2 wouldn't do anything to hurt him because I truly love him
3 as a person.
4 CHAIRMAN DOUGLASS: Better be careful now, he might
5 do something to hurt you.
6 COMMISSIONER ZACK: We are not going to get back into
7 sexual orientation.
8 COMMISSIONER ANTHONY: It was only in care. And
9 there is nobody that cares more. And his proposal is, out
10 of all, the best one that really represents some movement.
11 So, thank you for the wedding gift and I'm going to try my
12 best to see you sometime maybe that week, but if not,
13 thank for your best wishes.
14 CHAIRMAN DOUGLASS: All right. Now, let's hurry up
15 here, we need to get on.
16 COMMISSIONER ZACK: This is going to be very quick.
17 I wanted to tell Commissioner Anthony that we knew it was
18 in jest and we took it as it was intended, and I know that
19 we all want the marriage to work out and we are sure it
20 will, but in case it doesn't, I'm returning him this check
21 for unlimited funds, which he'll need.
22 CHAIRMAN DOUGLASS: Okay, all right. Let's get back
23 to the proposal on Article V costs. You have the floor,
24 Commissioner Mills.
25 COMMISSIONER MILLS: Well, Mr. Chairman, I feel like
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1 I ought to take the check for Article V or else -- but
2 we'll leave it alone for now. What we are going to do is
3 Commissioner Sundberg has offered to withdraw that
4 amendment and let us proceed with the proposal as it is.
5 CHAIRMAN DOUGLASS: All right. The amendment is
6 withdrawn that we were discussing, and now we are on the
7 proposal itself, which still has the language in it that
8 was attempted to be removed. Am I correct, Commissioner
9 Mills; is that correct?
10 COMMISSIONER MILLS: Sir?
11 CHAIRMAN DOUGLASS: It goes back to where it was.
12 COMMISSIONER MILLS: Yes, sir. And I believe that
13 that would still be, you would still be considering an
14 amendment because we haven't adopted the amendment as
15 proposed, which was from the committee.
16 CHAIRMAN DOUGLASS: That's correct, that's what we
17 were on. And this was an amendment to the amendment.
18 COMMISSIONER MILLS: So, Mr. Chairman, I would move
19 the amendment.
20 CHAIRMAN DOUGLASS: You move the amendment, which is
21 what is in your pink book. After the amendment is
22 adopted, then we will be on the proposal as amended. All
23 of those in favor of the amendment, say yea. Opposed?
24 (Verbal vote taken.)
25 CHAIRMAN DOUGLASS: All right. We are now on the
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1 merits of the proposal, which is the amended proposal.
2 Commissioner somebody, who wants to speak to the merits?
3 Commissioner Kogan.
4 COMMISSIONER KOGAN: Let me just say this.
5 CHAIRMAN DOUGLASS: All right. Attention please.
6 COMMISSIONER KOGAN: This is a very, very important
7 issue, and the reason it's important is simply because the
8 counties need to have some relief in this particular
9 matter. The reason they need the relief was, back in 1972
10 when this particular original Article V amendment was
11 passed there were a lot of programs out there that nobody
12 even knew would exist 25 years later.
13 And what's happened is, they have undertaken these
14 programs, they have been financing them to assist the
15 court system. And one of the major problems they have
16 had, especially in the small counties, have been providing
17 for the attorneys' fees and costs for those attorneys that
18 are appointed in capital cases as conflict lawyers.
19 In other words, those cases where the public
20 defender's offices cannot represent a particular defendant
21 in a capital case because they have a conflict, either
22 they represent a codefendant or for some reason they
23 represented or are representing a witness in the case and
24 they had to go-ahead and do it.
25 In the big counties, of course, this is also a drain
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1 for them. But in your small counties, if you have one
2 capital case that takes any length of time, and I've yet
3 to see any capital case that doesn't take any length of
4 time, their budgets can be wiped out. This is a very,
5 very serious matter, and this is something that they have
6 been asking us to help get them some relief. And
7 consequently I would urge you to vote for this particular
8 amendment.
9 CHAIRMAN DOUGLASS: All right. Anybody else?
10 Commissioner Evans.
11 COMMISSIONER EVANS: Commissioner Kogan. I like this
12 amendment, I think it, you know, it does a lot of good
13 things, but I have a concern about putting this into the
14 Constitution and a separation of powers' problem if
15 somehow or another it didn't work out, it had to go to
16 litigation, the court system has to tell the Legislature
17 how it appropriates its money. This kind of separation of
18 powers problem, I just would like you to address that
19 concern.
20 COMMISSIONER KOGAN: Okay. You know, everybody -- we
21 heard this, and whether or not you like the court system,
22 or whether or not you like all of our rulings, under our
23 form of government, and even under the doctrine of
24 separation of powers, ever since Marlborey (phonetic)
25 versus Madison, which was a few years ago, the fact of the
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1 matter is, all of these matters, when they are contested,
2 wind up in court. And there's no way to prevent it, this
3 is our form of government.
4 And sooner or later, if there's a contest over any
5 function of government it finally winds up in court and
6 the court has to make the decision, that's just the way we
7 do it, there's no other way. Everybody understands that,
8 that eventually when there's a dispute it winds up in the
9 courts.
10 (Commissioner Thompson assumes the Chair.)
11 COMMISSIONER THOMPSON: Further debate before
12 Commissioner Sundberg closes? Commissioner Douglass, for
13 what purpose?
14 CHAIRMAN DOUGLASS: I wanted to ask a question of
15 Commissioner Sundberg is why I left the stand.
16 COMMISSIONER THOMPSON: Commissioner Sundberg, would
17 you yield to a question by the Chairman before you close?
18 We have a couple of other speakers and then we will close.
19 CHAIRMAN DOUGLASS: First of all, let me say that I
20 support the concept and what we are trying to do here, and
21 I think we all do because it is one of the major items we
22 have been dealing with for years. I was concerned that --
23 and I wasn't sure when I was asking the question, I'm
24 really concerned with the fines and the forfeitures. And
25 I'm concerned with them because my understanding has been
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1 that under the present Constitution, whether the
2 Legislature exercises its jurisdiction to take possession
3 of those funds or whether they just pass laws saying you
4 can use those funds, it's still subject to general law in
5 the present Constitution, the use of those fine and
6 forfeiture funds, the dispositions of them. Am I correct
7 in that regard?
8 COMMISSIONER SUNDBERG: You are correct in that
9 regard.
10 CHAIRMAN DOUGLASS: All right. And if we adopt this
11 proposal, that would no longer be the case, will it?
12 COMMISSIONER SUNDBERG: It will continue to be the
13 case. There's nothing in this proposal that in any way
14 restricts the legislative authority, as I see it, over
15 fines and forfeitures.
16 CHAIRMAN DOUGLASS: All right. The use of fines and
17 forfeitures.
18 COMMISSIONER SUNDBERG: Yes.
19 CHAIRMAN DOUGLASS: In other words, the Legislature
20 could pass and make all of the fines and forfeitures a
21 part of their appropriations.
22 COMMISSIONER SUNDBERG: They could say that the fines
23 and forfeitures shall go into a trust fund for the
24 judiciary, they can do whatever they want to. They do
25 that now.
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1 CHAIRMAN DOUGLASS: I know they can do that now, but
2 I want to make sure that that's, under your proposal as
3 it's now amended, it's clear that that will continue.
4 COMMISSIONER SUNDBERG: Yes.
5 CHAIRMAN DOUGLASS: I was a little bit confused from
6 your answers. I got the impression that it wouldn't be.
7 COMMISSIONER SUNDBERG: No, then I apologize if I
8 have led you to believe otherwise.
9 CHAIRMAN DOUGLASS: Okay, because that is a very
10 large sum of money.
11 COMMISSIONER SUNDBERG: It's about $104 million.
12 CHAIRMAN DOUGLASS: Well, in some counties it's more
13 than their budget, occasionally, you know, we have had
14 that problem, where forfeitures and fines, they come in on
15 a marijuana bust in one of these small counties and they
16 finance the school system with it.
17 I'm not necessarily saying that is a bad idea either,
18 but the Legislature could take control of that money and
19 prevent that, correct?
20 COMMISSIONER SUNDBERG: The Legislature, as in all
21 things fiscal, has the ability to direct where the fines
22 and forfeitures shall go.
23 CHAIRMAN DOUGLASS: In all things fiscal, they don't
24 if the Constitution prohibits it.
25 COMMISSIONER SUNDBERG: There is no language -- I
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1 represent to you so far as I know there is no language nor
2 is there any intent to in any way limit the Legislature in
3 its handling of fines and forfeitures.
4 CHAIRMAN DOUGLASS: That answers my question and
5 makes me feel very comfortable and I'll sleep well tonight
6 knowing that I have your opinion on this.
7 COMMISSIONER SUNDBERG: And you have made a record.
8 CHAIRMAN DOUGLASS: And I'm going to go with it.
9 COMISSIONER THOMPSON: Commissioner Evans-Jones, for
10 what purpose?
11 COMMISSIONER EVANS-JONES: Question of Commissioner
12 Sundberg.
13 COMISSIONER THOMPSON: Commissioner Sundberg, will
14 you yield? He yields.
15 COMMISSIONER SUNDBERG: Most assuredly.
16 COMMISSIONER EVANS-JONES: Commissioner Sundberg, I
17 realize that you have withdrawn your amendment, however,
18 there were a lot of us here who thought it was a great
19 amendment and I'm very sorry that you decided to do that.
20 COMMISSIONER SUNDBERG: Since politics is the art of
21 the doable, I withdrew it. I'm assured by those that
22 urged me to withdraw it that the issue is still open for
23 discussion and was expressed by Commissioner Thompson as,
24 we have still got the second or third reading to go on
25 this, and it's an issue that at the time that it's being
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1 dealt with by Style and Drafting when it comes out, they
2 represent to me it will still be open.
3 There are people who assert that they were not
4 prepared for this and consequently that's why I withdraw
5 it.
6 (Chairman Douglass resumes the Chair.)
7 CHAIRMAN DOUGLASS: All right. On the proposal,
8 Commissioner Freidin was up first and then, Commissioner
9 Henderson, you go next.
10 COMMISSIONER FREIDIN: I had a question that I would
11 like to direct to Commissioner Kogan.
12 CHAIRMAN DOUGLASS: He yields.
13 COMMISSIONER FREIDIN: My question is, my
14 understanding is that under this proposal the Legislature
15 takes full responsibility for certain enumerated costs of
16 the court system. Is there anything in the proposal that
17 precludes the counties from supplementing what the
18 Legislature may do?
19 In other words, if the Legislature in a tough year
20 cuts back on funding for the court system, what will the
21 court system do in that situation?
22 COMMISSIONER KOGAN: Well there is nothing to prevent
23 the counties from supplementing it at all. For example,
24 if you had a tough year financially in the state
25 Legislature and they said, we can't fund maybe a pretrial
DIVISION OF ADMINISTRATIVE HEARINGS (850) 488-9675
128
1 release program, maybe we can't fund a pretrial
2 intervention program, whatever it is, and the local court
3 system says, Oh, my goodness, we are going to crumble
4 unless we do that, there is nothing that prevents the
5 counties from coming in and picking up those bills.
6 CHAIRMAN DOUGLASS: Commissioner Henderson.
7 COMMISSIONER HENDERSON: A question and I was going
8 to ask it of Sundberg, I don't know who was going to
9 answer it. I'm confused about something, particularly in
10 light of the withdrawal of the Sundberg amendment.
11 In paragraph B the reference to the county court
12 system, by this I read it as the funding for county courts
13 performing court-related functions is now a function of
14 the fee system. Is that correct?
15 COMMISSIONER SUNDBERG: That is correct.
16 COMMISSIONER HENDERSON: And Commissioner Sundberg
17 has answered that as correct. Can you help me with
18 this --
19 CHAIRMAN DOUGLASS: Take the floor please,
20 Commissioner Sundberg.
21 COMMISSIONER HENDERSON: I think that answered the
22 question, but is there anytime a county court is not
23 performing a court-related function?
24 COMMISSIONER SUNDBERG: The clerk of the county
25 court --
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1 COMMISSIONER HENDERSON: No, I understand the clerk,
2 but the county clerk performing -- is there any time when
3 the county courts are not performing a court-related
4 function?
5 COMMISSIONER SUNDBERG: It's the clerks of the county
6 court. It is the clerk of the circuit and county courts
7 which is what the clerk is designated, as the clerk of the
8 circuit and county court.
9 COMMISSIONER HENDERSON: Gotcha.
10 CHAIRMAN DOUGLASS: All right. Anything further? Do
11 you want to close? Commissioner Sundberg to close.
12 COMMISSIONER SUNDBERG: Captain Smith says to make it
13 short. I urge you adopt this proposal.
14 CHAIRMAN DOUGLASS: That's a great speech. That's
15 one of your better performances, Commissioner Sundberg.
16 Now we'll proceed to vote on the committee substitute
17 as amended. Open the machine.
18 (Vote taken and recorded electronically.)
19 CHAIRMAN DOUGLASS: Everybody voted? Unanimous vote,
20 lock the machine. Lock the machine and announce the
21 unanimous vote.
22 READING CLERK: Twenty-five yeas, zero nays,
23 Mr. Chairman.
24 CHAIRMAN DOUGLASS: All right. Now, we're back to
25 the motion to reconsider Proposal No. 2 and Commissioner
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1 Barkdull's motion. Had you completed your opening
2 remarks?
3 COMMISSIONER BARKDULL: Yes, sir.
4 CHAIRMAN DOUGLASS: Now Commissioner Mathis, did you
5 have the floor when we quit? Commissioner Smith did. All
6 right. Commissioner Smith, you may proceed on the motion
7 to reconsider Proposal No. 2.
8 COMMISSIONER SMITH: Thank you very much, Mr. Chair.
9 First of all, let me remind everyone that this
10 particular proposal got a favorable recommendation from
11 the Committee on Declaration of Rights and received a
12 favorable 23 to 8 vote on Monday. I was very displeased
13 with the fact that my schedule in court precluded me from
14 being here. But let me try to address the concerns that
15 have been raised by Commissioner Barkdull.
16 First of all, with regard to issues of payments, on
17 the suggestion of Commissioner Connor, we put into the
18 proposal as clear language as possible that financial
19 reparations would not be a part of remedy.
20 Secondly, in concern for others who previously
21 expressed the concern that Commissioner Barkdull raises
22 now and that is, you know, since 1619 there's been racial
23 discrimination but 1838 in Florida we were talking about
24 the present effects of past discrimination. And that
25 would be an objective test. And if you've read any of the
131
1 cases like Ataran, one or two, or the case out of
2 Virginia, I mean that's pretty difficult.
3 As a matter of fact, those who are working in the
4 dissent basically, said this is a standard that can't be
5 met. Justice O'Connor responded by saying, yes, it's a
6 very, very difficult standard and it should be a difficult
7 standard because of the fact we're not just saying that
8 everybody that happens to be in the class or the class
9 itself can automatically, either statistically or because
10 of the fact that you're in a group that's been
11 discriminated in the past, you automatically can receive
12 redress.
13 A perfect example of that situation was evidenced in
14 the cases with regard to scholarships. If in fact under
15 Florida law it can be demonstrated that there had been
16 past discrimination in Florida schools, one of the things
17 I think would happen as a result of the other cases is
18 that African-Americans or women or Hispanics from Georgia
19 won't be able to come down and take advantage of the
20 scholarships in Florida because you would have to tailor
21 the remedy to the present effect of the past
22 discrimination.
23 So under our Florida Constitution, if it can be
24 demonstrated whether there is past discrimination against
25 Florida's African-Americans, who were denied a right to go
132
1 to college then Florida's African-Americans could possibly
2 have a situation where they would be given some remedy for
3 scholarships.
4 But thirdly and most importantly, and the thing that
5 I know should give you the greatest concern, and I hope
6 this language kind of alleviates that, and that is this
7 constitutional language says that those institutions may
8 institute policies and procedures and programs. It does
9 not mandate those policies and procedures.
10 There is a legitimate disagreement about remedying
11 past discrimination and it's a legitimate debate. And
12 good people on both sides of the issue can legitimately
13 disagree. And we have debated that. But I think here
14 what we're trying to do is to provide constitutional
15 protection for those institutions of government that want
16 to tailor those types of programs to remedy the present
17 effects of past discrimination.
18 And with regard to that, I believe that, one, I agree
19 with the chairman and I agree with you that we need a
20 different title for the section. I don't think it's
21 strict affirmative action and we're going to work on that.
22 And Commissioner Mills, who is with Style and Drafting, I
23 have his right ear and I'm trying to work with him on
24 that.
25 It doesn't say it, but I'm saying if we say that,
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1 that's what it's going to get out as, Commissioner
2 Sundberg. And I would ask this commission at this point
3 to vote against reconsidering this because all of the
4 concerns of the possible opening the door to floodgates of
5 bankrupting the government, bankrupting the schools I
6 think are things that cannot happen under the case law and
7 under the statute as we have narrowly tailored, taking
8 into consideration all of the issues that were previously
9 raised.
10 COMMISSIONER BARKDULL: I wanted to ask Commissioner
11 Smith a question.
12 CHAIRMAN DOUGLASS: He yields.
13 COMMISSIONER BARKDULL: Commissioner Smith, would you
14 explain to me how we would correct the discriminatory
15 public procurement of goods under this proposal?
16 COMMISSIONER SMITH: Commissioner Sundberg wants to
17 answer.
18 COMMISSIONER SUNDBERG: Precisely how you do it is
19 the way they do it now. And we talked about this at
20 length. Commissioner Langley was really concerned about
21 it.
22 What -- the way you do it is the way they do it now.
23 If there is a public procurement, they will say in the RFP
24 or in the bid documents that it doesn't increase the price
25 of the project, they say a certain percentage, however, of
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1 the project will be supplied by minority contractors
2 whether that's women, blacks, Eskimos, what have you. It
3 doesn't increase the cost of anything.
4 Just like the universities. The universities can
5 say, if our enrollment, you know, we will seek to have
6 diversity and we are going to encourage diversity to
7 address the past, the present effects of past
8 discrimination. You're not talking about increasing the
9 cost of anything. You're simply saying, the cost of these
10 public programs will stay the same, but we're going to --
11 we may institute programs as they have now to be sure that
12 those minorities who in the past were shut out are let in
13 and are given a boost to get in.
14 CHAIRMAN DOUGLASS: All right. Commissioner Barkdull
15 to close.
16 COMMISSIONER BARKDULL: Well, if they are doing it
17 now then I don't see why we need it in the Constitution.
18 And Commissioner Sundberg just got through explaining to
19 me that they're doing all that they want to do now. I
20 don't know why we need this in the Constitution. I urge
21 you to adopt the motion to reconsider.
22 COMMISSIONER SUNDBERG: Because there are people who
23 want to stop them from doing it.
24 CHAIRMAN DOUGLASS: Have you got anything else you
25 want to add? He closed.
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1 (Off-the-record comment.)
2 CHAIRMAN DOUGLASS: Just wanted to make sure. I knew
3 you were through, Commissioner Smith. You were sitting
4 down.
5 All those in favor of the reconsideration of Proposal
6 No. 2, as amended, signify by saying aye; opposed?
7 (Verbal vote taken.)
8 CHAIRMAN DOUGLASS: Nos, have it.
9 Don't leave. We're not ready to go. All the
10 others -- the motion is going to be made to carry forward
11 all the other reconsiderations.
12 COMMISSIONER BARKDULL: Commissioner Mathis I think
13 wants to withdraw a proposal.
14 COMMISSIONER MATHIS: Yes.
15 CHAIRMAN DOUGLASS: Okay. We will do that.
16 COMMISSIONER MATHIS: I'd like to make a motion that
17 we withdraw Proposal No. 41. And I've gotten the
18 permission of Commissioner Henderson to do that.
19 CHAIRMAN DOUGLASS: Without objection No. 41 is
20 withdrawn.
21 Commissioner, do you have one?
22 COMMISSIONER CONNOR: No, I had the sense, and
23 perhaps I'm wrong, that the Chair wanted the Select
24 Committee on Sovereign Immunity to meet during the coming
25 week.
136
1 CHAIRMAN DOUGLASS: Absolutely.
2 COMMISSIONER CONNOR: And I would suggest either
3 Tuesday or Thursday afternoon is the only -- no, not for
4 you? Or Wednesday morning. Those are my only
5 opportunities.
6 COMMISSIONER ZACK: We've been up here all this week
7 and we'll be up here the whole following week. I would
8 suggest that we meet either Sunday evening or sometime
9 that we can meet and have other people in attendance.
10 There is no way -- if I lived a block away, I'd be happy
11 to do it.
12 COMMISSIONER CONNOR: I'm very sympathetic to that.
13 CHAIRMAN DOUGLASS: Commissioner Connor, I think
14 maybe it's appropriate that you notice it for Sunday at a
15 time certain, if you could.
16 COMMISSIONER CONNOR: I can't.
17 CHAIRMAN DOUGLASS: How about some other date before
18 that?
19 COMMISSIONER CONNOR: Monday evening, 6:30 in the
20 morning, but I -- Sunday is out for me. If you-all want
21 to do it monday morning? When do we start, Mr. Chairman?
22 CHAIRMAN DOUGLASS: 1:00.
23 COMMISSIONER CONNOR: May I suggest 8:30 Monday
24 morning and suggest that in the interim that we --
25 CHAIRMAN DOUGLASS: You can exchange documents.
137
1 COMMISSIONER CONNOR: Yes, exactly. 8:30 Monday
2 morning.
3 CHAIRMAN DOUGLASS: So it's noticed the Select
4 Committee on Sovereign immunity will meet at 8:30 Monday
5 morning January -- February, I lost a month, February the
6 23rd; isn't it? Yes, at 8:30 in the morning and the place
7 to be announced. If it is not announced otherwise, it
8 will be in the offices of the commission.
9 COMMISSIONER MORSANI: On the time, I apologize but
10 Mr. --
11 CHAIRMAN DOUGLASS: 8:30.
12 COMMISSIONER MORSANI: -- he has to come from Miami.
13 I'm not going to come in the night before. I'd make it
14 9:30. I can leave home at 4:00 then instead of at 3:00
15 and I can be here. And that's how I do it. And I would
16 appreciate an hour --
17 CHAIRMAN DOUGLASS: We can rely on you to be here
18 because your plane is never late.
19 COMMISSIONER MORSANI: That's right.
20 CHAIRMAN DOUGLASS: Okay, you want to do it at 9:30.
21 Notice it at 9:30 Monday morning, February the 23rd.
22 Commissioner Freidin.
23 COMMISSIONER FREIDIN: Yes, sir. I would simply move
24 to reconsider Proposal No. 130 and leave it pending.
25 CHAIRMAN DOUGLASS: Which one is that?
138
1 COMMISSIONER FREIDIN: Initiatives.
2 CHAIRMAN DOUGLASS: Okay. Without objection it will
3 be left pending. Well, it's left pending anyway.
4 Commissioner Marshall.
5 COMMISSIONER MARSHALL: I move for a reconsideration
6 of committee substitute for Proposals 138 and 89 by
7 Commissioner Nabors. I was on the prevailing side on the
8 vote.
9 CHAIRMAN DOUGLASS: I was being told that
10 Commissioner Freidin couldn't make the motion that she
11 made because she was not on the prevailing side.
12 COMMISSIONER RILEY: As I understand 130, and that's
13 the proposal we're talking about, in fact that's why I was
14 standing, that's Commissioner Barkdull's and that was my
15 question was whether or not it was withdrawn.
16 COMMISSIONER BARKDULL: It was withdrawn.
17 CHAIRMAN DOUGLASS: Commissioner Barkdull's was
18 withdrawn. I thought you were talking about the committee
19 substitute that lost.
20 COMMISSIONER FREIDIN: I was talking about --
21 CHAIRMAN DOUGLASS: But you were not on the
22 prevailing side so someone on the prevailing side has to
23 make the motion.
24 (Off-the-record comment by Commissioner Zack.)
25 CHAIRMAN DOUGLASS: Commissioner Zack was on the
139
1 prevailing side and he moves to reconsider and leave it
2 pending. All right.
3 Now, Commissioner Marshall, I'm sorry I interrupted
4 you, but you have the floor.
5 COMMISSIONER MARSHALL: Mr. Chairman, I was on the
6 prevailing side of the vote on committee substitute for
7 Proposals 138 and 89 by Commissioner Nabors. And I move
8 that it be reconsidered.
9 CHAIRMAN DOUGLASS: That's the Lottery? Hasn't it
10 already been reconsidered? It has not, okay. The motion
11 is made and left pending. That's what you want to do,
12 isn't it, Commissioner Marshall? Okay. Thank you.
13 Commissioner Barkdull.
14 COMMISSIONER BARKDULL: Mr. Chairman and Members of
15 the Commission, we still have four matters on
16 reconsideration that were not reached today. I'd like to
17 move that the consideration thereof be deferred until
18 Monday the 23rd of February and that is the Committee
19 Substitute for Proposal No. 13, Proposal No. 144, Proposal
20 No. 168 and Proposal -- Committee Substitute for Proposals
21 172 and 162. They are on Pages 2 and 3 of your calendar
22 today.
23 CHAIRMAN DOUGLASS: Without objection, they are
24 carried forward. There is only one proposal that's on the
25 calendar that we haven't reached, I think.
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1 COMMISSIONER BARKDULL: That's the one on pollution
2 control. There's two of them. There is the one by
3 Commissioner Scott.
4 CHAIRMAN DOUGLASS: His though is a general one that
5 doesn't require any action, I don't think. He may have
6 moved to withdraw it, I don't know whether he did or not.
7 But anyway, the only one I have that we haven't taken up
8 would be Proposal 91 and it was on a motion to reconsider.
9 So you'd be carrying that forward, too?
10 COMMISSIONER BARKDULL: Yes, sir. I'll add that to
11 the package and carry it forward also.
12 CHAIRMAN DOUGLASS: That's right. Okay. We have
13 everything on reconsideration carried forward.
14 COMMISSIONER BARKDULL: But Commissioner Scott's 150,
15 I have no notation on that. So it would still be on the
16 calendar.
17 CHAIRMAN DOUGLASS: Well, it's not a -- I don't think
18 it is a proposal. I wish he was here because he put it
19 there just generally so we'd have a vehicle if he needed
20 to amend something. We can either leave it pending --
21 COMMISSIONER BARKDULL: I'd say let's leave it on the
22 calendar and we'll take care of it on the 23rd.
23 CHAIRMAN DOUGLASS: Now are there any other matters,
24 announcements and so forth? Commissioner Mills, you are
25 recognized.
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1 COMMISSIONER MILLS: Mr. Chairman, I just wanted to
2 announce a meeting of the Committee on Style and Drafting
3 on adjournment. Commissioner Barnett suggested the
4 cafeteria, but I guess that isn't really a good public
5 meeting place. We'll meet in the offices of the Revision
6 Commission.
7 CHAIRMAN DOUGLASS: All right. In the big room or
8 something or other. All right. Good. That will be
9 immediately following this.
10 All right. We will be distributing, Billy reminds
11 me, a fax within the next day or two, before the end of
12 the week, giving you the calendar as it's now going to be.
13 And I think you can rely on this as being final pretty
14 much because we are going to meet a couple times in the
15 Senate Chamber while the Legislature is in session.
16 Through the good auspices of Commissioner Jennings, we are
17 able to do that. She really went out of her way to allow
18 us to have those couple of days there.
19 So when you get those you will know where we are. We
20 really can't move any of these meetings now on this
21 calendar that's coming to you.
22 Commissioner Barkdull.
23 COMMISSIONER BARKDULL: I move we stand in recess
24 until 1:00 p.m. on Monday, February 23rd.
25 CHAIRMAN DOUGLASS: All right. Without objection, we
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1 do so and thank you very much. You worked hard this week.
2 (Session adjourned at 1:00 p.m.)
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1 CERTIFICATE
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3 STATE OF FLORIDA:
4 COUNTY OF LEON:
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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.
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9 DATED this ______ day of ____________, 1998.
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12 JULIE L. DOHERTY, RPR
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KRISTEN L. BENTLEY
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17 MONA L. WHIDDON
Court Reporters
18 Division of Administrative Hearings
1230 Apalachee Parkway
19 Tallahassee, Florida 32399-3060
(850) 488-9675 Suncom 278-9675
20 Fax Filing (850) 921-6847
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