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1 STATE OF FLORIDA
CONSTITUTION REVISION COMMISSION
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COMMISSION MEETING
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DATE: January 15, 1998
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TIME: Commenced at 8:30 a.m.
11 Concluded at 6:30 p.m.
12 PLACE: The Senate Chamber
The Capitol
13 Tallahassee, Florida
14 REPORTED BY: KRISTEN L. BENTLEY
JULIE L. DOHERTY, RPR
15 MONA L. WHIDDON
Court Reporters
16 Division of Administrative Hearings
The DeSoto Building
17 1230 Apalachee Parkway
Tallahassee, Florida
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1 APPEARANCES
2 W. DEXTER DOUGLASS, CHAIRMAN
3 CARLOS ALFONSO (EXCUSED)
CLARENCE E. ANTHONY
4 ANTONIO L. ARGIZ (EXCUSED - PM SESSION)
JUDGE THOMAS H. BARKDULL, JR.
5 MARTHA WALTERS BARNETT (EXCUSED)
PAT BARTON
6 ROBERT M. BROCHIN
THE HONORABLE ROBERT A. BUTTERWORTH (ABSENT - AM SESSION)
7 KEN CONNOR
CHRIS CORR
8 SENATOR ANDER CRENSHAW
VALERIE EVANS (EXCUSED - PM SESSION)
9 MARILYN EVANS-JONES
BARBARA WILLIAMS FORD-COATES
10 ELLEN CATSMAN FREIDIN
PAUL HAWKES (ABSENT - AM SESSION)
11 WILLIAM CLAY HENDERSON
THE HONORABLE TONI JENNINGS
12 THE HONORABLE GERALD KOGAN
DICK LANGLEY
13 JOHN F. LOWNDES
STANLEY MARSHALL
14 JACINTA MATHIS
JON LESTER MILLS
15 FRANK MORSANI
ROBERT LOWRY NABORS
16 CARLOS PLANAS (EXCUSED - PM SESSION)
JUDITH BYRNE RILEY
17 KATHERINE FERNANDEZ RUNDLE
SENATOR JIM SCOTT (EXCUSED)
18 H. T. SMITH
ALAN C. SUNDBERG
19 JAMES HAROLD THOMPSON
PAUL WEST (EXCUSED)
20 JUDGE GERALD T. WETHERINGTON (EXCUSED)
STEPHEN NEAL ZACK (EXCUSED)
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IRA H. LEESFIELD (EXCUSED)
22 LYRA BLIZZARD LOGAN (EXCUSED)
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1 PROCEEDINGS
2 (Quorum taken and recorded electronically.)
3 SECRETARY BLANTON: All unauthorized visitors, please
4 leave the chamber. All commissioners, indicate your
5 presence; all commissioners, indicate your presence.
6 CHAIRMAN DOUGLASS: We need everybody to check in
7 here.
8 SECRETARY BLANTON: Quorum call, quorum call, all
9 commissioners indicate your presence. A quorum present,
10 Mr. Chairman.
11 CHAIRMAN DOUGLASS: If you will come to order,
12 please. Everybody take your seats and come to order,
13 please.
14 Will the commissioners please rise for the opening
15 prayer given this morning by Reverend Penny Hunt, minister
16 assistant at the Unity of Tallahassee Church, Reverend
17 Hunt.
18 REVEREND HUNT: Commissioners, I'd like to take this
19 opportunity to thank you for inviting me here today. We
20 send along words of encouragement and blessing for the
21 important work being done here today.
22 Would you please join me now in the moment of prayer.
23 As we close our eyes and take in a deep breath, blow it
24 out and relax and just for a moment set aside the worries
25 or concerns of the day. Begin appreciating a close
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1 friend, smelling your favorite flower, seeing majestic
2 colors in the sky at sunset.
3 And with this deep sense of gratitude, we pray, sweet
4 heavenly spirit, the creator of all life, we come together
5 now as one body, one mind, one heart. We give thanks in
6 advance that today, through your loving guidance, great
7 work will be accomplished here. As these commissioners
8 for the people function as a winning team, exploring and
9 sharing ideas and opinions, arriving at just and fair
10 conclusions based on a win/win principle, like the sounds
11 of different musical instruments coming together forming a
12 melody of humanity and bringing harmony right now into
13 this room, into Tallahassee and this great state of
14 Florida.
15 This we affirm in the name and nature through the
16 power of the living, loving spirit of truth, abiding
17 within us all. Amen.
18 CHAIRMAN DOUGLASS: Thank you very much, Reverend
19 Hunt.
20 This morning the pledge of allegiance will be led by
21 students from Raa Middle School who are going to act as
22 our pages today. If you would come forward please, those
23 of you in the back of the room, and we will identify you
24 after the pledge. Come stand up front so that you can
25 lead this group in the pledge of allegiance to the flag.
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1 We are very happy to have these students here. They
2 are Ann Moffit, Bry Byrd, Casey Blanton, Crystal Moore,
3 Ashley Davis, Greg Horne, Jane Donaldson, Dominic
4 Esposito, Kiana Ferguson, Mary Wood, Katie Gammon and
5 their advisor is Cathy Corder. If you would lead us in
6 the pledge of allegiance to the flag.
7 (Pledge of allegiance.)
8 CHAIRMAN DOUGLASS: Thank you, young men and women.
9 We are delighted to have you with us and we hope you will
10 be able to join us the full day. The Reverend Hunt said
11 we needed to be like an orchestra and so on. Let's not
12 have anybody off-key today and beating the drum at the
13 wrong time and then we will move along a lot quicker.
14 We are a little shorthanded today. We are going to
15 proceed. I don't know how we can deal with this
16 attendance matter, Commissioner Barkdull. People drift in
17 and out of the room, they don't show up on Monday and
18 Tuesday, they are here and Thursday and Friday and this
19 sort of thing. Is there any way that the Rules Committee
20 could perhaps address some way that we could entice people
21 to be here on these sessions?
22 COMMISSIONER BARKDULL: I'll welcome any suggestions
23 that members can make. It has been a problem. We did not
24 have a legislative committee meeting, I understand,
25 yesterday because there was no quorum present. We
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1 obviously are pretty shorthanded this morning.
2 I just don't think it is fair to the people of
3 Florida and your appointing authorities for people not to
4 be here, but I'm really talking to those that are absent.
5 Most of the ones, as I look around, are here pretty
6 steadily.
7 I don't know, Mr. Chairman. We'll have to keep
8 trying to get them here because surely it is the people's
9 business and they should be.
10 CHAIRMAN DOUGLASS: Well, of course, there are
11 unavoidable things that happen, we all know that, such as
12 Commissioner Sundberg's very unfortunate situation and
13 some others that I'm sure are equally justifiable.
14 But one of the things that is noticed by the Chair is
15 some people come in, stay a few minutes, leave, come back
16 and then we have to take up something that they weren't
17 here to be on. And I don't think we should have to do
18 that. If you are here, you ought to be able to stay in
19 the chamber when we are in session. So I would ask all of
20 you to please cooperate.
21 I know the ones of you that are here are always here.
22 I look around and I see pretty much the same faces and I
23 may be talking on television, I hope, to some of the
24 people that aren't here, and I won't identify them, but I
25 think they can be identified as the ones who are
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1 constantly not here.
2 We now have one very loyal person who is a member who
3 was an alternate, Commissioner Barton. I don't think she
4 has missed anything and we are delighted with that.
5 Commissioner Barkdull, you may proceed, please, as
6 the chairman of the rules.
7 COMMISSIONER BARKDULL: Thank you, Mr. Chairman, and
8 members of the commission. You have on your desk a purple
9 packet. This supplants the orange and the blue and the
10 white that you had been using the previous days this week.
11 You can either retain those for your personal file, if you
12 want to, or discard them. But everything that's on
13 special order today, except some items that may not have
14 been engrossed yet, are in this purple packet.
15 Those that were considered by committees and had
16 amendments and so forth late yesterday may appear on the
17 calendar as if received. And throughout the day, we
18 anticipate that those, engrossing the amendments will take
19 place and there will be a supplement as they come in or as
20 we reach the items on the calendar. If they are not
21 available, of course, we will move to TP them hopefully
22 for just later on in the day.
23 Some announcements. As we indicated yesterday, the
24 Declaration of Rights Committee is scheduled to meet this
25 afternoon at 6:15 in Room 309. The Article V select
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1 committee on costs is scheduled to meet today upon
2 conclusion of today's session and we will have to announce
3 a room. They are also scheduled to meet on Monday,
4 January 26 at 9:00 and the room will be announced. And
5 also, as we previously announced, the Finance and Tax
6 Committee will meet on Tuesday, January 27, in the late
7 afternoon, with the room to be announced.
8 The calendar indicates that lunch will be provided
9 today. That is not correct. You will be on your own for
10 lunch, and that's at the request of some members that
11 desire to eat in other facilities than the lounge because
12 of today being Thursday. They have something that's
13 special they want to find.
14 CHAIRMAN DOUGLASS: Something special on Thursday,
15 that's a new day for me.
16 COMMISSIONER BARKDULL: Well I understand that
17 somebody fries up some pretty good chicken.
18 CHAIRMAN DOUGLASS: Chicken in the cafeteria, okay.
19 COMMISSIONER BARKDULL: I want to remind you again
20 that we have the opportunity to withdraw proposals at the
21 end of the session. The proposed calendar for today is on
22 your desk and I'd make a motion that it be approved and
23 that we proceed with it.
24 CHAIRMAN DOUGLASS: All right. There is a motion
25 that we approve the calendar that has been provided by the
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1 Rules Committee. Without objection, it is adopted.
2 Proceed, Commissioner Barkdull.
3 COMMISSIONER BARKDULL: That concludes the report.
4 We can commence special order.
5 CHAIRMAN DOUGLASS: All right. The first item on the
6 special order today is committee substitute for Proposal
7 170 by Commissioner Mills. I don't know how it was
8 reported out but, Commissioner Mills?
9 COMMISSIONER MILLS: Mr. Chairman, Commissioner
10 Anthony is chairman of the committee out of which this
11 came; he is not here yet. He had an amendment he wanted
12 to ensure that was offered and I'd prefer to defer it
13 until he is here.
14 CHAIRMAN DOUGLASS: I don't think he is going to be
15 here today.
16 COMMISSIONER MILLS: Well --
17 CHAIRMAN DOUGLASS: Have you got the amendment?
18 COMMISSIONER MILLS: No. Mr. Chairman, while I'm up
19 I'd like to say among the great things about this
20 commission has been how many good things and how many
21 major issues we have undertaken this week. I'd like to
22 take this opportunity to compliment you and the members of
23 the commission that have done -- I, as presiding officer,
24 sat through 600 special order calendars, I think, you
25 know.
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1 CHAIRMAN DOUGLASS: Probably more than that.
2 COMMISSIONER MILLS: Probably more than that. And in
3 three days of special order calendars, we have undertaken
4 more weighty issues with fair debate than many of us who
5 were presiding officers for a lot of years have seen. So
6 I think those that are looking at this commission need to
7 respect both the debate and the concern and the ability
8 that you have been able to keep this group together
9 through all that.
10 Having said that, this one is not ready for prime
11 time. And I also will show my bona fides by saying the
12 next one you get to this morning I'm going to withdraw.
13 CHAIRMAN DOUGLASS: Commissioner Mills, you are
14 really moving this special order. That's pretty good.
15 Maybe that's why we are doing so well. I appreciate those
16 comments and I'm sure the commission does as well. And I
17 can respond to that by saying that my job has been made
18 very easy by the quality of the debate. Some of the
19 people here that you have heard and I have heard are just
20 outstanding in their concise presentations.
21 I was teasing Commissioner Smith last night that he
22 is so eloquent and yet short that we are going to assign
23 him -- I don't mean in stature, I mean in length of his
24 speeches -- we are going to assign him as the head of all
25 of our speeches that we make outside the chamber. I think
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1 we would all agree with that.
2 And I also see that our Commissioner Sundberg has
3 returned. And, Commissioner Sundberg, you need to know
4 that everybody connected with the commission has been with
5 you in thought and in prayer and spirit in this very
6 difficult time for you. And we know it was a great
7 sacrifice for you to even be here, and we really
8 appreciate it.
9 And if you have anything you'd like to report on your
10 situation, we would certainly be, like to hear it.
11 (Off-the-record comment.)
12 CHAIRMAN DOUGLASS: Okay. Well we really do
13 appreciate you making the effort. And you need to know
14 that we are all with you and your family.
15 Now, Commissioner Mills, you have moved to
16 temporarily pass Proposal 170. Without objection, it will
17 be temporarily passed.
18 We now will move to Proposal 174 by Commissioner
19 Sundberg. Would you read it, please?
20 READING CLERK: Proposal 174, a proposal to create
21 Article IV, Section 14, Florida Constitution; providing
22 for a public utilities commission established by the
23 Legislature to be an executive agency that exercises
24 quasi-legislative and quasi-judicial powers.
25 CHAIRMAN DOUGLASS: Commissioner Sundberg, we start
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1 you right off upon your return. If you would like to TP
2 it until you get your wits together.
3 COMMISSIONER SUNDBERG: I'm lost.
4 CHAIRMAN DOUGLASS: Okay. Without objection, we will
5 TP this until later in the session this morning, or this
6 afternoon.
7 Proposal 2 is also by Commissioner Sundberg, which
8 you may want to do the same thing with, sir?
9 COMMISSIONER SUNDBERG: Yes.
10 CHAIRMAN DOUGLASS: All right. Proposal 2 is
11 temporarily passed.
12 I think, Commissioner Freidin, that makes you next up
13 with Proposal No. 11. Would you read that, please?
14 READING CLERK: Proposal 11, a proposal to revise
15 Article I, Section 2, Florida Constitution; providing that
16 persons may not be deprived of their rights because of
17 gender.
18 COMMISSIONER FREIDIN: Mr. Chairman, I actually, I
19 hate to do this because I know where, that you are trying
20 to move things along, but I notice that the vice-chair of
21 the Declaration of Rights Committee is not here yet. I
22 know that he wants to be involved in the debate on this
23 issue.
24 Actually, he had made a suggestion to me about a
25 possible amendment that might resolve some of his concerns
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1 and I have given that some thought and wanted to talk to
2 him about it. If you would entertain a motion to TP it
3 only until he gets here and I can chat with him for a
4 minute, I would appreciate it.
5 CHAIRMAN DOUGLASS: If you don't like his amendment,
6 we ought to go ahead.
7 (Laughter.)
8 COMMISSIONER FREIDIN: Well I don't want him to come
9 back at me later.
10 CHAIRMAN DOUGLASS: Without objection, it will be
11 temporarily passed. Okay. Commissioner Freidin, Proposal
12 86, would you read it, please?
13 READING CLERK: Proposal 86, a proposal to create
14 Article I, Section 26, Florida Constitution; guaranteeing
15 equal rights of women and men throughout the state.
16 CHAIRMAN DOUGLASS: Commissioner Freidin.
17 COMMISSIONER FREIDIN: It is really the same subject
18 and I'd also move to TP that.
19 CHAIRMAN DOUGLASS: Without objection, that's TP'd.
20 All right. Proposal 104 by Commissioner Evans. Would you
21 read the proposal, please?
22 READING CLERK: Proposal 104, a proposal to revise
23 Article I, Florida Constitution; adding Section 26 to
24 provide for parents' rights to direct the education of
25 their children and to provide that the State has a
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1 compelling interest in punishing child abuse.
2 CHAIRMAN DOUGLASS: You are recognized -- was this
3 reported out of the committee on Declaration of Rights?
4 How was it reported out, Mr. Chairman?
5 (Off-the-record comment.)
6 CHAIRMAN DOUGLASS: Turn the mike on so I can hear
7 you.
8 COMMISSIONER SMITH: Unfavorably, I think five to
9 four.
10 CHAIRMAN DOUGLASS: All right. You may proceed,
11 Commissioner Evans.
12 COMMISSIONER EVANS: Not all rights are created
13 equal. There are legal rights, fundamental rights and
14 absolute rights, not to mention marry -- entitlements and
15 privileges.
16 Different kinds of rights are afforded different
17 levels of judicial protection. The greatest protection is
18 given to absolute rights but there are very few rights
19 that are absolute. The freedom of belief is one such
20 absolute right, while the right to act in accordance with
21 one's beliefs is only a fundamental right. One may have
22 an absolute right to believe in human sacrifice, but the
23 right to carry out that belief is more limited.
24 Fundamental rights' analysis under American law is
25 applied both to the specific liberties listed in the First
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1 Amendment to the United States Constitution, that is
2 speech, religious conduct, association, press and petition
3 for redress of grievances, and certain other rights which
4 are fundamental to our way of life. These include the
5 right to marry, bear children, and direct the education of
6 one's child.
7 There are rights that are not fundamental, such as
8 the right to own property or engage in business. These
9 rights, unlike the fundamental rights that I just listed,
10 may be regulated by the State so long as the state's
11 regulations are rationally directed toward some legitimate
12 interest. Thus, for example, the State is free to tax
13 some businesses and not others, so long as the State's
14 purpose in doing so is legitimate and rational.
15 Parental rights have been repeatedly mentioned by the
16 United States Supreme Court. The Fourteenth Amendment has
17 been interpreted to protect, as a liberty interest, the
18 very nature of family life. Parental rights have been
19 held to be federal civil rights, superseding any state law
20 to the contrary.
21 The U.S. Supreme Court held in Parm versus J.R. in
22 1979 that so deeply embedded in our traditions is the
23 principle that parents speak for their minor children that
24 the Constitution itself may compel a state to respect it.
25 Thus, for example, in Pierce versus Society of
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1 Sisters in 1925, the Supreme Court struck down laws
2 banning private schools in Oregon, holding that the rights
3 of parents who desire to send their children to school are
4 the very essence of personal liberty and freedom.
5 The parental right to guide one's child is a most
6 substantial part of the liberty and freedom of the parent.
7 The parental rights are fundamental rights -- that
8 parental rights are fundamental rights has been recognized
9 by unbroken history and tradition. In Parm versus J.R. in
10 1979, Chief Justice Warren Burger wrote for the majority,
11 Our jurisprudence historically has reflected western
12 civilization concepts of the family as a unit with broad
13 parental authority over minor children. Our cases have
14 consistently followed that course.
15 Our constitutional system long ago registered any
16 notion that a child is the mere creature of the State and,
17 on the contrary, asserted that parents generally have the
18 right, coupled with the high duty, to recognize and
19 prepare their children for additional obligations.
20 The law's concept of the family rests on a
21 presumption that parents possess what a child lacks in
22 maturity, experience and capacity for judgment required
23 for making life's difficult decisions. More important,
24 historically, it has recognized that natural bonds of
25 affectation lead parents to act in the best interests of
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1 their children.
2 Chief Justice Burger continued, As with so many other
3 legal presumptions, experience and reality may rebut what
4 the law accepts as a starting point. The incident of
5 child neglect and abuse cases attest to this. That some
6 parents may at times be acting against the interests of
7 their children creates a basis for caution but it is
8 hardly a reason to discard wholesale those pages of human
9 experience that teach that parents generally do act in the
10 child's best interest.
11 The status notion that governmental powers should
12 supersede parental authority in all cases because some
13 parents abuse and neglect children is repugnant to
14 American tradition. And again, those are the words of
15 Chief Justice Warren Burger.
16 The Ninth Amendment to the U.S. Constitution provides
17 a solid textual basis for the protection of those rights
18 which reach back to time immemorial. The Ninth Amendment
19 says, The enumeration in the Constitution of certain
20 rights shall not be construed to deny or disparage others
21 retained by the people.
22 And indeed this same language is located in Article
23 I, Section 1, of the Florida Constitution. And I quote
24 that, that section, That enunciation herein of certain
25 rights shall not be construed to deny or impair others
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1 retained by the people.
2 Parental rights are exactly the kind of unenumerated
3 rights which the Ninth Amendment was designed to cover.
4 It is undeniable that parental rights were strongly
5 protected at common law. Blackstone writes that the most
6 universal relation in nature is that between parent and
7 child.
8 The United States Supreme Court in Griswald versus
9 Connecticut in 1965 interpreted the Ninth Amendment to
10 protect the natural order and prerogatives of the family.
11 Thus both history and human nature demonstrate that
12 parental rights are fundamental in the truest sense.
13 Foundational to society itself.
14 The Ninth Amendment incorporates this liberty into
15 the Bill of Rights, applicable to the states through the
16 due process and equal protection clauses of the Fourteenth
17 Amendment. And obviously, applicable to Florida through
18 that way and additionally through our own express
19 provision in Article I, Section 1.
20 Now, if the fact that parental rights are fundamental
21 is so obviously expressed and provided both in federal and
22 Florida law, why then do we need this amendment? It is
23 because state courts at every level and lower federal
24 courts are more and more elevating the power of the state
25 to supersede the wisdom of the parents.
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1 These courts need to be reminded unequivocally that
2 the standard of review for fundamental rights, which they
3 must apply, is the compelling interest test also know as
4 the strict scrutiny standard. That is, the court must
5 require the state to prove that its regulation and
6 infringement of parental rights is essential and that it
7 is the least restrictive means of fulfilling the state's
8 compelling interest.
9 I'll give you a few examples of what happens when
10 other courts ignore the United States Supreme Court.
11 Excuse me a minute. I wasn't quite expecting the eighth
12 on the list to be up first.
13 CHAIRMAN DOUGLASS: The last shall be first.
14 COMMISSIONER EVANS: Right. Okay. In Pennsylvania,
15 1996, on March 19th, 59 sixth graders in Pennsylvania's
16 East Stroudsburg Area School District were forced to strip
17 to their underwear and submit to a full genital
18 examination, including digital penetration. Many of these
19 11-year-old girls objected to the exam and asked
20 permission to call their parents. School officials
21 ridiculed the students, calling them babies, and refusing
22 to allow them to contact their parents. A nurse blockaded
23 the door preventing the girls from leaving. The exam left
24 many of the children devastated and feeling violated.
25 School officials defended their actions by arguing
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1 that they sent notices to the parents; however, the
2 notices never indicated that a gynecological exam would be
3 performed. At least one parent objected in writing to the
4 exam, but her child, who is now experiencing nightmares
5 from the incident, was forced to strip and submit to the
6 examination.
7 CHAIRMAN DOUGLASS: Commissioner, I hate to interrupt
8 you, but I don't believe this is germane to your proposal,
9 unless you can relate it in some way.
10 COMMISSIONER EVANS: I will be relating it.
11 CHAIRMAN DOUGLASS: I think your graphic descriptions
12 probably are not helping your cause here, as it relates to
13 the proposed amendment. I just suggest that, I won't call
14 you out of order, however.
15 COMMISSIONER EVANS: Thank you. The point being is
16 an attitude that is becoming pervasive in our society.
17 And the pediatrician summed up the school's position by
18 saying that even a parent doesn't have a right to say what
19 is appropriate for a physician to do when conducting an
20 exam.
21 In that light, I could give you much more explicit
22 details of things that are going on in the name of sex
23 education and how parents are not allowed and courts do
24 not allow them to have any say-so in what goes on. I
25 won't give those details, in light of that comment, in the
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1 First Circuit case 1995 in Chelmsford, Massachusetts, but
2 these details, which are even worse than the ones that I
3 just said, the Court of Appeals, Federal Court of Appeals
4 held that the parents' rights were not violated because
5 the actions were not sufficiently conscience shocking.
6 And I wish I could give you those details; I do find them
7 shocking. I guess I could read them if the court says
8 they are not though.
9 In 1980, the Supreme Court in Washington, the State
10 Supreme Court, ruled that it was not a violation of
11 constitutional parents' rights to remove a child from the
12 home because she objected to her parents' reasonable
13 rules. The parents had grounded their eighth grade
14 daughter because she wanted to smoke marijuana and sleep
15 with her boyfriend.
16 The Supreme Court found that it was reasonably within
17 the lower court's jurisdiction to remove the girl from her
18 family home. No strict standard was applied. The
19 parents' rights were completely terminated for simply
20 grounding their daughter to stop her from using illegal
21 drugs and engaging in elicit sex.
22 Now another issue that parents are concerned about is
23 directing the education of their children. There are two
24 companion cases in the state of Michigan in 1993. And one
25 of them, the DeJon [phonetic] case, the Michigan Supreme
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1 Court held that parents who home educate their children
2 due to their religious convictions have a fundamental
3 right protected by the First Amendment.
4 However, in the companion case, Bennett, a family
5 challenged the same law that the DeJon family challenged,
6 and the Supreme Court said that they did not have the
7 right to direct the education of their children because
8 they were not Christian. So the strict standard scrutiny
9 applied to the Christian parents but did not apply to the
10 secular parents. In other words, parental rights of
11 religious parents are protected but parental rights of
12 secular parents are not.
13 In another vein, Second Circuit 1996, parents
14 objected on moral grounds to a mandatory community service
15 graduation requirement and the court held that they did
16 not have the fundamental right to direct the education of
17 their children because their moral concerns were purely
18 secular, and not religious in nature.
19 Going to the medical side of the question, we have
20 the highest court in New York ruling in 1972 that a
21 15-year-old boy, Kevin, who had elephant man disease,
22 which caused a large fold of skin to grow over the right
23 side of his face, his mother wanted him to wait until he
24 turned 21 before permitting any surgery. The doctors
25 testified that the surgery was very risky, offered no cure
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1 and said that waiting would decrease, not increase, the
2 risk.
3 Even so, the judge overruled the mother's objections,
4 declared Kevin a neglected child, and ordered the series
5 of operations.
6 Now what about in Florida? Obviously the trend is
7 toward eroding parental rights in the country and we see
8 the same thing in Florida. Our basic liberties are most
9 vulnerable when the government's intentions are most
10 benevolent.
11 The Fourth Amendment, the search and seizure
12 amendment, protects the home.
13 CHAIRMAN DOUGLASS: Commissioner, Barkdull, do you
14 rise?
15 COMMISSIONER BARKDULL: Yes, to ask Commissioner
16 Evans a question.
17 CHAIRMAN DOUGLASS: All right.
18 COMMISSIONER BARKDULL: Commissioner Evans, how much
19 longer do you anticipate this presentation will take?
20 COMMISSIONER EVANS: If you are suggesting that
21 perhaps what I'm saying is not worthy of listening to, we
22 can take the vote right now.
23 COMMISSIONER BARKDULL: That's not what I am
24 suggesting. The reason I am asking, making the inquiry is
25 there are several members on the floor that have indicated
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1 they may make a motion to limit debate and before that was
2 done, I asked them to give me the opportunity to make an
3 inquiry of you of how much longer you expected it to go.
4 COMMISSIONER EVANS: I didn't time myself. I don't
5 know how long other people will take either. I might take
6 five more minutes.
7 COMMISSIONER BARKDULL: All right, thank you.
8 COMMISSIONER EVANS: I will give an explanation. In
9 the Declaration of Rights Committee, there were some
10 people who did not understand all of these standards and I
11 felt it incumbent to explain that since not everyone is an
12 attorney and perhaps since not everyone operates in the
13 realm of constitutional law, I felt it necessary, based on
14 other questions, just to educate along those standards
15 because it is critical to this amendment.
16 And I'm sorry that there are certain people in here
17 who are offended by that.
18 CHAIRMAN DOUGLASS: Commissioner Evans, no one is
19 offended by your proposal or your comments. The issue
20 that was raised by those who raised it is the length of
21 them, because they far exceed what others have used on
22 other subjects. Certainly, I think, if you want to
23 influence people you should try to make it a little more
24 succinct, but we are very happy to listen to everything
25 you have got to say; nobody is offended by what you say.
25
1 I suggested to you that some of the things might be
2 better said someplace other than on the floor, and you
3 honored that. And I think what is being asked is that you
4 try to wind up as succinctly as you could, not anything
5 about what you are saying.
6 COMMISSIONER EVANS: Yes. And I do hope that the
7 commission is equally concerned when we get to some other
8 issues that will take a great deal of time on the other
9 side of the coin.
10 Okay. The Fourth Amendment. Social workers in
11 Florida generally believe that the Fourth Amendment does
12 not apply to them. On the basis of an anonymous tip, and
13 absent exigent circumstances, they can show up at your
14 door, and they do, demanding entrance. If the parent
15 refuses, they will go back, get a police officer, come
16 back and demand entrance.
17 So the parent is now faced with a very difficult
18 choice; you either let them in, and make informal
19 statements to the social worker, raising the risk of
20 subsequent criminal conviction, or you refuse to talk,
21 even when the social worker tells you and threatens to
22 take away the child unless you cooperate. Parents are
23 faced with a Hobson's choice; give up their constitutional
24 rights or the children. And very few insist on their
25 rights.
26
1 They insist that the Fourth Amendment search and
2 seizure laws do not apply to them because they cannot find
3 a judge to issue a search warrant. Senate committee
4 hearings were held recently here in Florida on this issue.
5 One circuit judge said that his circuit provided the duty
6 judges with beepers and telephones so that they would be
7 available at all hours to issue all kinds of search
8 warrants. I suspect that this is true in all circuits.
9 We all heard the poignant accounts of the destruction
10 of families in Florida caused by the unlawful taking of
11 children by the State. We must send a strong message that
12 these unlawful takings must stop. Politically-inspired
13 intrusions into family life must be limited for two
14 reasons. First, Florida's families must be protected from
15 popular passions and passing fads.
16 Outcomes-based education is all the rage in
17 educational circles now. We saw it yesterday in our
18 Education Committee meetings and the Goals 2000
19 presentation.
20 I attended a three-day seminar in Orlando last
21 January called World Class Academy. The Academy in
22 central Florida is dedicated to training 1,000 business
23 people in 1,000 days into the tenets of outcomes-based
24 education. It may be the rage, but it should not override
25 the parents' right to direct the education of their child.
27
1 Especially when so many of the previous educational fads
2 have been discarded in the dust heap of history.
3 Second, families must be protected from those who see
4 the next generation as a means of power. The hand that
5 rocks the cradle rules the world is an accurate statement
6 of politics.
7 Now, medical care in Florida. This amendment will
8 change nothing in Florida regarding medical care for minor
9 children. Currently if doctors believe that a blood
10 transfusion is necessary to save the life of a child, all
11 the doctors have to do is take their case to a judge, they
12 get an immediate hearing that day, they present their
13 evidence that they have a compelling interest in saving
14 the life of this child and that the blood transfusion is
15 the least restrictive means of saving that child's life
16 and they will win on the hearing, the child gets the blood
17 transfusion. So this amendment is adding nothing new to
18 the existing law.
19 Now the concern expressed in the committee of course
20 is what does this amendment do to the T.W. case, parental
21 consent to a minor child's abortion. Now I don't desire,
22 at all, to rehash yesterday. That's why I wanted
23 yesterday's to come before mine. That's not what this
24 amendment is about. The purpose of this amendment is not
25 to give us a second bite at that apple.
28
1 But I did go back and spend a great deal more time in
2 study and reflection and I believe that I have a more
3 definitive answer than I had at the committee meeting.
4 The answer is that that amendment does nothing to the T.W.
5 holding.
6 The relevant facts of that case are as follows:
7 First, the court knew that the privacy clause contained a
8 no express standard of review. The court used history to
9 determine that privacy was a fundamental right, and it
10 applied the compelling interest standard.
11 Secondly, the court stated that it recognized that an
12 individual's interest in preserving the family unit in
13 raising children is fundamental. However, the court chose
14 to apply a lower standard of review stating that the
15 State's interest in protecting minors and in preserving
16 family unity are worthy objectives, but that Florida does
17 not recognize these two interests as being sufficiently
18 compelling to justify a parental consent requirement.
19 Knowing that the people of the state of Florida
20 incorporated the Ninth Amendment into Article I, Section
21 1, of our Constitution, and knowing that because parental
22 rights are federal civil rights thereby superseding any
23 state law to the contrary, the majority still reduced
24 parental rights to worthy objectives.
25 Thirdly, the court knew that the T.W. case should
29
1 have been decided legally on the disability of nonage,
2 including the inability to contract. The dissent pointed
3 this out. The court knew that Section 23 did not remove
4 the disability of nonage.
5 CHAIRMAN DOUGLASS: Commissioner Barkdull.
6 COMMISSIONER BARKDULL: Mr. Chairman, this is the
7 first time I have done this since we have been in the
8 session, but I'm going to do it today. Our rules say ten
9 minutes. The speaker has gone over that. I'm going to
10 call a point of order. She will have five minutes to
11 close on the debate, in addition to the time that's
12 already been used.
13 CHAIRMAN DOUGLASS: The point of order is well taken.
14 You have five minutes to close when we complete the
15 debate. Who wants to be recognized on the proposal?
16 Commissioner Smith.
17 COMMISSIONER SMITH: Mr. Chairman, are we giving each
18 of the members a certain amount of time?
19 CHAIRMAN DOUGLASS: No, the rules say that you get
20 ten minutes to debate. We haven't really enforced that,
21 we haven't really had to, because nobody has done it.
22 COMMISSIONER SMITH: Can I give her my time?
23 CHAIRMAN DOUGLASS: If we are going to get into a
24 hassle on this, proceed. I'll rule the other way, I'll
25 say we won't enforce the rules.
30
1 COMMISSIONER SMITH: No, it's just that I believe
2 that we need to try to continue, as you have been doing,
3 Mr. Chair, fostering the collegiality with regard to these
4 very tough issues. And I think that with regard to about
5 four or five issues yesterday, no one said a word. We
6 said, we have enough information, and we voted. And I
7 think the collegiality of this body is much more important
8 than a strict enforcement of the rules. And I implore you
9 to allow her to speak.
10 CHAIRMAN DOUGLASS: Well I'll certainly not enforce
11 the rules. Everybody be seated. Proceed.
12 COMMISSIONER EVANS: And I do believe it will be less
13 than five, but thank you, Commissioner Smith.
14 Okay. The court knew that Section 23 did not remove
15 the disability of nonage, there is no language that so
16 states. The court knew that the principles of Roe vs.
17 Wade did not remove the disability of nonage and that
18 Section 23 effectively codified Roe vs. Wade. The court
19 knew that absent an enabling statute, a minor does not
20 have the capacity to consent to an abortion because of the
21 common law and long-recognized disability of minors
22 because of nonage.
23 The court knew that Section 743.065 of the Florida
24 Statutes, 1987, provided for certain circumstances whereby
25 an unwed pregnant minor and an unwed minor mother could
31
1 consent to certain medical or surgical care or services,
2 but that the Legislature expressly and intentionally left
3 out abortion decisions. The court knew that the Florida
4 Constitution recognizes the disability of nonage in
5 Article III, Section 11-a-17.
6 And in spite of all this knowledge, the majority
7 decided to remove the disability of nonage judicially.
8 Now, this amendment, as I said, changes none of that
9 because this amendment merely codifies everything that we
10 already have. What will happen, I suspect, if this
11 amendment passes is that nothing will happen as far as the
12 T.W. case is concerned. At least nothing will happen
13 until the very nature of the court is changed, if that
14 happens.
15 Now has that changed? I don't know. You'll have to
16 take a look at the world view of the Supreme Court members
17 as they are now, compared to what they were in the T.W.
18 case. I can't tell you what that might be when the court
19 changes again in another five or ten years.
20 But when you have got the court having no historical
21 or legal basis to support the decision, basically the
22 decision turns on the moral, religious or political
23 beliefs of the court. And that's what I mean by the world
24 view.
25 So I'm not going to stand here and say and predict
32
1 what certain justices might do. I think you can analyze
2 that yourselves. But my position is that all of the
3 information contained in this amendment was 100 percent
4 available to the court in the T.W. case and therefore this
5 amendment will change nothing.
6 So if you are inclined to vote for this amendment but
7 for the possible harm to T.W., I submit that that is not
8 an issue. In the meantime, don't allow further erosion to
9 all other areas of parental rights. And I sincerely
10 appreciate you giving me the time to educate the
11 nonlawyers on the scrutiny standards and the levels of
12 rights. Thank you very much.
13 CHAIRMAN DOUGLASS: Thank you, Commissioner Evans.
14 Commissioner Brochin.
15 COMMISSIONER BROCHIN: I have a question.
16 CHAIRMAN DOUGLASS: Yes. Yield to a question? She
17 yields.
18 COMMISSIONER EVANS: Yes, very gratefully.
19 COMMISSIONER BROCHIN: First of all, I appreciate you
20 bringing to the floor issues that deal with the education
21 of Florida's children. I find that to be one of the most
22 significant areas that we can discuss here. And I
23 appreciate, although not agreeing with, I appreciate very
24 much your comments and presentation.
25 Your proposal, does it confer the fundamental right
33
1 on the parents or on the children?
2 COMMISSIONER EVANS: I'm not sure that I understand
3 your question. The fundamental right is that parents have
4 the right to direct the upbringing of their children.
5 This has been since the parent-child relationship began.
6 COMMISSIONER BROCHIN: So the fundamental right
7 created by your amendment would go to the parents of the
8 children?
9 COMMISSIONER EVANS: I guess the answer is yes. But
10 it is not created by this amendment, it was before this
11 country was created that this right existed. It is
12 putting it into our Constitution expressly what has always
13 been a part of Florida and U.S. law and natural law well
14 before that, that parents have the right. I don't
15 understand how the child could have the right to expect
16 their parents to do it. Is that what you mean?
17 COMMISSIONER BROCHIN: No, it was actually a little
18 bit simpler than that. I wanted to understand whose
19 fundamental right was being conferred here with this
20 amendment.
21 COMMISSIONER EVANS: Parents.
22 COMMISSIONER BROCHIN: And I understand it to be the
23 parents. And you commented that parental rights have been
24 eroded by the state courts and I assume vis-a-vis
25 education. I have found precious little actually reported
34
1 decisions in Florida about education at all. But I wonder
2 do you know of any that the courts in this state have
3 actually eroded any rights vis-a-vis education and
4 parental rights to guide that education?
5 COMMISSIONER EVANS: As far as the courts are
6 concerned I don't know of additional cases that made it up
7 to the appellate level so that you could research that
8 issue. And the hope is that we won't have to be faced
9 with that because we have got this expressed, even though
10 we have had it eroded in other areas.
11 Now I can tell you an example of cases where parents
12 have approached the schools, the schools have turned them
13 down in getting rid of whatever it is that they are
14 disagreeing with, whether it be taking outcomes-based
15 education tests or being forced into special programs that
16 they did not want their children put into.
17 I mean, I can -- being a home school mom, I get calls
18 like this all the time. My name somehow got on the
19 Internet as being a person to call about home school
20 questions. And they call me all the time saying, How can
21 I fight the schools? How can I get my child out of, say,
22 an IDEA program? How can I do this? I didn't know what I
23 was signing, they didn't send me any explanation. They
24 didn't have face-to-face conferences, like the law
25 requires.
35
1 So, you know, there are situations where the State,
2 through the schools, are pulling parents away from their
3 children and parents are objecting. And so the legal
4 recourse needs to be clear or the standard, rather, needs
5 to be clear. This is a standard, not --
6 COMMISSIONER BROCHIN: So the strict scrutiny
7 standard that would be created by the amendment would go
8 to protect the parents' right from interference.
9 COMMISSIONER EVANS: From the State, uh-huh.
10 CHAIRMAN DOUGLASS: Any further debate? Commissioner
11 Connor.
12 COMMISSIONER CONNOR: Mr. Chairman, I rise to support
13 the proposed amendment. Ladies and gentlemen, let me
14 suggest to you that under the Federal Constitution, the
15 United States Supreme Court has recognized the right of
16 parents and guardians to direct the upbringing and
17 education of their children under their control.
18 The staff analysis cites to Myers versus Nebraska and
19 the Pierce versus Society of Sisters. And specifically in
20 the Pierce case, the court there struck down an act which
21 it deemed, and it was an act that had to do with
22 education, which it deemed, and I quote, "to unreasonably
23 interfere with the liberty of parents and guardians to
24 direct the upbringing and education of children under
25 their control."
36
1 And the court went on to make this observation, which
2 I believe that each of you would agree with, I certainly
3 hope so. "The child is not the mere creature of the
4 State. Those who nurture him and direct his destiny have
5 the right, coupled with the high duty, to recognize and
6 prepare him for additional obligations."
7 Now ladies and gentlemen, as popular as that
8 perspective may be, I would submit to you, it is not
9 shared by everyone. And it is not shared by everyone in
10 government.
11 I'll never forget a number of years ago having been
12 appointed by Governor Bob Martinez to serve on the
13 Governor's Constituency for Children. And I'll never
14 forget during our initial orientation session of that
15 body, the new appointees were asked if they would share
16 their perspective about children's issues.
17 I made the observation during my remarks that I felt
18 very strongly that parents were the people who knew their
19 children most and loved them -- who knew their children
20 best and loved them most, and that they really ought to be
21 accorded a presumption by government of good faith and
22 correctness in the rearing of their children.
23 You would have thought that I had brought the house
24 down. Now there was much hue and cry and the statements
25 were made largely by representatives of the Department of
37
1 Health and Rehabilitative Services. Oh, Mr. Connor, you
2 don't understand, most parents aren't really qualified to
3 raise their children, and if we had a cause of action for
4 parental malpractice in this state, the courts would be
5 flooded with lawsuits by children who were suing their
6 parents for malpractice.
7 Now, ladies and gentlemen, that's something that
8 happened. In 1994, I had occasion to participate, along
9 with Senator Crenshaw and others, in a gubernatorial
10 campaign. As I went around the state, I found that the
11 agency most criticized by the people of the state of
12 Florida, in my experience, was the Department of HRS. And
13 the repeated refrain had to do with interference by the
14 HRS with parents in the rearing and upbringing of their
15 children.
16 And I heard, and I guarantee you Senator Crenshaw
17 heard and everybody who participated in that campaign
18 heard, case after case after case where parents lamented
19 the intrusion of government into that relationship, the
20 second-guessing of government by, into that relationship,
21 and the dispossessing of fundamental rights of due process
22 and the right to confront your accuser and all other kinds
23 of problems that were incidental to the way in which the
24 Department of HRS has gone about discharging its
25 responsibilities in the state.
38
1 Your question, Commissioner Brochin, was, Is this a
2 right of parents? Indeed it is a right of parents. And I
3 would submit to you it is a right of parents for the
4 benefit of the children. Children are not creatures of
5 the State. As the court said eloquently, those who
6 nurture him and direct his destiny have the right, coupled
7 with the high duty, to recognize and prepare him for
8 additional obligations.
9 Without a doubt, the State maintains a compelling
10 interest in the investigation, prosecution and punishment
11 of child abuse and neglect. Unquestionably the state has
12 a compelling interest. And this is a classic example
13 where we seek to arrive at a balancing of the interests
14 that are at stake. And it is a very, very delicate
15 balance in that respect.
16 I would submit to you though, ladies and gentlemen,
17 that when we effectively, through government, substitute
18 government as the surrogate of the child, or when we
19 adultify the child, in other words, when we turn children
20 into little adults, we make them vulnerable to all manner
21 of exploitation by big adults.
22 We have no precious -- we have no resource more
23 precious than our children. And I would submit to you
24 that children have no resource more precious than their
25 parents. We are seeing the breakdown of the family, we
39
1 are seeing how that plays out in our society in terms of
2 the breakdown of society; the rise of violence, the
3 breakdown of social norms, a host of problems. The family
4 historically has been the primary mediating institution
5 for the transmission of values and the civilizing of our
6 society.
7 I would suggest to you, for those of you who may have
8 the unexpressed concern about the issue that Commissioner
9 Evans has raised about, what about the impact on T.W.? I
10 would suggest to you that what she said is exactly
11 accurate.
12 But further I would suggest to you that in view of
13 our discussion yesterday in which this body expressly
14 rejected the parent consent proposal that went to the
15 issue of abortion and medical treatment, I would suggest
16 to you that that would seal it for any reviewing court
17 about whether or not this proposal would have the effect
18 of reversing the T.W. decision. You have made it clear,
19 to my chagrin and consternation, that you didn't want that
20 to be the case. That record is abundantly clear.
21 But I do think we would do well, we would do well for
22 parents and we would do well for children, to adopt this
23 very positive amendment and to assure the protection of
24 parents, which indeed I would suggest to you are natural
25 rights, government having been ordained to secure those
40
1 rights, not to confer those rights because what government
2 can give, government can take away.
3 And we have seen increasingly the notion in our
4 society and in this state that children are the creatures
5 of the State, that the professionals know best and parents
6 that have a subordinate role in many respects are just to
7 be tolerated.
8 I urge your passage of this very important amendment.
9 Thank you.
10 CHAIRMAN DOUGLASS: Any further debate? You may
11 close, Commissioner Evans.
12 COMMISSIONER EVANS: I feel that I have closed.
13 Thank you.
14 CHAIRMAN DOUGLASS: Ready to vote? Unlock the
15 machine, take the vote.
16 (Vote taken and recorded electronically.)
17 CHAIRMAN DOUGLASS: Lock the machine and announce the
18 vote.
19 READING CLERK: Ten yeas and 18 nays, Mr. Chairman.
20 CHAIRMAN DOUGLASS: All right. Commissioner
21 Sundberg, I believe you wanted to be recognized to move to
22 withdraw one of the proposals that's on the special order.
23 COMMISSIONER SUNDBERG: Thank you, Mr. Chairman. I
24 should like to withdraw Proposal No. 174. I understand
25 that the Governor's general counsel, J. Hardin Peterson,
41
1 had an opportunity to address the committee regarding this
2 proposal and it was rejected. And I certainly am not
3 nearly as eloquent as Mr. J. Hardin Peterson. So I'll
4 withdraw it.
5 CHAIRMAN DOUGLASS: Without objection, it is
6 withdrawn.
7 Commissioner Henderson.
8 COMMISSIONER HENDERSON: Mr. Chairman, I want to
9 apologize to Commissioner Sundberg for not zealously
10 coming to the defense of the Governor's general counsel
11 and to you. In fact, I was taken to the woodshed
12 afterwards and was prepared to wholeheartedly support the
13 proposal today, even though I voted against it in
14 committee.
15 COMMISSIONER SUNDBERG: That may make three of us
16 then.
17 CHAIRMAN DOUGLASS: I don't know where the woodshed
18 was, but there have been some occasions you probably
19 should have been there before, Commissioner Henderson.
20 COMMISSIONER EVANS-JONES: I too was on that
21 committee and am prepared to speak for it, if Commissioner
22 Sundberg wants to continue.
23 CHAIRMAN DOUGLASS: Keep going, you are going to get
24 four or five votes.
25 Do you want to withdraw it or you want to take it up?
42
1 We can take it up right now if you would like.
2 COMMISSIONER SUNDBERG: If there are others,
3 obviously, who want to speak to it and vote for it, I will
4 defer to that and not withdraw. As I say, I have nothing
5 to add to J. Hardin's proposal. If there is anyone who
6 would like to add to it, please do. I know we have lots
7 of things to move on this agenda.
8 CHAIRMAN DOUGLASS: Let's go ahead and take this up
9 and dispose of it. If you would just present it and the
10 reason for it, and then others who are involved can
11 present the other reason and then we can proceed with it.
12 Or you can yield to Commissioner Henderson who is prepared
13 to do that.
14 COMMISSIONER SUNDBERG: Do you wish to speak to it,
15 Commissioner?
16 COMMISSIONER HENDERSON: Yes.
17 COMMISSIONER SUNDBERG: Thank you.
18 CHAIRMAN DOUGLASS: Commissioner Henderson, you are
19 recognized.
20 We are on Proposal No. 174, would you read it,
21 please?
22 READING CLERK: Proposal 174, a proposal to create
23 Article IV, Section 14, Florida Constitution; providing
24 for a public utilities commission established by the
25 Legislature to be an executive agency that exercises
43
1 quasi-legislative and quasi-judicial powers.
2 CHAIRMAN DOUGLASS: Now Commissioner Henderson.
3 COMMISSIONER HENDERSON: Thank you, Mr. Chairman, and
4 Commissioner Sundberg. To give this issue a fair hearing,
5 because I think that it is one of those issues if you look
6 back at how the Constitution Revision Commissions of the
7 past have dealt with the Public Service Commission, it has
8 been a big issue so we will give it a couple minutes.
9 There was -- what we now have as the Public Service
10 Commission grew out of the legislatively-created old
11 Railroad Utilities Commission. And at the time of the
12 adoption of the 1968 Constitution, there was an assumption
13 that the PSC was operating as an executive agency. And in
14 fact, when you look at what the PSC does, it basically
15 sets rates. And it is acting in a regulatory capacity and
16 an executive capacity. It is in some respects similar to
17 the Game Commission. It operates -- although the Game
18 Commission operates as an independent constitutional
19 commission.
20 When the 25 department cap came into effect with the
21 '68 Constitution, the issue was whether or not the Public
22 Service Commission was within that or without that. And
23 the way the -- there were a series of decisions from the
24 Supreme Court, they were not directly on point but it
25 really came out in dicta, and indeed I think even in the
44
1 footnote, that indicated that the Public Service
2 Commission was not an executive agency but was in fact an
3 agency of the legislative branch of government. And it
4 was actually backdoored in at that point.
5 I think there was an original discussion by the court
6 that, well, it is not an executive agency therefore it
7 must be something else. And then in a, in dicta in a
8 later opinion, the Supreme Court listed agencies that were
9 subject to the Legislature and included the Public Service
10 Commission as one of those.
11 That's true even though, for instance, the Public
12 Service Commission operates under the rules of procedure
13 of the Administrative Procedures Act, like all other
14 executive agencies.
15 The proposal has come about because of a tension, you
16 might say, between the executive branch and the
17 legislative branch over the appointments to the Public
18 Service Commission. Through a statutory scheme that is
19 very complicated, there is a mix of appointments made by
20 the Legislature and made by the Governor to the PSC.
21 You know, in the past, the Public Service Commission
22 was elected and a subsequent change has now allowed that
23 to be appointed by the Governor. So the proposal in its
24 purest form is probably something that makes sense. I
25 mean, in the scheme of things, the Public Service
45
1 Commission as we see it and we know it is operating as or
2 should operate as an executive agency, but it is not.
3 So that's the -- that is the proposal. I think that
4 a lot of discussion in the committee to give, to tell you
5 about the discussion before the committee was a question
6 of whether or not the system is actually working. And
7 there is a difference of opinion on that. Some people
8 think, well, it is working as a Public Service Commission,
9 people have their day in court, the rates and the system
10 by which they are set appear to be fair.
11 And what has caused the tension is the actual
12 appointment process, making this a little bit political.
13 But that was the discussion of this issue and I'm prepared
14 to say, Mr. Chairman, mea culpa, mea culpa, I should have
15 supported it in the committee.
16 CHAIRMAN DOUGLASS: Commissioner Morsani.
17 COMMISSIONER MORSANI: Well, I'm not sure whether my
18 friend on the left is for or against it, but anyway.
19 CHAIRMAN DOUGLASS: We have that problem with him
20 from time to time.
21 (Laughter.)
22 COMMISSIONER MORSANI: If that's not a
23 fence-straddle, I'm not sure what one is.
24 CHAIRMAN DOUGLASS: One thing we would agree, you are
25 not a fence straddler.
46
1 COMMISSIONER MORSANI: No, I'm afraid you know where
2 I stand.
3 As the vice-chairman of the committee and now that
4 the committee chairman is not here I need to also say why.
5 And I think as we really look at the issue, it has nothing
6 to do with the Public Service Commission, it has to do
7 with personalities.
8 And that it is working, it didn't seem like there was
9 a justification for changing the current system, even
10 though under the way we like to run things we like to have
11 executive authority and they feel like these people are
12 not elected, therefore, elected officials should be making
13 the decisions and not a Public Service Commission that's
14 appointed, and all those things.
15 So I think the committee was right, I do not think we
16 should attempt to change it, and I do not think that it
17 should be part of the Constitution Revision Commission to
18 do at this time. I think the Legislature, in its wisdom,
19 and the Governor, if they, down the road, if they want to
20 handle this matter -- so far they haven't chosen to, I
21 don't think it is a real -- you have got to be careful
22 about this word and I'm probably not going to use the
23 proper words, but I don't think it is paramount to the
24 citizens of this state to have this on our agenda.
25 And I think the committee was right and I would
47
1 encourage you to vote against the proposal, as we did in
2 the committee.
3 CHAIRMAN DOUGLASS: Any further questions?
4 Commissioner Evans-Jones.
5 COMMISSIONER EVANS-JONES: I did vote against it in
6 committee too, and I also had a bill which was voted down
7 which would be for an elected Public Service Commission.
8 And I have decided that that may not be the best way to
9 go.
10 So I do think perhaps we would have more
11 accountability if it were under the executive branch. And
12 I don't know how many people in here know the name of a
13 single Public Service Commissioner; a few, a few. You
14 certainly, yes, you would, Madam President, I mean,
15 Ms. Commissioner.
16 But I think that it is worth thinking about. And we
17 have spent a great deal of time talking and thinking about
18 trying to make someone truly accountable. And if we put
19 it under the executive branch and let the Governor be in
20 charge, it might not be a bad idea.
21 CHAIRMAN DOUGLASS: Commissioner Sundberg.
22 COMMISSIONER SUNDBERG: In favor of the amendment of
23 the proposal. It does -- the current system, because it
24 has -- is deemed to be, and I, you know, larger mea culpa,
25 I'm sure I was a party to some of those decisions that
48
1 said, yes, it's legislative in nature, as opposed to
2 executive. And we tend to perpetuate our mistakes.
3 That's one thing about the judiciary, you know.
4 CHAIRMAN DOUGLASS: But you write them down.
5 COMMISSIONER SUNDBERG: Right, exactly.
6 But it has, in my judgment, it has, the system, and
7 we have some former members -- and I speak not to the
8 personalities of the members of the nominating commission,
9 but that is the process by which the appointments are
10 made. And the Governor is limited in his or her ability
11 to make appointments to the commission by these nominating
12 commissions who operate.
13 There has been significant litigation -- it was
14 significant because I was involved in it -- but over this
15 very issue of to what extent the executive is bound. I
16 think that it makes a lot more sense -- this is not a
17 matter of great philosophical import. It doesn't rise to
18 the dignity of equal rights and due process.
19 But amongst those issues of just trying to fix things
20 that need to be fixed, and I'll urge upon this group at
21 some point in time that we have sort of an omnibus
22 provision that fixes things that need to be fixing, I
23 think this is one of the things that need to be fixed so I
24 join with the good company that has spoken here today, and
25 even J. Hardin Peterson, and urge upon you the passage of
49
1 this amendment. Thank you.
2 CHAIRMAN DOUGLASS: Anybody else? Commissioner
3 Jennings.
4 COMMISSIONER JENNINGS: Commissioner Thompson and I
5 are over here sort of wrestling with this. And
6 Commissioner Langley will remember and Commissioner Mills
7 will remember, I was trying to think back when the elected
8 Public Service Commission went to an appointed. And it
9 was either -- was it '78, Dick? Either '77 or '78.
10 Because I was in the House, so I know.
11 CHAIRMAN DOUGLASS: I think it was '78, I believe.
12 COMMISSIONER JENNINGS: We voted on it about every
13 time we were there.
14 CHAIRMAN DOUGLASS: We voted on it in the '78
15 Revision Commission.
16 COMMISSIONER JENNINGS: Did you?
17 CHAIRMAN DOUGLASS: Yes.
18 COMMISSIONER JENNINGS: And I guess I rise just for
19 points of information, and my legislative colleagues may
20 be able to assist here, because the memory starts to grow
21 dim after awhile.
22 But based on that, we easily could have this process
23 for at least 20 years. So many of you would have known no
24 other process, except some of us who have been here, those
25 of us who have been in Florida for a long time. And I
50
1 remember the debate vividly about the issue of going from
2 elected to appointed. And those of us who feel strongly
3 about citizens' ability to have input were very torn about
4 leaving an elected system, as we continue to be, as we
5 talk about judges, as we talk about the Cabinet and
6 Cabinet positions.
7 And the nominating counsel, or commission, became
8 sort of the halfway point that we weren't moving it
9 entirely -- we were moving it away from the electorate,
10 but we weren't just carte blanche giving it to the
11 executive branch. And maybe that was really just the
12 Legislature trying to rationalize why we were going in
13 this direction, but we weren't ready to just go all the
14 way. So we held on to this nominating commission process.
15 And correct me if I'm wrong. I mean, that's how I
16 remember back to it. It was sort of us saying, okay, here
17 it is, but you only sort of got it halfway.
18 And through the years, that nominating commission has
19 been an interesting animal out there. I served on it,
20 perhaps some of my other legislative colleagues have
21 served on it. I now am in the posture as the president of
22 the Senate, I appoint members to it, as does the Speaker
23 of the House, as we go through this.
24 And Justice Sundberg is correct, that we have even
25 had some legal battles over those nominees, because, in
51
1 fact, as there are vacancies, names are sent forward. And
2 was it last year or the year before, there was some
3 discussion about lumping two incumbents into one grouping
4 and that the Governor could not appoint both of those
5 incumbents because they were in a grouping over here, and
6 there was a challenge to that.
7 So we have sort of wrestled around with the process.
8 And I rise to share this with you, more just a point of
9 information. As I look at this, I'm probably going to
10 vote to retain the system, only because I haven't
11 really -- this is a terrible thing to say in public, I
12 guess, I haven't thought through it all the way to the end
13 to say maybe is this where we need to be. But I wanted to
14 share that information with you as to why this system was
15 developed.
16 If you were one of those, and Senator Crenshaw was
17 probably there too, or maybe he had left at that point --
18 or Commissioner Crenshaw. As we look back over those 20
19 years, it's at least served us with the fact that, with
20 all of the cumbersome nature of it, we have had some
21 excellent, generally excellent Public Service
22 commissioners. And that the Public Service Commission has
23 been able to do its job as far as a regulatory structure
24 for the state of Florida.
25 So I didn't really rise to speak in favor or in
52
1 opposition, I was sort of shaking out my memory.
2 CHAIRMAN DOUGLASS: Institutional knowledge and
3 historical background.
4 COMMISSIONER JENNINGS: And once we go past 20 years,
5 we are getting pretty shaky on the memory, too. Thank
6 you.
7 CHAIRMAN DOUGLASS: Commissioner Jennings, thank you
8 very much. Commissioner Nabors.
9 COMMISSIONER NABORS: I wanted to ask Mr. --
10 Commissioner Sundberg a question.
11 COMMISSIONER SUNDBERG: A friendly question?
12 COMMISSIONER NABORS: Yes, I think it is. It is a
13 question to try to seek real world information.
14 I served on the nominating commission I think for
15 about six years; once I was appointed by the commission,
16 and once I think by the House. And as I recall the case
17 law in this area is that the court has construed it to be
18 a legislative branch primarily because it's involved in
19 the setting of rates and rates is traditionally a
20 legislative function.
21 And so because of that, because it has rate-making
22 power, it was considered a legislative function. And then
23 the controversy arises, since it is a legislative function
24 as to what power the Governor has in terms of
25 appointments.
53
1 If that's factually correct, as I understand what
2 this would do basically would be to allow the Governor to
3 make, or whatever the executive appointing body would be,
4 probably the Governor, to make the appointments unfettered
5 by any interference by the legislative. Is that the
6 intent of that? I'm trying to understand what the
7 ramification would be on the appointment process.
8 COMMISSIONER SUNDBERG: The ramifications are just as
9 you have indicated. I wouldn't style it or refer to it as
10 interference by a commission. But yes, it would lead the
11 executive. And you are right, that's why the court
12 concluded that the PSC is in the legislative branch
13 because traditionally rates have been set by the
14 legislature. I mean, directly.
15 But that's not terribly persuasive because it used to
16 be the Legislature also used to grant, was the only body
17 that could grant divorces some years ago. But the
18 judiciary does that sort of thing now. But what has --
19 the premise is that, yes, you know, the Governor or
20 whatever the executive, the Governor is the appointing
21 person or authority now, simply by statute. Presumably,
22 the Legislature could change that this session, this
23 upcoming session, if they wanted to.
24 But it has been not only cumbersome, but to go
25 back -- and my recollection is the same as Commissioner
54
1 Jennings', that this was sort of a compromise to have this
2 commission intervening in the appointed process because
3 you were going away from a pure elected process. And I
4 certainly am in favor of an appointed process.
5 But the Chairman asked how many people here knew who
6 was on the Public Service Commission. And I would ask the
7 question, how many people know who are on the nominating
8 commission who nominates, apart from Commissioner Jennings
9 who is the font of all knowledge, information, and history
10 on the commission.
11 So, I'm not sure that it accomplished what was
12 intended, that the people have had any great input into
13 the system. And that's certainly more than you wanted to
14 hear.
15 COMMISSIONER NABORS: Could I ask one further
16 question? Would you believe, Mr. Sundberg, based upon my
17 experience of service in the PSC nominating commission for
18 six years, that I think this is an excellent idea?
19 COMMISSIONER SUNDBERG: Deeming that to be a very
20 friendly question, I will respond yes, I did suspect that
21 would be your sentiments, Mr. Nabors.
22 COMMISSIONER NABORS: And would you believe the
23 reason that I feel that way is because I have had the
24 pleasure of serving on nominating commissions in the
25 judicial branch, at the Supreme Court, the trial, and the
55
1 district court level, all of which I found to work very
2 well and to be very effective in terms of narrowing down
3 the candidates for consideration.
4 However, my experience at the PSC nominating
5 commission was exactly the opposite, because, one, so many
6 candidates were sent up that it became a meaningless
7 exercise. And secondly, it was in a -- got to be a
8 contentious process beyond the merits of the candidates
9 that were being placed forward.
10 COMMISSIONER SUNDBERG: And in candor, Mr. Nabors
11 also announces that he was, in his former life, a general
12 counsel to a Governor.
13 CHAIRMAN DOUGLASS: So was I, but that doesn't affect
14 my opinion on this particular matter.
15 All right. Is there any further discussion?
16 I do have a question of you, Commissioner Sundberg,
17 that occurred to me. The court giveth, the court can
18 taketh away. It's my recollection that maybe this idea of
19 it being in the legislative branch came in an advisory
20 opinion.
21 COMMISSIONER SUNDBERG: Which, in fact, as you know,
22 Mr. Chairman, is no opinion of the court at all, it is an
23 opinion of the justices of the court.
24 CHAIRMAN DOUGLASS: My question is, if it were
25 presented to the court again, the issue of separation of
56
1 powers, squarely presented in an adversary position, it is
2 entirely conceivable the court could reach a different
3 result. Is that not true?
4 COMMISSIONER SUNDBERG: Absolutely, and that's the
5 point. They are not even bound -- the advisory opinion
6 has no precedential value.
7 CHAIRMAN DOUGLASS: Is that not also true, the reason
8 that some members of the commission felt that it didn't
9 rise to the level of including it in our revision
10 proposals, because they were still hopeful, those who felt
11 the other way on this, that the court would get a case in
12 which they could make that resolution?
13 COMMISSIONER SUNDBERG: I have no way of knowing if
14 that's what was in their minds or not, Mr. Chairman.
15 CHAIRMAN DOUGLASS: Would you like to close or are we
16 ready to vote?
17 COMMISSIONER SUNDBERG: I have closed.
18 CHAIRMAN DOUGLASS: Unlock the machine.
19 (Vote taken and recorded electronically.)
20 CHAIRMAN DOUGLASS: Announce the vote.
21 READING CLERK: Fifteen yeas and 11 nays,
22 Mr. Chairman.
23 CHAIRMAN DOUGLASS: Well, I guess, Mr. Henderson, if
24 you were ever in the woodshed, you are now out.
25 COMMISSIONER HENDERSON: If you would just report
57
1 that directly to the Governor right now. Thank you.
2 CHAIRMAN DOUGLASS: All right. I would like to, with
3 your permission, if you are ready, Commissioner Freidin --
4 where is Commissioner Freidin?
5 COMMISSIONER FREIDIN: I'm over here.
6 CHAIRMAN DOUGLASS: Are you ready to proceed with
7 Proposal No. 11 or 86? You are not ready?
8 COMMISSIONER FREIDIN: Right.
9 CHAIRMAN DOUGLASS: All right. Commissioner
10 Sundberg, I would presume that you would still need a
11 little time before you got to Proposal No. 2, so I'm going
12 to move to Proposal No. 141 by Commissioner Mathis. Would
13 you read the proposal, please?
14 READING CLERK: Proposal 141, a proposal to revise
15 Article I, Section 16, Florida Constitution; providing
16 that a spouse of a state or county prisoner has a right to
17 conjugal visitation with that prisoner; providing that a
18 person connected by affinity or consanguinity to state or
19 county prisoner has a right of family visitation with that
20 prisoner.
21 CHAIRMAN DOUGLASS: Commissioner Mathis, you are
22 recognized. Do you rise for a purpose, Commissioner
23 Langley?
24 COMMISSIONER LANGLEY: I would like to go to the
25 bathroom.
58
1 CHAIRMAN DOUGLASS: You would like to -- if she will
2 yield.
3 COMMISSIONER MATHIS: No, I will not yield.
4 (Laughter.)
5 CHAIRMAN DOUGLASS: You have to be careful with these
6 older men, Commissioner Mathis. You may proceed.
7 COMMISSIONER MATHIS: Maintaining family values is a
8 goal to this proposal. Allowing for conjugal visitation
9 will allow -- will, I think, help the prison system,
10 because it's been shown that inmates are more likely to
11 have a lower recidivism rate when they are allowed
12 conjugal visitation and inmates are easier to manage when
13 they are allowed conjugal visitation.
14 It's important to note that the largest percentage of
15 inmates that are incarcerated are incarcerated for drug
16 and drug-related violations.
17 I think it's important also to define, what is
18 conjugal visitation. What conjugal visitation does is
19 enable married persons to enjoy being associated with one
20 another, to sympathize together, to confide together, to
21 allow them to create domestic happiness, as well as having
22 intimacies with one another. Strong family ties are so
23 important to the rehabilitative process and have been
24 shown to reduce recidivism and I think are an important
25 goal for our State's Constitution.
59
1 And we have seen that through the public proposals.
2 And I ask that this commission fully consider this
3 proposal.
4 CHAIRMAN DOUGLASS: Thank you, Commissioner Mathis.
5 COMMISSIONER MATHIS: Excuse me, Mr. Chairman, also,
6 I would like to report that it was reported out of
7 committee favorably.
8 CHAIRMAN DOUGLASS: Thank you. That's not on my list
9 as to how this was reported, or I would have announced it.
10 It was favorably reported by the committee on Declaration
11 of Rights. Does anyone else care to speak to this?
12 Commissioner Brochin.
13 COMMISSIONER BROCHIN: Question.
14 CHAIRMAN DOUGLASS: Okay.
15 COMMISSIONER BROCHIN: Commissioner Mathis, can these
16 sort of visits be permitted by law? In other words, does
17 it take a constitutional amendment to permit these sort of
18 visitations?
19 COMMISSIONER MATHIS: We had a request for
20 information from the Department of Corrections, and I must
21 say that I'm not certain of that -- the answer to that
22 particular question. What I am certain of right now is
23 that the Department of Corrections feels like they have
24 the ability to deny visitations for family members, deny
25 conjugal visitations, and also to deny visitations for
60
1 people who might be connected with the inmate by some
2 affinity, strong friendship relationships, fiancee
3 relationships.
4 And in this case, what we are saying here, why we are
5 asking for the constitutional amendment, is to show that
6 we feel like the State has a strong interest in
7 maintaining these family ties for these inmates in
8 allowing for conjugal visitation.
9 COMMISSIONER BROCHIN: One further question. Would
10 this also apply to inmates on death row?
11 COMMISSIONER MATHIS: It's my understanding that this
12 would apply to all inmates.
13 CHAIRMAN DOUGLASS: Commissioner Langley.
14 COMMISSIONER LANGLEY: For a question this time. And
15 as a point of order, Commissioner Mills, the rules
16 chairman and others were in the rest room without
17 permission and I don't think I should be treated any
18 differently. And I don't have a continence problem, as
19 you may, Mr. Chairman, but that's not it at all.
20 CHAIRMAN DOUGLASS: On your motion, I will excuse
21 them, retroactively.
22 COMMISSIONER LANGLEY: Now, if I may, if the sponsor
23 would yield to a serious question. Would this apply to
24 gay relations as well as normal relations?
25 COMMISSIONER MATHIS: It's my understanding that
61
1 conjugal visitation would apply only to married inmates,
2 and that would mean between male and female marriages
3 since --
4 COMMISSIONER LANGLEY: You said in your explanation
5 just now that it would be fiancee as well.
6 COMMISSIONER MATHIS: We are talking about allowing
7 visitation by fiancees, family members, also people who
8 are related by affinity to the inmate, but only allowing
9 conjugal visitation for married inmates.
10 CHAIRMAN DOUGLASS: Thank you. Commissioner Barton.
11 COMMISSIONER BARTON: In the committee, there was
12 somebody from the Department of Corrections who did come
13 and speak to us at one point and raised questions that I
14 think are worth considering, and that is that we may be
15 premature in even discussing this issue, because there's
16 so many questions yet to be asked.
17 One of which was that two thirds, I believe, of our
18 prison population is from South Florida, but two thirds of
19 the prisoners are in North Florida. They would have
20 problems with security, they would have problems with
21 sheer numbers. I have forgotten what the prison
22 population is, but it is a lot. And if everybody was
23 going to have conjugal visits, then we are talking about
24 almost constantly having people come into the prisons for
25 this purpose.
62
1 I would suggest that we don't have enough information
2 to pass this at this time.
3 CHAIRMAN DOUGLASS: Any further questions or
4 discussions?
5 Question, Commissioner Mathis. Was it brought out
6 that this could be accomplished by -- without a
7 constitutional provision and actually be done either by
8 statute or perhaps even by rules and regulations of the
9 prison system?
10 COMMISSIONER MATHIS: One of the limitations that we
11 have faced as a Constitution Revision Commission has been
12 that our focus is strictly the Constitution. While I
13 think there has been some discussion about recommendations
14 that we as a Constitution Revision Commission would make
15 for statutory provisions, nothing like that has been
16 solidified, and I don't think we have provided for that in
17 any of our rules. But if we did, I do think that this
18 proposal would be one that would be -- could be properly
19 dealt with as a statutory provision.
20 And so I would lend the wisdom of this body and ask
21 them as to which they would prefer. But we are limited, I
22 was limited in this proposal as a Constitution revision.
23 CHAIRMAN DOUGLASS: I was also -- was it pointed out
24 in the committee that in the federal prison system,
25 conjugal visits are allowed under regulations by the
63
1 prison authorities? And in some states that's true too,
2 is it not?
3 COMMISSIONER MATHIS: And I respect Commissioner
4 Barton's position, and it was directed at that, it was
5 said that, by the Department of Corrections, that two
6 thirds of the prisoners are from South Florida, while two
7 thirds of the prisoners are housed in North Florida, in my
8 mind, that showed a greater importance for conjugal
9 visitation and allowing for broader visitation. And so,
10 yes, and I must agree with you, the federal prison system
11 does allow this.
12 CHAIRMAN DOUGLASS: All right. Is there any further
13 discussion or questions? If not, we'll proceed to vote.
14 Open the machine.
15 (Vote taken and recorded electronically.)
16 CHAIRMAN DOUGLASS: Lock the machine and record the
17 vote.
18 READING CLERK: Nine yeas and 18 nays, Mr. Chairman.
19 CHAIRMAN DOUGLASS: All right. We'll move to the
20 proposal by Commissioner Mills, No. 171. Would you read
21 it, please? This was disapproved by the committee on
22 Declaration of Rights.
23 READING CLERK: Proposal 171, a proposal to revise
24 Article I, Section 23, Florida Constitution; requiring the
25 State to protect natural persons against nongovernmental
64
1 intrusion for commercial purposes into their lives.
2 CHAIRMAN DOUGLASS: Commissioner Mills, you are
3 popular, everybody is surrounding you there.
4 COMMISSIONER MILLS: They just wanted the microphone.
5 It is my intention to withdraw this. And just a statement
6 for the record, I would ask the commission to allow this
7 to be withdrawn. This was an attempt to follow up on the
8 efforts to draft a provision relating to informational
9 privacy, to protect our citizens against abuses by the
10 private sector.
11 The committee worked very hard on this, and I think
12 it would be a reasonable conclusion to say that to craft
13 language that would be effective, constitutional and
14 practical and put in the Constitution is difficult, if not
15 impossible. Those of you that continue to care about this
16 issue, including myself, will refer the information that
17 we have gathered to the Legislature and continue to work
18 with the industry that I think has been very responsive on
19 this issue. So I would move, Mr. Chairman, that this be
20 withdrawn from further consideration.
21 CHAIRMAN DOUGLASS: All right. There's been a motion
22 that this be withdrawn. Without objection, it is
23 withdrawn.
24 Now, we'll move -- Commissioner Freidin, are you
25 ready yet?
65
1 COMMISSIONER FREIDIN: They are typing up an
2 amendment as we speak.
3 CHAIRMAN DOUGLASS: Okay. We have two. Would you
4 like to take up -- you have two.
5 COMMISSIONER FREIDIN: No, I want to take up No. 11
6 first and then --
7 CHAIRMAN DOUGLASS: We'll do that. Just let me know
8 when you are ready.
9 COMMISSIONER FREIDIN: They are working on it right
10 now.
11 CHAIRMAN DOUGLASS: We are waiting anxiously.
12 COMMISSIONER FREIDIN: I know that. We are working
13 as fast as we can, Mr. Chairman. Thank you.
14 CHAIRMAN DOUGLASS: Great. We will move to Proposal
15 168 by Commissioner Corr. Would you read it, please?
16 READING CLERK: Proposal 168, a proposal to revise
17 Article IV, Section 6, Florida Constitution; providing
18 that an entity purportedly within an executive department,
19 which is not subject to the direct supervision of the
20 agency head is a department.
21 CHAIRMAN DOUGLASS: All right. Commissioner Corr.
22 COMMISSIONER CORR: Thank you, Mr. Chairman. First
23 of all, I want to thank staff for their work on this
24 proposal, especially Deb Kearney. This was an item that
25 came up in our Executive Committee meetings during
66
1 discussions of Cabinet reform.
2 And it's one of those that I think that also meets
3 the criteria Commissioner Sundberg was talking about as
4 one of those items that we need to fix a thing that needs
5 fixing. Maybe this is one of those housekeeping proposals
6 that falls into that same category.
7 CHAIRMAN DOUGLASS: Commissioner Corr, I didn't
8 announce this, but this was approved by the committee on
9 the executive; was it not?
10 COMMISSIONER CORR: Yes, it was. It was approved
11 unanimously. And what it does is it reinforces a
12 provision that was proposed by the '68 Constitution
13 Revision Commission, and later adopted by electors, that
14 was a response to an executive branch at the time that had
15 swelled to about 170 departments. The current
16 Constitution limits the executive branch to 25 departments
17 reporting to the Governor, the Lieutenant Governor, a
18 member of the Cabinet or any agency head that would serve
19 at the pleasure of one of those entities.
20 But over the past 30 years, the number of entities
21 have grown apparently in the executive branch that do not
22 comply with this, at least the intent of the Constitution
23 in this regard. The staff analysis gives an example, the
24 Agency for Health Care Administration, in that case there
25 is an agency head that reports directly to the Governor or
67
1 serves at the pleasure of the Governor, excuse me. And as
2 a result, it would seem that that would mean that it is a
3 department.
4 I have a list, a partial list, of departments
5 currently within the executive branch. It lists 22, and
6 then an additional 5 that are constitutional agencies and
7 another 11 in a partial list that include the Agency for
8 Health Care Administration Agency, the Division of
9 Administrative Hearings, the Florida Commission on Human
10 Relations and it goes on and on.
11 If you look at this partial list, there's about 38
12 total departments in the executive branch today. If you
13 give it the benefit of the doubt and take out the 5
14 constitutional agencies, that would leave 33 at least.
15 And, again, this is a partial list. So this is a
16 housekeeping initiative. I'll entertain questions at this
17 time.
18 CHAIRMAN DOUGLASS: There is an amendment on the
19 table. Would you read the amendment please, amendment by
20 Commissioner Henderson?
21 READING CLERK: By Commissioner Henderson, on Page 1,
22 Line 22, delete the Governor and Cabinet.
23 CHAIRMAN DOUGLASS: Commissioner Henderson, on the
24 amendment.
25 COMMISSIONER HENDERSON: I like the way that sounded.
68
1 Mr. Chairman, before we get -- it is a little different,
2 but it's germane. Before we get into that, if Mr. Nabors
3 had a question of Mr. Corr on the main proposal, which I
4 support, I don't want to detract from that.
5 CHAIRMAN DOUGLASS: All right. You yield to
6 Commissioner Nabors --
7 COMMISSIONER HENDERSON: I do.
8 CHAIRMAN DOUGLASS: -- who wants to direct a question
9 to the sponsor. Commissioner Nabors, is that correct?
10 COMMISSIONER NABORS: I would really like to speak in
11 opposition. It would be hard to frame the comment that I
12 have in terms of a question.
13 CHAIRMAN DOUGLASS: Then we should proceed with the
14 amendment. Commissioner Henderson, would you proceed with
15 your amendment?
16 COMMISSIONER HENDERSON: Thank you, Mr. Chairman. We
17 have had a lot of discussion the last couple days in the
18 Executive Committee about the structure and role of the
19 Cabinet. And it is, as we all know, and the testimony
20 that we have heard through the course of the public
21 hearings, there are some very complex issues there.
22 Clearly, one of the things that we have heard about
23 over and over again was the issue of accountability. So I
24 support the main proposal that Commissioner Corr has
25 brought here, as has been recommended for approval by the
69
1 committee on the executive.
2 You will get later, I don't know if later this week
3 or next time, a different proposal from the Executive
4 Committee which goes to the heart of the changes in the
5 Governor and Cabinet system. One of the things that I
6 think we thought we did, or I would say we certainly
7 wanted to do, and it's not addressed by the main proposal,
8 is the issue of eliminating the Governor and Cabinet as a
9 department head of certain departments. We heard earlier,
10 heard in the course of testimony that there was a
11 significant study of the Cabinet system. I see that
12 Commissioner Evans-Jones and Marshall served on part of
13 this.
14 They made a series of reports or recommendations
15 concerning ways to improve the accountability of the
16 Governor and Cabinet system. One of the first
17 recommendations was that the Governor and Cabinet be
18 eliminated as the department head of individual
19 departments. And if I can read just read this one
20 paragraph, Mr. Chairman, in the recommendation of this
21 report:
22 "The head of each department should be a secretary,
23 appointed by and serving at the pleasure of the Governor,
24 subject to Senate confirmation. Departments reporting to
25 the Governor and Cabinet are problematic for several
70
1 reasons; they consume the Governor's and Cabinet's time on
2 administrative details, they lack a single, identifiable
3 advocate for their function, they are not directly
4 accountable to a single individual. The department should
5 be headed by a Secretary who serves at the pleasure of the
6 Governor and subject to Senate confirmation."
7 CHAIRMAN DOUGLASS: Okay. You heard the amendment.
8 Discussion now or debate on the amendment? Commissioner
9 Mills.
10 COMMISSIONER MILLS: Commissioner Henderson, yield
11 for question?
12 COMMISSIONER HENDERSON: Yes.
13 COMMISSIONER MILLS: How many agencies does this
14 affect?
15 COMMISSIONER HENDERSON: At this point, three.
16 COMMISSIONER MILLS: And which are those?
17 COMMISSIONER HENDERSON: The Department of Revenue,
18 the Department of Law Enforcement, Department of Highway
19 Safety and Motor Vehicles.
20 COMMISSIONER MILLS: Thank you.
21 CHAIRMAN DOUGLASS: Any further debate on the
22 amendment? Commissioner Corr, on the amendment.
23 COMMISSIONER CORR: In favor of the amendment.
24 CHAIRMAN DOUGLASS: In favor of the amendment?
25 COMMISSIONER CORR: Yes, sir. This is a good
71
1 amendment, it makes these agencies, these departments more
2 accountable. I wish I had thought of it. I speak in
3 favor of it.
4 CHAIRMAN DOUGLASS: Okay. Are you ready to vote?
5 All in favor of the amendment say aye; opposed?
6 (Verbal vote taken.)
7 CHAIRMAN DOUGLASS: The amendment is adopted. Now,
8 Commissioner Barkdull.
9 COMMISSIONER BARKDULL: Question of Commissioner
10 Corr.
11 CHAIRMAN DOUGLASS: He yields.
12 COMMISSIONER BARKDULL: Commissioner Corr, if this
13 proposal is adopted, then this will require, because of
14 the 25 limitation, the Legislature to address where they
15 will place, as I understand it, three separate agencies at
16 this point?
17 COMMISSIONER CORR: At least three.
18 COMMISSIONER BARKDULL: At least three, and if they
19 can find some others.
20 COMMISSIONER CORR: That's right.
21 COMMISSIONER BARKDULL: Do you contemplate anything
22 in the schedule to this proposal that would address how
23 those agencies that do not at this time report directly to
24 a department head, how they would be handled in the
25 transition period?
72
1 COMMISSIONER CORR: No, sir, what -- this is
2 attempting to reinforce that existing requirement of 30
3 years ago that was passed by electors, the good business
4 requirement. And rather than to get into the nitty-gritty
5 of where those agencies will end up, we are going to leave
6 that up to the Legislature.
7 COMMISSIONER BARKDULL: Well, would you believe me,
8 sir, that if there is no such provision for transition and
9 the Legislature should do nothing, we have got a lot of
10 litigation sitting there and some very important agencies
11 that would be involved?
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