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1 STATE OF FLORIDA
CONSTITUTION REVISION COMMISSION
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6 DATE: January 12, 1998
7 TIME: Commenced at 1:00 p.m.
Concluded at 6:15 p.m.
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PLACE: The Senate Chamber
9 The Capitol
Tallahassee, Florida
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REPORTED BY: MONA L. WHIDDON
11 KRISTEN L. BENTLEY
JULIE L. DOHERTY
12 Court Reporters
Division of Administrative Hearings
13 The DeSoto Building
1230 Apalachee Parkway
14 Tallahassee, Florida
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1 APPEARANCES
2 W. DEXTER DOUGLASS, CHAIRMAN
3 CARLOS ALFONSO
CLARENCE E. ANTHONY
4 ANTONIO L. ARGIZ
JUDGE THOMAS H. BARKDULL, JR.
5 MARTHA WALTERS BARNETT
ROBERT M. BROCHIN
6 THE HONORABLE ROBERT A. BUTTERWORTH
KEN CONNOR
7 CHRIS CORR (EXCUSED)
SENATOR ANDER CRENSHAW (EXCUSED)
8 VALERIE EVANS
MARILYN EVANS-JONES
9 BARBARA WILLIAMS FORD-COATES
ELLEN CATSMAN FREIDIN
10 PAUL HAWKES
WILLIAM CLAY HENDERSON
11 THE HONORABLE TONI JENNINGS (EXCUSED)
THE HONORABLE GERALD KOGAN
12 DICK LANGLEY
JOHN F. LOWNDES
13 STANLEY MARSHALL
JACINTA MATHIS (EXCUSED)
14 JON LESTER MILLS
FRANK MORSANI
15 ROBERT LOWRY NABORS
CARLOS PLANAS
16 JUDITH BYRNE RILEY
KATHERINE FERNANDEZ RUNDLE (EXCUSED UNTIL 2:05)
17 SENATOR JIM SCOTT
H. T. SMITH
18 CHRIS T. SULLIVAN (EXCUSED)
ALAN C. SUNDBERG (EXCUSED)
19 JAMES HAROLD THOMPSON
PAUL WEST
20 JUDGE GERALD T. WETHERINGTON (EXCUSED)
STEPHEN NEAL ZACK
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PAT BARTON
22 IRA H. LEESFIELD
LYRA BLIZZARD LOGAN (ABSENT)
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1 PROCEEDINGS
2 (Roll taken and recorded electronically.)
3 SECRETARY BLANTON: All commissioners indicate your
4 presence. All commissioners indicate your presence.
5 Happy New Year. (Pause.) All commissioners indicate your
6 presence. All commissioners indicate your presence.
7 CHAIRMAN DOUGLASS: All right. If you will take your
8 seats, please. Take your seats please. Everyone in their
9 seats.
10 SECRETARY BLANTON: Quorum present, Mr. Chairman.
11 CHAIRMAN DOUGLASS: I would like to call on
12 Commissioner Evans to give the prayer. If everybody would
13 rise, please. Let us pray.
14 COMMISSIONER EVANS: Our Heavenly Father, we thank
15 you for your ever presence, thank you for your guidance.
16 Open our hearts so we will be allowed to vote as you guide
17 today, amen.
18 (Pledge of Allegiance.)
19 CHAIRMAN DOUGLASS: Before we begin our daily order
20 of business, I would like to take a few minutes to take a
21 brief overview of where we are and where we are going as
22 we start the new year. The bulk of our work will be in
23 full commission meetings.
24 Our aim is to have all preliminary votes taken by the
25 last week in February so the style and drafting committee
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1 can work on the amendments that have been preliminarily
2 approved. In March, we have scheduled three public
3 workshops to receive feedback on those amendments and then
4 we'll meet again in the spring to take our final votes.
5 As you can tell by that schedule, the bulk of our
6 time commitment is going to be January and February, as we
7 take preliminary votes on these proposals. I'm asking
8 that you clear your calendars accordingly and that you,
9 over the next two months, and that you renew your
10 commitment to the commission and its work. And I thank
11 you, as chairmen, for the fine work that's been
12 accomplished thus far.
13 Before we get to the daily order of business, there
14 are a couple of announcements that I would like to make.
15 Commissioner Carlos Alfonso has graced the state of
16 Florida with another little Alfonso in your absence. He
17 has a new daughter named Isabella Katherine Alfonso, who
18 is his third child. (Applause.) We would like to express
19 our condolences to Dorothy, as we have before, for having
20 married you, but congratulate her on this fine achievement
21 and we are very proud of that.
22 I would like to also recognize the death of one of
23 our commissioners on the '68 commission, Mr. Joe Jacobs,
24 Joseph C. Jacobs, an attorney here in Tallahassee, was 74
25 years old. He died Saturday with a heart attack. His
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1 funeral is tomorrow at 3:00 in the First Baptist Church.
2 Mr. Jacobs was one of the truly outstanding Floridians in
3 his career.
4 And I know Commissioner Barkdull served with him in
5 '68 and has known him a long time. You might want to say
6 something in that regard. Commissioner Barkdull, you are
7 recognized.
8 COMMISSIONER BARKDULL: Thank you Mr. Chairman,
9 members of the commission. In reflecting on Joe Jacobs'
10 service on the '68 constitution, I am reminded of the
11 wisdom he brought to that body. In the old Senate chamber
12 that we had, he sat about where Commissioner Langley's
13 desk is now. He was of immeasurable aid to the commission
14 because there were a lot of knotty problems that got sent
15 to select committees.
16 The select committee usually had three people on it;
17 a strong person for the proponents, a strong person for
18 the opponents, and the person that was the conciliator was
19 Joe Jacobs. And many, many times he got us through many
20 thorny problems with his quiet wisdom and demeanor. He
21 was an ardent student of the Constitution revision. And
22 as recently as of last August or September, I had the good
23 fortune to spend a breakfast with him and receive his
24 input as to what he thought this commission ought to be
25 considering.
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1 Florida has lost a true citizen, a true person
2 interested in government, and interested in government not
3 only for his clients, but for the good of the people of
4 Florida. And he will be sorely missed.
5 CHAIRMAN DOUGLASS: Thank you, Commissioner Barkdull.
6 I would like to ask the commission, if you would please,
7 for a moment of silent prayer in memory of Joe and for his
8 survivors.
9 (Pause.)
10 CHAIRMAN DOUGLASS: Before we get started again, I
11 would like to first call your attention to the group of
12 articles that occurred in yesterday's Tallahassee
13 Democrat. I think they are on your desk. In spite of the
14 fact that they had Commissioner Connor and Commissioner
15 Smith there scaring everybody that picked it up, it was
16 just an outstanding piece of work. Incidentally, those
17 were very good pictures, gentleman. And it was cleaned
18 up, as I understand, by having Commissioner Ford-Coates'
19 picture, which certainly improved that a lot.
20 But the articles that were written were, without a
21 doubt, one of the most thoughtful things we had in the
22 press and well presented. And I think I would like to
23 recognize that and recommend that you read it. And it
24 gives us a lot to think about too, because articles were
25 there by law students on certain chosen subjects, as well
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1 as some of the other things in the editorial that we are
2 considering and recommendations.
3 They weren't as much recommendations as what you
4 usually see as they were informative about the subject
5 matter that we are dealing with. And it was very much
6 appreciated.
7 As far as members that are not present today, there
8 are some who are excused. Commissioner Corr was
9 unavoidably scheduled so that he couldn't get here, and he
10 will arrive and be here from Wednesday on. Commissioner
11 Jennings is likewise, it's impossible for her to be here
12 today and tomorrow, but she will be here from Wednesday
13 through the rest of the week. Commissioner Rundle should
14 be here shortly. She had -- was unable to come last night
15 and was on a plane that should be arriving about now.
16 Commissioner Sullivan had a death in his family in
17 Kentucky and we are not sure when he will arrive. But he
18 has not returned so that he is in a position to serve here
19 today. Commissioner Wetherington is at a function which
20 requires his absence all week. Commissioner Mathis, who
21 is not here today, will be here on Tuesday, tomorrow.
22 And Commissioner Sundberg, I'm informed that his son
23 is seriously ill with cancer. Is that right, Justice
24 Kogan? I think he's had it for some time. You might
25 report on Commissioner Sundberg, but he's excused. Take
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1 the mike.
2 COMMISSIONER KOGAN: What's that?
3 CHAIRMAN DOUGLASS: A little help from Commissioner
4 Mills, he's showing you where the mike was.
5 COMMISSIONER KOGAN: It's very, very, very serious,
6 about as serious as you can possibly get. He's there now
7 and we wish them all the best in everything.
8 CHAIRMAN DOUGLASS: All right. If any of you have an
9 opportunity, you might want to convey our support and
10 prayers for Commissioner Sundberg and his family. Those
11 are the only excuses that we have. Others that are absent
12 are absent without excuses and I presume will appear at
13 some point.
14 We are ready, I think, to proceed to the daily order
15 of business. Do we have any communications to receive?
16 READING CLERK: None on the desk, Mr. Chairman.
17 CHAIRMAN DOUGLASS: Of course, we don't introduce
18 proposals, they are all introduced. And Commissioner
19 Barkdull is recognized to report from the committee on
20 rules and administration. Commissioner Barkdull.
21 COMMISSIONER BARKDULL: Thank you, Mr. Chairman,
22 members of the commission. You have on your desk the
23 printed calendar that shows the committee meetings,
24 blocked out calendar for the week and commencing on Page 4
25 is a proposed special order calendar for today. If we
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1 don't complete that, it would be the thought of the rules
2 committee that this same calendar would go over to
3 tomorrow.
4 At this time, Mr. Chairman, I would like to move that
5 special calendar as proposed and shown in the written
6 calendar be approved.
7 CHAIRMAN DOUGLASS: Without objection the special
8 order calendar is approved. It is approved. Proceed,
9 Commissioner Barkdull.
10 COMMISSIONER BARKDULL: On your desk, Commissioners,
11 you will find an orange packet. This packet contains an
12 explanation of each of the proposals as they come up in
13 the order in which they are on the special order calendar.
14 There's one change, which is 151, it's almost at the end
15 of it, it was a misprint. The corrected version is
16 inserted in your packet. Please hang on to this because I
17 doubt we will finish it today and you will need it
18 tomorrow, and this will be -- will not be redistributed.
19 There will be a supplemental calendar prepared for
20 tomorrow, which will also have a color binder on it that
21 will contain the additional items that will be coming
22 before the commission. And that will be distributed to
23 you as we reach those items.
24 You also have on your desk what you have also
25 received in the mail, again, the proposed calendar for the
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1 rest of the meetings. I urge you to consider these. I
2 would say to you, as the Chair has indicated, meetings for
3 January and February are pretty much locked in. I don't
4 think they are going to be changed any.
5 There's a possibility that the public hearings may be
6 adjusted a day or so, one way or the other, as to what
7 appears. We will try to get that information to you as
8 soon as possible. One of the problems that we are running
9 into this time of the year with the tourist influx is
10 finding sufficient accommodations for the commission to
11 hold public hearings outside of Tallahassee, which we do
12 plan to do.
13 There will certainly be one public hearing in the
14 Tampa Bay area, one public hearing in Southeast Florida,
15 and one public hearing in Tallahassee. That is the
16 present program.
17 The select committee on Article V costs is scheduled,
18 as you see, to meet this afternoon at 5:00. They will not
19 meet because of the situation with Justice Sundberg. They
20 will meet probably sometime later on in the week, and that
21 time will be announced when they have decided to have that
22 meeting.
23 The rules and calendar committee is scheduled to meet
24 at 6:00 this evening. The primary work this afternoon
25 would be to set tomorrow's calendar. They have had
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1 distributed to the members of that committee what we would
2 propose to set for tomorrow and there will be a further
3 announcement about whether there will actually be a rules
4 committee meeting as we proceed in the afternoon.
5 Some of you commissioners have indicated that you
6 want to withdraw your proposals. I call to your
7 attention, as we get to the end of the sessions, that all
8 of those who think that they should withdraw proposals
9 should stand up and make such an announcement. You may
10 find as we go through the work of the special order, some
11 of the items you have alive today, you may decide after
12 the result of what happens in the earlier vote that you do
13 not want that continued. If that should occur, please
14 make a note of the proposal and let's withdraw it.
15 I understand that Commissioner Nabors has a motion to
16 correct the journal for one item that was misprinted that
17 he wished to withdraw, they got the wrong number on it.
18 If the commissioner would take the floor and give us that
19 number, we'll get it in the record.
20 CHAIRMAN DOUGLASS: I recognize Commissioner Nabors.
21 COMMISSIONER NABORS: I also have one I would like to
22 withdraw. Do you want me to the wait until the end of the
23 day?
24 COMMISSIONER BARKDULL: Either way.
25 COMMISSIONER NABORS: The correction to the journal
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1 would be that I inadvertently withdrew Proposal 65,
2 Senator Langley's proposal on initiative.
3 CHAIRMAN DOUGLASS: Well, he isn't here.
4 COMMISSIONER NABORS: It's up to the Chair. I should
5 have withdrawn Proposal 175, which is identical to my
6 Proposal 96 which is on the calendar. So I would move, I
7 guess --
8 CHAIRMAN DOUGLASS: Without objection, the calendar
9 shall be so corrected.
10 COMMISSIONER NABORS: There's also a Proposal 92,
11 which is on the agenda for the local government, which is
12 a proposal relating to noncharter counties, which I would
13 like to withdraw. The people that are interested in that,
14 I have communicated to them and we'll use that as an
15 amendment if there's an appropriate vehicle. But it's not
16 of significant importance that we should have it as a
17 separate item.
18 CHAIRMAN DOUGLASS: Do you know the number?
19 COMMISSIONER NABORS: Proposal 92.
20 CHAIRMAN DOUGLASS: Without objection, Proposal 92 is
21 withdrawn from further consideration. Commissioner
22 Barkdull.
23 COMMISSIONER BARKDULL: At this time, I would like to
24 defer to Commissioner Connor who has a motion he would
25 like to make.
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1 CHAIRMAN DOUGLASS: Commissioner Connor, you are
2 recognized.
3 COMMISSIONER CONNOR: Thank you, Mr. Chairman. I
4 rise to request that the body waive the rules and permit
5 me to file a late-filed proposal.
6 The commission may recall that there was testimony
7 during the public hearings in Gainesville on religious
8 freedom issues and the standard of scrutiny that should be
9 applied to laws which burden religious practices. The
10 Liberty Council's proposal was sent to me while I was
11 actually in trial down in Sebring, and the deadline for
12 passage came and went. And those materials remained
13 unopened in my hotel room while I was in trial. So I was
14 unable to file it within the time line and I would
15 respectfully request a waiver of the rules to be able to
16 file that proposal.
17 CHAIRMAN DOUGLASS: Without objection the rules are
18 waived and it will be considered filed and referred to the
19 declaration of rights committee who will meet again this
20 week for consideration this week.
21 Commissioner Smith, I believe, is chairman. Your
22 committee met today, too. You were here before everybody
23 else at 9:00. So you have another meeting scheduled this
24 week and I'll refer it to that, without objection, to that
25 committee. Is that agreeable? It is so done.
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1 Commissioner Barkdull.
2 COMMISSIONER BARKDULL: That concludes the report of
3 the rules and administration.
4 CHAIRMAN DOUGLASS: All in favor say aye.
5 (Verbal vote taken.)
6 CHAIRMAN DOUGLASS: Opposed like sign. Motion very,
7 very silently carried.
8 I have been informed that Proposal 17 on the special
9 order today received and was voted in the declaration of
10 rights committee. Correct me if I'm wrong, Commissioner
11 Smith, to reconsider it in committee; is that correct?
12 COMMISSIONER SMITH: That's correct, Mr. Chairman.
13 There will be a vote for reconsideration tomorrow at the
14 9:00 to 12:00 meeting. So we ask that it not be dealt
15 with today by the full commission.
16 CHAIRMAN DOUGLASS: Without objection, we will
17 temporarily -- well, I guess it would be simpler to
18 recommit it to the declaration of rights committee for
19 action on reconsideration tomorrow. Without objection, it
20 is recommitted. That is Proposal No. 17, which was
21 providing that no person shall be deprived of any right
22 because of gender or sexual orientation, and that is
23 recommitted to the declaration of rights committee for
24 reconsideration tomorrow. It had been reported
25 disapproved previously.
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1 Commissioner Riley, Is that your proposal or is it a
2 combination of yours and somebody else's?
3 COMMISSIONER RILEY: No.
4 CHAIRMAN DOUGLASS: You have no objection to that?
5 COMMISSIONER RILEY: I do not.
6 CHAIRMAN DOUGLASS: Commissioner Barkdull, does that
7 conclude your report?
8 COMMISSIONER BARKDULL: Yes, sir.
9 CHAIRMAN DOUGLASS: We'll move to the special order.
10 The first proposal is committee substitute for committee
11 substitute for Proposal 45 by the committee on executive
12 and legislative and by Commissioner Henderson. There are
13 two amendments on the table. First I'll ask the clerk to
14 read the proposal.
15 READING CLERK: Committee substitute for committee
16 substitute for Proposal 45. A proposal to revise Article
17 IV, Section 9, Florida Constitution, creating the Fish and
18 Wildlife Conservation Commission to be composed initially
19 of the existing members of the Game and Fresh Water Fish
20 Commission and the Marine Fisheries Commission and
21 providing for the powers and duties of the commission.
22 CHAIRMAN DOUGLASS: All right. Would you read the
23 first of the two amendments? They have been moved already
24 by Commissioner Henderson and the committee so we'll
25 proceed with the amendment.
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1 READING CLERK: By Commissioner Thompson. On Page 3,
2 Line 5, after the word "commission" insert "statutes in
3 effect upon the effective date of this amendment."
4 CHAIRMAN DOUGLASS: Commissioner Thompson.
5 COMMISSIONER THOMPSON: Thank you, Mr. Chairman and
6 members. What this amendment does, and Mr. Henderson and
7 I have worked this out, is basically nail down the
8 jurisdiction of this new commission to -- in respect to
9 marine resources, those that were covered under the
10 statutes in effect on the effective date of this
11 amendment.
12 If you have a copy of the proposed amendment, you
13 will notice that I have referred to the statute
14 specifically, and we don't think that's good
15 draftsmanship. If there's something that needs to be done
16 in the schedule as we go to style and drafting, we'll work
17 through that.
18 CHAIRMAN DOUGLASS: Before we proceed, Commissioner
19 Henderson, this is the proposal that unified the current
20 Game and Fresh Water Fish Commission in the Constitution
21 and to combine with that the Marine Fisheries Commission;
22 is that correct?
23 COMMISSIONER HENDERSON: Yes, sir.
24 CHAIRMAN DOUGLASS: And this amendment --
25 COMMISSIONER HENDERSON: And I have no objection.
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1 CHAIRMAN DOUGLASS: -- what it does, it's been
2 explained by Commissioner Thompson, just clarifies the
3 language to make clear that there's no intent that this
4 commission be given the power to control things that are
5 now legislatively controlled that relates to water,
6 wetlands, things of that nature; is that correct?
7 COMMISSIONER HENDERSON: We have already got that
8 covered, Mr. Chairman.
9 CHAIRMAN DOUGLASS: I think it's already covered, but
10 somebody needs to tell the commission and public what we
11 are talking about here before we vote on it.
12 COMMISSIONER HENDERSON: On the amendment or the
13 whole proposal?
14 CHAIRMAN DOUGLASS: The whole proposal with the
15 amendment. You are recognized, Commissioner Henderson.
16 Commissioner Thompson yields. Thank you.
17 COMMISSIONER HENDERSON: Thank you. What the
18 amendment does, Mr. Chairman and members, is to clarify
19 that what we are dealing with is the current jurisdiction
20 authority of the Marine Fisheries Commission. Now, that's
21 defined in Section 370 of Florida Statutes. We are
22 dealing simply with the very narrow aspect of merging that
23 authority with the new commission. Other issues relating
24 to the current authority of the Department of
25 Environmental Protection as it may be to other things,
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1 some future Legislature is going to have to do. We are
2 not addressing that list.
3 This amendment as offered by Commissioner Thompson
4 helps define this and it's consistent with all the
5 agreements that we have reached with all of the other
6 interested parties.
7 CHAIRMAN DOUGLASS: And you support the amendment?
8 COMMISSIONER HENDERSON: Support the amendment.
9 CHAIRMAN DOUGLASS: Does anybody else want to speak
10 on the amendment, this amendment? There's one coming.
11 The other has been withdrawn? All right. So this is the
12 only amendment under consideration. Do you rise to speak
13 on the amendment?
14 COMMISSIONER BARKDULL: To ask a question.
15 CHAIRMAN DOUGLASS: Commissioner Thompson -- is that
16 who you want to question?
17 COMMISSIONER THOMPSON: I yield.
18 COMMISSIONER BARKDULL: Commissioner Thompson, as I
19 understand it, if this amendment passes what we are doing,
20 if this proposal passes this November, what we are doing
21 is locking into the Constitution a statute; is that
22 correct?
23 COMMISSIONER THOMPSON: Locking into the Constitution
24 a reference to the jurisdiction of the new creation which
25 is defined by the statutes as they exist at that time,
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1 which hopefully will be the same. That would be '98,
2 November of '98. We do have a legislative session between
3 now and then.
4 COMMISSIONER BARKDULL: In effect what it is, it's
5 locking what you have got in your hand, the statute book,
6 into the Constitution, by reference.
7 COMMISSIONER THOMPSON: That's right. 370.027 is the
8 original draft of the amendment before you. I'm changing
9 that language because we don't think it's wise to put a
10 reference to a statutory number in the Constitution, but
11 that is in fact what we are referring to, 370.027, which
12 is entitled, Rulemaking Authority With Respect to Marine
13 Life. That is a statute under which the Marine Fisheries
14 Commission has been operating and their jurisdiction has
15 been defined. That is very narrowly what we are trying to
16 transfer over to the new agency by this proposal.
17 COMMISSIONER BARKDULL: I'm not trying to be an
18 opponent, but I'm concerned about the fact that you have
19 now -- if we do what your amendment proposes and what also
20 is in the proposal by Commissioner Henderson, where it
21 makes a reference to a statute, we lock that statute into
22 the Constitution, the Legislature can't touch it.
23 CHAIRMAN DOUGLASS: My question first -- and you
24 might want a ruling from the Chair on that, Commissioner
25 Barkdull. You are objecting, for example, to whether or
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1 not we can do this; is that right?
2 COMMISSIONER BARKDULL: No, sir, I'm not objecting to
3 whether or not you can do it. I recognize that you can do
4 it.
5 CHAIRMAN DOUGLASS: Well, question: It's my
6 recollection from what he said that this will not be in
7 the Constitution. That this is a part of the schedule
8 which in effect defines what can't be done by the new
9 commission. That's the way I understood his explanation.
10 With that regard, I would rule that it does not lock the
11 statute into the Constitution, if it's presented in that
12 fashion.
13 COMMISSIONER BARKDULL: It was not my understanding
14 that it was going to be presented in the schedule.
15 CHAIRMAN DOUGLASS: Let's clarify it.
16 COMMISSIONER THOMPSON: Let me answer the question
17 based on what I think. What I'm trying to do and what I
18 think is being done here is -- I am a little surprised.
19 If you will hear me out, you will realize what I'm doing.
20 I don't want the Legislature to come back and be able
21 to expand the jurisdiction of this constitutional agency.
22 I want the Legislature to be able to retain the
23 jurisdiction it now has, other than that specifically in
24 this statute. I want that then to go over to the new
25 constitutional agency, but I don't want the Legislature to
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1 be able to keep transferring things into this agency.
2 Now, they are going to have a certain jurisdiction.
3 And my other amendment up there addressed that, but I
4 think it's already covered and Commissioner Henderson has
5 acknowledged that it is already covered, that other than
6 by an act of the Legislature, there will be nothing done
7 further in respect to regulatory matters and so forth,
8 than is presently done. But that can be done in the
9 future, as the Chairman is pointing out.
10 But the jurisdiction itself will not go beyond the
11 jurisdiction of that statute today. Within that context,
12 the regular authority will come and go as the Legislature
13 determines.
14 CHAIRMAN DOUGLASS: All right. There any further
15 comments on the amendment, for or against? If not, all of
16 those in favor of the amendment signify by saying aye.
17 Opposed, like sign.
18 (Verbal vote taken.)
19 CHAIRMAN DOUGLASS: The amendment carries
20 unanimously. We'll now move to the proposal as amended.
21 Commissioner Thompson.
22 COMMISSIONER THOMPSON: Are we there, I want to ask
23 you one question.
24 CHAIRMAN DOUGLASS: I'll give the floor to
25 Commissioner Henderson, and he'll yield to you -- before
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1 he even says anything -- for a question, if you want him
2 to.
3 COMMISSIONER HENDERSON: Mr. Chairman, I was going to
4 be brief in my explanation of the amendment, but to make
5 it even briefer, I would be more than happy to yield to
6 Commissioner Thompson.
7 COMMISSIONER THOMPSON: Thank you, Mr. Chairman. I
8 appreciate it. I didn't know how fast you were rolling,
9 that's the reason I wanted to --
10 CHAIRMAN DOUGLASS: We are rolling, we have got a
11 long way to go.
12 COMMISSIONER THOMPSON: I have heard you say that
13 several times, that's the reason I jumped up.
14 Commissioner Henderson, I just want to be sure, my
15 other proposed amendment, which I have withdrawn, would
16 require that no other duties or responsibilities of any
17 division, commission or agency of state government shall
18 be transferred to the Fish and Wildlife Conservation
19 Commission except by act of the Legislature, and my and
20 your understanding is right now that that is covered in
21 the present language; is that correct?
22 COMMISSIONER HENDERSON: That's correct, Commissioner
23 Thompson. In fact, I want to commend you for the
24 explanation that you gave to Commissioner Barkdull just a
25 few minutes ago because we need to keep in mind that this
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1 is a constitutional commission.
2 So you are exactly right, the things that we give
3 this today are that juncture of regulatory and executive
4 authority which makes this constitutional commission
5 different. A future Legislature can transfer other
6 regulatory authority, but with that would go review by the
7 Administrative Procedure Act and other things. So we
8 believe that we have very narrowly drafted this proposal
9 which is before you today to address those specific
10 issues.
11 CHAIRMAN DOUGLASS: Any proponents? Any opponents to
12 this particular provision? We have discussed this before.
13 COMMISSIONER HENDERSON: Mr. Chairman --
14 CHAIRMAN DOUGLASS: Yes.
15 COMMISSIONER HENDERSON: -- if I could. I appreciate
16 the way that you are trying to move this along and I don't
17 want to talk myself out of it, but I've got to tell you,
18 Mr. Chairman, I have tried to tell a story every time I
19 have taken --
20 CHAIRMAN DOUGLASS: Well, we love your stories
21 because I remember the miracle that occurred in Daytona
22 Beach.
23 COMMISSIONER HENDERSON: It was a miracle. I've got
24 to tell you last night -- this is my story from last
25 night.
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1 It was a pretty night, full moon, my son and I walked
2 across the street and we convinced a couple of speckled
3 trout to come out of the water and talk to us last night,
4 with a rod and reel. And it got a little chilly and we
5 came back. My boy is seven years old. He said, Daddy,
6 tomorrow how about picking me up from school and we'll go
7 fishing. And I said, Craig, I can't do that because I
8 have got to go to Tallahassee.
9 And he said, Dad, you are going to Tallahassee too
10 many times, too many times. Tell me, tell me the truth.
11 Are you really going there to go fishing and you are not
12 taking me? I said, Craig, it's more than you would ever
13 believe, what we're doing. So let's talk about fishing
14 and get this done this afternoon.
15 And somebody else has been quiet over there, a new
16 daddy. And I want to thank, of course, Commissioner
17 Thompson for all of the work that he's put in this
18 legislative committee, but there's another proud, proud
19 daddy of this proposal, which is the chairman of the
20 executive committee, Commissioner Alfonso, who is
21 passionate about this issue as well. And I told him that
22 we were not going to take this up until he got here and
23 I'm glad he got here to cast a vote in favor of this.
24 CHAIRMAN DOUGLASS: Very well, if there's no further
25 discussion, and if we'll have no more love-ins, then we'll
25
1 proceed to vote on this particular proposal, Proposal
2 No. 45, as amended.
3 Would you read it again?
4 READING CLERK: Committee substitute for committee
5 substitute for Proposal 45. A proposal to revise Article
6 IV, Section 9, Florida Constitution, creating the Fish and
7 Wildlife Conservation Commission to be composed initially
8 of the existing members of the Game and Fresh Water Fish
9 Commission and the Marine Fisheries Commission and
10 providing for the powers and duties of the commission.
11 CHAIRMAN DOUGLASS: All right. Unlock the machine.
12 Has everybody voted? Lock the machine.
13 (Vote taken and recorded electronically.)
14 READING CLERK: Twenty-four yeas and zero nays,
15 Mr. Chairman.
16 CHAIRMAN DOUGLASS: Good work, Commissioner
17 Henderson, your fishing paid off.
18 All right. Proposal 123 by Commissioner Barkdull.
19 Would you read that, please, sir?
20 READING CLERK: Proposal 123, a proposal to revise
21 Article XI, Florida Constitution, repealing Section 6
22 relating to the taxation and budget reform commission.
23 CHAIRMAN DOUGLASS: Commissioner Barkdull.
24 COMMISSIONER BARKDULL: Mr. Chairman and members of
25 the commission, this is a very simple proposal. We had
26
1 testimony at the Orlando meeting by Pat Turnillo who has
2 been a member of the only budget and tax commission that
3 we have had, that he didn't think that it should be
4 considered continued in the Constitution. Commissioner
5 Barnett also served on the only one that we have had and
6 it was -- my conversations with her other than today was
7 that she wasn't so sure that it was a good thing.
8 I particularly don't like the vote system that's in
9 there because it enables four people to stop what that
10 body does. I understand Commissioner Barnett is preparing
11 an amendment which should be on the desk.
12 CHAIRMAN DOUGLASS: It isn't here yet.
13 COMMISSIONER BARKDULL: Well, the purpose of her
14 amendment would be to straighten out the vote problem.
15 But that still leaves the question of whether we want to
16 have this as an independent body that calls for
17 approximately 25 voting members and four nonvoting
18 members, which is approximately the same size as this
19 commission, and of course, will require substantial funds.
20 There was an amendment to the Florida Constitution in
21 1996, which permits the revision commission, us or
22 subsequent ones, to take up tax matters. That was not
23 true prior to '96 from the effective date of the original
24 passage of the budget and tax commission. So, now, there
25 are two bodies that have this jurisdiction; a
27
1 Constitutional Revision Commission and a budget and tax
2 reform commission.
3 I don't know whether we necessarily need the
4 duplicates. I know one thing, if we were going to
5 continue it, the proposal, amendment that Commissioner
6 Barnett is going to offer would at least make it a better
7 bad provision. And I urge the passage of it.
8 CHAIRMAN DOUGLASS: The present proposal moves to
9 abolish the tax and budget reform commission and
10 Commissioner Barnett rises to offer an amendment, which
11 isn't here yet. Or is it?
12 COMMISSIONER BARNETT: Am I recognized?
13 CHAIRMAN DOUGLASS: You are recognized. You have got
14 to start getting this done earlier, Commissioner. I mean,
15 you know, you are just our star member.
16 COMMISSIONER BARNETT: Flatter me before you shoot
17 me, right?
18 CHAIRMAN DOUGLASS: I recognize learned Commissioner
19 Barnett.
20 COMMISSIONER BARNETT: Thank you, Mr. Chairman. And
21 I do apologize for the delay of this. But the staff has
22 prepared an amendment, let me explain it to you and maybe
23 give you just a minute of background about my position on
24 this issue.
25 I was a little schizophrenic, as Commissioner
28
1 Barkdull may have indicated. I had the privilege of
2 serving on the taxation and budget reform commission. And
3 I found it one of the most educational experiences of my
4 life. I do a lot of tax work in my private practice of
5 law, and I found it to be just enormously helpful to me in
6 understanding the tax structure of the state of Florida
7 and the challenges that we have in the state of Florida as
8 a result of our unique tax structure.
9 It was also the most frustrating experience of my
10 professional career for a number of reasons. But one of
11 the main reasons, as I've reflected upon it, was not the
12 frustration with the commission itself, because it is a
13 tax and budget commission. Many of the budget proposals
14 were actually adopted. Some of them are now being refined
15 and modified, but many of those budget proposals that went
16 to accountability of state government were adopted. None
17 of the tax proposals, the proposals to restructure the tax
18 system were adopted.
19 So it's very frustrating to be a citizen of the state
20 that was the fastest growing state in the country, and we
21 really could not address what in many ways is an arcane
22 and outdated tax structure in a tax commission. So I
23 found it frustrating and felt like, well, let's let the
24 Constitution Revision Commission address it, it is an
25 appropriate body as well.
29
1 I now having been in this commission, serving on the
2 tax committee, and while that committee has worked hard
3 and continues to work hard to address some issues that are
4 important to the tax structure of this state, I do not
5 believe that there is time in that process, in this
6 process, to give the thoughtful and much needed review on
7 a periodic basis of the entire tax and budget structure of
8 our state.
9 I think we are in a position where duplication may be
10 all right in this particular area, that there is much to
11 be gained from the deliberate and intensive look at the
12 tax bonding and budgeting aspects of our state government.
13 And so I have come to the conclusion that it is very good
14 for Florida, particularly as we go into the, you know, the
15 next millenium and as our state faces enormous challenges
16 in terms of funding government, investing in human
17 capital, and in securing for our citizens the type of life
18 in this state they want.
19 What is wrong with this proposal is the cumbersome,
20 in fact, almost impossible system that the Constitution
21 places on the voting. There are, as with us, three people
22 appoint the members of the commission; the Governor, the
23 Speaker and the President.
24 But unlike our commission, the Constitution currently
25 specifies the minimum number of votes that are required in
30
1 order for the proposal to be on the ballot and requires
2 not only a super majority vote, but that a majority of
3 each of the members of the appointing body have to also be
4 in favor. And as Commissioner Barkdull indicated, that
5 allows a very small number of people to actually impact
6 and control what goes on the ballot.
7 It was done in an abundance of caution, and to make
8 sure that only considered, consensus positions went on the
9 ballot. I think it had the unintended consequence of
10 really hamstringing the commission in its work and in its
11 ability to present a proposal to the citizens.
12 So the substitute proposal that I have prepared
13 continues the tax and budget reform commission, but
14 strikes the language in the Constitution, and I'll be glad
15 to read that language to you, it is Article XI, Section 6,
16 it strikes the language which requires -- which sets forth
17 and mandates the voting procedure for the commission. And
18 that is in Section 6, Subsection C. I don't know where it
19 is, maybe it's coming right now. And if I keep
20 filibustering maybe it'll get on the desk by the time
21 it --
22 CHAIRMAN DOUGLASS: It just arrived on my desk. The
23 amendment is on the desk and you may now proceed to --
24 Commissioner Mills, did you rise to question?
25 COMMISSIONER BARNETT: I concluded by remarks, unless
31
1 someone wanted to ask me a question.
2 CHAIRMAN DOUGLASS: Did you want to question the
3 proponent of the amendment or did you rise to support it?
4 COMMISSIONER MILLS: I rise to support it.
5 CHAIRMAN DOUGLASS: Commissioner Mills is recognized
6 to support the amendment.
7 I have one question that occurred to me when I was
8 reading this. Doesn't this also include other items that
9 are significant to this particular constitutional
10 provision, such as a 72-hour rule and some of those other
11 things; or does it?
12 COMMISSIONER BARNETT: The 72-hour rule I do not
13 believe is in Section 6.
14 CHAIRMAN DOUGLASS: But it is in the actual provision
15 though, isn't it?
16 COMMISSIONER BARNETT: I was not aware it was in --
17 it is not my intention to address the 72-hour rule. I
18 don't believe it's in Section 6.
19 CHAIRMAN DOUGLASS: That's in Article III, then, is
20 that right, Commissioner Mills?
21 COMMISSIONER MILLS: Yes, Mr. Chairman. I don't have
22 a copy --
23 CHAIRMAN DOUGLASS: That's not involved here. That
24 was implied in the summary, is the reason I ask that
25 question. I want to clear that up. The only thing we are
32
1 dealing with is the existence of the commission and, as
2 you have discussed and as Commissioner Barkdull has
3 discussed, your amendment, as you have explained, would
4 relate or maybe we would do better to read the amendment
5 instead of us trying to explain it.
6 Would you read the amendment, please. And then,
7 Commissioner Mills, you will be recognized. Everybody pay
8 attention, please, we are going to read the amendment.
9 READING CLERK: By Commissioner Barnett, on Page 1,
10 Lines 2 and 3. Delete those lines and insert lengthy
11 amendment.
12 CHAIRMAN DOUGLASS: And the amendment then,
13 Commissioner Barnett --
14 COMMISSIONER BARNETT: Let me try one more time.
15 Article XI, Section 6, creates the tax and budget
16 reform commission. In (c), which is a procedural
17 paragraph, one of the items in (c) sets forth the voting
18 procedure, mandates a voting procedure for the commission.
19 This amendment, as you will see on Page 2, Lines 13 to 22,
20 strikes the language in the current Constitution mandating
21 an affirmative vote of 22 members of the commission;
22 and -- it is a cumulative requirement -- and a majority
23 vote of the members appointed by each of the appointing
24 authorities. And that is all it does.
25 CHAIRMAN DOUGLASS: It strikes that. All right. I'm
33
1 going to rule, in view of the fact that Commissioner
2 Barkdull moves to strike the whole thing, that this is a
3 substitute proposal and you have amended the present one
4 by striking this language. We will proceed on the debate,
5 because it is a substitute for Commissioner Barkdull's
6 motion, without objection. Commissioner Mills.
7 COMMISSIONER MILLS: Mr. Chairman, what this does is
8 simply strike all of the language that was created when
9 this was initially drafted. I simply rise to say why this
10 was initially drafted this way in 1988.
11 And it was initially drafted this way, I think, for
12 exactly the reason that you have suggested. But I think
13 there was some fear that strange or inadequate proposals
14 might emerge. And I think that in the new world where
15 there is more parity among parties, et cetera, that's
16 highly unlikely when you have a majority vote of a
17 commission. This design really does make it incredibly
18 difficult.
19 If we were to continue this commission, I would agree
20 with Commissioner Barnett that this at least makes it
21 viable. Keep in mind, this commission still has to go to
22 the people with these proposals, just as we would. And
23 without this, it makes it impossible. If you can imagine
24 how we would have to operate, we have operated as a
25 commission of hope. I have seen people vote very
34
1 independently, vote their minds and vote their conscience.
2 But it must be an interesting experience for this
3 commission to have to divide up by appointees and figure
4 out if the majority of each of the appointees is in favor
5 of a position. That seems to me to be a destructive means
6 of failure. So I would favor Commissioner Barnett's
7 proposal.
8 CHAIRMAN DOUGLASS: Any other proponents of the
9 substitute proposal which has been explained? Any
10 opponents?
11 If not, we'll proceed to vote. Lock the machine.
12 (Vote taken and recorded electronically.)
13 CHAIRMAN DOUGLASS: Announce the vote.
14 READING CLERK: Twenty-two yeas and zero nays,
15 Mr. Chairman.
16 CHAIRMAN DOUGLASS: We are on a roll. We'll move to
17 the next proposal, which may end the roll. The proposal
18 passed unanimously. As I understand it, that does away
19 with the proposal, Commissioner Thompson. We will vote
20 now on the proposal. Do it again.
21 COMMISSIONER THOMPSON: But I want to ask a question.
22 CHAIRMAN DOUGLASS: You want to ask a question before
23 we vote?
24 COMMISSIONER THOMPSON: I came to my senses.
25 CHAIRMAN DOUGLASS: When you saw it was unanimous, it
35
1 woke you up; didn't it?
2 COMMISSIONER THOMPSON: I wasn't in the Legislature
3 in '88, I left them in pretty good shape, but now this is
4 part of the problem that they started developing here so I
5 just wanted to ask or maybe say a word and maybe vote
6 against this thing if it really comes up for final
7 passage. I know Commissioner Barnett and I'm real
8 concerned because I don't want to vote against her idea
9 until I really understand it well.
10 But the Legislature had a purpose in not just rolling
11 right to the ballot things that got a simple majority in
12 an appointed group like this. Now, I know that's what we
13 are, and I know how we operate and how we have operated.
14 I also know that we only meet every 20 years under the
15 present Constitution.
16 I'm just wondering how often this group meets, for
17 example, because if every year everybody in the state is
18 going to be subject to a panel appointed by somebody going
19 directly to the ballot to tax them out of business, I'm
20 going to be concerned about it and I imagine a lot of
21 people will be. Tell me that ain't so.
22 CHAIRMAN DOUGLASS: Commissioner Barnett. Do you
23 yield to her to answer your question?
24 COMMISSIONER BARNETT: It ain't so, Commissioner
25 Thompson; it ain't so. And the commission has the
36
1 authority, just as our commission does, to adopt rules of
2 procedure and they would have the right to adopt an
3 extraordinary vote if they felt it was appropriate to
4 actually send proposals to the ballot. This commission
5 meets every 10 years. And I do not remember when they
6 meet again, maybe in 2001 or something like that.
7 But there are restrictions in the Constitution --
8 protections in the Constitution for the concerns that you
9 have. You left the Legislature in good hands and they
10 acted appropriately.
11 CHAIRMAN DOUGLASS: Do you yield to Commissioner
12 Barkdull? Commissioner Barkdull.
13 COMMISSIONER BARKDULL: If I understand it, what you
14 have -- the posture that we are in with the ruling of the
15 Chair, your proposal was a substitute and it's now been
16 adopted. I voted for it because I wanted to see what your
17 reaction was. What has happened, and I ask you this as a
18 question, it's now possible that the next tax and budget
19 commission, by a simple majority, to put on the ballot to
20 repeal the income taxes.
21 COMMISSIONER BARNETT: Yes.
22 CHAIRMAN DOUGLASS: It's possible now; is that right?
23 COMMISSIONER BARNETT: It's not possible with the
24 Constitution Revision Commission because of our procedural
25 rules. Constitutionally, but for our rules, this
37
1 commission could have put that on the ballot.
2 COMMISSIONER BARKDULL: That was not my question.
3 COMMISSIONER BARNETT: My answer is that with this
4 amendment, it would be possible for the tax and budget
5 reform commission to put any proposal on the ballot, on a
6 simple majority vote of the commission. I submit that I
7 believe that would be highly unlikely, set aside a
8 personal income tax. But taxes issues in general and
9 budget issues in general, I believe, that they would adopt
10 the wisdom in this body in trying to get a super majority
11 of the body.
12 The real problem, Commissioner Barkdull, was not the
13 majority vote, I mean the super majority vote. The real
14 problem in the Constitution is the requirement that each
15 of the appointing bodies, that there be a majority vote of
16 each of those appointing bodies, as Commissioner Mills
17 stated. That would require -- that required the people
18 who were appointed, for example, by the Governor to caucus
19 and to talk about issues.
20 It was a device -- it had the effect of being
21 divisive because, you know, it made people think, well,
22 there's something magic about who sent me here as opposed
23 to the requirement as a public officer to look at what was
24 in the best interest of the people without regard to who
25 sent them there. That's the real kernel of error in the
38
1 provision now.
2 COMMISSIONER BARKDULL: As I've indicated to you and
3 I indicated to the commission, I certainly think that that
4 was a big problem, and I recognized that from the
5 beginning. But also, after seeing what this commission
6 did 20 years ago with a simple majority of one vote
7 carrying it and putting things on the ballot, I would like
8 your situation that we're in now -- and one reason I voted
9 for this is so I can put it on reconsideration. We would
10 be better off to lock in a three-fifths vote before they
11 put something on the ballot.
12 CHAIRMAN DOUGLASS: Do you offer that as an
13 amendment?
14 COMMISSIONER BARKDULL: No, sir, not at this point.
15 I don't have the reconsideration.
16 COMMISSIONER BARNETT: It's still available for
17 amendment.
18 COMMISSIONER BARKDULL: The Chair ruled that this
19 passed; that superseded my proposal.
20 COMMISSIONER BARNETT: Now the debate is on the
21 committee substitute, as I understand it.
22 COMMISSIONER BARKDULL: That wasn't my understanding
23 of what he took the vote on.
24 COMMISSIONER BARNETT: You can amend the committee
25 substitute.
39
1 COMMISSIONER BARKDULL: I understand that.
2 COMMISSIONER BARNETT: I'm not the Chair, but --
3 COMMISSIONER BARKDULL: I understand that, but my
4 understanding from the ruling from the Chair, was that we
5 adopted what you proposed, it was a substitute and would
6 vitiate my proposal.
7 COMMISSIONER BARNETT: It's my understanding that by
8 adopting that --
9 CHAIRMAN DOUGLASS: Nobody contested the ruling of
10 the chair, which might have been successful, but nobody
11 did.
12 COMMISSIONER BARNETT: It's my understanding what we
13 now have before us is the committee substitute. The
14 amendment has now been substituted for your original
15 proposal. That amendment is now available for debate and
16 for amendment. That's my understanding of the posture.
17 CHAIRMAN DOUGLASS: What it is at the moment, I ruled
18 it was a substitute for the proposal. It's subject to
19 amendment. If somebody wants to offer an amendment, now
20 is the time to do it. And I would like to avoid
21 reconsideration on these matters if there's consensus, but
22 certainly reconsideration is available tomorrow for what
23 we do today.
24 Commissioner Connor, you rise. Commissioner Connor,
25 you have the floor.
40
1 COMMISSIONER CONNOR: Thank you, Mr. Chairman. I
2 would seek leave of the Chair to file an amendment, which
3 would require a super majority requirement of 60 percent.
4 The rationale being that adopted by this body, first of
5 all, requiring a consensus of the membership of the body
6 that makes the proposal is more likely to reflect a
7 consensus within the state at large.
8 And, secondly, frankly, I think it ought to be
9 harder, not easier, to put forth tax proposals to the
10 people on the ballot. And I support the notion of a super
11 majority requirement of 60 percent. And with the Chair's
12 leave I'll move to the desk and request that be put
13 forward.
14 CHAIRMAN DOUGLASS: So granted. Commissioner
15 Barnett, do you have something?
16 COMMISSIONER BARNETT: Just that that amendment is
17 acceptable to me.
18 CHAIRMAN DOUGLASS: We don't have it on the desk so
19 we can't act on it. Now it's being moved and prepared.
20 Commissioner Barkdull.
21 COMMISSIONER BARKDULL: Mr. Chairman, I move in light
22 of that that we temporarily pass Proposal 123 to be
23 further considered today.
24 CHAIRMAN DOUGLASS: All right. What I'll do is we'll
25 move to the next proposal while this is being done. And
41
1 if it's prepared and ready when we complete the debate and
2 action on the next proposal, we'll come back to it
3 immediately so we don't get too far removed from it.
4 The next proposal, with that being the ruling, the
5 next proposal -- oh, without objection, we'll temporarily
6 pass it until later in this meeting.
7 The next proposal is proposal 152 by Commissioner
8 Barkdull. See, that's why it pays to be chairman of
9 rules, you get all of your proposals heard first.
10 Commissioner Barkdull.
11 COMMISSIONER BARKDULL: That doesn't mean they are
12 going to pass, Mr. Chairman. This one is one that we are
13 all familiar with with our time constraints at the present
14 time.
15 CHAIRMAN DOUGLASS: Just a moment. He hasn't read it
16 yet.
17 READING CLERK: Proposal 152, a proposal to revise
18 Article XI, Section 2, Florida Constitution; amending the
19 deadline by which the Constitution Revision Commission
20 must file any proposed revision with the secretary of
21 state.
22 CHAIRMAN DOUGLASS: Now Commissioner Barkdull to
23 explain the proposal.
24 COMMISSIONER BARKDULL: What this proposal does is to
25 shorten the time within which a subsequent Constitution
42
1 Revision Commission, not this one, but the subsequent one,
2 that will meet in 20 years and so forth, will only have to
3 file their proposals within 90 days of the general
4 election rather than 180.
5 That 180 is really a holdover from the 1885
6 Constitution; primarily communication was by weekly
7 papers. Ninety days should be sufficient with the public
8 hearings that are held. And that's all this proposal
9 does. But it gives the next commission three more months
10 to work.
11 CHAIRMAN DOUGLASS: All right. Is there any
12 questions of the proposer? Commissioner Scott. Do you
13 yield, Commissioner Barkdull?
14 COMMISSIONER BARKDULL: Yes, sir.
15 COMMISSIONER SCOTT: This would mean that the
16 proposals would be submitted after qualifying for office,
17 after whatever is going -- I mean, that three months would
18 be after people qualified for offices, legislative,
19 statewide would be -- I don't know if it's after other
20 initiative petition matters. I don't know how it relates
21 to all of those time frames.
22 COMMISSIONER BARKDULL: Certainly, the time frames
23 remain the same as they are now, as far as primaries and
24 so forth. It would be after that.
25 CHAIRMAN DOUGLASS: Any further questions of the
43
1 proposer? If not, are there any proponents? Anybody wish
2 to speak in opposition? If not, we'll proceed to vote.
3 Unlock the machines.
4 (Vote taken and recorded electronically.)
5 CHAIRMAN DOUGLASS: Lock the machine, announce the
6 vote.
7 READING CLERK: Eighteen yeas and eight nays,
8 Mr. Chairman.
9 CHAIRMAN DOUGLASS: It carries.
10 The amendment is not ready yet; is it?
11 The next proposal by Commissioner Planas. And would
12 you read the proposal, please?
13 READING CLERK: Proposal 5, a proposal to revise
14 Article I, Section 2, Florida Constitution; prohibiting
15 discrimination based on national origin.
16 CHAIRMAN DOUGLASS: Commissioner Planas, you are
17 recognized, sir.
18 SECTION B
19 COMMISSIONER PLANAS: Thank you, Mr. Chairman and
20 good afternoon. I rise here to propose to the equal
21 rights amendment that we have a word of national origin.
22 Currently, right now, there is a lot of other big states
23 in which national original is part of the Bill of Rights.
24 In the state of Florida, in which part of the population,
25 over 50 percent of the population, is composed of
44
1 immigrants, does not have the word "national origin."
2 For example, if you go back in here we show
3 California, Connecticut, Louisiana, Massachusetts,
4 Michigan, Missouri, among other states, every one of those
5 states have the word "national origin" in part of the Bill
6 of Rights. I'm going to everybody's minds and hearts to
7 consider this proposal. I think it's needed in the state
8 of Florida especially in the years coming. We have more
9 people in immigration in here coming up in the state. It
10 will go ahead and give a positive vote of understanding to
11 all the population in the state of Florida.
12 Thank you, Mr. Chairman.
13 CHAIRMAN DOUGLASS: All right. Would you outline
14 what the present section to which is entitled basic
15 rights, if everybody would turn to that if they have it.
16 If not, I think it would be helpful if you read that
17 proposal and then where you're adding "national origin."
18 If you don't have it, we can give it to you. Do you have
19 it in front of you? If you would read that, I think it
20 would make more sense to vote on this proposal with in
21 mind what it is we are adding.
22 COMMISSIONER PLANAS: The Declaration of Rights
23 reads, it's at Section 2, Article I, Basic Rights. All
24 natural persons are equal before the law and have
25 inalienable rights, among which are the right to enjoy and
45
1 defend life and liberty, to pursue happiness, to be
2 rewarded for industry, and to acquire, possess and protect
3 property; except that the ownership, inheritance,
4 disposition and possession of real property by aliens
5 ineligible for citizenship may be regulated or prohibited
6 by law. No person shall be deprived of any right because
7 of race, religion, national origin, or physical handicap.
8 CHAIRMAN DOUGLASS: Now, does anyone -- Commissioner
9 Barkdull?
10 COMMISSIONER BARKDULL: Mr. Chairman, I rise to ask a
11 question.
12 CHAIRMAN DOUGLASS: Commissioner Planas, do you
13 yield?
14 COMMISSIONER PLANAS: I yield.
15 COMMISSIONER BARKDULL: Commissioner Planas, the
16 people you describe, they are national persons; are they
17 not?
18 COMMISSIONER PLANAS: That is correct.
19 COMMISSIONER BARKDULL: The opening sentence is that
20 all natural persons are equal before the law.
21 COMMISSIONER PLANAS: That is correct.
22 COMMISSIONER BARKDULL: Thank you.
23 CHAIRMAN DOUGLASS: Commissioner Morsani?
24 COMMISSIONER MORSANI: Commissioner Planas, I'm
25 sympathetic but I don't understand why we need to -- I was
46
1 reviewing, I guess my own heritage, you have -- my family
2 has been in this country a little longer than yours, but
3 not too much, and I don't understand why we need to change
4 a document like the Constitution for this.
5 I'm really at odds to understand the feeling or the
6 necessity of using -- changing the terminology that we
7 already have. And I guess I need an explanation because I
8 just don't understand the -- what's driving this momentum
9 in the state of California or any other state. I just
10 don't know why we need to change our Constitution. And I
11 haven't heard any argument that convinces me that we're
12 not already covered regardless of whether we're of Spanish
13 heritage or Italian heritage or African-American heritage.
14 I don't understand it.
15 CHAIRMAN DOUGLASS: All right. Commissioner Planas.
16 COMMISSIONER PLANAS: Commissioner Morsani, that is
17 very true, you might not exactly know the reasons why.
18 The Constitution of the United States says also "national
19 origin" in the Constitution. Now, if you -- you're from
20 Tampa, Commissioner Morsani. And now we have to find out
21 what's the meaning of national origin. I talked to the
22 EEOC chairman in the Miami area and I was asking her if
23 there is a need for this type of proposal in this
24 Constitution. They said that in the state of Florida --
25 gentlemen, believe it's 1998. We're coming to the
47
1 year 2000. In 1998, there's still a tremendous amount of
2 discrimination against African-Americans, the ancestry,
3 Germans, French people, Hispanics. There is still a
4 tremendous amount of discrimination against them. And I
5 think this is something that will continuously protect all
6 citizens including all national persons.
7 I do believe that this also would impact in a very
8 favorable way the amount of people that are continuing
9 coming to this country by saying we have open hearts. It
10 doesn't do anything at all except to protect them in which
11 there will be no discrimination. Exactly what it says
12 that we are talking about when we add it up; the physical
13 handicap, when we're trying to add age, when we're trying
14 to add gender. We just want to make sure that this
15 Constitution, this great Constitution that we have in the
16 state of Florida, will protect everybody equally.
17 CHAIRMAN DOUGLASS: Commissioner Connor?
18 COMMISSIONER CONNOR: Mr. Chairman, I rise in
19 opposition to the proposal and I would like to offer a
20 substitute amendment.
21 CHAIRMAN DOUGLASS: All right. Is it on the table?
22 COMMISSIONER CONNOR: It is not on the table --
23 CHAIRMAN DOUGLASS: We're going to have to get you a
24 table.
25 COMMISSIONER CONNOR: I'm sorry. Mr. Chairman, I'm
48
1 certainly opposed to any form of discrimination based on
2 national origin. I dare say every member of this body is
3 as well. I think we need to be very, very careful about
4 the way in which we amend these proposals. Bearing in
5 mind that the standard that is used by the Florida Supreme
6 Court in interpreting amendments to the Florida
7 Constitution. The TW case I think is a good example on
8 that, is the body is well aware Florida has an explicit
9 Constitution rights privacy, Article I, Section 23.
10 In interpreting that provision, the court made this
11 observation. Since the people of this state exercise
12 their prerogative and enacted an amendment to the Florida
13 Constitution which expressly and succinctly provides for a
14 strong right of privacy not found in the U.S.
15 Constitution, it can only be concluded that the right is
16 much broader in scope than that of the Federal
17 Constitution.
18 Now the point I make, Mr. Chairman, simply is this.
19 Is with this laundry list, if you will, of bases on which
20 may not discriminate, the invitation is to include every
21 conceivable group, national origin, sex, sexual
22 orientation, indeed all of those will be coming forward to
23 this body. What my proposed amendment does is simply to
24 strike the last line of Section 2. I think Commissioner
25 Barkdull's point is well taken when he observes in the
49
1 first sentence of basic rights all natural persons are
2 equal before the law and have inalienable rights.
3 Section 9 assures all persons of due process of the
4 law. The Section 16 and Section 17 deals with rights of
5 accused and excessive punishments. And the point very
6 simply is this, that I believe we should be very careful
7 in adding additional language to cover a problem that has
8 already been -- to cover a matter, and an issue that's
9 already been solved, under the Federal Constitution, under
10 the cases that construe the Federal Constitution.
11 We should recognize, I think, that we invite the
12 courts to engage in all kinds of initiative. When we add
13 gratuitous language to solve a problem that has already
14 been adequately addressed under the Federal Constitution,
15 and which is already adequately addressed under other
16 provisions of the Florida Constitution not the least of
17 which is the provision which requires or provides that all
18 persons are to enjoy equal protection of the law.
19 CHAIRMAN DOUGLASS: All right. When it gets here,
20 then the proposed amendment would strike in Section 2 the
21 language which reads, "No person shall be deprived of any
22 right because of race, religion, or physical handicap" for
23 the reasons you explained. The amendment technically
24 isn't here which you're certainly welcome to go ahead,
25 Commissioner Planas, in the interest of saving time and
50
1 oppose it.
2 COMMISSIONER PLANAS: Thank you, Mr. Chairman. I do
3 consider, Commissioner Connor, your proposal. However,
4 let me tell you some negative factors in here. I, as an
5 immigrant, I have been here in the United States and I am
6 so rewarded with the freedom that this country has given
7 me. And I'm so rewarded also by the opportunity that has
8 been given to me in this great state and serve along with
9 all you distinguished ladies and gentlemen.
10 However, something I should never forget is the
11 freedom and liberty that I still go out and try to convey
12 to everybody what's, you know, what happened when I came
13 here from a communist country. And I never saw -- and I
14 remember way back when I came here in 1960, back in 1960.
15 When I went ahead and I was just 13 years old and I took
16 a, for the first time, one of the buses which I was going
17 to my school, and all of a sudden this black lady came
18 over and got on the bus. And I stood up, like I always
19 was taught by my parents, I stood up and I gave my seat to
20 this lady, this black lady.
21 All of a sudden, a couple of gentlemen rose and made
22 this lady stand up -- and myself, as a 13-year-old, was
23 pushed back to that seat. I remember again the days in
24 which -- remember the days in which I went to court, to a
25 federal court, because we were applying for some things
51
1 for my parents and their citizenship and I remember, I
2 asked my parents when I was going to a drinking fountain
3 it says colored and white. I remember those days. I'm
4 sure you remember those days.
5 There is nothing in this life that is going to stop
6 me for adding things to a Constitution that's going to
7 protect the rights of people. If we have to be one
8 sentence, two sentence, ten paragraphs, three books,
9 anything, we must have it. And we must never stop anybody
10 of taking away their rights. It doesn't matter if it
11 takes three constitutions, we should add everything on it.
12 I need for you to consider -- let me also go ahead,
13 and as I was talking about, with the people from the EEOC,
14 they were telling me it's much easier, it's much easier
15 for somebody to go to the Supreme Court in the state of
16 Florida than going to the Supreme Court of the United
17 States, much easier. Who can afford going to the Supreme
18 Court of the United States? We can't in here.
19 I don't see any reason why we should jeopardize
20 because I want to go ahead and just say proposing national
21 origin. Why should we go ahead and penalize the race,
22 religion, and physical handicap. Thank you, Mr. Chairman.
23 CHAIRMAN DOUGLASS: Commissioner Mills? Commissioner
24 Brochin, you're next.
25 COMMISSIONER MILLS: In opposition to Commissioner
52
1 Connor's amendment --
2 CHAIRMAN DOUGLASS: Incidentally, the amendment is
3 now on the table and we can proceed. It has been moved.
4 Do you want to read it?
5 READING CLERK: By Commissioner Connor, on Page 1,
6 Lines 19 through 21. Delete those lines and insert
7 "prohibited by law."
8 CHAIRMAN DOUGLASS: Proceed.
9 COMMISSIONER MILLS: Mr. Chairman, this provision of
10 Declaration of Rights, which particularly what we have
11 included in the past, no person shall be deprived of any
12 right because of race, religion, or physical handicap were
13 established as protected classes for a reason. They were
14 established for the reason there was perceived actual
15 discrimination in our history. And unless and until we
16 think those have gone away, the message we send by
17 removing these is that we intend to do something.
18 So actually, Commissioner Connor's argument for doing
19 this is the best argument for not doing it because the
20 Supreme Court will certainly imply that we meant something
21 by removing these classes. They will imply that we in
22 some way decided that the problem had gone away and I
23 don't believe we can say that. In a pure world, and in
24 fact, in discussions at our Declaration of Rights
25 Committee, we said we would like to do this, doesn't it
53
1 make sense that there shouldn't be a laundry list?
2 Shouldn't we just say that all people should be equal
3 before the law? Well, of course we should. That hasn't
4 been the case in the past. The reason this is in here is
5 because this wasn't the case in the past. And unless we
6 think it's historically over, and unless we want to send
7 that kind of message to a court which would be compelled
8 to take notice of the fact that we did something, then we
9 wouldn't want to vote against this.
10 CHAIRMAN DOUGLASS: Commissioner Brochin was next.
11 You're next Commissioner Nabors.
12 COMMISSIONER BROCHIN: I have a question for
13 Commissioner Connor. Struggling with this, I noticed that
14 this amendment was adopted apparently in 1974. And I was
15 wondering if you have any understanding as to why those
16 three categories were chosen in 1974 as compared to
17 leaving off others and your thought process as to the
18 progress that has been made since 1974 in each of those
19 categories.
20 COMMISSIONER CONNOR: Thank you, Commissioner. And
21 the real purpose of this amendment is to try to make this
22 point. The Constitution, in my estimation, has fairly
23 identified categories and classifications of people who
24 ought to be protected against discrimination. Plain and
25 simple, I think that's the case. None of us, I believe,
54
1 would genuinely affirm the notion that we should have
2 discrimination based on race, based on the religion, or
3 based on physical handicap.
4 The temptation, however, that this Commission has
5 fallen victim to is to add to a laundry list of -- add a
6 laundry list of classifications which ought to receive
7 heightened scrutiny in the Constitutional interpretation.
8 Now, clearly our Constitution at the federal level
9 prohibits discrimination on the basis of national origin.
10 And clearly, I believe, that under the 14th Amendment, you
11 cannot engage in state action of discrimination of that
12 character.
13 Whenever you put a classification like this and add
14 to this list, you heighten the level of scrutiny that
15 courts will engage in in reviewing it, typically to a
16 compelling interest standard. The court will evaluate,
17 first of all, whether or not there is a compelling
18 interest that the state had in passing legislation to that
19 effect and then it will evaluate whether or not it used
20 the least -- the narrowist means and least intrusive means
21 to accomplish that goal. Now the point I make very simply
22 is, that we are tempted to add ad infinitum to this list
23 which limits then the discretion of the Legislature
24 significantly in this regard.
25 National origin will be followed by sexual
55
1 orientation. Sexual orientation will be followed by sex
2 and the list could go on and on. I make the observation
3 solely to point out that, for instance, when sex was added
4 to the list of protected classifications in Hawaii, I dare
5 say the people of Hawaii never dreamed that their Supreme
6 Court would say that in consequence thereof, the people of
7 Hawaii had created a presumption against heterosexual
8 marriage such that laws that limited marriage to
9 heterosexuals were presumed to be unconstitutional. And
10 therefore, laws that discriminated against same sex
11 marriages were deemed to be unconstitutional.
12 Now all of that said, Mr. Chairman, I make the
13 observation that when we act in this manner, we do so with
14 great impact and great import. There are a host of other
15 proposals that follow. I ask you to ask yourselves
16 whether or not under the jurisprudence of this state we
17 need to expand these classifications. I think we do not.
18 That having been said, Mr. Chairman, and this discussion
19 having taken place, I withdraw the proposed amendment.
20 CHAIRMAN DOUGLASS: Well, without objection, the
21 amendment is withdrawn. Commissioner Nabors, you had
22 risen.
23 COMMISSIONER NABORS: I rose to speak against the
24 amendment that's been withdrawn.
25 CHAIRMAN DOUGLASS: And do you wish to speak to the
56
1 proposal?
2 COMMISSIONER NABORS: No.
3 CHAIRMAN DOUGLASS: Anybody wish to speak to the
4 proposal further? Commissioner Smith?
5 COMMISSIONER SMITH: Thank you, Mr. Chairman. Just
6 briefly. As most of you know, a significant number of
7 proposals, especially dealing with Article I and
8 Section 2, have been presented to the Declaration of
9 Rights committee. As of this moment, only one has
10 received a favorable recommendation under this particular
11 section and that was the Planas amendment. So while
12 nothing can be killed and Commissioner Connor is correct
13 that all the proposals will come forward. At this moment,
14 the only one favor we recommended is this.
15 Let me say that -- first of all, let me commend my
16 good friend Commissioner Connor for invoking such a
17 brilliant strategy and that is in an effort to prevent
18 passage of this, recommend something much more severe
19 where others will feel that not voting for this is not as
20 bad as what could have come.
21 Let me just say that I have to admit I have been
22 somewhat dumbfounded concerning what I consider to be
23 conservative philosophy. I know when we argue issues of
24 race, a conservative philosophy is state's rights. And I
25 know that with regard to many of the issues that come up,
57
1 we talk about the sovereignty of our government, of our
2 state, to determine what will be the moral conscious of
3 the people as evidenced by its law.
4 It is somewhat confusing to me to hear brilliant,
5 conservative voices of our state deferring to the federal
6 government to provide protections for our people. And I
7 would ask some of my friends to wink when we're talking
8 true conservative philosophy and when we're talking
9 strategy because I'm just getting a little confused. I
10 think that the people of Florida deserve to set the
11 standard for protections of groups that have historically
12 been discriminated against. Notwithstanding what Virginia
13 or Washington D.C. may do, I believe that we have a
14 responsibility to let the people of the state of Florida
15 determine what its rights and responsibilities are as
16 evidenced in the Constitution and that's why in the
17 Declaration of Rights committee I was proud to vote yea
18 and why today I will proudly vote yea.
19 CHAIRMAN DOUGLASS: Commissioner Brochin?
20 COMMISSIONER BROCHIN: I'm going to vote in favor and
21 I urge you all to do the same primarily for the purpose I
22 agree with Commissioner Connor, and that is that every
23 category we add does raise a strict scrutiny test for the
24 courts to apply. And with that, we have to be
25 extraordinarily careful as to which categories we add.
58
1 And similarly, we have to be extraordinarily careful as to
2 which categories we take away.
3 What makes it difficult, and the reason I'm going to
4 vote for it, is that we don't have the whole panoply of
5 categories that are being considered or should be
6 considered before us and we're ask to vote on these one by
7 one which makes it difficult. But by voting for it, it
8 would at least give me another opportunity to reconsider
9 the list as a whole and I would be interested in
10 Commissioner Smith's thoughts on that as to whether his
11 committee considered that in some holistic view, that is,
12 as to whether or not the rights of the people in the state
13 of Florida and to those who should receive the strict
14 scrutiny have been considered, not only for adding them,
15 but also for deleting them. And that's why I asked my
16 previous question as to the historical origin as to how
17 the categories came about in the first place because they
18 are curious that physical handicap is included and
19 national origin was not.
20 And until we have a better appreciation, it makes it
21 very difficult to make any vote that makes any sense as to
22 what Florida's rights of declaration would be and
23 therefore, I will vote for it with the idea that it will
24 give us another opportunity to consider it on a more
25 holistic view.
59
1 CHAIRMAN DOUGLASS: Any further discussion?
2 Commissioner Zack hadn't been up. I'll get to you,
3 Commissioner Morsani, you're next.
4 COMMISSIONER ZACK: I'd like to also urge the support
5 of this measure. To begin with, if you look at the
6 summary, apparently we mentioned national origin about 100
7 times it says in other places. And, again, in Chapter 760
8 of the Florida Civil Rights Act. So the statement is, you
9 know, is this going to hurt anything? Certainly not. Is
10 it a statement about what we in this chamber believe?
11 Absolutely.
12 Most of you know that I'm a Cuban-American, that my
13 mother was born in Cuba and my father is American. But
14 the fact of the matter is, my grandfather on my mother's
15 side was born in Russia and moved from Russia because of
16 discrimination to Cuba. And then when the liberty in Cuba
17 went out, we moved to the United States.
18 And I remember my grandfather's statement when we
19 were taking a plane over here after having been removed
20 from the first plane that we tried to get on, and he said
21 that he was glad that he was coming to the United States
22 even though he was going to be a refugee for the second
23 time in his life because he said that he'd never be a
24 refugee again because if the United States fell, there
25 would be no place to go.
60
1 So I'm not sure whether national origin applies to me
2 as a Russian descent or Cuban descent or Jewish descent.
3 So I guess I'm going to benefit and my children, at least
4 in three different ways. But as I look around the room
5 here, we don't have any Native Americans in this chamber
6 unfortunately. We do, that's even better.
7 CHAIRMAN DOUGLASS: We have a couple there.
8 Commissioner Henderson has got some. Commissioner
9 Barnett. Will all Native Americans please raise your
10 hand?
11 COMMISSIONER ZACK: I guess you're the only ones that
12 won't benefit.
13 CHAIRMAN DOUGLASS: You better define Native
14 Americans.
15 COMMISSIONER ZACK: But something tells me that
16 you've got some more in you than just Native Americans.
17 So I believe that every person in this chamber, every
18 person in this state, benefits and is protected and should
19 be protected by this language. And I am proud to vote for
20 it. And if it does nothing more than what is already
21 there already, so be it. I'm glad it's there and I'd like
22 it to be in every place possible that anybody who had any
23 question of what we intended is clear. We intend for
24 people, regardless of their national origin, to be treated
25 equally.
61
1 CHAIRMAN DOUGLASS: Commissioner Morsani?
2 COMMISSIONER MORSANI: I don't argue with any of the
3 arguments that have been made. However, unfortunately,
4 ladies and gentlemen that have so far spoken, other than
5 myself and Mr. Planas, it seems that whenever something
6 happens in this Constitution or in statutes, it goes back
7 unfortunately to your profession. I'm afraid that we
8 layman never know how things are going to be interpreted
9 and are never interpreted the way we think they are going
10 to be interpreted, ladies and gentlemen.
11 I have, and wish all of this Commissioner Smith and
12 Commissioner Douglas. I wish that all of the issues under
13 Declaration of Rights can be presented under one thing so
14 we can really talk about them because I have done a little
15 bit of work on the -- I don't want to give the same speech
16 every time, Mr. Smith. And I'm not, until you force me to
17 because I have some very distinct problems with this, and
18 the interpretation years out is not the interpretation
19 with which -- in the good fellowship, with which they were
20 meant. And I have very serious concerns about that. And
21 I don't see those being addressed, Mr. Zack, that how we
22 can cope with this in the future.
23 I think that we should have a document that does not
24 require interpretation by our court system. That's not
25 the purpose of what we are here, is it? I question that.
62
1 And I am going to vote against this proposal, not because
2 I want to in many respects, because I think we just don't
3 know how things are going to be interpreted and we have so
4 much danger in the interpretation that we get versus what
5 we feel in our hearts. And it's with a deep sense of
6 regret that I do that, but I really feel that we must
7 examine that and I don't see us examining that, Mr. Smith.
8 CHAIRMAN DOUGLASS: Commissioner Freidin.
9 COMMISSIONER FREIDIN: I was wondering if
10 Commissioner Morsani would yield for a question.
11 CHAIRMAN DOUGLASS: He yields.
12 COMMISSIONER FREIDIN: Can you anticipate some sort
13 of a interpretation that would bother you on this
14 particular proposal?
15 COMMISSIONER MORSANI: Well, you shouldn't have asked
16 that. But in 1906 in Tontitown, Arkansas when 70 families
17 made up this little community and only one person spoke
18 English at that time, because they had only come to this
19 country in 1898, and a judge -- and it came time for the
20 taxes to be paid on these various communities and they
21 only had like 20 days to pay their taxes and a priest --
22 and I happen to be Methodist -- but a priest, Father
23 Bandini (phonetic), who was the only person who could read
24 English, was not present.
25 So when the taxes weren't paid, the judge fined them
63
1 and demanded they pay all their taxes. So when Father
2 Bandini returned, he went to the judge and the judge
3 said -- and he ruled against them -- he said, That just
4 treats those dagos right. They should have paid their
5 taxes. And this was 1906 and this is 1998. That's only
6 been 92 years. But, yes, I can point to that. And I'm
7 afraid that other things might happen the same way,
8 Mr. Planas.
9 CHAIRMAN DOUGLASS: Commissioner Freidin, does that
10 answer your question?
11 COMMISSIONER FREIDIN: Well, I think that that -- if
12 I understood that correctly, the point of that story was
13 that in 1906 a judge actually felt comfortable enough to
14 use the word dago? That's precisely what this provision,
15 this proposal, would protect against. That is exactly the
16 kind of thing. So it seems to me that's the argument in
17 favor of it and I urge everybody to favorably support this
18 proposal.
19 CHAIRMAN DOUGLASS: Commissioner Smith?
20 COMMISSIONER SMITH: Yes. Mr. Chairman, I rise to
21 respond to two questions that were asked with regard to
22 the committee process. The first question was whether the
23 Declaration of Rights Committee considered the Connor
24 Proposal basically which is since we -- the first sentence
25 says, "All natural persons are equal before the law."
64
1 Whether we need to enumerate in the last sentence "any
2 categories." I want you to know that was in fact
3 considered debated, discussed. We got constitutional
4 scholars to give us input on that and we decided to move
5 forward as we have.
6 The second consideration that Commissioner Morsani
7 raised and Commissioner Brochin raised is the
8 consideration of being able to look at this holistically.
9 Because our rules allow us to package together proposals
10 as we see fit in styling and drafting, et cetera, and
11 because we felt it was important to allow each proposal to
12 stand or fall on its merits, we allowed proponents of
13 proposals, if they so chose, to put a proposal together.
14 But let me tell you why we decided not to do it.
15 Because if Commissioner Morsani had a proposal, let's say,
16 to put race in this section, we were not going to force
17 Commissioner Morsani to have his proposal married with
18 sexual orientation. And he had no say-so on it because a
19 lot of people who would have voted for race may not vote
20 for sexual orientation. And we felt it was important to
21 let each stand on their own and then if any of them
22 passed, more than one passed, if the commission wanted to
23 put them together, then the commission could make that
24 decision. Thank you.
25 CHAIRMAN DOUGLASS: All right. Any further
65
1 discussion for or against? Close, Commissioner Connor?
2 This is on the Connor amendment; is that correct?
3 COMMISSIONER CONNOR: No, sir, that's been withdrawn.
4 CHAIRMAN DOUGLASS: Well, we're still sort of
5 debating it. I guess we'll just go ahead and you can
6 close for the opposition.
7 COMMISSIONER CONNOR: Well, actually, I'm not -- I'm
8 going to surprise you, I think.
9 CHAIRMAN DOUGLASS: Okay. You're going to close for
10 the proponents?
11 COMMISSIONER CONNOR: Well, I'm not going to preempt
12 the sponsor from closing.
13 CHAIRMAN DOUGLASS: Okay. We'll let him close.
14 COMMISSIONER CONNOR: But I rise to make this
15 observation. I'm going to vote for the proposal, but I
16 think the discussion that we've had has been profoundly
17 important. And I'm frank to tell you that I think that
18 having the discussion in the context of the evaluation of
19 Commissioner Planas' proposal makes it easier for us to
20 keep our wits about us as we evaluate this issue.
21 What this proposal does and what it will do is to
22 create a heightened scrutiny for a new classification of
23 people that will enjoy protection under our Constitution.
24 And in a state where we have many new citizens who are of
25 Cuban origin or Jamaican origin or Haitian origin, I think
66
1 that is important. But I rise to tell you that the --
2 that this notion that, what can adding a few words -- what
3 can it hurt? It can do a lot. Ask the parents who have
4 been stripped of their rights to makes decisions for their
5 minor children in the area of the abortion decision. Ask
6 the people of Hawaii, it can do a lot; it's something we
7 should consider very carefully; it's something we should
8 sift very carefully, and frankly, I think taking that up
9 now and in the context of this proposal where I dare say
10 there's great consensus is a greater advantage than taking
11 it up in another proposal where there will be a sharp
12 dispute and dissension. And this will be the only
13 classification that I am going to vote for.
14 CHAIRMAN DOUGLASS: Okay. I interpret that to mean,
15 you are for this one but may not be for the rest of them.
16 COMMISSIONER CONNOR: You can count on that, Mr.
17 Chairman.
18 CHAIRMAN DOUGLASS: Commissioner Leesfield.
19 COMMISSIONER LEESFIELD: I want to comment on
20 Commissioner Smith's comments about strategy,
21 foreshadowing and the domino effect of expanding the right
22 of people. We haven't even gotten to the other rights,
23 but I was very moved by Commissioner Planas' statements
24 here about nothing would stop him from expanding the
25 rights of people and protecting the rights of people based
67
1 on his own experience. I appreciate Commission Connor's
2 remarks and the strategy behind them and the domino effect
3 that he's trying to stop, but I would also join with
4 Commissioner Smith in observing the strategic, not the
5 intellectual but the strategic side of bringing that to
6 our attention today when we have other votes coming up
7 tomorrow. Thank you.
8 CHAIRMAN DOUGLASS: All right. Are we ready to vote?
9 Okay unlock the machine.
10 (Vote taken and recorded electronically.)
11 CHAIRMAN DOUGLASS: We are going to wait on our
12 Native American to get there. Announce the vote.
13 READING CLERK: Twenty-three yeas and one nay, Mr.
14 Chairman.
15 CHAIRMAN DOUGLASS: It carries. We're going to
16 return now to Committee No. 123, Proposal No. 123 and what
17 we need to do is to vote now or to consider now to vote to
18 reconsider the Barnett amendment. I'm following the
19 directions of the clerk who overrules me on some of my
20 rulings, and then we'll take up the Connor amendment to
21 the Barnett amendment, take a vote on the Barnett
22 amendment as amended or not amended and then vote on the
23 proposal as amended on the machine.
24 So at this moment, we're to vote, according to the
25 Clerk, to reconsider the vote for the Barnett amendment in
68
1 order to get to the Connor amendment. So, if you that,
2 voting to reconsider the Barnett amendment is procedural,
3 it's not for the merits. If you could hold your debate, I
4 think that would be appropriate, because we'll go
5 immediately to the merits of the Barnett amendment, even
6 if we vote to reconsider it, by taking up the Connor
7 amendment.
8 Do you suggest to do that, that we vote not to
9 reconsider the Barnett amendment? Madam Secretary, in
10 order to get to the Connor amendment, should we vote for
11 or against to reconsider the vote of the Barnett
12 amendment?
13 SECRETARY BLANTON: For it.
14 (Off-the-record discussion.)
15 CHAIRMAN DOUGLASS: All right. Is that clear to
16 everybody, as it wasn't to me. Commissioner Brochin has a
17 question.
18 COMMISSIONER BROCHIN: Yes, I do. The underlying
19 proposal was a proposal to strike this Commission. I
20 don't understand why we're making amendments when
21 ultimately we are going to return to a proposal that's
22 going to strike it in its existence, and maybe I'm just
23 missing something, but to me it --
24 CHAIRMAN DOUGLASS: See, that's what I did, and she's
25 telling me that under our rules we can't do it that way,
69
1 we have got to do it the way she says. I'm perfectly
2 happy to do whatever it takes to get here. If you vote to
3 reconsider the Barnett amendment, that's the effect of
4 what we are doing, we are returning to the amending
5 process, as I'm told.
6 COMMISSIONER BROCHIN: I guess that is the part I
7 don't understand. What are we amending if the ultimate
8 vote is to wipe out the whole provision in the first
9 place? Why are we spending time --
10 CHAIRMAN DOUGLASS: Commissioner Barkdull may can
11 answer this for the Clerk.
12 COMMISSIONER BARKDULL: Mr. Chairman, it's my
13 understanding that the motion put forth by Commissioner
14 Barnett was ruled by the Chair to be a substitute, and if
15 the substitute passed, it laid on the table my proposal.
16 And therefore, the only thing passed by this body was a
17 Barnett substitute which has got the provision that
18 allows, if their rules so provide, a simple majority to
19 put something on the ballot. Now, as I understand the
20 posture, if we pass a motion to reconsider, we're
21 reconsidering the Barnett proposal, at which time there
22 will be an amendment offered by Commissioner Connor which
23 will provide that that body can only put something on the
24 ballot by a three-fifths vote.
25 CHAIRMAN DOUGLASS: Well, you explained it the way I
70
1 intended it, which was, when the substitute amendment was
2 offered -- I mean when the substitute proposal was offered
3 and passed, that that's what we were dealing with. I
4 think we'll proceed that way unless somebody wants to
5 appeal the ruling of the Chair, which would then allow us
6 to get in a sensible way to the Connor amendment to
7 Barnett's proposal. Has everybody got that?
8 We're going to overrule the Secretary the only time
9 I've been able to do this. All right, here's what we
10 have, we have the Barnett substituted proposal. Would you
11 again tell us what that is, Commissioner Barnett? It's
12 Commissioner Barkdull's original proposal, which was to do
13 away with it. Your proposal was to keep it, but to revise
14 or change or delete Section C; is that correct?
15 CHAIRMAN DOUGLASS: Yes, sir. Okay. So we're now --
16 that's what we have is we have passed a proposal
17 substituted that keeps it but strikes Section C of the
18 existing Constitution. And Commissioner Connor has
19 offered an amendment to that proposal which is on the
20 table, and I'll ask the Clerk to read Commissioner
21 Connor's amendment. I'm sorry, Madam Secretary, but I
22 just did it because we're going to get there.
23 READING CLERK: By Commissioner Connor on Page 2,
24 Lines 1322, delete those lines and insert: Shall convene
25 at the call of the chairman. An affirmative vote of
71
1 two-thirds of the full Commission shall be necessary for
2 any revision of this constitution or any part of it to be
3 proposed by the Commission.
4 CHAIRMAN DOUGLASS: Commissioner Connor on your
5 amendment.
6 COMMISSIONER CONNOR: Mr. Chairman, I had mentioned
7 60 percent. Commissioner Barnett was amenable to
8 two-thirds, which is the current language but which would
9 still have the effect of eliminating the majority
10 requirement of the members appointed by each of the
11 various appointing authorities. And the point for my
12 purposes, and which Commissioner Barnett was agreeable to
13 was that I felt the super majority requirement, and
14 frankly, the higher the better as far as I was concerned,
15 was an important safety valve to have before tax proposals
16 were put on the ballot for a vote by the public.
17 CHAIRMAN DOUGLASS: All right. As I understand your
18 amendment as presented was not what you stated, but it
19 would now be --
20 COMMISSIONER CONNOR: Two-thirds.
21 CHAIRMAN DOUGLASS: You would delete Section C still;
22 is that correct?
23 COMMISSIONER CONNOR: All we would delete,
24 Mr. Chairman, all we delete are the provisions that relate
|
